Jurors in border rancher trial at 'impasse,' but judge says keep working

NOGALES, Arizona — The eight-person jury in the trial of Nogales rancher George Alan Kelly indicated Friday afternoon that they’re at an impasse, prompting the judge to press jurors to try harder.

“In my opinion, which is the one that matters at this point, you have not worked at this long enough,” Judge Thomas Fink told jurors on Friday, before sending them back to continue deliberations. “I am not trying to force or coerce a verdict. That is not my intention, that is not my job and that is not what I’m doing. But I do have a responsibility … to make sure that you do your job, follow your oaths and work as hard and long as you possibly can to reach a verdict.”

Kelly, 75, is charged with second-degree murder in the death of 48-year-old Gabriel Cuen Buitimea, an undocumented migrant from Mexico.

Kelly also faces a charge of aggravated assault with a deadly weapon against another man, who was with Cuen Buitimea when Kelly allegedly fired nine shots with his AK-47 in their direction, on his 170-acre property east of Nogales, in Kino Springs.

At the end of a nearly four-week trial, featuring testimony from more than 30 witnesses, the jury began deliberations around 2:40 p.m. Thursday and continued throughout the day on Friday.

Shortly before 2 p.m. Friday, the jury submitted a note to Fink, which he read to the courtroom: “We as a jury are at an impasse as to an unanimous verdict. We’re looking for guidance as how best to proceed.”

Defense attorney Kathy Lowthorp told the judge that, in her experience, jurors can often reach a verdict if encouraged to continue deliberating.

But Kim Hunley, chief deputy Santa Cruz county attorney, said the state’s position is that the judge must provide the jurors with official “impasse instructions,” once jurors say they are at an impasse.

Providing impasse instructions to the jury is a required step before jurors could affirm they are deadlocked.

At 4 p.m. Friday, jurors asked the judge to be dismissed for the day. They will return to continue deliberations starting Monday at 8:30 a.m.

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Prosecutors say Kelly acted with reckless disregard for human life when he shot at the two unarmed migrants on his property on Jan. 30, 2023. They pointed to inconsistencies in Kelly’s reports to law enforcement, as he first told Border Patrol that migrants on his property were too far away to see if they were armed, and later told law enforcement that one man pointed a gun at him.

Cuen Buitimea’s body was found 115 yards from Kelly’s home.

Cuen Buitimea was with a friend, Daniel Ramirez, who testified that the pair went to the U.S. in search of roofing work that day. They were traveling with a larger group of migrants when they encountered Border Patrol agents. The group scattered, and Cuen Buitimea and Ramirez fled towards the U.S.-Mexico border, crossing through Kelly’s property.

Kelly’s defense team says Kelly heard a gunshot, which his wife did not hear, while in his kitchen and saw a group of migrants crossing his property — the size of the group he reported to law enforcement ranged from 5 to 15 at various points — before firing warning shots above their heads.

Defense attorney Brenna Larkin suggested the gunshot Kelly heard could have been the shot that killed Cuen Buitimea, and argued the investigation into his death failed to consider the possibility that Cuen Buitimea was robbed and killed by a criminal gang.

Larkin said Kelly was living in fear on his ranch near the U.S.-Mexico border and acted to protect his wife, Wanda.

In a closing statement Thursday, prosecuting attorney Mike Jette pointed out that Wanda Kelly told investigators she did not feel threatened by migrants walking by on their property. She earlier testified that she saw two armed men walking past the ranch that day.

Prosecutors said the position of Cuen Buitimea’s body, and the trajectory of the bullet wound through his torso, are consistent with a shot fired from Kelly’s patio, where law enforcement recovered nine spent bullet casings.

The bullet that killed Cuen Buitimea was never recovered.