TUCSON - A U.S. Border Patrol agent won’t be tried for a third time in the shooting death of an illegal immigrant in the southern Arizona desert last year, a top Cochise County prosecutor said Thursday.
Chief criminal deputy county attorney Doyle Johnstun said his office will be moving to dismiss charges against agent Nicholas Corbett without prejudice. Hung juries led to two mistrials earlier this year, the most recent one last month.
Johnstun said the method of dismissal would allow charges to be refiled if more evidence comes to light.
“It appears that on the state of the evidence, we can’t get a conviction,” said Johnstun.
He said the office was leaning toward dismissal of the charges after the second hung jury, with County Attorney Ed Rheinheimer having made the decision within the past few days.
Rheinheimer was out of the country and could not be reached for comment Thursday, his office said.
Phoenix attorney and former Arizona Attorney General Grant Woods, who served as special prosecutor for Rheinheimer’s office in the case, did not immediately return a call to his office.
The 40-year-old Corbett was tried on second-degree murder, manslaughter and negligent homicide charges in the Jan. 12, 2007, death of Francisco Javier Dominguez Rivera, 22, of Puebla, Mexico.
Corbett fatally shot Dominguez while trying to take him, two brothers and the girlfriend of one brother into custody just north of the Mexican border near Naco, hours after they had entered the country illegally.
The three surviving witnesses testified that the 6-foot-4, 240-pound Corbett shot Dominguez without provocation as the much smaller man was in the process of kneeling to surrender.
But Corbett’s lawyers contended during both trials that he shot in self-defense after Dominguez allegedly tried to smash his head with a rock.
Dominguez’s family filed a wrongful death lawsuit Tuesday against Corbett in U.S. District Court.
Corbett’s lead attorney, Sean Chapman, said he and co-counsel Jim Calle “both believed that Nick was innocent the whole entire time, and we’re glad that this burden has been lifted off his shoulders.”
Corbett has been assigned to administrative duties since being charged in the shooting.
Chapman said he anticipated that Corbett would back on regular duty but didn’t know if that would be back in the field or something else.
Oscar de la Torre, Mexican consul in Douglas, said he had no immediate comment on the decision.
“It’s a legal process, and we don’t have comments about that,” de la Torre said.