A justice of the peace on Friday found probable cause for Kino Springs rancher George Alan Kelly to face trial on charges of murdering one Mexican man and assaulting two others when he fired an AK-47 toward them after seeing them on his property.
Justice of the Peace Emilio Velasquez reached his decision after an all-day hearing, during which he heard testimony from several witnesses: three Sheriff’s Office detectives and a man who directly implicated Kelly as the shooter. The latter witness, a Mexican citizen, said he saw 48-year-old Gabriel Cuen Buitimea drop dead from a gunshot wound after the two of them, along with five other people, had illegally crossed the U.S.-Mexico border on Jan. 30.
At some points, the lines of testimony became tangled, vague or conflicting – something that caused Kelly’s attorney Brenna Larkin to question the credibility of the witnesses and raise concern about bias in the investigation. For her part, Chief Deputy County Attorney Kimberly Hunley, the lead prosecutor in the case, alleged that Kelly’s own narrative of events had changed multiple times since he first called authorities on the afternoon of Jan. 30.
Velasquez acknowledged that he’d noticed conflicting testimony – but, he added, the court had only heard from several witnesses so far.
“There’s just so many things that are in question. But at the end of the day, this is a probable cause hearing,” he said, before making his decision known.
Kelly, 74, was arrested Jan. 30 after he led authorities to Cuen Buitimea’s body. Initially, he was charged with first-degree murder. But by Friday, the Santa Cruz County Attorney’s Office had downgraded the charge to one count of second-degree murder.
Asked via email on Friday if there was anything he could say about the decision, County Attorney George Silva told the NI: “Not at this time.”
Shifting a criminal charge from first to second-degree murder creates a new set of standards for Kelly. Arizona law recognizes second-degree murder as a person knowingly or intentionally causing loss of human life without premeditation. Under the statute, a person can also commit second-degree murder by exhibiting “extreme indifference to human life” – a standard invoked by Hunley at Friday’s hearing.
“The state will submit that even based on the defendant’s statement that he went outside and shot in the direction of people, that he manifested extreme indifference to human life,” she told Velasquez.
Kelly also faces two charges of aggravated assault against a pair of alleged witnesses to the shooting.
Through his attorney, Kelly has maintained his innocence, saying that while he’d fired defensive warning shots above a group of armed men walking through his property, he couldn’t have hit anyone.
He is now set to be arraigned at Santa Cruz County Superior Court on the three charges at 1:30 p.m. on March 6 in front of Judge Thomas Fink. In order to convict Kelly at trial, the state will have to convince a jury that he is guilty beyond a reasonable doubt – a higher standard than the probable cause threshold of a preliminary hearing.
One witness, a Mexican citizen identified in court only by the initials D.R.R., walked silently into the courtroom Friday afternoon, wearing a blue disposable face mask.
During the examination, D.D.R. told attorneys that he and Cuen Buitimea had crossed the border that day with a group of unarmed, undocumented migrants. The man said he was hoping to travel to Phoenix by way of “Washington” – an apparent reference to the Washington Camp area in the Patagonia Mountains.
However, after noticing Border Patrol agents, the group decided to turn back in an attempt to remain undetected.
Then, the man told the court, someone began shooting at the group. At the time, Cuen Buitimea was standing nearby.
“He told me, ‘I’ve been hit!’” D.D.R. said.
On the witness stand, D.D.R. identified Kelly as the man he saw at the scene. He also noted he hadn’t been sure whether Kelly was carrying a weapon at the time, though he stated that Kelly had been carrying something “in his hand.”
Later, another witness – Sheriff’s Detective Mario Barba – described an interview he’d conducted with another Mexican citizen who’d reportedly crossed the border with the group. The Mexican citizen, identified by the initials R.F.G., told the detective he also saw Cuen Buitimea get shot on Jan. 30.
But R.F.G.’s testimony varied somewhat from that of D.D.R. Barba testified that R.F.G. described Cuen Buitimea as a guide for migrants – something D.D.R. had denied. R.F.G also told the detective he’d seen Kelly’s ranch, though D.D.R. had denied seeing a house during the incident.
What’s more, R.F.G., who made contact with the Sheriff’s Office on Feb. 8, told Barba that he’d recognized Kelly from his picture in the news media. R.F.G. also alleged that Kelly had a Nissan Sentra or Ultima car on his ranch – something the detective said turned out to be false.
In her closing argument, Hunley addressed the conflicting information, noting that witnesses’ recollections and memories of a traumatic event can often change over time.
“Both of their testimonies … are not completely consistent. What they are consistent with is that an individual was shot and killed,” Hunley stated.
But Larkin alleged that prosecutors were holding Kelly to a higher standard than the two men, whom she referred to as “so-called” witnesses.
“I’m not sure why Mr. Kelly’s not entitled to the same benefit of the doubt with respect to his statements,” Larkin added.
Larkin wrote in a motion filed Feb. 9 that Kelly’s wife had corroborated her husband’s assertion that armed men carrying large backpacks had approached their home prior to the shooting. Larkin also acknowledged that Border Patrol agents and sheriff’s deputies “walked all over” Kelly’s property without finding the alleged group, and the Border Patrol had used “various cameras” to try to locate the armed men, but without success.
The state had wanted to put Kelly’s wife on the witness stand Friday. However, the woman, who had previously attended her husband’s hearings, was not present.
According to Hunley, Kelly’s wife had not returned a call from authorities the previous day when they tried to subpoena her to testify at the hearing.
For his part, Kelly attended the hearing and sat at the defense table in street clothes after having been released from jail on a $1 million surety bond two days earlier.
Much of the state’s evidence presented Friday involved witnesses reiterating details contained in a motion Hunley had filed earlier in the week, in which she had opposed modifying Kelly’s conditions of release.
Sheriff’s Detective Jorge Ainza, the lead investigator in the case, testified that he made the decision to arrest Kelly on Jan. 30 for first-degree murder due to what he felt were inconsistent statements from Kelly. Ainza also alleged that Kelly ultimately admitted to shooting at the men after initially denying it.
During cross-examination, Larkin tried to cast doubt on the assertion that Kelly’s story had changed, and got Ainza to acknowledge that Kelly had continued to insist that he fired “over” the group rather than “at” them.
Ainza also testified on direct examination that he had attended Cuen Buitimea’s autopsy, where a medical examiner confirmed that the bullet that killed him had entered through his back and exited from his chest.