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Mistrial Declared in Murder Trial of Arizona Border Rancher

from The Epoch Times

By Allan Stein April 22, 2024

Updated:April 26, 2024

Photo:George Alan Kelly at his Trial

(Angela Gervasi/Nogales International via AP, Pool, Court photo)

LKY: Do we realize that THIS could be one of us? Do you wonder what YOU would do in this same situation? Right now, all towns are border towns. What would YOU do to protect your family if you believed them to be threatened? It is disgusting what our "justice" system put this man and his wife through.

NOGALES, Ariz.—After three days of deliberation and being sent back twice by the judge, the jury has reached an intractable impasse—there’s no verdict in the trial of George Alan Kelly.

Judge Thomas Fink declared a mistrial on April 22 and set a status hearing on April 29 in which the prosecution will either move to schedule a retrial or move to dismiss the case.

Mr. Kelly faced one charge of second-degree murder or manslaughter or negligent homicide and an additional charge of aggravated assault with a deadly weapon in the shooting death of Mexican national Gabriel Cuen-Buitimea, 48, an illegal immigrant on Mr. Kelly’s ranch.

“It’s a victory,” said defense lawyer Kathy Lowthorp. “It’s the second best answer–not guilty, and then a mistrial. So either way, it’s a win, just not the perfect win.”

Mr. Kelly appeared relieved, saying he had “big plans.”

“I’m going home tonight. Going to bed.”

His wife, Wanda Kelly, withheld her frustration, but lamented “15 months of our lives” had been spent defending her husband against the charges.

Ms. Lowthorp said after speaking with the jury, she learned the vote was 7–1 to acquit the defendant. The lone holdout refused to change their vote despite numerous attempts and further deliberations.

She said the near unanimous vote by the jury should send a clear signal to the prosecution that retrying the case could produce a similar result. 

Lead defense attorney Brenna Larkin said last week, if ever there was a case where reasonable doubt existed, “it is this case.”

A guilty verdict for second-degree murder in Arizona would have sent Mr. Kelly away to prison for 10 to 22 years—a potential life sentence. It would be seven to 21 years for a conviction of manslaughter and 1 to 3.75 years for negligent homicide.

Eight jurors—five men and three women—deliberated; while four others served as alternates.

On the second day of deliberations, April 19, the jury delivered a note to Judge Fink stating they were at an impasse in reaching a verdict. After consulting with attorneys on both sides, the judge instructed the jury to “do your best,” and keep deliberating until they could deliberate no further.

He said the case deserved more than seven hours of weighing volumes of exhibits and witness testimony.

Wanda Kelly spent nearly a month inside the courtroom, sitting in the front spectator section to be close to her husband, Mr. Kelly, 75.

After four weeks of listening to daily testimony glued to the same blue folding vinyl seat, the wear and tear of her husband’s murder trial was showing in her eyes. But Mrs. Kelly remained optimistic.

“I think I see the light at the end of the tunnel,” she said in a wavering voice, wrapped in a white sweater in the air-conditioned chill of the courtroom, a gold cross draped over her green blouse.

“It feels like it’s getting close to the end. It’s a relief,” Mrs. Kelly whispered to the person sitting next to her.

“George doesn’t have the heart or the spirit to shoot anybody,” Mrs. Kelly said. But facts are in dispute, and the fact she dreads most is the hardest to bear—that her husband’s fate is in the hands of a jury.

“But the Lord’s going to decide heaven or hell,” she said.

On April 18, prosecution and defense lawyers, in their final arguments, urged a dozen jurors in Santa Cruz County Superior Court to weigh all the facts in the trial and use common sense to reach a fair and just verdict.

Prosecutor Michael Jetty said that on Jan. 30, 2023, the defendant, without provocation, shot an AK-47 rifle at two unarmed illegal immigrant men who were walking on his property, killing Cuen-Buitimea.

It’s an unusual case, observers say, given that there is little or no direct physical evidence linking the defendant to the firearm used in the shooting.

Defense attorney Ms. Larkin said the Kellys, in their retirement years, were living in fear. As a result, Mr. Kelly made the decision to arm himself and protect his life, his wife, and his property.

