Prior to jury deliberations in the trial of Arizona rancher George Alan Kelly, the man charged with killing an illegal Mexican migrant named Gabriel Cuen-Buitimea, I wrote about the case in an article entitled, “Don’t Kill Migrant ‘Invaders.’” In my article, I pointed out the free legal advice that I have given over the years to people who describe illegal immigrants as “invaders.” My advice has always been: Don’t kill them because you will be charged with murder or some lesser criminal offense, such as manslaughter. Moreover, the judge will not permit you to defend against the charge by a claim that you were simply acting under international law by defending America from an invasion.
As it turned out, the 8-person jury in the Kelly case was unable to reach a unanimous verdict in the case, which is required to convict a person in a criminal case. According to Kelly’s defense attorney, the vote was 7-1 for acquittal. Since the vote was not unanimous, the judge declared a mistrial.
At that point, the state had a decision to make: Try Kelly again or dismiss the case. The state opted to dismiss the case. Why would it do that? Because the prosecutors undoubtedly recognized that it would be difficult to secure a unanimous verdict in favor of guilt in another trial. Thus, they obviously concluded, another trial would be a waste of time and money.
Still left to be decided is whether the judge will dismiss the case “with prejudice” or “without prejudice.” If he dismisses it “with prejudice,” the state is forever precluded from prosecuting Kelly again on this same charge. If he dismisses it “without prejudice,” the state can bring the charges again.
It might be tempting for the “invasion” crowd to conclude that the dismissal of charges against Kelly means that people are free to kill illegal immigrants as “invaders.” Nothing could be further from the truth. Notwithstanding the mistrial and the dismissal of the case, my free legal advice still stands: Don’t kill migrant “invaders.”
It’s important to keep certain aspects of the Kelly case in mind.
First, Kelly was denying that he shot Cuen-Buitimea. He claimed that he fired over his head, not at him. He was claiming that someone else shot Cuen-Buitimea. Therefore, Kelly was never claiming that he had the right to kill the victim as an “invader.”
Second, since there were no witnesses to establish that Kelly shot the victim and since the bullet that killed the victim could not be found, the state had a difficult time establishing Kelly’s guilt beyond a reasonable doubt. Keep in mind that it’s not a question of whether the jury believes that Kelly did the killing. It’s a question of whether the evidence establishes beyond a reasonable doubt that Kelly did the killing. If the evidence fails to do that, the jury must acquit, even if the jurors are personally convinced that he did, in fact, do the killing.
There is one important non-legal point, however, that is important to emphasize. It is the U.S. government — and specifically its system of immigration controls and its drug war — that is the root cause of Cuen-Buitimea’s death.
When Cuen-Buitimea was shot, he was trespassing on Kelly’s ranch, which is located on or near the border. The reason he was trespassing was because of America’s system of immigration controls. Without immigration controls, foreigners would be free to cross the border at regular, established crossing points, like on a road, highway, or bridge. The reason migrants trespass onto people’s privately owned ranches and farms along the border is to circumvent America’s system of immigration controls in order to enter the United States.
The bridge crossing the upper Rio Grande river near Taos, New Mexico. Licensed under the Creative Commons Attribution-Share Alike 4.0 International license.
Moreover, during the trial, Kelly’s defense lawyer raised the possibility that Cuen-Buitimea was killed by some drug cartel operating in the area. But the only reason such cartels operate is because of the U.S. government’s decades-long war on drugs. If drugs were legal, those cartels would be out of business immediately. That’s because in a legal market, the cartels could not compete against legitimate pharmacies and other legal entities selling drugs.
Therefore, without immigration controls and the drug war, Cuen-Buitimea would be alive today. For that matter, so would thousands of other people, including migrants desiring to enter the United States. In fact, according to an article in Forbes magazine about the Kelly case and the county in which the killing took place, “There have been eight homicide cases in Santa Cruz County since 2019; according to the sheriff’s department, none of the homicides were committed by migrants. During the same period of time, eighty-six migrants were found dead in the county, mostly from exposure, according to data compiled by Humane Borders, an N.G.O.”