Murder in the Desert – Nicholas Corbett Trial – Daily Snapshot

Daily updates on the retrial of Border Patrol Agent Nicholas Corbett

DAY 9 (11/03)

UPDATE – The Jury has recessed for the day. 13 hours total time in deliberations.

The jury got the case at about 1430 on November 30. Deliberations began for about two hours, adjourned, resumed on Friday and adjourned once again until this morning.

the jurors sent a note to Judge David Bury with two requests.

They asked for access to “a scale to weigh something 30 pounds.” The judge denied their request.

The 30-pound figure is significant because that was the weight of the backpack worn by Dominguez-Rivera when he was shot.

The jurors also requested permission to get some magnifying glasses from their cars and bring them inside the jury room. The judge allowed them to do so.

On Friday, the panel had requested a large magnifying glass, and the judge gave them two different types.

It is not clear what the jurors are examining with the magnifying glasses

Let’s hope that is a sign of a just and proper verdict this time around


DAY 7 (10/29)

The “Glove” and other nonsense

Wednesday, the defense continue with it’s rebuttal parading a couple of paid experts in an attempt to justify the unjustifiable.

Like in the OJ Simpson case, there were gloves involved. Discovered at the crime scene weeks after the actual event.

Randy Downer Jr., a private investigator in Tucson retained by the defense, also took the stand in court and testified he went to the scene of the incident with the defense attorneys on Jan. 17 of this year and discovered two gloves on the ground. He collected them into evidence.

The prosecution and defense have stipulated those gloves were worn by the victim. How the hell they figured that out is beyond me.

But I’ve always wondered how Corbett could pin his defense on this pair of gloves as proof positive that Rivera had a rock in his hand.

Richard Watkins, a criminalist who is retired from a position at the city of Phoenix crime lab, explained, but it did not do the defense much good, I don’t believe.

Watkins testified he conducted tests using the wool gloves worn by the victim, Francisco Dominguez-Rivera, as well as 10 rocks that were collected from the area.

During direct-examination by the defense, he explained he put on a glove, gripped each rock in his hand and then examined the rocks with a microscope. In each case, he determined, some amount of fibers from the glove were transferred to the rocks.

But, he added, some activity, such as dropping the rock, could brush off the fibers.

On cross-examination by the prosecution, he also acknowledged rain could wash away the fibers. According to the National Weather Service, it rained 0.04 of an inch that day. Watkins also acknowledged that if a person fell down and touched a rock, some fibers could be transferred even though the person never held the rock.

Watkins also disclosed that the defense paid him $235 per hour for working on this case.

Wendy Adney, a Cochise County Sheriff’s Office detective who investigated the incident  was recalled and acknowledged it is important to collect all pieces of evidence at a crime scene, including the rocks and gloves, and then figure out later if they are relevant to determine guilt or innocence. 

Peter Hermansen Jr., a Border Patrol agent familiar with use of force policy, testified for the defense that Corbett would be justified in shooting Dominguez-Rivera if he were threatened with a rock during a close encounter.

Robert Gilbert, chief patrol agent for the Border Patrol Tucson Sector, and who has made certain uniformed agents are in court each day to add the “intimidation factor”.  testified for the defense that he attended Corbett’s preliminary hearing in Bisbee in August and observed Oscar de la Torre, the Mexican consul in Douglas, make face and hand gestures in order to coach the three eyewitnesses on their testimony. More spin to try to put the Mexican government in the middle of this.

This was rebutted by  Justice of the Peace David Morales, who presided over that hearing, was asked whether or not he had seen any hand gesturing or nodding of the head as way to coach the witnesses, he definitively said that he had not. He went on to say that while the three witnesses were testifying, each of their eyes were downcast, as he describes, “as if they were afraid”.

The Prosecution called their final rebuttal witness  to the stand, Dr. Keen.  Prosecutor Woods led Dr. Keen through Dr. Mason’s (using the words of Judge Bury himself—the old, bald, guy) testimony. Dr. Keen affirmed that he disagreed Mason’s theory about the clothing—as he felt that even a backpack did not offer enough force to pin the clothing all the way in the left armpit, that it had to be a much stronger force, like a hand.  

The prosecution then brought up the issue that Francisco had a lack of dirt on his knees.

At this point photos of the jeans, and the actual jeans were show to the jury. Here is when Woods had his “ah-ha” moment, and it truly was quite the ending.

