Arizona rancher George Alan Kelly would refuse a plea deal in migrant shooting death

The criminal proceedings against George Alan Kelly, who was charged with second-degree murder in the shooting death of a migrant on his Arizona ranch, have ended in a mistrial, a judge declared on Monday, making his defense team optimistic.

Jurors had been in deliberation since last Thursday, capping off a four-week trial, and one holdout could not agree on a verdict. Now, its up to prosecutors whether they want to try Kelly, 75, again or drop the charges.

Kelly's lawyer, Kathy Lowthorp, told NewsNation that Kelly isn't likely to take a plea deal and that prosecutors have 'very little hope that they will be productive in a second trial.'

'He is an innocent man,' Lowthorp said. 'I believe I showed that the state had no evidence and therefore, I was confident I would get a not guilty through the trial.'

The defense wanted the jury to continue deliberations, but the judge decided to end the case. According to Kelly's defense team, seven out of the eight jurors wanted to vote not guilty, which if true, could heavily factor into the state's decision on whether it'd be a good idea to pursue a second trial.

Outside of court on Monday after jurors failed to reach a unanimous decision after more than two full days of deliberation, Kelly, seen here, said 'let me go home'

Kelly exits the Santa Cruz County Courthouse with defense attorney Kathy Lowthorp after the first day of his trial on Friday, March 22, 2024

Kelly, 75, was accused of killing Gabriel Cuen-Butimea on January 30, 2023, at his home in Nogales, near the Mexican border

Kelly's defense attorney, Kathy Lowthorp (pictured outside the courthouse Monday), said only one juror wanted to convict and seven jurors wanted to acquit. The defense wanted the jury to continue deliberations, but the judge decided to end the case

Gabriel Cuen-Butimea, 48, was shot dead on January 30, 2023, while on Kelly's land. He was wearing combat boots and was carrying a radio, which the border patrol chief says suggested he was part of the cartel

Kelly's ranch in Nogales is a stone's throw from the border. Nogales is a known hot zone for drug smuggling, where the cartel is 'particularly aggressive,' according to border agents 

Kelly is confident he will be acquitted if there's another trial: 'They want ice water in you-know-where. And they ain't got it. So, it is what it is' 

Prosecutors said Kelly, 75, fired the shot that killed Mexican migrant Gabriel Cuen-Buitimea, 48, on January 30, 2023. 

Prosecutors claim that Kelly recklessly fired his AK-47 nine times at a group of migrants 100 yards away that were trespassing on his 170-acre cattle ranch near the U.S.-Mexico border. 

The group, which included Cuen-Buitimea, were allegedly running from border patrol agents, according to law enforcement officials. At trial, prosecutors claimed that Kelly's story to border patrol officers kept changing, first saying he returned fire at a five individuals who were shooting him, then saying it was a group of 10 to 15 people armed with AR-styled rifles, ABC News reported.

Kelly said he fired warning shots in the air to scare the group off and never intended to hit, let alone kill anyone. The defense said authorities were lying about Kelly admitting to shooting at multiple people.

'That was not true, Alan never said that,' Kelly's other lawyer Brenna Larkin said. 

'Law enforcement wasn't listening and they didn't care, they already decided that he was guilty.'

Kelly was charged with second-degree murder in killing of Cuen-Buitimea, 48, who lived just south of the border. Pictured: Kelly listens to closing arguments on April 18 

Kelly has said he fired warning shots in the air, but he didn´t shoot directly at anyone. Pictured: Kelly leaving the courthouse on March 22 with his lawyer Kathy Lowthorp

Prosecutors said Kelly recklessly fired nine shots from an AK-47 rifle toward a group of men, including Cuen-Buitimea, about 100 yards (90 meters) away on his cattle ranch

County Attorney Michael Jette addresses jurors during closing arguments

Lowthorp said Kelly is 'in good spirits' and has decided to retain her and Larkin once again if there is to be another trial.

Cuen-Buitimea, who was found with a bullet hole in his back on Kelly's ranch, lived just south of the border in Nogales, Mexico. He had previously entered the US illegally several times and was deported, most recently in 2016, court records show. 

Kelly was also charged with aggravated assault against another person in the group that ended up on his property, including a man from Honduras who was living in Mexico and who testified during the trial that he had gone into the U.S. that day seeking work. 

A second-degree murder conviction would have mandated a minimum prison sentence of 10 years, and next Monday, lawyers from both sides will meet with the judge to hash out whether a second trial is needed or if the charges should be dismissed.