BISBEE — Attorneys prosecuting and defending the case against a U.S. Border Patrol agent charged with murdering an illegal immigrant near Naco do not plan to argue a motion to dismiss based on Supremacy Clause immunity during an evidentiary hearing on Feb. 25.
Nicholas Corbett is charged with second-degree murder, manslaughter and negligent homicide of Francisco Dominguez-Rivera. He is scheduled to go on trial in U.S. District Court in Tucson in two weeks.
The defense filed a motion Jan. 18 asking Judge David Bury to dismiss the case on the grounds that Corbett was protected by the Supremacy Clause because he was working as a federal law enforcement officer.
“The Supremacy Clause of the U.S. Constitution provides immunity from state prosecution for federal agents who were acting under federal authority and whose actions were necessary and proper to carry out their law enforcement authority,” the motion says.
Prosecutors filed a response to that motion Jan. 26 saying that Supremacy Clause immunity is not applicable in this case.
“Agent Corbett is not entitled Supremacy Clause immunity, because the State of Arizona has established sufficient and overwhelming evidence in this case supporting genuine issues of material fact as to whether agent Corbett’s actions were necessary and proper to the performance of his official duties,” the motion says.
In Tuesday’s filing, Chapman says he and prosecutor Grant Woods request that the Feb. 25 evidentiary hearing not be vacated and that the time allotted be used to litigate other pretrial motions and other motions.
Woods anticipates the hearing will carry over into Feb. 26. Chapman added that he and Woods understand the court will order the trial begin with jury selection on Feb. 27.