He admitted into evidence pictures of the back side of Francisco’s jeans, along with a back shot of him during the autopsy.

Francisco’s backside was covered in the same red dirt that is clearly visible in all of the crime scene photos. Without any dirt on the knees—Corbett’s story that he shot Francisco, Francisco turned around, fell to his knees, which Corbett circled around the group, approaching Francisco again, and laid him on his back. Again, without the presence of any dirt on his knees—Dr. Keen explained that this scenario is impossible, as Corbett would have had to move Francisco’s knees out from under him, where inevitably his knees—and even shins, would have been covered in dirt.

As for the three family members account, Francisco was shot as he was in the act of going down to his knees—he had not made it there yet by the time he was shot and killed.

Dr. Keen felt that it was possible that if Francisco was going down, yet being attacked and pulled from behind, that he likely went down on his back or on his side.

Another interesting piece concerning the photo of Francisco during the autopsy is that the picture could only have been shown to the jury after it had been zoomed in away from a visible wound that Francisco had on his back. It is one of those moments that you scratch your head wondering what really goes on behind closed doors.

With this very strong testimony, the prosecution rested its case as well.

The jury was excused, while the lawyers remained to discuss some final legal matters.

Defense Motion For Dismissal – DENIED

A discussion ensued as to whether the case should be dismissed as the investigation of the shooting was argued to be a violation of due process. Both sides argued this point, but ultimately, Judge Bury ruled that the investigation did not, and that did not show signs of being conducted in bad faith.  

The matter addressed was that Woods disclosed that he would be pointing the fact that Chapman stated in his opening that he was going to “enthusiastically read Agent Corbett’s testimony” to the jury, yet he did not. Chapman of course objected to this, and the eventual ruling—or piece of advice rather, that Bury passed on to Woods is that he would allow him to use Chapman’s words against him—but only his words.

The End is near and hopefully, justice for the victims family

Closing arguments are set for this morning, and the jury is expected to start their deliberations around 12pm.

The Defense is expected to rest it’s case today and perhaps the jury will get the case before the day is over and justice will finally be done.



Prosecution Rests, Defense Begins

With more uniformed Border Patrol agents present than normal to increase the intimidation factor, including Sector Chief Gilbert, the prosecution called several final witnesses before resting it’s case Tuesday in the murder trial of Nicholas Corbett. Among them:

John Maciulla, a criminalist for the Arizona Department of Public Safety, who testified he conducted tests on Corbett’s Beretta pistol and the clothing worn by the victim. He said burnt fiber analysis showed the bullet that hit Dominguez-Rivera was fired at a distance of between 3 inches to 12 inches away. Maciulla said he was not paid by the prosecution to testify in this case.

Kelly Flatley, the founder of Bear Naked, a granola company now owned by Kellogg’s, testified Tuesday that Dominguez-Rivera worked at the factory in Connecticut prior to his death. She said he was “ambitious,” “gentle,” “kind” and “calm.” Flatley was granted immunity by the court so that she can’t be prosecuted for admitting that she employed an illegal worker.

And with that, the prosecution rested it’s case.

The Defense presents it’s “bought and paid for” Experts

A medical expert called by the defense said he feels more strongly now than previously that Border Patrol Agent Nicholas Corbett’s version of events resulting in the death of an illegal immigrant from Mexico is consistent with the evidence in the case. More strongly now than in the previous trial?

Richard Mason, a forensic pathologist in Santa Cruz County in California, testified the autopsy results support the defendant’s description of what happened and contradicts the accounts of the eyewitnesses.

He acknowledged during cross-examination by the prosecution that his opinion differs significantly from the testimony he gave at the defendant’s first trial. In March, he testified that it was possible the eyewitness statements were consistent with the evidence. Amazing how these expert whores can change their opinions at will.

Mason also said he is being paid by the defense $450 per hour, plus $2,100 for court testimony. He said the total bill so far was $12,000, but the final amount would be higher.

Mason’s testimony disagrees with statements made in court on Friday by Phillip Keen, a prosecution witness who is the current medical examiner for Yavapai County and former medical examiner for Maricopa County. Dr Keen was also paid by the prosecution for his testimony because the original coroner was unavailable for trial. Keen’s was compensated at the rate of $350 and hour for his court time and preparation. The difference between the Keen and Mason is that, as expected, Keen’s testimony upheld the validity of the autopsy and other forensics by the original medical examiner.

