Judge Declares Mistrial for Rancher Accused of Killing Illegal Alien on His Property
The jury voted 7-1 not guilty.
Arizona Superior Court Judge Thomas Fink declared a mistrial for Arizona rancher George Alan Kelly, 75, who faced charges of second-degree murder in the death of an illegal alien on his property.
The jury voted 7-1 not guilty. Only one person voted “guilty of 2nd degree murder (or lesser charges to include negligent homicide and manslaughter).”
The incident happened 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.
The U.S. deported Cuen-Buitmea numerous times. The most recent happened in 2016:
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.
Sheriff Cruz County Sheriff David Hathaway faced tough questions from the defense:
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.
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.”
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.”
#BREAKING George Alan Kelly’s co-counsel Kathy Lowthorp walks out of court after judge declares mistrial—She says it was 7 to 1 for a not guilty verdict—One juror thought he was guilty of 2nd degree murder (or lesser charges to include negligent homicide and manslaughter).
The… pic.twitter.com/LRJBczMowp
— Ali Bradley (@AliBradleyTV) April 23, 2024
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Comments
Thank goodness! Leave this man alone.
I think a mistrial allows them to try him again.. The judge could have dismissed the case for lack of evidence- as a 7-1 jury vote showed.
This case never should have been brought. There is no way a jury will vote to convict. Too bad there was a jerk on the jury.
I will feel no sadness if the lone juror who voted to convict loses their life or the life of someone they love to an illegal invader.
I am glad that this was declared a mistrial, and I pray that he is left alone.
If any election year. The da or whoever will move for another trial and attempt to grind this man under their heel all in the name of getting votes.
TGG. What you say is true, and I am saddened that any DA would go after a US Citizen over an illegal invader… especially when it can’t be proven that Kelly was the one who actually killed the illegal invader.
The term banana republic is thrown around a lot, Sarge. But, look around us. Entire streets turned into slums with carboard shacks. Selective enforcement of laws. Show trials.
Are we really any better than those countries we disparage?
The disparaging term reflects what they do and how they do it, not who they are. Now that we do it also, the term also fairly applies to us.
I’m not too sure of that Bear. Why would the DA want to risk getting kicked in the teeth again during an election year? I’d think that was a very likely result given the 7-1 jury vote in the mistrial.
That DA deserves to be kicked out of office. How much money has he cost this man? I bet it was a great deal.
I wonder if a Karentita voted “guilty”. Help me out if a “Kennith-tito” sounds OK..
Finally some good news on the performance of juries. After some high profile cases in recent years it’s looked like juries are convicting the good guys if they don’t fit the woke narrative. (Chauvin for example.) This is the first of these high-profile case I’ve heard that has gone differently, in years.
It seems very important where your jury comes from, where the court is.
How many are convicting because they are threatened with being doxed? How many federal cases are juries threatened with audit after audit of their income taxes?
Normally, this would be the end of it particularly when there was only one vote for guilty. But, the days of ‘normal’ criminal justice are long over. If he’s not retried by the state, I suspect the Feds will find something to charge him with.
A “civil” “rights” violation.
Arrested and sent to D.C. gulag by the Feds. Trial date set for 2035 with no bail.
if nothing else the process is the punishment … lawyer fees
court dates … etc …
reading my mind. SMH
Just like Trump, year after year of abuse, Color of Law, there are a lot of people who should be in jail.
With the overwhelming “deep pockets’ of government and the process capable of financially crushing normal people… the state should bear the cost of defense as they do for “poorer” people.
Or, loser pays. Trump up a bunch of bullshit charges and then have the jury kick you in the teeth, the government picks up the lawyer’s tab.
There should be a 100 yard wide strip of land mines placed on the border, with signs saying “Enter at your own risk”.
Asylum seekers should line up at official ports of entry, and wait their turn to be processed. The current situation simply empowers child sex trafficking and illegal drug importation by cartels.
>>Asylum seekers should line up at official ports of entry, and wait their turn to be processed.
Which is exactly what federal immigration laws says must happen for anyone to make a legitimate asylum claim. They must go to an official federal port of entry and make the initial asylum claim. Crossing a river doesn’t satisfy federal immigration law. Sneaking across the desert doesn’t satisfy federal immigration law. Anyone not presenting themselves at an official federal port of entry are defined in federal immigration law as entering the country illegally and are illegal aliens and cannot seek asylum in the United States. Period. No exceptions. So any of the illegals that have crossed the border at any point other than an official federal port of entry/border crossing cannot receive asylum or remain in the country. All must be deported back to Mexico. The Biden regime knows this full well but like all things they chose to ignore the law and allow the illegals to flooding over the border the opportunity to seek asylum/residency in the United States.
The strip of land mines sounds like a fine idea until you realize that the cartels will have no trouble getting through them. They’ll just round some people up, threaten their families, and then drive them at gunpoint into the minefields. Those poor innocent people will step on the mines and die. Then the cartel members will just walk into the country.
