NOGALES, Ariz. — An Arizona rancher who was unsuccessfully tried in the fatal shooting of a Mexican man on his property will not be retried, a judge ruled Tuesday.
Santa Cruz County Superior Court Judge Thomas Fink denied a request by prosecutors who had argued that the possibility of a new trial should be left open in case new witnesses emerge.
Fink agreed with attorneys for rancher George Alan Kelly who said the case should be dismissed with prejudice, meaning it cannot be brought back to court after it ended in a mistrial April 22 with jurors unable to reach a unanimous verdict.
In his latest ruling, 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.
Fink 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.”
Prosecutors did not immediately respond to an email message seeking comment on the judge's ruling.
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, 75, was on trial for nearly a month in Nogales, a city on the border with Mexico, in the death of 48-year-old Gabriel Cuen-Buitimea, who was fatally shot on Jan. 30, 2023. Kelly was charged with second-degree murder.
Cuen-Buitimea, who lived just south of the border in Nogales, Mexico, was in a group of men whom Kelly encountered that day on his ranch.
Prosecutors claimed Kelly recklessly fired nine gunshots toward the group from about 100 yards (90 meters) away. Kelly said he fired warning shots in the air and not directly at anyone.
In his ruling, Fink noted the testimony of a Honduran migrant who told jurors he was walking with Cuen-Buitimea that day. The judge wrote that any new witnesses would contradict testimony that the man was the sole witness and raise other credibility challenges.
Fink also wrote that since the bullet that killed Cuen-Buitimea remains missing, there is no reliable forensic evidence to prove who shot him.
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