Mistrial declared in case of Arizona rancher accused of murdering Mexican migrant on his land

Release time：2024-05-22 04:00:07 Source：International Inklings news portal

An Arizona rancher has received a mistrial after he was accused of shooting dead a Mexican migrant on his land because only one of the jurors believed he was guilty.

George Alan Kelly, 75, was accused of killing Gabriel Cuen-Butimea on January 30, 2023, at his home in Nogales, near the Mexican border. 

His defense attorney Kathy Lowthorp said only one juror wanted to convict and seven jurors wanted to acquit.

Arizona rancher George Alan Kelly received a mistrial after he was accused of shooting dead an unarmed Mexican migrant on his land because only one of the jurors believed he was guilty 

Kelly's defense attorney Kathy Lowthorp said only one juror wanted to convict and seven jurors wanted to acquit. The defense wanted the defense for the jury to continue deliberations, but the judge decided to end the case

Gabriel Cuen-Butimea, 48, was shot dead on January 30 2023 while on Kelly's land. He was wearing combat boots and was carrying a radio - which the border patrol chief says suggested he was part of the cartel

George Alan Kelly’s defense attorney Kathy Lowthorp says the mistrial was caused by one holdout juror who believed Kelly to be guilty. She says the other 7 wanted to vote for acquittal. pic.twitter.com/BvS88AupcX

— Adam Klepp (@AdamKleppAZ) April 23, 2024

'We believe in our gut there was no way the state proved beyond a reasonable doubt,' she told journalists outside the courthouse.

'They won't wear me down,' Kelly said after the decision, according to the Arizona Republic.

Kelly was charged with second-degree murder in the killing of Cuen-Buitimea, 48, who lived just south of the border in Nogales.

Prosecutors said Kelly recklessly fired nine shots from an AK-47 rifle toward a group of men about 100 yards away on his cattle ranch.

Kelly has said he fired warning shots in the air, but he didn´t shoot directly at anyone.

Kelly was also charged with aggravated assault against another person in the group, including a man from Honduras who was living in Mexico and who testified during the trial that he had gone into the US that day seeking work.

The other migrants weren´t injured and they all made it back to Mexico.

Kelly, 75, was accused of killing Gabriel Cuen-Butimea on January 30, 2023, at his home in Nogales, near the Mexican border

Prosecutors said Kelly recklessly fired nine shots from an AK-47 rifle toward a group of men, including Cuen-Buitimea, about 100 yards (90 meters) away on his cattle ranch

Lowthorp believes the message the mistrial sends to prosecutors is clear: 'Try it again and maybe this time we will have all fair jurors that follow the law.'

She promises to represent Kelly if he is forced to go to trial again. 

Kelly is confident he will be acquitted if there's another trial: ''They want ice water in you-know-where. And they ain't got it. So, it is what it is.' 

'We got no choice. We have to do it,' he told the Arizona Daily Star. 'If you're in a sand trap, you gotta keep hacking until you get out.' 

The Santa Cruz County Attorney´s Office can still decide whether to retry Kelly for any charge, or drop the case all together. A status hearing was scheduled for next Monday afternoon, when prosecutors could inform the judge if they plan to refile the case.

Many on social media have called for Kelly to be free and for the county to not try him again. 

The decision came after jurors failed to reach a unanimous decision after more than two full days of deliberation.

DailyMail.com has reached out to the Santa Cruz County District Attorney's Office for comment.

Kelly is confident he will be acquitted if there's another trial: ''They want ice water in you-know-where. And they ain't got it. So, it is what it is' 

Kelly's ranch in Nogales is a stone's throw from the border. Nogales is a known hot zone for drug smuggling, where the cartel is 'particularly aggressive', according to border agents 

After Monday's ruling, Consul General Marcos Moreno Baez of the Mexican consulate in Nogales, Arizona, said he would wait with Cuen-Buitimea´s two adult daughters on Monday evening to meet with prosecutors from Santa Cruz County Attorney´s Office to learn about the implications of a mistrial. 

'Mexico will continue to follow the case and continue to accompany the family, which wants justice.' said Moreno. 'We hope for a very fair outcome.'

Kelly's wife noted that the case has lasted over a year, and continues to hang over their family. 

'I feel like I've been in suspension for 15 months, and I'm getting nowhere, and I'm still on that treadmill. We have to wait a little longer,' Wanda Kelly said. 

Kelly was charged with second-degree murder in killing of Cuen-Buitimea, 48, who lived just south of the border 

Kelly has said he fired warning shots in the air, but he didn´t shoot directly at anyone. Pictured: Kelly leaving the courthouse on March 22 with his lawyer Kathy Lowthorp

County Attorney Michael Jette addresses jurors during closing arguments

Cuen-Buitimea lived just south of the border in Nogales, Mexico. He had previously entered the US illegally several times and was deported, most recently in 2016, court records show.

The nearly monthlong trial coincided with a presidential election year that has drawn widespread interest in border security.

Fink had told jurors that if they could not reach a verdict on the second-degree murder charge, they could try for a unanimous decision on a lesser charge of reckless manslaughter or negligent homicide. 

A second-degree murder conviction would have brought a minimum prison sentence of ten years.

The jury got the case Thursday afternoon, deliberated briefly that day and then all of Friday and Monday before the judge declared a mistrial. 

KELLY'S VERSION OF THE STORY: GANG OF DRUG RUNNERS IN COMBAT BOOTS AND CARRYING RADIOS WERE HEARD FIRING THEIR GUNS AND RUNNING THROUGH HIS LAND 

The following description is taken from a motion filed by George Alan Kelly's attorney in court.  

On January 30, 2023 George Alan Kelly reported the discovery of a body on his property near Kino Springs, where he and his wife have lived for the past two decades. 

