An Arizona judge on July 9 dismissed with prejudice the murder case against an elderly ranch owner charged in the shooting death of an illegal immigrant on Jan. 30, 2023.
In a 12-page decision, Santa Cruz County Superior Court Judge Thomas Fink said the prosecution failed to present evidence to convict Nogales resident George Alan Kelly, 75, of second-degree murder and aggravated assault with a deadly weapon.
The jury, following a monthlong trial, also could not reach a verdict on the lesser included offenses of manslaughter and negligent homicide.
On April 19, the judge declared a mistrial.
The judge, in the July 9 decision, wrote that including the lesser offenses pointed to the inherent “weakness” of the state’s case.
Prosecution attorneys had filed a motion to dismiss the case without prejudice, leaving the door open to retry the defendant at a future date if the evidence or “political situation” changed.
However, Judge Fink said a procedural rule required scheduling a new trial within 60 days of the declared mistrial.
He said that to leave the case open-ended amounted to “harassment” of the defendant and gave the prosecution an unfair advantage.
“The court finds that the state is not able to articulate a reasonable basis for holding this case ‘open’ with a dismissal without prejudice,” Judge Fink wrote.
“The interests of justice are not advanced where the only thing to be accomplished by a dismissal without prejudice, where there is no possibility that a re-trial will occur, is the harassment of the defendant.
“For those reasons, the interests of justice call for finality.”
The prosecution downgraded an initial first-degree murder charge to second-degree murder in the shooting death of illegal immigrant Gabriel Cuen-Buitimea, 48, as he walked across the defendant’s property on Jan. 30, 2023.
However, Mr. Kelly told investigators before his arrest that he shot over the heads of a group of illegal immigrants on his property as a warning.
He said the men appeared to be armed with rifles, wearing camouflage clothing, and carrying large backpacks when he fired.
The case alleged that Mr. Kelly fired multiple shots with an AK-47 semi-automatic rifle from a patio area, striking the victim in the back from a distance of 116 yards.
Despite testimony from two firearms ballistics experts and the medical examiner who conducted the autopsy, prosecutors could not prove whether the fatal shot came from the defendant’s rifle.
Investigators were also unable to locate the bullet following several sweeps of the area with metal detectors.
“Without that bullet, there is no reliable forensic evidence to prove that the defendant shot the victim,” Judge Fink wrote.
In seeking a dismissal of the case without prejudice, prosecutors alluded to four reasons that might change the state’s case.
They included the defendant possibly making statements to the media or writing a book that might contain incriminating statements.
The state also argued that future witnesses might step forward in addition to the alleged sole eyewitness, Daniel Ramirez, a Honduran national in the country illegally who claimed that he was with the victim when he died.
Prosecutors also argued that the “political situation” may change, which “may change the attitudes of the jurors.”
Finally, a rule change that eliminated peremptory challenges in jury selection might change to the state’s benefit.
A peremptory challenge is an objection by a defendant or attorney to exclude a potential juror without having to give a reason.
“The defendant consistently has asserted his innocence,” Judge Fink wrote. “He refused to accept any plea offer in this case.
“The possibility of the defendant making an incriminating statement in the future is speculative and highly unlikely.”
Regarding unknown witnesses, the judge wrote: “There is no reasonable probability that the state will discover any additional or unknown witnesses.
“This was a high-profile case. The state conducted a thorough investigation, with the cooperation of the Mexican consulate and the victim’s family, for additional witnesses. None were identified.
“The pretrial and trial publicity about the case were extensive on both sides of the U.S.–Mexican border, yet no additional witnesses surfaced or were discovered.”
Judge Fink also said there was “no reasonable probability” that the state would discover additional incriminating physical evidence against the defendant.
“The state did numerous search warrants [for] the defendant’s property and home, looking for evidence,” he said.
“Subpoenas were issued for every known possible source of evidence. A key piece of evidence remains missing: the bullet that killed the victim.”
Judge Fink also viewed as “speculative” the prosecution’s argument that current public opinion about immigration or the use of firearms played a role in the jury’s 7–1 vote for the defendant’s acquittal.
“Nor is the possibility of a change in the Arizona rule denying peremptory challenges a reason to keep this case open,” he said.
“More importantly, there is no logic to the position that restoring peremptory challenges would benefit the state over the defense.”
The judge noted that the state’s request for jury instructions for lesser included charges was a “tacit acknowledgment of the weakness of the state’s evidence as to the charged offenses.”
“Yet the jury would not convict on the lesser included offenses” of manslaughter or negligent homicide.
“The evidence simply was not there,” Judge Fink wrote.