The presence of armed drug traffickers wasn’t a figment of the defendant’s imagination. Border Patrol had stated in earlier testimony that it is impossible now to tell the difference between illegal immigrants and drug smugglers by their appearance alone. She said Border Patrol cameras were effective only some of the time and that people who engaged in illegal activity knew where to hide on a property as vast as the Kellys’, “so there’s a lot that goes unseen by Border Patrol.”

“Ultimately, something does happen on Jan. 30, 2023,” Ms. Larkin said. “Mr. Kelly is in his kitchen eating lunch. It’s a day like any other. He’s been out and about on his ranch. He’s planning to do some more chores for the rest of the day.

“He has no idea that he’s about to be in a life-or-death situation. He doesn’t ask for it. He’s minding his own business in his own house when suddenly, he sees something.

“He sees people carrying rifles and backpacks out the kitchen window. He does the right thing. He calls law enforcement. He’s not some vigilante who decides he’s going to take matters completely into his own hands. He calls for help.

“He calls the guy who has the badge and the gun.”

She said he called after he heard a shot and told Border Patrol he might have to return fire.

“This is not a mystery shot as the state describes,” Ms. Larkin said. “This is a real shot. Mr. Kelly hears it, and the whole situation completely changes at that moment.

“In frightening, scary situations, people flee, people freeze, or people act. And Mr. Kelly acted.”

Because of the failure of investigators to locate the victim’s body during a first search of the Kelly property, “we are left with questions,” she said.

“We do not know if Gabriel Cuen-Buitimea’s body was there when law enforcement arrived,” Ms. Larkin said. “It’s a question that’s outstanding. We don’t know the answer to it. And now we never will.”

Mr. Kelly eventually discovered the victim lying face down as he went to check on his horse later in the evening. Rather than try to conceal the evidence, Ms. Larkin said, the defendant called Border Patrol.

She then said to the jury: “What would a guilty person do? What would someone do who’s come across this body who thinks, ‘I probably shot this guy.’ What would a guilty person do in Alan’s shoes?

“A guilty person had every opportunity to cover this up, and he would have been able to do so effectively.

“That’s not what Alan did. ... He does the right thing because it’s the right thing.”

Mr. Kelly discovered the victim clad in tactical boots, tan pants, a black hooded sweatshirt, and a camouflage jacket.

Crime scene photos show that the victim was carrying a partially unzipped camouflage backpack that contained food and water. He also had a fanny pack with a broken buckle near his chest, a cellphone, and a two-way handheld radio tucked in his waistband. His clenched right fist was over his chest, a twig and grass in between the fingers.

In a single image extracted from the victim’s cellphone, he wore similar clothing, a fanny pack on his chest, and binoculars around his neck.

“This is not somebody who’s looking for the American Dream,” Ms. Larkin said in closing. “There is no evidence this person is here for benign purposes. All the evidence points in the other direction.”

For the prosecution, ballistics experts had testified that they were unable to determine whether Mr. Kelly’s rifle was the weapon that fired the fatal shot. However, the evidence did suggest that the unrecovered bullet likely came from a “high-powered rifle” from the direction of the defendant’s east-facing ranch house 116 yards from where the victim’s body was found.

A medical examiner told the jury that the autopsy couldn’t place the exact time of death because of a number of variables, including that the victim’s body was stored in a freezer before the autopsy. The medical conclusion was that the victim died of a perforating gunshot wound to the right side traveling upward, smashing three ribs, severing the man’s aorta, and damaging lung tissue before exiting the chest.

With such injuries, it’s unlikely that the victim could have gotten very far, the forensic pathologist testified.

Mr. Jetty said the circumstantial evidence is sufficiently compelling to place Mr. Kelly’s guilt beyond reasonable doubt.

“The moral of the story is that [Mr. Kelly] shot, and a man is dead,” the prosecutor told the jury in closing, echoing the lead detective who interviewed the defendant on the night of the incident.

Mrs. Kelly looked at her husband, sitting at the defense table beside his two attorneys, wearing a beige vest, button-down shirt, and blue jeans.

Just minutes earlier, Mrs. Kelly had jokingly wondered aloud how differently things might have been if she and her husband had stayed in Montana.