Remember that we are not dealing with nice people.
Translation: Mistrial does equal not guilty. It means the deep sewer may prosecute this man again until it gets the result it wants.
DOES NOT EQUAL
whatever the linguistic shenanigans, this man will be tried for the same crime twice
I disagree. He will be tried for the same crime again and again until they get a jury that convicts him.
Because they are taking a page from the democrat lawfare playbook where the legal process itself is the punishment regardless of what a Jury or court may do.
I agree with you, if he’s tried again, he will be tried a second time for the same crime. Is this not prohibited by the Constitution (and the constitutions of several, if not every, State)? The Constitution does not say “no person having been found innocent of a crime may be tried again for the same crime,” it says no person shall “be subject for the same offence to be twice put in jeopardy…” “Jeopardy refers to the jury’s deliberation of the charges. This jury deliberated, the defendant was in “jeopardy,” and the prosecutor didn’t overcome the presumption of innocence. This man is “not guilty” by rule of law.
In Rhode Island’s original constitution, the rule was “no person having been found innocent shall be tried again for the same offense.” When RI revised its constitution, that clause became “no person having once been put in jeopardy shall be tried again for the same offense.” The latter version obviously differs from the former, a plain sign that a finding of “not guilty” is not the same as “jeopardy.” The two rules are not the same. If they were, why bother changing the language?
The rule is “once in jeopardy”, not “having been found innocent.” RI corrected its constitution. Why do our courts behave contrary to the plain language of our constitutions? All of us should pledge to acquit in any case in which the defendant is being tried again for the same offense. If our courts won’t enforce the Constitution, we must do so ourselves. The worst we can do is cause another hung jury, and the government may give up their (unconstitutional) prosecution.
“A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom.”
Thomas Paine
Common Sense
They get around that by saying the crime he was tried for was murder now we will try him for violating the civil rights of the deceased. Same act but different crime.
“Jeopardy refers to the jury’s deliberation of the charges.”
Not how it works. SCOTUS first ruled on this exactly two centuries ago, following common law going back longer than that. Jeopardy did not begin until a verdict was rendered. A hung jury means the defendant was found neither convicted nor acquitted. No verdict.
Since that ruling, SCOTUS has overruled itself, saying the defendant is placed in jeopardy when a jury is sworn. It’s also added a lot of confusion elsewhere, as variables in cases have become more complex, and you can read lots of papers about this stuff if that’s your thing.
But for a basic mistrial like this one, the 1824 precedent stands. SCOTUS wouldn’t even consider overruling it unless the makeup of the court was radically changed, and even then you wouldn’t see all hung jury retrials outlawed (unless down the road the court kept radicalizing, and at that point, America would be gone anyway.)
Juries usually end up hung for more than one reason. Think about this: if hung jury retrials were 100% prohibited under the Constitution no matter what, then any lone juror could prevent any prosecutor from ever winning a case for one reason: that juror didn’t like what was going on. Based on what? The law? Who cares at that point. Jury nullification would be the standard, not the rare exception. The balance of power between the state, the defendant and the citizen would be obliterated. The pressure to corrupt jurors would be off the charts. You’d have legit bad guys getting away with everything all the time, because all you have to do is make sure one person throws a wrench into the whole machine.
“Think about this: if hung jury retrials were 100% prohibited under the Constitution no matter what, then any lone juror could prevent any prosecutor from ever winning a case for one reason: that juror didn’t like what was going on. Based on what? The law? Who cares at that point. Jury nullification would be the standard…”
Jury nullification, although rare, is the standard. A juror always has the authority to refuse to convict, and the juror’s purpose in doing so is not reviewable. This is why courts have mischaracterized “jeopardy.” Clearly, before a jury considers the charges against a defendant, the defendant is not in jeopardy of any adverse ruling based on the charges against him. A defendant isn’t in jeopardy until the jurors consider the charges. Only then is the defendant in jeopardy of an adverse ruling (a “guilty” verdict).
For instance, a charge may be dismissed before the jury is charged. If it’s dismissed with prejudice, the charge can’t be brought against the defendant again. But the defendant was never in jeopardy, because before the jury is charged, the court can’t rule him guilty. Or, a mistrial may be called for some technical reason, or a reason beyond the ability of the court to control. Again, can the charge be refiled? Certainly. The defendant was never in jeopardy.
Saying that “jeopardy” is the rendering of the jury’s verdict is nonsensical. “Jeopardy” means the threat of something adverse, not the actual adversity (if it comes) itself. A verdict resolves the jeopardy into one decision or another. A person found guilty (or “not guilty”) isn’t “in jeopardy.” He was in jeopardy, but the threat has been resolved to a conclusion. Also, if the rendered verdict is “not guilty,” how is that “jeopardy”? A “not guilty” verdict is not adverse, and therefore can’t be “jeopardy.”
