TUCSON — The jury selected to hear Border Patrol agent Nicholas Corbett’s murder trial deliberated for nearly eight hours Wednesday before going home for the day without a verdict.
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Corbett is charged with second-degree murder, manslaughter and negligent homicide for fatally shooting Francisco Dominguez-Rivera, a Mexican who was illegally entering the United States last year near Naco. The jury can only convict him on one count.
The jury has asked the court some questions during the deliberation process. For example, on Wednesday morning the jurors asked if they could have access to the transcript of the trial. Judge David Bury contacted Grant Woods, the lead prosecutor, and Sean Chapman, the lead defense attorney. They said they did not want the transcript released because they preferred that the jurors rely upon their memory. The judge agreed.
Corbett claims he shot Dominguez-Rivera out of self-defense to prevent him from smashing his skull with a rock. However, eyewitnesses say Corbett unjustifiably shot Dominguez-Rivera as he was surrendering.
If convicted, Corbett faces a sentence of 10 to 22 years in prison for second-degree murder, seven to 21 years for manslaughter, or four to eight years for negligent homicide. Prosecutors alleged the dangerous nature of the offense since a gun was used and therefore a conviction would require mandatory prison time.
Second-degree murder requires proof beyond a reasonable doubt of one of the following:
• The defendant intentionally caused the death.
• The defendant caused the death by conduct he knew would cause death or serious injury.
• The defendant recklessly engaged in conduct that created a grave risk of death and thereby caused the death under circumstances manifesting extreme indifference to human life.
Manslaughter requires proof beyond a reasonable doubt that the defendant caused the death and was aware of and showed a conscious disregard of a substantial and unjustifiable risk of death, according to the jury instructions. Negligent homicide requires proof beyond a reasonable doubt that the defendant caused the death and failed to recognize a substantial and unjustifiable risk of causing the death.
During closing arguments on Tuesday, Woods explained to jurors the reasons why they should convict Corbett for each of the counts.
He said the case is based upon testimony from three eyewitnesses as well as forensic evidence, autopsy results and a video. He said the eyewitnesses had the same basic story throughout, and they told the truth about what happened.
On the other hand, he said, Corbett told several versions of the incident to Border Patrol officials at the scene and then changed his story for his testimony in court so it would match the evidence.
But Chapman urged the jurors to find Corbett not guilty on all three charges. He said the eyewitnesses fabricated their story. He also said the Mexican government influenced their testimony. He said detectives with the Cochise County Sheriff’s Office conducted a poor investigation and made several mistakes. Detectives failed to collect at the scene gloves that were worn by the victim and failed to separate the witnesses when they were in custody.
There was little activity at the courthouse Wednesday. Members of interested parties stayed in a variety of places nearby as they waited to receive a phone call announcing whether the jury had reached a verdict.
Border Action Network had set up a table featuring candles, photos, flowers and signs outside the courthouse in memory of the victim. The altar was on display each day of the trial since it started on Feb. 26. However, on Monday, staff members with the group were notified by court authorities that their permit was not sufficient because it does not allow for signs to be affixed to permanent structures, said Jennifer Allen, executive director of Border Action Network.
So, on Tuesday and Wednesday, representatives of the group stood outside the courthouse and held signs.
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