Today begins days 7 of the trial in which the Defense is expected to call it’s remaining few witnesses and rest it’s case. Rebuttal testimony will begin for the Prosecution, and then closing arguments perhaps today or tomorrow and then the case goes to the jury.

Autopsy evidence confirms validity of eyewitness testimony

Eyewitness accounts of the killing of an illegal immigrant are more consistent with the autopsy results than testimony by the defendant, according to a forensics expert for the prosecution.

Phillip Keen, a physician, testified that he reviewed the autopsy photos and an autopsy report written by Guery Flores, as well as testimony from the three eyewitnesses and the defendant.

Keen said the bullet entered in the left armpit area, went downward, traveling from the back of the body toward the front, and came to a rest beneath the surface of the skin on the right side of the abdomen.

Based on the nature of the Dominguez-Rivera’s heart wound and other factors, Keen determined the man was leaning forward at the time he was shot.

Keen explained to jurors that the autopsy findings are only partially consistent and confirmatory with Corbett’s testimony and the defense’s diagrams depicting what happened. On the other hand, he said, the testimony of the three eyewitnesses is consistent and confirmatory with the autopsy results.

Ursula Ritchie, a detective with the Cochise County Sheriff’s Office, testified concerning her on scene investigation and discovery of a shell casing at the rear of the BP vehicle near the victims body

Steve Berg, the first Border Patrol agent to arrive at the incident, testified he was involved in a conversation with Corbett at the scene.

The trial continue Tuesday with the prosecution expected to call one more witness. Defense case is expected to start Wednesday of next week

Prosecution establishes victims character
(Since I am on the road today, I’m going to use an excellent eyewitness account of the days proceedings just to keep the readers up to speed)
Since it is election season…if yesterday’s proceedings were a presidential debate with political pundits galore racing to make the call as to who was the overall winner at the debate’s end—the winner would undoubtedly go to the prosecution…

The morning session started with the dismissal of one of the alternate jurors at her request due to personal reasons. After a few minutes of an intense sidebar, the juror was dismissed and left the courthouse clutching her hands in front of her with tears in her eyes. Jorge Dominguez, Franciso’s older brother, was brought back into the courtroom, followed by the jury, then the judge, and court was called into session. Prosecutor Woods began the morning with some final questions for Jorge before the questioning was given to Defense Attorney Chapman. He asked Jorge what his brother, Rene, and Sandra talked about while in the back a Border Patrol vehicle—to which he responded that, “we were just trying to figure out how we were going to tell our parents that our brother was dead.” Chapman approached the podium to begin his questioning, opening with reminding Jorge how yesterday he testified that his brother had a “peaceful” nature. His next round of questions, clearly aimed at tarnishing Francisco’s reputation, began with Chapman asking Jorge if he knew that Francisco had a tattoo consisting of three dots located on the web of skin connecting the thumb and pointer finger. Jorge responded that he did not. Chapman went on to explain that this type of tattoo is often sported by members of street gang known as “La Vida Loca”, and asked whether he knew that each dot represented, “the gang, the jail, and the morgue.” Jorge again responded that he did not know. Chapman’s line of questioning continued in a similar vein, this time trying to convey that Francisco was the experienced leader, that when things started to go awry, Francisco became frustrated, and not so subtlety Chapman then intimated that this would have been the tipping point within Francisco to push him to the point to attack a man twice his size. Jorge was dismissed from the stand, as the prosecution called their next witness—Francisco’s mother.

Francisco’s mother was lead past the jury box, allowing each juror to take in all of her barely 4’7’’ frame. As she took the witness stand and sat down, she almost disappeared—the monitor for viewing evidence completely obstructing a good view of her. Though there was little hope to view Francisco’s mother’s face as she answered Woods questions, it soon became clear how emotional losing a son must be—then testifying in a court in a completely different country about the character of her son. The courtroom fell even more silent, only the uncomfortable rustling of people in the audience, and a few nervous coughs, could be heard as Francisco’s mother began to cry after Woods asked her what Francisco was like when he lived at home. She managed to answer Wood’s questions, affirming that Francisco was a kind, peaceful, and loving son. Without any cross-examination from Chapman, she was excused, and Francisco’s father was then called to the stand. As he entered the courtroom, two things crossed my mind—one being that he too was of a slight build, barely standing over 5 feet—and the second being that even at that height—he commanded the courtroom’s attention with his presence. He stood straight as an arrow, wearing crisp pants, and walked to the witness stand confidently. He was in the witness box for barely five minutes, just enough time for him to also confirm that his son was dedicated to his work, his brothers, and his family—that he always tried to call him from New York when he could. Judge Bury then called for the lunch recess.

