Arizona rancher granted mistrial over shooting migrant on his property
Fox News’ William La Jeunesse on where the case goes next after the mistrial.
Arizona rancher George Alan Kelly’s defense confirmed to Fox News Digital that there was "one, lone holdout" who wanted to convict, while the remaining jurors sought an acquittal.
Arizona Superior Court Judge Thomas Fink declared that the case ended in a mistrial on Monday, as the jurors were unable to reach a unanimous decision to convict Kelly of second-degree murder or any of the lower counts of manslaughter, negligent homicide or aggravated assault with a deadly weapon. Fink scheduled a 1:30 p.m. status hearing for Monday, April 29.
Fink said that the hearing next week will "allow the state to take a look at the situation and decide whether or not it wishes to ask the court to reset the matter for trial."
"The jury verdict was seven to acquit and one, lone holdout who was stubborn and would not listen to evidence," the defense team told Fox News Digital. "All the other jurors were angry about it."
The jury remained deadlocked after deliberating since Thursday for more than 15 hours.
"They won't wear me down," Kelly said at the courthouse of the potential of being tried a second time, according to AZ Central.
"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," Kelly's wife, Wanda Kelly, added Monday, according to the outlet.
Fox News Digital reached out to Santa Cruz County District Attorney George Silva's office on Tuesday but did not immediately hear back.
George Alan Kelly enters court for his preliminary hearing in Nogales Justice Court in Nogales, Arizona, Feb. 22, 2023. (Mark Henle/The Arizona Republic via AP, Pool, File)
Kelly’s defense attorney, Brenna Larkin, said in her closing argument last week that evidence did not support the prosecution’s claim that the deceased, Mexican national Gabriel Cuen-Buitimea, was an "unarmed migrant pursuing the American Dream" before he was found shot to death on Kelly's 170-acre cattle ranch near Keno Springs outside Nogales, Arizona, on Jan. 30, 2023.
The defense claimed that prosecutors failed to prove that Cuen-Buitimea was shot by Kelly's gun. The defense maintained that Kelly only fired warning shots into the air from his patio earlier that day, and Wanda Kelly testified about dialing their Border Patrol ranch liaison upon spotting two armed men dressed in camouflage and carrying rifles and backpacks walking about 100 feet from their home. Law enforcement responded to the property, and hours passed before Kelly called Border Patrol again to report finding the body about 115 yards from the ranching couple's residence.
A criminologist working pro bono as a consultant for Kelly’s defense, Dr. Ron Martinelli, excoriated Santa Cruz County Sheriff David Hathaway's testimony about having crossed the border to Mexico weeks after the shooting on Kelly's ranch to interview Daniel Ramirez, a Honduran man who prosecutors claim was the sole sight witness to Cuen-Buitimea's death. Larkin said, based on Ramirez's own testimony, he was not there.
Ramirez testified that he formerly ran drugs across the border, though not on the day of the shooting, and had been deported several times. Additionally, the defense argued the investigation was mired by cartel influence.
Hathaway, who only recorded about six minutes of a 40-minute interview with Ramirez, was pressed about a conduit who arranged the meeting in Mexico named Juan Carlos Rodriguez.
Martinelli told Fox News Digital that the district attorney's office was forced to reveal to the defense team that Rodriguez is a twice convicted felon – the first for aggravated assault and domestic violence after strangling his girlfriend, and then he served another two years in prison "for the transportation of weapons into the United States."
George Alan Kelly listens to closing arguments in Santa Cruz County Superior Court on Thursday, April 18, 2024, in Nogales, Arizona. (Angela Gervasi/Nogales International, via AP, Pool)
"The Sinaloa Cartel and Malas Manos do not allow independent people to bring guns, traffic guns into the United States," Martinelli told Fox News Digital last week, while the jury was still deliberating.
"To me, [Hathaway] absolutely conceded to violating Mexican law and United States State Department protocols with regards to conducting an international investigation in Mexico," Martinelli said, referencing the sheriff's testimony. "His whole statement and justification that he went down to Mexico to quote, 'offer his condolences to the family' is beyond belief. You know, are we to assume that that's his M.O. every time a Mexican national dies in a violent crime in Nogales that he personally takes it upon himself to go down to a foreign country to express his condolences? I mean, that's beyond the pale."
Martinelli further took issue with the sheriff's department and the district attorney's investigator. "Once they knew who these people were, well into this investigation, months and months ago, they continued to believe these people over two American citizens, who were law-abiding and cooperative," the consultant added.
The defense also pressed Hathaway on the stand about a YouTube video in which the sheriff referenced the Kelly case and claimed that the rancher wanted to "hunt me some Mexicans."
Prosecutor Michael Jette addresses jurors during closing arguments in Santa Cruz County Superior Court on Thursday, April 18, 2024, in Nogales, Arizona. (Angela Gervasi/Nogales International, via AP, Pool)
"Just after hearing the sheriff and seeing the video, to us, the sheriff was the moving force behind the arrest and continued prosecution of George Alan Kelly. And I believe, this is my opinion, I believe that it was to further his political designs for re-election as sheriff," Martinelli said last week, vowing to bring a personal complaint to the state's attorney general's office seeking an investigation into Hathaway and the sheriff's department regardless of the outcome of the case. "Because if this was the United States Department of Justice, and we had such a grievous civil rights violations, DOJ would be on and the FBI would be on top of this in a heartbeat, and they would be looking towards what we refer to as a consent decree against this agency. This is just crazy. These people should not be having badges of authority."
Fox News Digital reached out to the Santa Cruz County Sheriff's Department about the defense consultant's allegations again on Tuesday but did not immediately hear back.
"We're not here to solve the mystery," Larkin said Thursday. "And the fact is, we're probably never going to know what really happened to Gabriel. And we won't know because the investigation in this case jumped to conclusions. They didn't search when they should have. They didn't preserve evidence that they should have. They didn't do tests that they should have. And now we'll never know."
"We all live in Santa Cruz County. I live in Santa Cruz County. You folks live in Santa Cruz County," Larkin said. "After reviewing all the evidence in this case, if I were to imagine finding a body on my property someday, hopefully that never happens. If I ever find a body on my property someday, and I don't know what happened, and I don't know how it got there, I think I'd be considering my options before I call these guys."
Testimony also revealed that the fatal bullet was never recovered from the scene. Martinelli also previously told Fox News Digital that none of the state’s witnesses in the trial had provided any rebuttal testimony against the defense theory that a rip crew — a gang of bandits, sometimes cartel-affiliated — could have fatally shot Cuen-Buitimea and robbed him.
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Prosecutor Mike Jette maintained in his closing argument that there was "no justification" to use deadly physical force upon seeing "two unarmed men walking two fences away" and claimed Kelly pulled out his AK-47, stepped out onto his back patio and, without any verbal warning, fired nine times. The defense said while Kelly would have been justified in using deadly physical force, the elderly rancher did not.
Larkin added that there is nothing in the law that prevents him from using lesser force to defend himself and his wife out on their isolated ranch "in the middle of nowhere."
