Hung jury split 7-1 in favor of acquitting Nogales rancher in murder trial, defense says

One juror, who refused to acquit Nogales rancher George Alan Kelly, was the lone holdout in the closely watched murder trial, according to Kelly’s defense team.

The jury was split 7 to 1 in favor of acquittal, defense attorney Kathy Lowthorp confirmed to the Arizona Daily Star on Tuesday.

Kelly is accused of killing an unarmed migrant on his property last year. Lowthorp said he’s received “a ton” of support and the Kelly family is grateful and optimistic, despite facing the possibility of a retrial, she said.

“They would have loved to have an ending to this story,” she said. “They know it was a victory, but not the 100% victory they were hoping for.”

Santa Cruz County Superior Court Judge Thomas Fink declared a mistrial Monday due to the deadlock. Jurors had deliberated for about 16 hours following the nearly four-week trial, which drew national attention.

Prosecutor Kim Hunley, chief deputy Santa Cruz county attorney, is expected to announce at a Monday status hearing whether the case is headed for a retrial or not. Kelly is charged with second-degree murder and one count of aggravated assault with a deadly weapon.

Fink had instructed the jury that they could consider lesser charges of manslaughter or negligent homicide, if they couldn’t agree to convict on the second-degree murder charge.

Hunley declined to comment after the mistrial ruling. Prosecutor Mike Jette said Tuesday he couldn’t comment on the case at this time.

Representatives from the Mexican consulate in Nogales, Arizona followed the case closely and have been supporting the family of Mexican national Gabriel Cuen Buitimea, whom prosecutors say was killed by a bullet from Kelly’s AK-47 last year.

Cuen Buitimea’s body was found 115 yards from Kelly’s patio, where law enforcement recovered nine spent bullet casings from Kelly’s AK-47. The bullet that killed Cuen Buitimea was never found.

Nogales Consul General Marcos Moreno Báez said his office was “surprised” by Monday’s outcome but trusts justice will prevail.

“We will continue to accompany Mr. Cuen Buitimea’s family very closely,” Moreno Báez said in a Tuesday email. “Both the young daughters of Mr. Cuen Buitimea are devastated but they will continue to seek justice.”

Moreno Báez said the prosecution showed Cuen Buitimea was an innocent victim, despite defense attorneys’ efforts to paint him as involved in criminal activities.

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“In the 17 days of hearings, and the concluding remarks of both parties, it was clear that Mr. Gabriel Cuen Buitimea was no threat to anyone,” he said. “He was walking unarmed towards Mexico and there was nothing to suggest his involvement in alleged illegal activities. He was shot in the back with an AK-47, an unprovoked deadly attack while being hundred yards from the suspect’s residence.”

On Tuesday, Lowthorp reiterated the defense’s argument that the investigation into Cuen Buitimea’s death was biased from the start. She said the Border Patrol ranch liaison, to whom Kelly reported Cuen Buitimea’s body, falsely conveyed to the sheriff’s office that Kelly had said he shot someone. So detectives came into the investigation believing Kelly had stated that he shot someone and failed to investigate other possible culprits, she said.

“It was that old game of telephone. From then on, the investigation was shot,” Lowthorp said.

During the trial, prosecutors Hunley and Jette argued Kelly was evasive and inconsistent when he reported finding Cuen Buitimea’s body to a Border Patrol ranch liaison, suggesting Kelly thought the matter could be “brushed under the rug.”

Later, speaking with a 911 dispatcher, prosecutors say Kelly tried hard to avoid saying he’d found a dead person on his property. Instead, Kelly described Cuen Buitimea’s body as that of “an animal — it’s not a vegetable or a mineral.”

Kelly only admitted that he had fired his AK-47 about 30 minutes into a 50-minute interview with detectives that night, prosecutors said. That was after also failing to tell other law enforcement officers on his property earlier in the day that he had fired his weapon.

Defense attorneys said Santa Cruz County detectives “browbeat” Kelly during an interrogation. But prosecutors quoted Kelly telling detectives they were “very professional.”

Lowthorp told the Star she got to speak to two jurors, who voted to acquit, for about 30 minutes after court recessed on Monday. The jurors conveyed they thought the defense’s narrative was effective and thorough, she said. Still, Lowthorp said the defense might adjust its strategy somewhat if the prosecutors decide to re-try the case.

“You gotta do something to keep them (prosecutors) on their toes,” she said.

Lowthorp said the only other hung jury she’s encountered in her 24-year career resulted in a retrial and eventual acquittal for her client.

She said she hopes people “say some prayers for Monday, that we don’t have to go through this again.”