The attorney defending Arizona rancher George Alan Kelly, who is facing murder and other charges in the shooting of a Mexican national on his border property, argued during Thursday's preliminary hearing that the handling of the investigation contrasted drastically with that into Alec Baldwin's shooting on the set of the Western film "Rust."
"There was a huge divergence in how investigation and prosecution should happen and how it did happen in this case," Kelly's court-appointed attorney, Brenna Larkin, said. "The Alec Baldwin case comes to mind of a case where an incident occurred, there was a shooting, there was an investigation and following the lengthy investigation, then there were criminal charges. That’s an example of how a criminal case should be handled. This case was not handled in that manner, Your Honor. This case was charged first and investigated later."
At the end of the hearing, Judge Emilio Velasquez upheld Kelly's $1 million bond, though agreed to convert it from cash to surety. He also set the next hearing date for Friday despite defense pleading for a continuance of 30 to 60 days to allow time to confer with experts and gather the forensic and ballistic evidence they say authorities have neglected to process.
Kelly, 73, argues that it was armed drug traffickers who shot and killed the man whom authorities believe to be 48-year-old Gabriel Cuen-Butimea, based on the Mexican voter registration card he carried. On Thursday, Larkin told the courtroom that authorities "jumped the gun" in proceeding with the premeditated first-degree murder charge first without conducting a thorough investigation including forensics, ballistics, autopsy results, cell phone forensics, fingerprints and DNA.
In allegedly mishandling the probe, the attorney said authorities "lit a match over a very intense political powder keg" and "predictably, there was an explosion."
Larkin contends that the state's case currently relies heavily on testimony from two alleged witnesses who came forward after the investigation was "compromised by publicity."
"There’s a very large incentive structure for people to come forward and to have claimed to have been witnesses. People can possibly obtain immigration benefits for doing so, or at least have the expectation of that, and people can succumb to pressure from traffickers who have an interest in blaming this event on Mr. Kelly," Larkin said.
"Testimony is something that is bought and sold by drug traffickers the same way that drugs and people are bought and sold," she added. "It is a valuable commodity, and it is used by these traffickers to obtain what they want. In this case, the benefit they’re getting is security for their smuggling route through Mr. Kelly’s property, and they’re sending a message to anybody else defending his or her own property that if you defend your property against us, you will be arrested and there will be witnesses who come to stand against you."
However, Deputy Santa Cruz County Attorney Kimberly Hunley maintained Thursday that the rancher shot an "unarmed" man in the back "in an unprovoked attack as he ran for his life" more than 100 yards from Kelly's residence. The government also argues two others who were with the deceased victim as he fled were also shot at but "luckily escaped with their lives."
The state claims no one in the group was armed or had any weapons. Those two people have come forward and offered their statements.
Hunley said a total of eight people are believed to have been present during the shooting.
Larkin claimed one witness that came forward "asserted that Mr. Kelly came out and just randomly started shooting at people, shot this person from 10 yards away, and also shot a horse."
"This person was certainly not shot from 10 yards away," the defense lawyer said. "That does not comport with the physical evidence, and there certainly was not a horse that was shot or injured in this altercation. It appears in the summary that I received from that witness statement that the investigating officers did not even ask a follow-up question."
In advance of the rancher’s preliminary hearing Thursday, Kelly already admitted to firing "warning shots" on Jan. 30 after witnessing a group of armed men in camouflage and khakis moving through the trees around his home on the ranch he has lived on for decades with his wife outside Nogales.
The defense says Kelly does not believe any of the warning shots fired from his rifle "could have possibly hit the person or caused the death" and the rancher, standing on his porch while his wife was sheltering in their home that fateful day, only meant to scare the group after their presumed leader "pointed an AK-47 right at him."
In the filing earlier this month, Larkin detailed how Kelly contacted Border Patrol’s Ranch Liaison several times on Jan. 30, including when the rancher's dogs brought Kelly’s attention to the deceased man on his property later that evening. Santa Cruz County Sheriff's deputies also responded to the scene.
The filing notes the deceased man had a radio on him and was wearing tactical boots, "indicating he was possibly involved in illegal activity."
"All the shooting that Mr. Kelly did on the date of the incident was in self-defense and justified," Larkin wrote.
Originally charged with first-degree murder, prosecutors amended Kelly’s murder complaint on Wednesday – a day before the preliminary hearing – to include two counts of aggravated assault. Larkin entered a not guilty plea Thursday for those additional counts.
At a prior court hearing, Kelly’s bond was kept at $1 million despite the cattle rancher pleading with the judge that his elderly wife, Wanda, was left alone unable to care for their livestock.
GoFundMe booted all campaigns raising funds for Kelly’s bond and defense. Meanwhile, Christian crowdsourcing site GiveSendGo allowed fundraisers for Kelly to remain.