RI’s original constitution was actually completely correct by the arguments you made. Then why was the language changed? The language was changed, because requiring a unanimous “not guilty” verdict effectively imposes a burden on the defense to prove innocence, and not merely the failure of the prosecution to prove its case. There is no burden on the defense to prove anything. If the prosecution fails to meet the standard of unanimity in a guilty verdict. the defense has won. In this game, the defense can draw and win.
The standard of guilt in bench trial is that the prosecution must prove guilt to the judge. There is no such thing as a “hung” judge. The evidence either sustains the charges or it doesn’t. A hung jury occurs when not all of the jurors have been convinced that the defendant is guilty, and this is the standard that must be met by the prosecution to attain a “guilty” verdict. When the prosecution fails to do this, it hasn’t met the standard. The defendant is “innocent” as a matter of law, and the state has had it’s swing at him and missed.
BTW, the Thomas Paine quote at the end was meant to indicate that I don’t care what “authorities” have said about the issue. They will naturally contrive matters to favor themselves and the state. I try to use logic, and to argue from first principles, not the opinions of persons who are generally biased in favor of the state. I try to avoid appeals to authority when possible.
That being said, I’ll end with another quote.
“Revolutionary arguments surface even when long standing practices appear to have firm judicial support.”
Ren Jander, JD
Writing in https://www.thepostemail.com/2020/11/18/elections-undecided-by-midnight-are-void-9-0-decision/
11.18.2020
DaveGinOly – No, jury nullification isn’t THE standard. Jurors take an oath to reach a decision according to the evidence and the law. That is the standard. Nullification is blowing off the standard.
Correct, juries are not required to explain verdicts. They can ignore the law. I never said otherwise. What you propose would make that infinitely worse. Declaring a mistrial under the conditions of what’s called manifest necessity (as this case is) is yet another standard going back two centuries in America. There has been a lot of confusion over the years about the meaning of double jeopardy in certain cases – there is no confusion when it comes to basic, legit mistrials.
Since you like quotes, here’s one about when a retrial is proper: “A jury’s genuine inability to reach a verdict constitutes manifest necessity.”
Guess who wrote that? The Wise Latina in Blueford v. Arkansas (2012). If your concept were the law of the land, even she understands the shit show that would result.
In accordance with the jurisprudence of, “litigation until the immigrant wins.”
of course
just like the man in nyc who saved the subway victims from another deranged lefty…….
good americans are being forced into policing their own areas
the defund the police is>>> “defund” the citizens
only criminals are allowed to strike at you
thats become the law in many places for fear of
blmplo street thuggs
We don’t know the politics of the deranged individual. I doubt he had any politics at all; he was just a full blown nutcase or, full blown antisocial trash.
Side note: every time you type “blmplo” my mind keeps seeing “Blimp-o”!
Remember what the did to Bernie Goetz
the bk him into oblivion
correction:
“they”
“they”
Actually, they convicted him only of the “synthetic crime” of mere firearms possession in a rights-free state, without convicting him of a single crime against his “victims.”
Looks like a justified shooting to me. Needs more practice, poor aim.
I disagree that he will be tried again. With a 7-1 verdict that tells the DA that the next trial may be even worse for the state.
When you consider that the AZ Governor, Katie Hobbs, is a Soros plant and has benefitted from Soros donations, the State of AZ will continue its prosecution and litigation against the rancher for these reasons:
1) The Democrats want to eliminate stand-your-ground and self-defense statutes.
2) The Democrats are obsessed with getting a conviction of a white man who protected his property and life.
3) It’s an election year, and a conviction (in their warped minds) makes the state look good.
4) The defendant is white, owns private property, and probably supports Trump.
Our immediate family clan gathered for dinner yesterday. I was heartened that all of them (except me, apparently) were quite conversant about details of this trial beyond the mistrial declaration.
I was informed that the judge, having given the prosecution all the time they needed, then whined to the defense that the trial was dragging on too long and that they would be afforded no more than five minutes to elicit testimony from their star witness. The defense attorney objected that this was their key witness and they could not perform the necessary interrogation in that short a time. After which the judge rose and physically exited the room in the middle of said testimony.
I can’t say that this dickery positively influenced the jury vote, but it sure as hell would have influenced mine.
And Arizona does have judicial retention balloting for ALL judges during all presidential election years, so it’s going to be interesting seeing how this judge’s popularity numbers do in November.
That’s not what happened. First, that 5 minute remark from the judge was after a full day of cross 24 hours earlier. The defense wasn’t shortchanged. Second, the judge walked out, yes, but not during witness testimony. The court was on a break, the jury had been excused, the judge let the defense give an offer of proof and he didn’t want to sit through that. The judge was pissed at both sides.
At 7:1, why didn’t the Judge just dismiss the charges and be done with it? Sounds like some idiot prosecutor trying to “teach that redneck a lesson” and a holdout lefty anti-gun nut juror trying to make a point. Ugh.