BISBEE — The case against a Border Patrol agent charged with murdering an illegal immigrant near Naco is expected to go to trial in federal court in Tucson in two weeks.

Corbett

Nicholas Corbett is charged with second-degree murder, manslaughter and negligent homicide of Francisco Dominguez-Rivera. He claims he acted in self defense because the victim was going to throw a rock at him. His two-week trial is scheduled to begin Feb. 26 at 9:30 a.m.

During a hearing on Sept. 24, Judge David C. Bury set the plea deadline date for this past Friday. On Monday, special prosecutor Grant Woods confirmed that Corbett has not entered into a plea agreement.

“No plea. Planning on going to trial,” Woods stated in an e-mail to the Herald/Review.

Sean Chapman, the lead defense attorney, did not respond to an e-mail seeking comment on Monday.

A hearing for the case is scheduled for Feb. 25 at 1:30 p.m. Attorneys will argue for and against a defense motion requesting dismissal of the case due to the Supremacy Clause.

The defense says the clause 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. Prosecutors say immunity is not applicable in this case. They point out Corbett’s version of events conflicts with autopsy findings, ballistics and gunshot residue tests, as well as witness testimony.

On Monday, Woods stated he anticipates the hearing will carry over to Feb. 26. As a result, he imagines the jury selection will start on Feb. 27. He says there should still be enough time to finish the trial by the end of the next week.

According to Michael O’Brien, chief deputy clerk of the Tucson Division of U.S. District Court, a plea deadline is usually set for about two weeks prior to a trial date.

“After the plea deadline, the U.S. Attorney might withdraw a particular plea offer. There is no financial penalty for accepting a plea agreement after the deadline. But a plea offer after the plea deadline might be less generous than the first one,” he said.

Also, two motions regarding the Corbett case were filed in U.S. District Court in Tucson last week.

On Wednesday, Chapman filed a reply to the prosecution’s response to a defense motion seeking to dismiss the case because of destruction of evidence. He says the state failed to preserve exculpatory evidence at the scene.

During a preliminary hearing in August, detectives testified they collected gloves worn by the victim and returned them to the family. Chapman says those gloves could have been used to prove the victim was holding a rock.

Tyrone Mitchell, a prosecutor, says detectives did recover gloves, but the items belonged to a brother of the victim and were returned to the family. He says a pair of gloves that the defense team found at the scene last month actually belonged to the victim.

Chapman says the recently-discovered gloves are now too weathered to do any forensic analysis that could corroborate Corbett’s version of the story.

In Wednesday’s filing, Chapman says “the conduct of the detectives in this case rises beyond mere incompetence to bad faith. The court should dismiss this case.”

Mitchell says any DNA evidence that could have been analyzed to show the victim was wearing the gloves is “immaterial” because the state does not dispute the victim was wearing them. He says the evidence of the gloves is not exculpatory because “any dirt which could have been found would be circumstantial at best.”

But, Chapman notes, “the state argued in its probable cause statement to the judge in support of its case that it was significant that the deceased’s hands were clean — the implication being that Dominguez couldn’t have been holding a rock as Corbett stated. The state further offered testimony on this fact at the preliminary hearing.”

“The state can’t have it both ways. It can’t argue that clean hands show that Corbett is guilty, and also argue that the presence of gloves (which would keep the deceased’s hands clean) is somehow not exculpatory,” he adds.

Mitchell also claims Corbett told agents at the scene that he shot the victim from a distance of at least four to five feet. But, Chapman points out, that fact is incorrect, and as a result the state is wrong to say that Corbett’s statement is inconsistent with the physical and forensic evidence.

“Corbett never spoke with the agents at the scene about the distance the shot was fired from, other than to suggest that the confrontation was essentially close up, with Dominguez trying to assault Corbett with a rock,” Chapman says.

Also, last Tuesday, Mitchell filed a motion asking the court to prevent the defense from introducing evidence regarding a letter of reprimand given to a detective regarding excessive speeding.