Day Five of Border Patrol Murder Trial : AZ IMC

After a long weekend recess, the court reconvened Monday afternoon precisely at 1:30pm. Once again Judge Bury asked both councils whether there were legal matters in need of discussing before the jury was brought in the courtroom. Defense Attorney Chapman stood at the ready to give his objection to the state’s motion to allow for a rebuttal witness that would testify that she along with her family were threatened to be killed by Agent Corbett, ultimately revealing that Corbett has a propensity to act with violence. In addition, the prosecution held up a stack of police reports—totaling roughly 4 different occurrences in the different areas of Mesa and Chandler, and an assault charge from Pennsylvania causing Corbett to be ordered to attend an anger management program. Several back and forths later between the defense and prosecution yielded an agreement that the prosecution would only be allowed to call this witness if the defense called any witnesses to testify on terms of “good character” on behalf of Agent Corbett.

The next matter defense council brought to the judge’s attention was one in where Corbett’s parents came forward to them and described how they had witnessed one of the jurors talking with a potential reporter, or at least someone in the possession of a notepad, as she entered through the metal detectors at the court’s entrance on Friday. Slightly exasperated, Judge Bury asked Chapman whether he wanted him to call in that juror and for the court to “really have to deal” with that, for which Chapman agreed that another admonition from the court would suffice.

With no further legal matters, the jury was filed back into the courtroom and the defense called their first witness, Dr. Richard Mason of the Santa Cruz County, located in California, Sheriff’s medical examiner. After providing the jury with a list of his credentials—26 years as a medical examiner with an extensive and prestigious educational background, along with 25 years as a consultant for attorneys that seek expert testimony, Mason answered questions presented by Chapman as to whether the entry wound found on Francisco Javier could occurred from a face to face encounter, in which Mason responded affirmatively. Defense council then asked Mason as to whether a person who has been shot in the heart would be able to stand and then take a few steps forward after being wounded in this manner; Mason responded that it could be possible. Chapman ended his line of questioning and the prosecution began its cross-examination. Prosecutor Woods focused on this last assertion made by Dr. Mason that Francisco Javier could have stood and then possibly taken a few steps after being shot by asking the witness whether or not he had view the video of the incident, for which Mason said he had not and that he was under an impression from a “report” that said the video showed no conclusive evidence of what happened. Woods quickly shot back that he could not have seen that in a report because there is no report in existence that describes the nature of the video, for which the witness became slightly on the defensive and argumentative. Woods proceeded by asking Dr. Mason how long he thought he would take a person after being shot in the heart and the lungs to just stand there and then perhaps stagger forward, Dr. Mason respond that this would most likely occur within 4-6 seconds. Woods then told the witness that—even though he did not take the time to view the video, he would have seen that the entire incident itself took roughly 6 seconds—making it clear that parts of his testimony were rather far-fetched. Dr. Mason once again became defensive and belligerent to Wood’s questioning of his prior testimony—causing Judge Bury to remind the witness to answer questions in the form of “yes” and “no”, and that, “since you have done this 400 times you should know this, lawyers ask questions, you answer.” The witness was excused with no further questions. Incidentally, Dr. Mason cost the defense (the bill being footed by the CBP Union) roughly $8,000 for his expertise.

The following witness to be called to the stand for the defense was Agent Peter Hermansen, the current Patrol Officer in charge at the Casa Grande station. Part of his resume included being an integral part to the formation of the Customs and Border Patrol (CBP) use of force policy in D.C. Defense council Chapman displayed for him the CBP use of force continuum that revealed a rainbow colored chart that showed the proper escalation of use of force by an agent. While the chart first appeared rather complex, Agent Hermansen basically boiled it down to a rather catchy mantra of “means, opportunity, and intent”, and that if each one of those are present—that is if the officer perceives that each of those are present, deadly force is authorized. Chapman gave Agent Hermansen a few scenarios, including one that involved a person with a rock at a distance of 100 yards, and asked him whether the use of deadly force would be authorized, for which Agent Hermansen replied that no, deadly force would no be authorized. Chapman continued asking questions in the vein of clarifying the Border Patrol’s policy of use of force, which Hermansen summarized that warning shots in the air are not authorized, nor is aiming to disable their assailants authorized—meaning aiming to shoot in the leg or arm. The questioning then turned over to the prosecution, where Woods began taking up questions in regards to the scenario of an assailant at a distance of 100 yards with a rock where Agent Hermansen testified that the use of deadly force would not be authorized. Woods rather helpfully reminded the witness that he himself was involved with another case where he testified that deadly use of force was acceptable—a case where an assailant holding a rock at a distance of 127 yards on the other side of a metal fence was shot. Additionally, the agent who fired the shot was himself fired by the Border Patrol, and the Border Patrol itself disagreed with this incident and the use of force—as Woods effectively relayed to the entire courtroom that the Border Patrol itself is not clear when the use of force is acceptable or unacceptable.

The defense called Agent Haber to the stand, a report writer and media contact for the US Border Patrol. It was her testimony that while present at the preliminary hearing located in Bisbee, AZ, she witnessed the Mexican consulate gesturing and giving hand signals to the witnesses as they were on the stand testifying. She explained that she continued to see these hand gestures even after the Judge gave an admonishment to the entire courtroom that no one should be trying to intimidate the witnesses. As Prosecutor Woods began his cross-examination, Agent Haber’s demeanor quickly changed as the cross examination progressed. Her voice quivered with nervousness—almost as if she were fighting back tears, as Woods asked what the “hand signal” would look like for the part in each witness’s testimony that described in detail how their brother was shot, for which Agent Haber said she did not know. The defense called their next witness, private investigator Randy Downer. Downer testified that he was one the one to collect Francisco Javier’s gloves at the scene, and also provided the jury with a recently filmed video of the scene of the incident. Essentially, the entire testimony was taken up with the video clip of the desert terrain that surrounded the scene—no substantial questions were asked of Downer by the defense council, nor did prosecution cross examine the witness.

Judge Bury excused the jury after Downer was excused, and allowed the rest of the time for further discussion of legal matters. Judge Bury, slightly reproachful, pointed out that both councils did not provide to him after the end of the weekend their submissions for the jury instructions, for which he took it upon himself to start drafting up the instructions himself. Both sides agreed that they would have their final submissions to the judge by morning so they could further discuss the language of the jury instructions. Finally, Chapman held up a piece of yellow paper and told Judge Bury that he had a notice of disclosure of new evidence, which Judge Bury surprised responded that, “he thought that was a joke—okay, both sides sidebar.” For the next 10 minutes both sides surreptitiously discussed the contents of this yellow piece of paper, at times raising their voices into heated whispers. Judge Bury eventually moved back to the center of his pulpit and announced that court was now in recess. The contents of the elusive yellow paper continue to be shrouded in mystery. Court reconvenes at 9:30 am on Tuesday morning.