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New America Media, News Report, Jody L. Ipsen, Posted: Dec 20, 2008  

Editor's Note: A $7.5 million wrongful-death, civil lawsuit was recently filed against a Border Patrol agent for the fatal shooting of an undocumented immigrant trying to cross into America in 2007. Even after two hung juries, the case points to larger issues in the Border Patrol, the Department of Justice and the Department of Homeland Security. Jody L. Ipsen is a contributor to New America Media who writes covers border and immigration issues from Tucson, Arizona.

TUCSON, Az—After two federal trials resulting in hung juries, the parents of Francisco Javier Dominguez-Rivera have filed a $7.5 million wrongful-death lawsuit against Border Patrol Agent Nicholas W. Corbett, and the government, for a fatal shooting that witnesses say could have been avoided.

Corbett’s history of violence made this case national news, but the lawsuit and Cochise County attorneys say that this case points to larger problems in the Border Patrol, the Department of Justice and the Department of Homeland Security.

On November 4th, after seventeen hours of deliberation, an all white jury – comprised of five women and seven men – ended in a second hung jury against Corbett. This second mistrial sealed the deal for Corbett to return to the field after over a year in an administrative position within Customs and Border Protection.

Sometime during the morning of January 12, 2007, Dominguez-Rivera, his two brothers and his brother’s girlfriend crossed a barbed-wire cattle fence that runs east and west, dividing the United States/Mexico border.

According to Federal Court testimony by Francisco’s two family members, and his brother’s girlfriend, Sandra, Corbett sped through the desert toward their direction. They considered running, but Sandra was tired from walking several miles early that day, so the four stayed together as others in the group fled back to Mexico. They reasoned they would all get arrested and deported together so they could cross again, perhaps at a later date.

At approximately 3 P.M., a video camera – stationed on a security tower about a mile away – caught the agent’s high speed chase on camera. The poor quality of the video recording depicts Agent Corbett, speeding north from Border Road at mile marker 7.5, cutting off the undocumented crossers. Agent Corbett, towering 6 feet 4 inches and weighing approximately 265 pounds to Francisco’s five foot four inches and 140 pound frame, exited his vehicle and went around the rear end of his vehicle, near the bumper, where he fatally shot Francisco.

According to two jurors, the vote to acquit Corbett was 11-1, a reversal from the first trial where the prosecution indicated a vote between 10-2 or 11-1 to convict.

Despite the second mistrial, questions remain regarding the United States Justice Department denying resources to Cochise County to try the case.

In a statement made by Cochise County Attorney Edward Rheinheimer, whose office brought charges against Nicholas Corbett when the forensic evidence didn’t match Corbett’s statement, said “This should have been an FBI investigation because it involved a homicide by a Federal Agent.”

Rheinheimer said that his office was denied assistance from the United States Department of Justice to try the case against agent Corbett. He thinks the decision was purely political. In late 2007, Rheinheimer spoke to a confidant at the DOJ in Washington DC, who said, “Border Patrol is furious over the Compean/Ramos prosecution,” referring to a case where two Border Patrol officers were sentenced to serving over 10 years in prison for the shooting of an undocumented immigrant near El Paso, Tx in 2005.

Rheinheimer said tensions are strained between the Border Patrol Administration and the Union. “The DOJ’s decision wasn’t about the case and it’s merits or whether it was right or wrong,” Rheinheimer said, “it was about the DOJ—and [how] they couldn’t afford a hostile and adversarial relationship with their biggest customer—the Border Patrol.”

Sandy Raynor, Public Affairs Officer for the State of Arizona District of the DOJ, said, “The department recused themselves because they work with Border Patrol all the time.”

Rheinheimer said the bigger picture equates to nameless and faceless bureaucrats in Washington making decisions for Cochise County who have no idea what is happening on the border. The two trials have cost the county and its taxpayers an estimated $250,000.

Jennifer Allen, Director of Border Action Network – an immigrant and border rights organization, said, “This is very disappointing and only opens the door for greater impunity within the Border Patrol. We only hope agency takes this as signal to step up their oversight and training of agents.”

Agent Corbett has a history of violence, and the civil lawsuit will draw upon the numerous police incident reports involving the agent.

According to the Cheltenham, PA Police Department, on November 11, 2003, Corbett had been drinking prior to vandalizing Francis Cleary’s property. In the incident report, Cleary’s dog was barking so he went outside where he saw Corbett vandalizing his electric jack-o-lantern. Corbett then grabbed Cleary and threw him off his porch then “punched him multiple times.”

Charges of assault, criminal mischief, damage of property – reckless or negligent – were dropped after Corbett’s father, former Police Officer of Cheltenham, hand delivered a letter from Nicholas Corbett pleading for atonement. Mr. Cleary said that Corbett’s dad “had lined him up with a job with Border Patrol, and his son [Nicholas Corbett] hadn’t found his way all his life and this was a chance for him to settle down.”

In the letter, Corbett admits to being an alcoholic and “ …very disgusted and blown-away by my actions.” He also wrote, “I pray that you can forgive me and that you see this with my thanks for giving me a second chance at a life.”

In a telephone interview in November, Cleary said: “Corbett picked me up like a feather and threw me head over heels over the guard rail. I thought I broke my neck then he started to pound me. And I am no lightweight. I’m 6’1 and weighed 250 pounds.” Cleary also said that he’d heard on the street that Corbett has always been in trouble. “He’s a loose canon.”

Within weeks after the shooting of Dominguez-Rivera, Mesa, Ariz., police responded to three separate domestic violence disturbances between Agent Corbett and his then girlfriend, Karen E. Haynie. According to the incident reports, Corbett and Haynie were fighting about ending their relationship.

In one report dated April 20, 2007—three months after the killing of Dominguez-Rivera —Karen Haynie stated that Corbett threatened to kill her and her son. In all three cases, Haynie refused to file charges against Corbett and were dropped.

Rheinheimer’s said his office will not retry the Corbett case. “We hope we will see changes now that Governor Janet Napolitano has been appointed Secretary of Homeland Security.”

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