What happened on January 30, 2023, when Gabriel Cuen-Buitimea, a forty-eight-year-old Mexican man from Nogales, Sonora, turned up dead on George Kelly’s ranch near Nogales, Arizona?
It depends on who you ask.
To prosecutors in Kelly’s murder trial, the seventy-five-year-old had behaved suspiciously from the start. He had called authorities several times that day with conflicting stories, including one that someone shot “an animal” on his ranch.
Under questioning, Kelly at first denied shooting his gun, then said he fired “over [the] heads” of intruders who may or may not have been armed. (Cuen-Buitimea was found unarmed). Kelly had a history of bragging about his readiness to fight drug-runners; he even wrote a novel in which the hero shoots at cartel members traversing his border ranch.
To Kelly’s defenders, the rancher’s 170-acre property was under siege. On the fateful day, they said he heard a shot, went out to his front porch and fired nine “warning shots” from his AK-47. The defense contended that Cuen-Buitimea—found shot in the back by a single bullet about 100 yards from Kelly’s house—could have been killed by someone else, given that the fatal bullet had gone through him and was never recovered.
After hearing these opposing narratives for nearly a month, the jury couldn’t decide what to believe. The eight-member panel of Nogales-area residents deliberated little more than a day before announcing they were deadlocked; the judge made them deliberate for one more day before a mistrial was declared on April 22.
The hung jury reflects the national deadlock on border politics, as well as how deeply held and intractable opinions on the border are, even among those who live near it.
The defense claimed the jury, which could have convicted Kelly on charges including second-degree murder, negligent manslaughter, and assault with a deadly weapon, was 7-1 for acquittal. The prosecutors seemed to concede when, several days after the mistrial was declared, they announced Kelly would not be retried. Whether the charges are dismissed with or without prejudice, which dictates if Kelly could ever be retried, has yet to be determined.
The mistrial is a reminder not only of partisan border politics but of how difficult it is to get convictions in cases like these. It resembles the case of Michael Elmer, a border patrol agent who in 1992 shot and killed a Mexican man in the hills west of Nogales. Elmer’s partner said Elmer had hidden the body, planned to drag it into Mexico, and ordered the partner to keep quiet. Elmer was tried twice on criminal and civil charges, and acquitted both times.
Another notorious case was that of Lonnie Swartz, a Nogales border patrol agent who in 2012 shot ten bullets through the border fence and killed sixteen-year-old José Antonio Elena Rodríguez. Swartz’s attorneys argued the agent was in fear for his life because Elena Rodríguez was throwing rocks. Swartz had shot the youth in the back from ninety feet away, while standing at the top of a fourteen-foot-tall embankment and behind a twenty-two-foot-tall fence.
Swartz was tried twice and acquitted of second-degree murder and involuntary manslaughter, but both juries were hung over convicting him of voluntary manslaughter. Prosecutors declined to try him a third time.
If convictions could not be achieved under circumstances as egregious as these, a conviction in Kelly’s case appeared unlikely as well. Although in all three cases the victims were unarmed, there was at least the suggestion they were involved in smuggling (a radio had been found on Cuen-Buitimea) and that the border is a dangerous, lawless place.
This is both true and untrue. On one hand, due to the heavy law enforcement presence and extensive government infrastructure needed to facilitate international trade and travel—not to mention the thousands of migrants peaceably surrendering each day—U.S. border towns are extremely safe.
On the other hand, outside of urban areas, the border is mostly empty territory, where armed drug smugglers and human traffickers ply their trade. In March 2010, in Douglas, Arizona, rancher Robert Krentz was found shot to death the day after he’d called authorities to report a smuggling operation on his property, resulting in the arrest of eight men and the seizure of 250 pounds of marijuana. Krentz’s killer was never caught, although the prime suspect was reportedly killed in Mexico in 2011.
There have been a few border patrol agents murdered as well, including Brian Terry, who died in a shootout with a Mexican “rip crew” just north of Nogales in December 2010. Terry’s killers—armed with guns supplied by U.S. agents through the infamous Operation Fast and Furious “gunwalking” scandal—were all found, tried, convicted, and imprisoned in the United States.
While these sensational cases are thankfully relatively rare, the attention paid to them obscures the massive amount of death happening regularly on the border. Since 1998, more than 8,000 migrants have died on the U.S. side alone, at least half of them in Arizona, mostly from exposure.
Who is responsible for their deaths?
It depends on who you ask.