Immediately after lunch, the video of the incident was shown to the jury. It is safe to assume that if this piece of evidence—a video of the facts, was not able to convict Corbett, than the video is inconclusive. Shot from miles and miles away by a surveillance camera on a neighboring mountain top, the video amounts to nothing more than the image of a Border Patrol vehicle in the very far left corner, appearing no bigger than the size of fingertip on the screen. The video does show at least one crucial element of the fatal incident—time. You are indeed able to make out the dark olive green uniform throw open his door, rush around the vehicle to the group of people in just a matter of seconds. This relation of time has always matched the three eye-witness stories—that Corbett ran around the back of the vehicle, grabbing Francisco from behind, striking him on the back of his head, and then shooting him his left armpit. It was not until the defense found out that there was video that Corbett’s story changed from shooting Francisco from a distance—to engaging him in a hand-to-hand combat—Francisco yielding a rock as weapon, Corbett a gun—and that he ultimately shot him in self-defense at close range.

There was little discussion after the video was shown, for which Rene Dominguez—Francisco’s younger brother was called to the witness stand. Prosecutor Woods immediately started the questioning off by asking Rene whether Francisco was a peaceful man, to which he responded—yes. Woods surprisingly then brought up the issue of Francisco’s tattoo (always brought up defense attorney Chapman to this point), by asking Rene if he knew that Francisco had this tattoo. Rene responded yes, and also said that he had the very same tattoo. He went on to explain that Francisco and Rene and two of their best friends growing up decided to tattoo themselves in the 6th grade—still just merely kids. The tattoo they decided on was one they had seen in a movie and that they did not have any idea of its significance, but wanted something to be cool and show others that they were all best friends and a symbol of unity. With this testimony, with this image of four childhood friends—the image of a hardened gang member immediately became ludicrous—and we can only hope it resonated the same way in the minds’ of the jurors. Once Chapman started his cross-examine, it seemed as if he this blow had made an impact on him, his usual badgering style was little a muted—as he questioned Rene on the intricacies of his past testimonies, trying to trip him up and dissuade the jurors of his credibility. Again, it was all but lackluster.

Agent Garrillo took the stand shortly after Rene was dismissed, again only there for a matter of minutes. Garrillo was another one of the first arriving Border Patrol officers on the scene, and also one of whom received a different story from Corbett. Garrillo testified that when he asked Corbett what had happened, Corbett described that he pulled up to the group, got out of his car, saw Francisco with a rock, who then started to “shadow” his movements with the car in between them. This testimony is important for many reasons—as it shows that Corbett did tell varying stories, and that the video completely out rules this story.

The rest of the day’s proceedings followed with the testimony of Sandra Guzman, Rene’s girlfriend. Today’s proceedings will start with further cross-examination from Chapman—which he will undoubtedly continue to ask questions and then refer to past testimonies to show any inadequacies—sometimes splitting hairs to try to show them, but ultimately boring the jury to tears. The trial reconvenes at 9:30…which rumor has it within the halls of the court—we could be in store for more surprise witnesses.

DAY 3 (10/22)

Opening Statements

Special prosecutor Grant Woods said that testimony and evidence will show that U.S. Border Patrol agent Nicholas Corbett is guilty of fatally shooting Francisco Javier Dominguez Rivera.

Prosecutor Woods told jurors in his opening statement in Tucson that the testimony of four Border Patrol agents and three witnesses will show that Agent Nicholas Corbett lied after the January 2007 shooting.

The prosecution contends that Dominguez was surrendering when Corbett shot him without provocation and forensic evidence introduced in the first trial seems to bear witness to this.

The defense as expected, say that Corbett shot in self-defense after Dominguez threatened him with a rock.

Jury Selection

Judge David Bury and the prosecution and defense spent the entire day Tuesday selecting individuals to serve as jurors for the two-week trial.

The jury consists of 12 people, including seven men and five women. There are also two female alternates.

Eight members of the jury panel are from Tucson, two from Oro Valley and one each from Sierra Vista, Safford, Morenci and Tombstone. The group includes two nurses, three employees from large corporations, and the owner of a small construction company, an engineering student and at least four retirees.

