After a mistrial, it'll be much tougher to convict rancher George Kelly of murder
The serious legal jeopardy isn’t over for 75-year-old George Alan Kelly, the Arizona rancher accused of murdering a Mexican migrant on his ranch property on Jan. 30, 2023.
He still faces a count each of second-degree murder and aggravated assault.
But things moved decidedly in his favor on Monday, when a jury deadlocked after more than 15 hours of deliberation — meaning the prosecution had failed to fully convince an eight-member panel of his guilt.
George Alan Kelly has 2 advantages
While an acquittal would have been ideal for Kelly, his attorney said the mistrial was “the second-best answer,” the Arizona Daily Star reported.
Prosecutors must now decide if they want to retry Kelly with a new jury.
As for the first jury, it was spent. Its demeanor “suggested deliberations had been tense,” The Star reported.
In a case in which the physical evidence showed that Kelly had fired up to nine rounds that day and that a Mexican man had been shot to death on Kelly’s property near the U.S.-Mexico border, the facts would seem to favor the prosecution.
But Kelly enjoyed two important advantages at trial.
The first was that his case coincided with a national awakening to the emerging chaos and national security threats at the U.S.-Mexico border.
1. Immigration is hot in an election year
This year, according to a Gallup survey, Americans say immigration has become the number one problem confronting the country.
Images of migrant crowds gathering at border crossings are now a daily staple of cable TV news.
Kelly’s property is adjacent to the border and is often traveled by migrants. The defense argued that over the years the border has become demonstrably more dangerous, especially for people like Kelly who live on our southern border.
His own property, like that of many southern Arizona ranchers, is also traveled by drug smugglers and other criminals, the defense argued.
Should prosecutors decide to retry Kelly, they will do so in an election year when the issue of border chaos is likely to become even louder and more contentious as we get closer to the 2024 presidential race.
Why Kelly's trial: Could become a political powder keg
Santa Cruz Superior Court Judge Thomas Fink set a status hearing for the case on April 29.
With its international dimensions, the case has drawn the scrutiny of the Mexican government.
Consul General Marcos Moreno Baez of the Mexican consulate in Nogales told the Associated Press on Monday he was waiting with the victim’s two adult daughters to meet with prosecutors to discuss the implications of a mistrial.
2. Kelly has a fighter for an attorney
If two stars had aligned for Kelly in this trial, the second was his attorney.
Brenna Larkin was his defense counsel in the case, and she came out swinging from the start.
Larkin came to trial prepared and ready to attack, taking after Kelly’s accusers — the Santa Cruz County Sheriff’s Office, the U.S. Border Patrol and the key witness for the prosecution. Anyone watching the trial could be forgiven if they thought Larkin was the prosecutor.
This was not out of character for Larkin, who in her former life proved her tenacity in another ring — the real thing —- where she won a championship in mixed martial arts.
In her fighting days, she told an interviewer in 2018 she has no particular style of fighting. But it isn’t true. She’s an aggressor. She attacks. You can see it in her fight videos.
Larkin’s defense was to put Kelly’s accusers on trial and force them to defend their many inconsistencies.
Why Kelly could escape his legal woes
She painted a larger picture of law enforcement arriving on the scene the day of the shooting with a preconceived and false notion that Kelly was guilty.
She argued that investigators pushed hard on Kelly’s inconsistent statements, but went kid gloves on his accusers when they contradicted themselves over and over.
“This case was charged first and investigated later,” Larkin argued in a preliminary hearing, as reported by Fox News correspondent Danielle Wallace.
Comparing it to another high-profile shooting, Larkin said, “The Alec Baldwin case comes to mind of a case where an incident occurred, there was a shooting, there was an investigation and following the lengthy investigation, then there were criminal charges. That’s an example of how a criminal case should be handled. This case was not handled in that manner, Your Honor.”
She would later bring these arguments to trial.
Rather than steer away from the physical evidence, Larkin embraced it, arguing it will never prove who killed Mexican national Gabriel Cuen-Buitimea.
In borderlands that have become the Wild West, there can be many explanations for why someone is shot, she suggested, and no bullet was recovered that could directly tie Kelly to the shooting.
It wasn’t enough to win the case, but it was enough to sow doubt and to give Kelly a fighting chance to survive his serious legal woes.
Phil Boas is an editorial columnist for The Arizona Republic. Email him at phil.boas@arizonarepublic.com.
This article originally appeared on Arizona Republic: George Kelly mistrial suggests Arizona rancher won't be convicted
