After a much-followed murder trial of a Mexican migrant by an Arizona rancher that resulted in a mistrial, a state judge has just declared that a new trial will not be allowed.
In January 2020, 75-year-old George Alan Kelly of Nogales, Arizona, killed a man he encountered outside his house. Kelly had fired at a group of about eight unarmed migrants who were walking through his enormous cattle ranch around Kino Spring. 48-year-old Gabriel Cuen-Buitimea was among the group, and he was fatally shot in the incident.
Charges Against Kelly
Kelly was charged with second-degree murder after rejecting a plea deal. If he had pled guilty, the deal would have reduced the charge to one count of negligent homicide. A second-degree murder conviction instead carries a minimum prison sentence of 10 years. Kelly was also charged with aggravated assault against a different person in the group with Cuen-Buitimea. The other migrants in the group were uninjured, and returned to Mexico.
This past March, Kelly faced a long jury trial over the murder case. Arizona prosecutors claimed that Kelly fired his AK-47 “recklessly” toward the migrants just 100 yards away. He also had a handgun. They claimed that the group of migrants had already scattered after they saw Border Patrol agents, and were heading back to the border to Mexico when Kelly began shooting.
Kelly’s Defense
Kelly’s defense attorney maintained that her client feared for the safety of himself, his wife, and his property, and therefore shot into the air above the group of migrants. Unusually, his attorney herself testified about the conditions of migrants crossing his property over the years. She claimed that migrant groups crossing his property had grown “more menacing over the years” and included traffickers of drugs and humans. She testified that Kelly had “noticed five men traversing his ranch with large backpacks and rifles, then heard a single shot fired,” so he thought another one might be fired at him.
Kelly’s lawyer also claimed that the investigation of her client was “biased and incomplete.” She accused the investigators of “browbeating” and changing her client’s words. Kelly’s case ended up being big news and getting the sympathy of conservatives. Funds were even started to raise money for his defense, although they were shut down due to the pending charges.
The Mistrial
The trial lasted almost a month. But as it was coming to a close in April, Santa Cruz County Superior Court Judge Thomas Fink declared a mistrial while Kelly’s conviction was being deliberated by the jury. Jurors had been deliberating for over two days and were still unable to reach a unanimous verdict. The judge had told the jury that if they couldn’t reach a verdict on second-degree murder, they could instead try to arrive at a unanimous decision on a lesser charge (such as reckless manslaughter or negligent homicide).
Prosecutors had expressed interest in retrying Kelly, but just last Tuesday, Judge Fink closed that possibility. After the trial, prosecutors had requested that the door be left open for a retrial in case new witnesses emerged to strengthen their case. Deputy County Attorney Kimberly Hunley said that unknown witnesses may come forward in the future, including witnesses in Mexico that might become available.
Judge Says No New Trial
Judge Fink did not think this was a good idea. The judge argued that any new witnesses would contradict the testimony of the one witness who took the stand at trial, and could raise other challenges to credibility. Judge Fink also pointed out that the bullet that killed Cuen-Buitimea was missing before and remains so, so there is still a lack of reliable forensic evidence to prove who shot the victim.
Kelly’s attorney had argued that the case should be dismissed “with prejudice.” This means that a new trial isn’t allowed. Judge Fink agreed with her. The judge said that a second attempt would just result in another hung jury at best, or more likely, an acquittal. “The evidence simply was not there,” he said in his ruling. “There is no reason to believe that another jury would come to any different conclusion.”
Judge Fink also said that giving the State a new trial would not serve justice, as that would let prosecutors “wait for a tactical advantage to retry Kelly.” This, he claimed, would amount to harassing the defendant.
For now, it looks like Kelly will at least not be charged with the murder of Cuen-Buitimea. Any other charges pending against him (such as the aggravated assault of the other migrant in the group) are unrelated to this dismissal, and would remain viable.
Related Resources:
- Is It Ever Legal to Shoot Trespassers? (FindLaw's Law and Daily Life)
- Is it Legal to Shoot an Intruder? (FindLaw's Learn About the Law)
- What Happens When a Jury Is Deadlocked? (FindLaw's Law and Daily Life)
