By ARTHUR H. ROTSTEIN – Mar 7, 2008

TUCSON, Ariz. (AP) — A federal judge declared a mistrial Friday in the case of a U.S. Border Patrol agent charged with fatally shooting an illegal immigrant from Mexico. Jurors who had been deliberating the fate of agent Nicholas Corbett since late Tuesday told the judge they were hopelessly deadlocked. Corbett was charged with second-degree murder, manslaughter and negligent homicide in the January 2007 death of 22-year-old Francisco Javier Dominguez Rivera of Puebla, Mexico. Jurors could convict on only one charge.

Corbett testified that Dominguez was going to smash his head with a rock and he fired in self-defense.

Dominguez’s two brothers testified that he was surrendering and was shot without provocation.

“I’m disappointed that the jury did not acquit him,” said Corbett’s attorney, Sean Chapman. “We are prepared to try it again, and I believe he’s innocent. I believe another jury will acquit him.”

Dominguez was crossing the southern Arizona desert along with his two brothers and a woman when Corbett spotted them, raced up in his Border Patrol SUV and the fatal confrontation took place.

The case is unusual because it involves state criminal charges but is being tried in federal court because Corbett is a federal law enforcement agent.

“We would have preferred they convict him, but we’ll leave that to the next jury,” said Grant Woods, a former Arizona attorney general who was appointed as special prosecutor for the case. “They reached an impasse, but they put in another 11 or 12 hours after that. That’s all you can ask.”

Woods said prosecutors hope to introduce new evidence at the second trial, including an incident in which the agent was ordered to undergo anger management counseling.

Corbett “has a pattern of this, of allegedly assaulting people and threatening to kill people,” Woods said.

Defense attorney Jim Calle said those allegations have been “denied by the people involved in them… none of these allegations are true.”

The Border Patrol’s chief deputy patrol agent in the Tucson sector, Robert Boatright, said Corbett had only a few seconds to make a decision concerning Dominguez.

“Law enforcement officers make critical decisions every day and this trial went on for several days and the jury deliberated for more than two days,” Boatright said. “And they could not get past that reasonable doubt.”

Jurors had sent a note to U.S. District Judge David C. Bury at midday Thursday saying they were deadlocked, but he urged them to redouble their efforts and ordered them to continue.

The jury worked on Friday but still could not reach a verdict.

Bury set a date for a second trial in April, but that likely will change because of scheduling problems with some of the lawyers.