PHOENIX (AP) — An Arizona rancher accused of shooting at a group of migrants on his property near the U.S.-Mexico border, killing one man, will face trial on charges including second-degree murder and aggravated assault, a judge ruled Friday.
Santa Cruz County Justice of the Peace Emilio G. Velasquez made his decision following hours of testimony that he said aired a lot of new information about the Jan. 30 shooting, which left Gabriel Cuen-Buitimea, a 48-year-old from Nogales, Mexico, dead on George Alan Kelly’s ranch outside Nogales, Arizona.
“Do I think there was some testimony that there might have been some holes on? Yes. I do," the judge said. “But at the end of the day ... the court does find that the offenses were committed by this defendant and I will be binding this over to Superior Court.”
There was no visible reaction from Kelly, who sat with his attorney, Brenna Larkin, during a livestream of the evidentiary hearing in Nogales.
The judge said Kelly, 74, can remain free on $1 million bail pending his March 6 arraignment, with restrictions including no contact with witnesses or Cuen-Buitimea's family and a ban on possessing firearms.
Larkin earlier lost a bid to postpone Friday's hearing after prosecutors lowered Kelly's charge from a single count of first-degree murder, which would require a finding of premeditated intent to kill and can lead to a sentence of death or life imprisonment.
Chief Deputy County Attorney Kimberly Hunley told the judge that prosecutors intend to prove second-degree murder — that Kelly had no basis for “intentionally, knowingly, or under circumstances recklessly” shooting an AK-47 rifle toward eight or so unarmed migrants about 80 to 100 yards (meters) away.
“There is no justification for shooting an unarmed man in the back,” Hunley told the judge.
During a warrant search of Kelly's house following the shooting, sheriff's deputies found several weapons but at first missed the AK-47. They returned with a second warrant and found it hanging on a door.
Larkin said her client shot into the air above the migrants. She has said Kelly feared for his and his wife's safety and the property.
On Friday she pointed to phone calls Kelly made the day of the killing to U.S. Border Patrol agents he knew from previous incidents at his ranch, reporting that he heard shooting outside and “he might have to return fire or he is returning fire, something along those lines.”
“He sees armed people with rifles carrying backpacks going through his property, and he sees his horse running,” the defense attorney told the judge. She noted that two Border Patrol agents familiar with Kelly's ranch testified “that is a high-crime area, that there are a lot of drug traffickers that go through that area.”
Larkin repeatedly asked sheriff's deputies and Border Patrol agents who testified about “bias in the investigation” and told the judge she thought investigators scrutinized Kelly's statements more closely than those of witnesses.
Kelly did not testify. He apparently wrote about his borderlands ranching life in the self-published “Far Beyond the Border Fence,” described on as a “contemporary novel which brings the Mexican Border/Drug conflict into the 21st century.”
Friday's hearing featured sometimes-conflicting testimony from law enforcement agents and witnesses, including a Mexican man who recounted hearing gunfire and running behind Cuen-Buitimea when the victim said he had been shot, fell and died.
"I saw Gabriel,” said the man, who spoke through a Spanish-language interpreter and was referred to by the initials D.R.R. to protect his identity. “He held his chest and said, ‘I’m hit.’ He rolled his eyes and fell down.”
The court cut the video stream and provided only audio of the testimony from D.R.R., a farmworker in Mexico who said he had made “seven or eight” tries to cross the border to find work but was apprehended each time.
Court records show Cuen-Buitimea also entered the U.S. illegally several times, and was convicted and deported, most recently in 2016.
D.R.R. testified that he and Cuen-Buitimea, whom he called a friend, had paid a guide for passage across the border on Jan. 30 and were heading to Phoenix. He also said neither of them was carrying a weapon, and the guide had left them. Cuen-Buitimea was wearing a green camouflage backpack as well as a bag on his belt.
The man said he believed he heard 15 or 16 shots fired as the group ran. A sheriff's deputy testified that investigators recovered nine shell casings near Kelly's south-facing back porch.
D.R.R said that as he fled he saw a man with white hair near the house and something in the man's hand. He did not identify the object as a gun.
“I ran 20 meters (22 yards) when I turned around to see him,” D.R.R. said. “I turned around to see if it was government agents coming after us. I was able to jump and I jumped the wall back to Mexico.”
Two other migrants also told authorities that Kelly shot at them. They, too, were not hit and managed to escape back to Mexico.
Hunley has said her office, the court and the sheriff's department "have all received disturbing communications, some threatening in nature, that seem to indicate an ongoing threat to the safety of the victims.”
The shooting has stirred emotions as heats up ahead of the 2024 presidential election.
Less than six months ago, a prison warden and his brother were arrested in a Michael and Mark Sheppard, both 60, were charged with manslaughter in the September shooting.
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Ritter reported from Las Vegas. Associated Press writer Anita Snow in Phoenix contributed to this report.