Earlier in the day, he had completed chores on his ranch and had come to his house to eat lunch with his wife. 

As they ate, Mr. Kelly heard a single gunshot. Next, he saw his horse - who is old - running away scared and at full speed. Finally, he saw a group of men moving through the trees around his home. 

They were armed with AK-47 rifles, dressed in khakis and camouflaged clothing, and carrying large backpacks. None of them were known to him. He hadn't given any of them permission to come onto his land. Based on the foregoing, Mr. Kelly was understandably concerned and reasonably feared for his safety.

He called the United States Border Patrol Ranch Liaison to report what he had seen and to summon immediate help. He told his wife to stay inside, away from the windows, and to stay silent so as not to alert the men to her presence.

Mr. Kelly then went to the porch with his rifle. The leader of the armed group of men saw Mr. Kelly and pointed an AK-47 right at him. 

Mr. Kelly, fearing for his life and safety, fired several shots from his rifle, hoping to scare them away from his wife, his animals and his home.

Mr. Kelly took care to aim well over the heads of the armed group of men. 

In a written defense submitted to the court, Kelly's attorneys described how he was at home having lunch when he heard shots fired outside and then saw his horse running. He called border patrol, and later the sheriff's department. None of them found the victim's body initially 

The group then began running into the desert surrounding his home. Once the group had fled, Mr. Kelly walked over to his barn to see if it was safe and secure.

Mr. Kelly had a conversation with Border Patrol again that ended at 2.36pm....while Mr. Kelly was checking his barn, a number of Border Patrol agents and Sheriff's deputies arrived on the property.

[They] walked all over Mr. Kelly's property in search of the group of people and did not find anybody. 

Later that day, as the sun was going down, Mr. Kelly went to his pastures in order to check on his horse. He took his dogs with him. After locating the horse, Mr. Kelly noticed that his dogs were focused on something on the ground near a mesquite tree. Mr. Kelly approached his dogs and observed a body lying face down in the grass.

Mr. Kelly then called Border Patrol Ranch Liaison again. 

The body was that of a male foreign national. The person did not have any firearms or a backpack on him. The cause of death appeared to be a single gunshot wound and it appeared the body was fresh. 

The person had a radio with him and he was wearing tactical boots, indicating that he was possible involved in illegal activity.

Mr. Kelly does not believe that any of his warning shots could have possibly hit the person or caused the death. 

All of the shooting that Mr. Kelly did on the date of that incident was in self-defense and justified.

PROSECUTORS & MIGRANTS' VERSION OF THE STORY: KELLY EMERGED 'UNPROVOKED' WITH AK-47 AND STARTED SHOOTING AT 'INNOCENT' MEN WHO 'POSED NO THREAT TO HIS FAMILY' 

The following description is taken from a filing submitted by Santa Cruz County Attorney George E. Silva and Chief Deputy County Attorney Kimberly Hunley. 

On January 30, 2023, at around 2.30pm, a group of approximately 7 to 8 undocumented immigrants were traveling north through the Kino Springs area from Mexico. Contrary to Kelly's account, no one in the group was carrying any weapons. 

The group , which included R.F-G and D.R.-R, was within sight of the Kelly residence when out of nowhere, Kelly began to shoot at them with an AK-47. Kelly issued no warnings and made no requests.

He just started shooting at them. D.R-R was just one step behind Gabriel when he heard Gabriel call out in Spanish: 'I'm hit', grab his chest and fall to the ground. He saw Gabriel's eyes roll back in his head and when he could only see the whites of his eyes, he knew that Gabriel was dead.

He felt like they were being hunted. Kelly shot at least 8 rounds at them, Both R.F-G and D.R-R jumped the fence and made it back to Mexico. Are willing and available to testify.

Approximately 6 minutes later, Kelly called Agent Morsell again. This time Kelly said he lost visual of the subjects running toward Kino Springs. When asked if he was being shot at, Kelly claimed he heard a gunshot in his direction. He saw his horse running by and he was inspecting his horse but he didn't appear to be stuck,

Prosecutors have now filed additional charges against Kelly for aggravated assault 

Prosecutors asked for Kelly to remain in jail on a $1million so that the victim's family in Mexico could travel over the border and attend proceedings

Kelly said it was 'too far to tell if they had any firearms'. Border Patrol Agents and Sheriff's Deputies responded to the scene and walked the property. They did not locate anything at that time,

Kelly called Agent Morsell again at 4.23pm. By this time, his story had significantly changed. He told Agent Morsell he was sitting in the house with his wife when 'we' heard a gunshot.

He said he saw 10 subjects all loaded down with AR Assault rifles. He said his wife saw it too.

Then at 5.23pm, he tried calling Agent Morsell again. He left a message saying 'you need to call me immediately. This is serious. Call me immediately. I can't say more over the phone.'

Agent Morsell returned his call. At this point, Kelly's tone had completely changed. He sounded nervous or scared. Kelly said: 'This is worse than you can imagine. This is bad.' 

Kelly told him that he needed Morsell to send Border Patrol because this is a broader issue.

When Morsell requested the details, Kelly continued to be evasive and said: 'This is bad. I need someone to respond out here.' You know how shots were fired earlier, something was possibly shot. I can't say more over the phone.

One of the deputies turned on the recorder on his phone while they talked and walked with Kelly. Kelly told him that there was a shot fired and he didn't know what it was about. He went out to get his horse. 

He said he 'walked all over it' and claimed 'maybe this happened after you left' referring to the earlier visit by deputies.

He said 'there's a body over there, as soon as I saw it I backed away from it.' Later, Kelly spoke with detectives. After initially denying that he shot at the group, he later admitted shooting. 

He claimed he directed his shots over the heads of the group.

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