Instead, they invested in a dream, which was to live out their golden years on a cozy ranch nestled near the U.S.–Mexico border in sunny Arizona.

Mrs. Kelly chuckled as she recalled how much less complicated their lives had been in Lincoln, Montana.

During those purposeful working years, Mrs. Kelly had been a teacher in a rural two-room schoolhouse. Her husband, a state fisheries biologist, provided for the family until his retirement.

He was a college-educated man, his wife said, and her confidante and protector—a “man’s man” who could handle a firearm but always put safety first. Together, the couple ran a successful hunting lodge on the Crow Indian reservation before moving to Arizona in the early 2000s.

Mrs. Kelly recalled that life was good in Montana during those 40 years. But she and her husband, both North Carolina natives, had made a deal years earlier when she told him, “I'll live with you in Montana, but you’ve got to move to Arizona.”

Her husband agreed.

Eventually, the Kellys landed on 170 acres of mesquite-filled property in Nogales, Arizona, near Kino Springs and less than two miles from the U.S. border wall with Mexico. And on that grassy range, they built their forever home in 2002 and settled down for the long haul.

Their worst nightmare came on Jan. 30, 2023, when Mr. Kelly suddenly found himself facing a murder charge.

As the trial dragged into its 15th day, prosecuting attorneys Kimberly Hunley and Mr. Jetty had called on a litany of witnesses versed in fingerprints, DNA, blood, and firearms analysis. They called upon Dr. Krista Timm, the county’s forensic pathologist, who conducted the autopsy and found that the victim’s injuries were consistent with those made by a high-powered rifle, maybe an AK-47.

They called upon Santa Cruz County Sheriff Deputy Cristobal Castañeda, who testified that Mrs. Kelly spoke of hearing four gunshots outside the house where her husband allegedly had stood firing his weapon. They called upon Border Patrol agent Jeremy Morsell, who testified to receiving the initial call from Mr. Kelly saying he had fired at and struck something.

The defense argued that the defendant never uttered those “misinterpreted” words during a slew of phone calls between law enforcement and dispatchers. But the message had already become embedded in the investigation narrative.

Lead detective Jorge Ainza later wrote in the criminal incident report that Mr. Kelly said he began chasing after the group of men after he fired at them. There were also allegedly incriminating text messages between Mr. Kelly and his friend Gary Miller and Mr. Morsell.

In one text message, Mr. Kelly had written words to the effect that his AK-47 had been “getting a lot of work” dealing with illegal border crossings on his property.

But these were exaggerations—“blowing off steam,” the defense said in describing those comments.

Then there were multiple searches of the defendant’s house by law enforcement, the recovery of the AK-47 rifle behind a green sweatshirt on a bedroom door, and nine shell casings from the patio.

However, investigators didn’t find a dead body during an initial sweep of the terrain and have never found a bullet in the field. They did recover a broken tree branch six months after the fact. A ballistics expert testified to finding no chemical residue on the branch that might have been caused by a bullet strike, sending the projectile spinning until it struck the victim.

On the night of his arrest, the detective accused Mr. Kelly during an interview of making “inconsistent statements” about the shooting. Nothing seemed to “add up,” Mr. Ainza said. He advised Mr. Kelly to “help” himself and “tell the truth,” despite the latter’s repeated denials of shooting anybody.

Mr. Kelly told investigators that he feared for his life when he fired over the heads of the men clad in tactical gear and hauling large backpacks. At first, he thought the men might be armed. When he heard a gunshot, he grabbed his AK-47 hanging on a coat hook by the front door and went outside to confront the threat.

The jury heard testimony from more than a dozen government witnesses—including nine sheriff’s department officers and detectives, three Border Patrol agents, and an FBI expert trained in cellphone data extraction.

Jurors also heard crucial testimony from Daniel Ruiz Ramirez (Varela), the government’s sole eyewitness—an Ecuadorian citizen with a sixth-grade education who admitted to having entered the United States illegally to pursue the “American Dream” as a roofer in Phoenix.

Speaking through Spanish interpreters, Mr. Ramirez testified that he and the victim were traveling in a group of other illegal immigrants who had crossed into the United States and who scattered when they saw a Border Patrol vehicle in the desert heading in their direction.

