Prosecutors won't retry Arizona border rancher on murder charge after hung jury

A Nogales rancher who was accused of killing an unarmed Mexican man on his property is now a free man, after prosecutors declined Monday to retry the case that ended in a mistrial last week.

“Because of the unique circumstances and challenges surrounding this case, the Santa Cruz County Attorney’s Office has decided not to seek a retrial,” said prosecutor Kim Hunley, chief deputy Santa Cruz county attorney, during a status hearing in Santa Cruz County Superior Court on Monday afternoon.

Jurors were unable to reach a unanimous verdict in the closely watched trial and deadlocked 7-1, in favor of acquittal, according to Kelly’s defense team.

After asking jurors to keep trying to reach a verdict, Superior Court Judge Thomas Fink declared a mistrial on April 22.

Kelly, 75, was charged with second-degree murder in the killing of Gabriel Cuen Buitimea of Nogales, Sonora, as he crossed the rancher’s property, heading toward the U.S.-Mexico border.

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 recovered.

Defense attorney Kathy Lowthorp said Kelly and his wife Wanda will likely relocate to be closer to family in the southeast.

“I’m just so happy for them. We got the right answer,” Lowthorp said after Monday’s hearing. “I think he’s ready to get out of the area. This has not been a very fun year and a half.”

Representatives of the Mexican consulate in Nogales provided support to the two daughters of Cuen Buitimea throughout the nearly month-long trial.

The family was “devastated” after the mistrial and believes anti-immigrant sentiment contributed to an “unfair” trial, said Marcos Moreno Báez, Mexican consul general in Nogales, in a Monday email.

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“The Consulate General deeply regrets lack of justice to the victims, particularly Mr. Cuen’s daughters, whom we accompanied since day one,” Moreno Báez said. “The victim’s family anticipated the verdict based on what they witnessed throughout the trial, namely a very negative narrative concerning migration flows.”

Kelly also faced a charge of aggravated assault with a deadly weapon against Daniel Ramirez, a Honduran national who testified that he was traveling with 48-year-old Cuen Buitimea, as they sought roofing work in the U.S.

Kelly said he fired warning shots above the heads of a group of migrants crossing his property on Jan. 30, 2023. He told a Santa Cruz County detective that a migrant pointed a weapon at him while crossing his property, but earlier he’d told a Border Patrol agent that the group of migrants he saw on his property was too far away to tell if any were armed.

Kelly earlier rejected a plea deal that would have reduced the charge to one count of negligent homicide if he pleaded guilty, the Associated Press reported.

Prosecutors said Kelly acted with reckless disregard for human life and described him as inconsistent and evasive in talks with law enforcement on the day of the shooting.

“I’m disappointed for the victims,” said attorney Mike Jette, who assisted the prosecution in the case but was not involved in the decision not to seek a retrial. “This is a very traumatic event for the surviving members of that family. ... I’m sure this was a difficult decision.”

A Monday news release from the Santa Cruz County Attorney’s Office said the office’s decision not seek a retrial in the case “should not be construed as a position on future cases of this type.”

“Our office is mandated by statute to prosecute criminal acts, and we take that statutory mandate seriously,” the release said. “We will review the facts of each case as they are presented to our office, and we will continue to prosecute all criminal acts that occur within our jurisdiction when a factual and legal basis exists for prosecution.”