Judge declares mistrial in case of Arizona rancher charged with murder of Mexican national on border property
A jury was unable to reach a verdict in the case of Arizona rancher George Alan Kelly, who was accused of second-degree murder in connection to the death of a Mexican national found fatally shot on his borderland ranch in January 2023.
The jury began deliberating April 18. After days of being unable to reach a verdict, the judge overseeing the trial declared a mistrial on Monday.
The case centered around the death of Mexican national Gabriel Cuen-Buitimea, who was found shot to death on Kelly's 170-acre cattle ranch near Keno Springs outside Nogales, Arizona, on Jan. 30, 2023.
Kelly's defense has countered the prosecution's argument that Cuen-Buitimea was an unarmed migrant and has suggested cartel influence mired the death investigation.
"Long story short, this is simply not somebody who's looking for the American dream. There's no evidence that this person is here for those kinds of benign purposes," Kelly's defense attorney, Brenna Larkin, said during her closing argument on Thursday. "And we bring that up, not, you know, to be judgmental about Gabriel or to not have compassion for him. But when people are involved in a criminal lifestyle, it's dangerous. It's more inherently dangerous than simply being a migrant who's coming here. So it's relevant for that reason."
Cuen-Buitimea had illegally entered the country multiple times previously and had been deported as recently as 2016.
Over the course of weeks, jurors heard testimony regarding where and at what distance Kelly was standing when prosecutors argued he fatally shot Cuen-Buitimea, as well as the motivation for the gunshots.
The defense maintained Kelly only fired warning shots into the air from his patio earlier in the day, and his wife, 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.
The fatal bullet was never recovered from the scene. A criminologist working pro bono as a consultant for Kelly’s defense, Dr. Ron Martinelli, 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.
Santa Cruz County Sheriff David Hathaway was pressed by the defense about an online video showing him speculating that Kelly wanted to "go hunt me some Mexicans."
"You told Big Super, ‘We caught this rancher shooting at migrants’ and then you said that ‘there are people who want to come hunt some Mexicans’ — you made that statement?" a defense attorney asked Hathaway on Wednesday. Big Super is the name of the real estate YouTube personality whose video Hathaway was featured in touring his borderlands neighborhood.
"Yeah I did,’ Hathway replied. "I just did a colloquial, ‘There are some people that want to go hunt them some Mexicans.' Yeah I did make that statement."
Martinelli also alleged to Fox News Digital that Hathaway broke U.S. State Department protocol and Mexican law by arranging an unauthorized meeting to interview Daniel Ramirez in Nogales, Mexico, weeks after the shooting. The prosecution argued that Ramirez was the sole witness to Cuen-Buitimea's shooting death and fled across the border afterward.
Ramirez testified that he previously carried drugs across the border, though not on the day of the January 2023 shooting.
The defense argued that based on Ramirez's own testimony, it did not seem he was even present that day. The jury was able to make a field trip to Kelly's ranch to get a lay of the land.
"The only conclusion that can be reached based on Daniel's description of this property is that he wasn't there," Larkin said. "You cannot find Mr. Kelly guilty of aggravated assault against Daniel because Daniel was not there. And you cannot find him guilty of any of the offenses, second degree murder or lesser included, because they did not prove that Alan shot this person, and they have to prove it."
Larkin told jurors that Kelly was confronted with "a threat to his life" and "had a rifle pointed at him," meaning that he would have been justified in using deadly physical force.
But even so, the rancher "didn't use deadly physical force," Larkin said in her closing argument. "He fired shots up into the air, over the tree, over where these people were to get the threat to stop."
"The law does not say that you cannot use lesser force to defend yourself. The law does not say that when you're out in the middle of nowhere and you folks were out there. This is not downtown Nogales. This is not a populated area. This is isolated. It is empty," Larkin told the jury. "He can fire warning shots to protect himself and to protect his wife. And that's exactly what he did. That's exactly what any man who cares about his wife and his home should do in this situation when faced with the threat that he was faced with."
In the state’s closing argument, prosecutor Mike Jette maintained to the jury that there’s "no justification" for Kelly having seen "two unarmed men walking two fences away" and "pulling out your AK-47, stepping on the patio, no verbal warning and shooting nine times."
"He escalates the situation. His wife is fine," Jette said Thursday. "You do not have the right to use deadly physical force to protect a person who didn't need protecting. You don't have the right to use deadly force when there is no threat to home or yard, and you don't have the right to initiate, instigate or escalate with deadly force. No right whatsoever."
"Gabriel and Daniel were shot at. Gabriel is dead, killed by a high-powered weapon, an AK-47. Entry wound, exit wound lined up with the defendant's property," the prosecutor said. "Steps out, no verbal warning. Defendant shot his AK nine times. Shell casings prove it. Ejection pattern proves where he was standing. Position and orientation of Gabriel's body proves where the shot comes from."
Jette closed by telling the jury if they’re not convinced on the second-degree murder charge, they can still convict Kelly on the lesser charges of manslaughter, negligent homicide or aggravated assault.
Kelly made national headlines last year when he was held on a $1 million bond on a first-degree murder charge for several weeks. The highest charge was later downgraded to second-degree murder.
The rancher rejected a deal from prosecutors earlier this year that would have reduced the charge to one count of negligent homicide if he would agree to plead guilty.