Judge closes door to new trial for Arizona rancher in fatal shooting of Mexican man
NOGALES, Arizona — An Arizona rancher who was unsuccessfully tried in the fatal shooting of a Mexican man on his property will not be retried, a judge ruled Tuesday.
Santa Cruz County Superior Court Judge Thomas Fink denied a request from prosecutors who argued that the possibility of a new trial should remain open in case new witnesses come forward.
Fink agreed with attorneys for rancher George Alan Kelly, who said the case should be dismissed with prejudice, meaning it cannot be brought back to court after it was a mistrial April 22, when the jurors could not reach a unanimous verdict.
In his final ruling, Fink said it would not serve justice if prosecutors waited for a tactical advantage to retry Kelly, saying it would amount to intimidation of the defendant.
Fink noted that the jurors were not persuaded by the prosecution’s arguments during the trial. He said that a new trial would result in the jury again reaching an indecisive verdict or, more likely, an acquittal.
“The evidence simply was not there,” the judge wrote. “There is no reason to believe that a different jury would reach a different conclusion.”
The Public Prosecution Service did not immediately respond to an email requesting comment on the judge’s ruling.
After the trial, Deputy District Attorney Kimberly Hunley said the prosecution supported dismissing the case but wanted the option to retry it if circumstances changed. She said unknown witnesses could come forward and known witnesses in Mexico could become available.
Kelly, 75, had been on trial for nearly a month in Nogales, a city on the border with Mexico, for the death of 48-year-old Gabriel Cuen-Buitimea, who was fatally shot on Jan. 30, 2023. Kelly was charged with second-degree murder.
Cuen-Buitimea, who lived just south of the border in Nogales, Mexico, was part of a group of men Kelly encountered at his ranch that day.
Prosecutors alleged that Kelly recklessly fired nine shots into the group from about 100 yards (90 meters) away. Kelly said he fired warning shots into the air and not directly at anyone.
In his ruling, Fink noted the testimony of a Honduran migrant who told jurors he was walking with Cuen-Buitimea that day. The judge wrote that any new witnesses would contradict the testimony that the man was the only witness and raise other credibility issues.
Fink also wrote that there is no reliable forensic evidence to determine who shot Cuen-Buitimea because the bullet that killed him is still missing.