NOGALES, Ariz.—Despite a hopelessly deadlocked jury and a judge declaring a mistrial in April, the high-profile murder case of Arizona border rancher George Alan Kelly, 75, isn’t over yet.
On June 3, Santa Cruz County Superior Court Judge Thomas Fink heard opposing motions to dismiss the case—with or without prejudice—and took the matter under advisement before issuing a written decision.
If the judge rules in favor of the defense’s motion to dismiss the case with prejudice, the prosecution will not be able to retry Mr. Kelly at a later date, even with new evidence and witnesses.
Chief prosecutor Kimberly Hunley argued that the case merited dismissal without prejudice in the “interests of justice.”
“There was a mistrial in this case. The state is entitled to a retrial,” Ms. Hunley said. “The state has decided at this time it’s not appropriate to retry the case based on a number of factors unique to this case.
“In addition, unknown witnesses may come forward. Known witnesses who we have been unable to reach because they are in Mexico may become available ... Should the defendant continue to make statements to the media or write a book—those are things that might change the state’s case and whether we are able to proceed going forward,” she added.
“The political situation may change. And that may change the attitudes of jurors.”
The prosecution alleged that on Jan. 30, 2023, Mr. Kelly shot at two illegal immigrants walking on his ranch property, killing Gabriel Cuen-Buitimea, 48, an illegal immigrant from Mexico, from a distance of 116 yards.
Mr. Kelly admitted during questioning by sheriff’s detectives to firing over the heads of the two men, not at them.
Investigators concluded that Mr. Kelly’s admission and the discovery of the victim’s body on his property were sufficient evidence to charge him with murder, though they never recovered the bullet that made the fatal wound.
An eight-member jury deliberated for nearly two days after the monthlong trial that began in late March. On April 22, the jury announced they were hopelessly deadlocked on a 7-1 vote to acquit Mr. Kelly on charges of second-degree murder and aggravated assault.
On June 3, Ms. Hunley countered defense claims there wasn’t “substantial evidence” to convict Mr. Kelly.
“We have the defendant’s admission to shooting, the position of the body, the direction from where the defendant would have shot, the defendant’s statements—specifically, the defendant’s statements to 911,” Ms. Hunley told the judge in arguing to dismiss the case without prejudice.
“The defendant’s wife stated that she believed the victim didn’t intend any harm and that they were just walking by. The only remaining fact is that these folks are elderly, and a pending trial could cause them anxiety.
“Balancing that against the state’s interest in convicting someone on second-degree murder, the state believes the balance of those interests requires that this case be dismissed without prejudice,” Ms. Hunley said.
In arguing the motion to dismiss the case with prejudice, lead defense attorney Brenna Larkin said, “The legal standard here is this is a discretionary decision.”
“We believe the particular circumstances in this case are such that this case does warrant a dismissal with prejudice,” she said.
“At the very beginning of this case, both the investigators and the prosecution had choices. One is they could investigate this charge thoroughly first. Fully prepare their case. Find their witnesses. Vet them. Then, charge the case and go forward. Or they could charge the case first and then essentially cobble together an investigation while the case was proceeding through court.”
She said the prosecution chose the latter option.
“They shouldn’t be essentially permitted to basically railroad somebody by pushing this through very quickly and then fix everything when it doesn’t work out the first time,” Ms. Larkin said.
Early in the criminal proceedings, Ms. Larkin had argued that the case was a political prosecution. She said that “if the prosecution is going to prosecute first and investigate later, there should be consequences for that.
“The state is aware that their evidence was lacking. The state is still aware that their evidence is lacking. And it’s not right to incentivize that kind of charge-ahead type of prosecutorial investigative conduct,” she said.
“They had their shot. We put the jury through a very long and intense trial. We put Mr. Kelly and his wife through a very long and intense trial. We believe it should be dismissed with prejudice.”
Ms. Hunley argued that neither Mr. Kelly’s age nor his financial hardship should preclude calling for a new trial if the evidence warrants it. She said Mr. Kelly received $425,000 in GiveSendGo donations to defray his legal defense costs.
Ms. Larkin, however, said that the public nature of the case has “absolutely destroyed any integrity in a future investigation.”
In the meantime, her client has suffered great financial hardship, having to pay $100,000 in cash to obtain the $1 million surety bond to secure his release from the county lockup.
“The trauma that these two experienced by going through this process was huge,” Ms. Larkin said. “The trauma, if there were a possibility that this case could come back, would be even more significant.
“Suppose they have to worry about a political situation changing. That might cause the state to bring the same case back again. That’s not right. That’s severe prejudice to the defendant.”
After the hearing, Ms. Larkin told The Epoch Times that the prosecution, lacking physical evidence, was now focused on Mr. Kelly’s public statements as potential reasons to move for a new trial.
“I mean, they just want to be able to go through with a fine-tooth comb and pick out any tiny inconsistency that they can find because they’re out to get this man,” Ms. Larkin said.
Undeterred, Mr. Kelly agreed to address the media outside the courthouse after the hearing.
“It’s not over yet [but] I’ve got faith,” he said.
“The results are what I expected. It is not a decision the judge can make off the top of his head. He’s got a hard job to do. And he'll do it.”
When a reporter asked Mr. Kelly if he had to be careful about speaking in public going forward, Mr. Kelly responded, “What I’m going to say from now on is going to be the truth—the same thing I’ve said in the past. So I don’t have conflict in that.”
“We still have expenses to meet. We still have attorneys to pay. We still have possible future trial expenses and attorney expenses. That’s not even going to be—we'll be bankrupt. We’re already bankrupt,” he said.
Mr. Kelly held back tears when a reporter asked if he had anything to say to the victim’s family.
“I know what it was like when I lost my father,” he said after a long pause. “They want some type of relief, but I’m sorry, I can’t give it to them because I’m not responsible” for Mr. Cuen-Buitimea’s death.
“That’s all there is to it. But I still have sympathy for them,” Mr. Kelly said.