Judge Bury instructed the jurors not to discuss the case with anybody. He also told them not to read, watch or listen to any news on the case. He said he will compile all media coverage and share copies with the jurors at the conclusion of the trial.

During voir dire, prospective jurors were asked a series of questions, such as if they know any of the potential witnesses, if they belong to any organizations that promote the rights of immigrants, if they have ever been involved in a criminal case, or if they know anybody with work experience in Border Patrol.

They were also individually questioned on two topics, including whether they had been exposed to any media coverage of the Corbett case, and whether they could be impartial while serving on a trial involving illegal immigration or border issues.

At the end, there were 32 perspective jurors. The prosecution was permitted to strike 6 and the defense 10. Afterwards, each side was allowed to strike or dismiss one alternate. That gave the 14 who will serve during the trial.

Attorneys will give opening statements this morning, and then the prosecution will start to call witnesses and present evidence. Prosecutors should wrap up by Friday, and then the defense should start next Tuesday.

DAY 1 (10/20)

Pretrial Motions

A pretrial hearing was held Monday in U.S. District Court in Tucson Arizon in the retrial of Border Patrol Agent Nicholas Corbett

Corbett is charged with second-degree murder, manslaughter and negligent homicide for shooting and killing an illegal immigrant named Francisco Dominguez-Rivera on Jan. 12, 2007, near Naco Arizona.

Pretrial Motions

Tattoo Evidence

The victim had a tattoo on his hand that is commonly known as La Vida Loca (“the crazy life”).

  • The defense wants to present an expert who would testify that as a result of the tattoo, the victim was violent or aggressive.
  • The Prosecution contends  the tattoo is common among both gang members and Mexican youth in general. The contention is  that Dominguez-Rivera was never a member of a gang, and he was never charged with any crimes in Mexico or the United States.
  • Federal District Judge David Bury said the evidence of the tattoo will be precluded during the trial.
The judge made a similar ruling on the tattoo and good character evidence for the first trial in this case  (Good Call!)
Character of Victim
The prosecution intends to present testimony from the victim’s family members and a former employer regarding his peaceful nature.
The Defense suggests the presentation of evidence of the victim’s good character should allow the defense to explore whether he was a gang member.
The Ruling
Judge Bury said the prosecution can introduce evidence of the peacefulness of the victim, but it may be taking a risk by doing so. He added he would allow the defense to present evidence of the gang membership only if a witness can testify regarding the affiliation.  ( Another reasonable call)
Allegations of drug possession by victim
Defense insinuates that the victim was in possession of an illegal stimulant.
Prosecution contends the tablets were Ibuprofen. The autopsy showed no drugs in the victims body
Judge Bury ruled the defense is not allowed to introduce evidence that the victim possessed a medication that looked similar to a stimulant.
Change of Venue
In June, the defense filed a motion for change of venue of the second trial due to extensive media coverage of this case in particular and immigration issues in general. 
Judge Bury ruled in late July that the trial would remain in Tucson.
On Monday, the defense reinstated its motion for change of venue, citing an article published Sunday in a Tucson newspaper about how illegal immigrants are treated by Border Patrol while in detention.
The prosecution did not take a position on the motion to change the venue.
Judge Bury said he thought the first trial received extensive media coverage, but that did not mean the trial was unfair. He pointed out that only a few prospective jurors had even heard about the case.
He added he would review the article in question abd rule later.
Next up, seating a Jury
Judge Bury plans to call in a pool of 100 people. From that group, a panel of 12 jurors and two alternates will be selected. 
Additional Rulings and Admonishments
Judge Bury advised the prosecution that they would not be permitted to make the same type of opening statement as he did during the first trial.
  • The opening statement will  set forth the facts without creating drama, sympathy or prejudice.
  • The prosecution will not be allowed to show jurors a photo of Dominguez-Rivera, unless it was taken at the scene of the incident.
  • The prosecution can’t make any dramatic statements regarding the emotional loss to the victim’s family
  • The prosecution can’t ask the defendant or other witnesses to say who is paying for the legal defense costs. 
  • The prosecution can’t refer to Corbett as a criminal. 
  • The prosecution can’t suggest that the Border Patrol witnesses don’t want to be in court testifying against Corbett.
Pretrial motions an apparent win for the defense.