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George Alan Kelly, the Arizona rancher charged with murder in the shooting of a Mexican national on his border property, will not be retried, prosecutors with the Santa Cruz County Attorney’s office said.
The state charged Kelly, 75, with second degree murder after he allegedly shot and killed a migrant, Gabriel Cuen-Buitimea, on his land in January 2023.
The decision not to retry Kelly comes a week after a mistrial was declared following a deadlocked jury.
Kelly’s defense confirmed to Fox News Digital that there was “one, lone holdout” juror who wanted to convict, while the remaining jurors sought an acquittal.
George Alan Kelly enters court for his preliminary hearing in Nogales Justice Court in Nogales, Ariz., Feb. 22, 2023. (Mark Henle/The Arizona Republic via AP, Pool, File)
The case centered around the death of 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.
“Because of the unique circumstances and challenges surrounding this case, the Santa Cruz County Attorney’s Office has decided not to seek a retrial,” Deputy County Attorney Kimberly Hunley told Santa Cruz County Superior Court Judge Thomas Fink on Monday.
Cuen-Buitimea had illegally entered the country multiple times previously and had been deported as recently as 2016.
Kelly’s defense countered the prosecution’s argument that Cuen-Buitimea was an unarmed migrant and has suggested cartel influence tainted the death investigation.
During the trial, prosecutor Mike Jette said Kelly recklessly fired nine shots from an AK-47 rifle toward a group of men, including Cuen-Buitimea, about 100 yards away on his property. Kelly said he fired warning shots in the air, but claimed he did not shoot at anyone directly.
George Alan Kelly, right, exits the Santa Cruz County Courthouse with defense attorney Kathy Lowthorp, Friday, March 22, 2024, in Nogales, Ariz. Rancher Kelly has been charged with second-degree murder in the killing of a man he encountered on his property near Mexico. (Angela Gervasi/Nogales International via AP, Pool)
“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.”
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.
The fatal bullet was never recovered from the scene.
George Alan Kelly listens to closing arguments in Santa Cruz County Superior Court, Thursday, April 18, 2024 in Nogales, Ariz. Kelly was charged with second-degree murder in the January 2023 death of 48-year-old Gabriel Cuen-Buitimea, who lived south of the border in Nogales, Mexico. (Angela Gervasi/Nogales International, via AP, Pool)
“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.”
Kelly also 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.
Fox News’ Danielle Wallace contributed to this report.
