BORDER AGENT'S LAWYERS COULD ASK FEDERAL JUDGE TO HEAR
CASE

BISBEE -- If a justice of the peace determines at a preliminary
hearing today that first-degree murder or related charges against U.S.
Border Patrol Agent Nicholas Corbett can move forward in Cochise
County Superior Court, Corbett's attorneys could request that the case
be removed to U.S. District Court in Tucson.

Such a request would be made under the supremacy clause of the U.S.
Constitution, which makes federal law supreme over state law and which
can be applied to federal agents charged in local criminal courts.

Corbett's lead attorney Sean Chapman previously invoked the supremacy
clause when he successfully lobbied a federal judge to assume
jurisdiction in the 2005 case of a Border Patrol agent charged in
Santa Cruz County with negligent homicide.

In May 2005, Santa Cruz County Attorney George Silva charged Border
Patrol Agent Denin Hermosillo in local court after Hermosillo fatally
shot an unarmed marijuana smuggling suspect near Nogales.

A federal judge in Tucson, responding to a motion from Chapman,
removed the case from Santa Cruz County Superior Court in August 2005.
Five months later, Silva, who remained as the prosecutor in the case,
dropped the charge against Hermosillo.

Neither Chapman nor his co-counsel Daniel Santander responded to
e-mail queries asking if they might consider a similar motion in the
Corbett case.

But Jack Chin, a criminal justice expert at the University of
Arizona's James E. Rogers College of Law, said the attorneys are
likely to consider potential jurors as well as the judge assigned to
the case before asking that it be moved to federal court.

"In a situation like this, you're thinking about the decision-makers,"
Chin said.

Ruben Teran, a Douglas-based lawyer who has defended clients in both
Cochise County Superior Court and U.S. District Court in Tucson,
agreed that the prospective juror pools would be an important
consideration for the defense.

And he said that if he were Corbett's lawyer, he might think twice
before trying to move the case to Tucson.

"I think there's more likelihood of getting a jury that's favorable to
the prosecution in Tucson," he said.

Teran also would want to know whether federal or state procedural law
would apply if the case were moved to federal court.

State law is preferable to a defense attorney, he said, because it has
more generous rules regarding what evidence the prosecution has to
turn over to the defense.

"I would want to be in the jurisdiction where the disclosure rules are
more favorable," he said.

Differences in sentencing rules would be another important
consideration, in case of a guilty verdict, Teran said.

Neither Chin nor Teran could say for certain whether state or federal
law would apply to a state criminal case tried in federal court. But
either way, the prosecutor would come from the Cochise County
Attorney's Office.

On April 23, Cochise County Attorney Ed Reinheimer charged Corbett
with first-degree murder, second-degree murder, negligent homicide and
manslaughter in connection with the Jan. 12 shooting death of
Francisco Javier Dominguez-Rivera, a 22-year-old Mexican national who
had crossed the border illegally near Naco with three family members.

However, before the charges can proceed in Superior Court,
Bisbee-based Justice of the Peace David Morales must first hear the
evidence at today's preliminary hearing and decide which, if any of
the charges, are supported by the standard of probable cause.

The preliminary hearing was initially scheduled for May 17, but
Morales granted a defense request to continue the matter until June
15. The June 15 hearing was then continued until today after Chapman
complained the prosecution had not disclosed all of its evidence.