Mr. Ramirez claimed that he and the victim were planning to cross back into Mexico when they were met by a hail of bullets near the defendant’s house.

At that point, the victim allegedly cried, “I’m hit!” and fell backward into the grass next to a mesquite tree, according to the eyewitness testimony.

Mr. Ramirez had difficulty getting distances and directions straight—between the border wall and the Kelly property and Mr. Kelly and the victim. At first, the witness claimed that he and the victim were just seven yards away from the Kelly house when the shooting started. He also told investigators that the fatal encounter occurred west of Nogales, not east.

The man of “humble” means, as the prosecution described him, also testified to being deported from the United States for nearly a dozen illegal border crossings—once after being caught smuggling marijuana. He denied ever working as a drug runner for the cartel.

The witness later said Mr. Kelly’s horse was in the line of fire, which he said saved his life.

Defense attorney Kathy Lowthorp asked another witness why the defendant would knowingly fire multiple rounds toward his horse.

In early court proceedings, Ms. Larkin called the case a politically motivated prosecution during a period of heightened tensions over the border crisis. In the government’s rush to judgment, charges were filed before a full analysis of the evidence was even complete, she said. While the initial charge was first-degree homicide, the prosecution downgraded the offense to second-degree murder.

Mr. Kelly rejected a plea offer and took his chances at trial.

Santa Cruz County Sheriff David Hathaway told the jury he traveled to Mexico on Feb. 14, 2023, to meet with relatives of the victim and “express his condolences” to the family.

The sheriff testified that during that informal meeting with the victim’s two daughters and a man claiming to be their uncle, he learned of an eyewitness, Mr. Ramirez, who, along with the uncle, Juan Carlos Rodriguez, was willing to arrange a sit-down with Santa Cruz County investigators.

On Feb. 15, 2023, Mr. Hathaway, Detective Mario Barba, and Mr. Ramirez met in a hotel restaurant lounge in Mexico for an official interview. In court, the sheriff testified that he recorded less than seven minutes of the hour-long interview on a tape recorder. He also told the jury that he didn’t consider taping the entire conversation for investigative purposes.

The sheriff responded “no” to a question from the jury whether his involvement in the case was meant for “political gain” in an election year.

Mr. Jetty, in his closing argument, told the jury there could be “no guessing” at the facts in the case. The facts were that the defendant shot at Cuen-Buitimea and Mr. Ramirez, that Cuen-Buitimea died as a result—killed by a high-powered rifle—and that his wounds were consistent with a distance shot fired from Mr. Kelly’s AK-47 from the porch area.

“How many windmills do we chase?” he asked the jury while reminding them that there is no Border Patrol camera evidence showing gunmen on Mr. Kelly’s property, no signs of foot traffic or shell casings from other weapons, no evidence of a “mysterious shot” triggering Mr. Kelly to act, and no evidence of drugs, robbery, or struggle at the crime scene.

And finally, there was no evidence of “rip crews,” or bandits, operating in the area, according to Mr. Morsell’s previous testimony.

Mr. Jetty said a man was dead because of reckless conduct by the defendant and that there was never any justification for the use of deadly force.

In her closing argument, Ms. Larkin reminded the jury that the standard of proof was guilt “beyond reasonable doubt—not ‘Is this suspicious?’; not even ‘Is this likely?’; not even ‘Is this really darned likely?’”

“We have the standard for a reason,” she said. “We don’t guess when we’re dealing with criminal law. We don’t guess when we’re dealing with criminal charges.”

On April 19, the second day of jury deliberations, Mrs. Kelly was back in the courtroom, sitting quietly in the same blue vinyl seat. Only this time, she brought her toy knitted kitten, “Missy May,” to give her comfort.

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1 comentário

  • I wonder who is protecting their home during the time of the trial? Maybe it was full of squatters when they got home. The fact of the this whole deal is, he is an elderly man trying to protect his wife under trying circumstances day in and day out. Every day he is faced with the possibility of someone breaking into their home and killing himself and his wife. Robbing them and who knows what all by peoople who have come across our border illegally, who walk where ever they want, who have no respect for other people's property, who expect to be able to do whatever, whenever they want. I am surprized that more such instances have not happened…

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