Judge closes door on new trial for Arizona farmer in fatal shooting of Mexican man

An Arizona farmer who was unsuccessfully charged with fatally shooting 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 argued that the possibility of a new trial should be left open in case new witnesses come forward.

Fink agreed with lawyers for farmer George Alan Kelly, who said the case should be dismissed with a writ of mandamus, meaning it cannot be brought back to trial after it ended in a mistrial on April 22 because the jury was unable to reach a unanimous verdict.

In his latest ruling, Fink said justice would not be served if prosecutors waited for a tactical advantage to retry Kelly, which he said would amount to harassment.

Fink said jurors would not be swayed by prosecutors’ arguments at trial and said another attempt would lead to another hung jury or, more likely, an acquittal.

“The evidence simply did not exist,” the judge wrote. “There is no reason to believe that another jury would have reached a different conclusion.”

Prosecutors did not immediately respond to an email seeking comment on the judge’s decision.

After the hearing, Deputy District Attorney Kimberly Hunley said prosecutors support dismissing the case but want the opportunity to retry the case if circumstances change. She said unknown witnesses could come forward and known witnesses in Mexico could come forward.

Kelly, 75, had been on trial for nearly a month in Nogales, a city on the Mexican border, for the death of 48-year-old Gabriel Cuen-Buitimei, 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 among the group of men Kelly met at his ranch that day.

Prosecutors said Kelly recklessly fired nine shots at the group from about 100 yards (90 meters) away. Kelly said he fired warning shots into the air, not directly at anyone.

In his ruling, Fink noted testimony from a Honduran migrant who told jurors he had been walking with Cuen-Buitimea that day. The judge wrote that any new witness would contradict the man’s testimony that he was the only witness and raise other credibility challenges.

Fink also wrote that because the bullet that killed Cuen-Buitimea is still missing, there is no credible forensic evidence to determine who shot him.