TUCSON, Arizona – A U.S. Border Patrol agent on trial for murder was threatened with a rock when he fatally shot an illegal immigrant, his defense told a federal jury, while a prosecutor claimed the man did not provoke the attack.
"The victim was surrendering, going down on his knees, was hit from behind ... and shot through the heart while surrendering," special prosecutor Grant Woods told jurors during opening statements Wednesday.
Woods said that forensic and medical evidence, from ballistics information to the autopsy results, along with the witnesses' testimony and a Border Patrol video would prove that the killing was not justifiable.
Agent Nicholas Corbett is charged with second-degree murder, negligent homicide and manslaughter for the January 2007 shooting near Naco, Arizona. Jurors can convict on only one count.
The defense countered by telling the jury that Corbett was justified when he fired the fatal shot because 22-year-old Francisco Javier Dominguez Rivera of Puebla, Mexico, was threatening to "crush his head with a rock."
Defense lawyer Sean Chapman said Dominguez was angry because he had been caught and Corbett was only doing as he was trained.
He also contended that three other migrants who plan to testify, including the victims' two brothers and the girlfriend of one, lied after being improperly influenced by the Mexican government.
The four migrants were making their way north from the Mexican border when Corbett sped up to them in a patrol vehicle and circled the group before jumping out to take them into custody.
After skidding to a stop, the agent jumped out and ran toward Dominguez, who was starting to kneel, his brother, Jorge Dominguez Rivera, 25, told the jury. He said his brother did not threaten the agent.
Corbett put his gun in his left hand and the weapon fired as he pushed Francisco Dominguez down. "The officer released him and took a step forward and my brother just held himself, said `Ah' and just moaned," then fell onto his back and went into convulsions, Jorge Dominguez said.
Agent Steve Berg testified he heard Corbett calling out for help on the radio and saying that a shooting had taken place. He said he reached the scene less than two minutes later.
There was no sign that the other migrants were angry. Corbett, he testified, appeared shocked and he later overheard him describing how he had been threatened with a rock before the shooting.
Woods suggested that Corbett covered up by lying about the circumstances of the shooting and alleging to other agents that he had been threatened.
The case is unusual because it is being tried in federal court by state prosecutors using Arizona law.
Conviction for second-degree murder could bring a sentence of 10 to 22 years, manslaughter seven to 21 years, negligent homicide four to eight years. A conviction also would bring mandatory prison time because the state has alleged the dangerous nature of the offense since a gun was used.