An Arizona rancher whose murder trial ended in a mistrial after the jury could not reach a unanimous verdict will not face a retrial. That decision was handed down Tuesday by Santa Cruz County Superior Court Judge Thomas Fink who denied a request by prosecutors who had argued the possibility of a new trial should be left open in case new witnesses emerge.
Fink, however, agreed with attorneys for rancher George Alan Kelly, 75, who argued the case should be dismissed with prejudice, meaning it cannot be brought back to court after it ended in a mistrial April 22.
Fink said justice would not be served by letting prosecutors wait for a tactical advantage to retry Kelly, which he said would amount to harassment of the defendant. The judge noted that jurors could not be swayed by prosecutors’ arguments during the trial and said another attempt would result in another hung jury or more likely an acquittal.
“The evidence simply was not there,” the judge wrote. “There is no reason to believe that another jury would come to any different conclusion.”
After the trial, Deputy County Attorney Kimberly Hunley said the prosecution supported dismissing the case but wanted the option to retry it if circumstances change. She had said unknown witnesses may come forward and known witnesses in Mexico might become available.
Kelly was on trial for nearly a month in the death of Gabriel Cuen-Buitimea, 48, who was fatally shot on Jan. 30, 2023, on Kelly’s ranch near Nogales. Kelly was charged with second-degree murder.
Prosecutors claimed Kelly recklessly fired nine gunshots toward the group from about 100 yards away. Kelly said he fired warning shots in the air and not directly at anyone.
In his ruling Judge Fink noted that since the bullet that killed Cuen-Buitimea remains missing there is no reliable forensic evidence to prove who shot him.
