Jose Cobos was sentenced on Thursday to 10 years in prison for the shooting death of his neighbor, Mark Kirby, in October 2015.
In a move that surprised most in the packed courtroom, Judge Mary Jane Knisely announced her sentence of 20 years at the state prison, with 10 years suspended. The state had sought 15 years in the Department of Corrections, with 10 suspended. A sentence to the DOC allows for community supervision or other placement, rather than prison time.
“This is a case that is extremely difficult,” the judge said. “It has gone on for over two years. It is a case that involves men of faith, families of faith, men of patriotism, and a senseless loss that is immeasurable.”
Cobos, who will turn 65 on Friday, shot Kirby while the two were drinking in Cobos’ garage late at night. Cobos said he does not remember the shooting. When arrested, he was highly intoxicated.
Knisely said she was uncomfortable with the plea agreement.
“You have had exceptional counsel in this case, I appreciate what your friends have to say about you, and I value what they have to say,” she said, addressing Cobos. “But when you take a life, the statutory scheme is that you serve incarceration. This is a death. This is a homicide.”
Cobos, a Marine veteran, has been designated partially disabled by Veterans Affairs for his post-traumatic stress disorder. Cobos said he’s been sober for roughly two years and has been living in Absarokee.
Three friends testified on Cobos’ behalf, saying he was quick to help others however he could, shoveling snow in winter, footing the bill for a family to travel out of state for a father’s funeral, and serving an instrumental role in various local veterans or Catholic church projects.
“It didn’t take tragedy to make him a good person,” said friend George Blackard. “He was always a good person.” (Blackard is currently a candidate running for Billings City Council in Ward 4 against Penny Ronning).
Knisely had asked prosecutors why they recommended a DOC sentence. Ed Zink, deputy county attorney, said it was due to Cobos’ absence of criminal history, his age and medical conditions, and eventual acceptance of responsibility for Kirby’s death.
Knisely had also asked Blackard, the friend, what he thought about the plea agreements’ recommendation that Cobos be screened for a special treatment court for military offenders, noting the notable circumstance that a veteran had killed another veteran. Blackard, also a veteran, said he thought most veterans viewed killings the same, regardless of the victim’s military status.
In court Thursday, defense attorney Robert Stephens had recommended seven years with three suspended. (The plea agreement called for Stephens to recommend 10 years, with seven suspended.)
A pre-sentence investigation report had recommended a 20-year commitment to the DOC, according to an objection to the report filed by defense attorneys. The report also stated that Cobos “gave no indication of remorse or discomfort caused to the victims,” the defense’s objection says.
“This kind of detention is what is warranted when a life is taken,” the judge said.
Family members of Kirby, including his widow and one of his sons, gave emotional testimony.
Rashelle Kirby, the victim’s wife, said her husband was missed at holidays and family occasions. She no longer has him to confide in. She’s not angry, she said, but she is hurting.
“Jose, you had asked that we do not throw your life away as trash,” Rashelle Kirby said. “You are not trash. And I do not wish harm to you," she said, before saying something inaudibly. "But I might ask you to consider Mark’s life. As careless as you were that morning, and then proceeded to lie so bluntly to me, accusing my husband as he laid innocently on the driveway and could not speak for himself. And then you followed with lying to our neighbors. ‘We’re just having some Halloween fun.’ That’s what you said.”
Cobos also spoke, apologizing directly to the family in the room.
“I just want them to know that every day I wake up and the first thoughts are of Mark and his family,” Cobos said. “And I have prayed; I have asked God for forgiveness.”
Cobos said that until the sentencing hearing, he did not know Kirby had a daughter and another son, aware only of one of Kirby’s sons.
Zink, the prosecutor, pressed Cobos about his obligation to tell the truth, saying he took too long to accept responsibility for Kirby’s killing.
“For well over a year, did you not persist in the argument that he attacked you and you acted in self-defense?” Zink asked.
When the defense objected, Zink said Cobos had “spent nearly 20 minutes talking about his (military) awards,” and that questioning him on his initial claims of self-defense was in order. But when asked, Cobos said he was having a difficult time answering the question.
“There’s a lot of people in the courtroom having a difficult time,” Zink said. “Most of them have the last name Kirby.”