What George Kelly’s Mistrial Says About How We See the Border

In March, on the opening day of his trial for second-degree murder, George Alan Kelly wore a denim vest over a plaid shirt and sat quietly, looking down at the defense table. Kelly is a seventy-five-year-old man with thin white hair and a stooped gait. He and his wife, Wanda, live east of Nogales, Arizona, on a hundred and seventy acres. The area, which is called Kino Springs, is close to the border between the United States and Mexico; from parts of the Kellys’ land, you can see the fence.

In January, 2src23, Jeremy Morsell, a Border Patrol agent who served as a liaison to ranchers, texted Kelly multiple times about migrants moving through the area: on January 13th, a “group of 23 and a group of 6. Some may have had narcotics, just a heads up”; three days later, a group of twelve; eleven days after that, a group of ten. On January 28th, Morsell told Kelly that “there has been narcotics trafficking picking up around Kino.” Two days after that, Kelly was making himself a sandwich—peanut butter, mayonnaise, pineapple—when he heard what he later described as a gunshot. When he looked out the window, he told investigators, he saw his horse, Sonny, running, as if startled, as well as a group of men heading south, away from the house.

Kelly told Wanda to call Morsell. On the phone, the agent later reported, Kelly sounded agitated, near panic. “I’m being shot at,” he said. “I’m shooting back.” Kelly grabbed his AK-47 and stepped outside, where he fired nine “warning shots,” as he called them, and began walking toward his barn, in the general direction the men had been heading. Morsell called Kelly back; this time, according to Morsell, Kelly said that he only thought he’d heard a gunshot, and that the men had been too far away for him to tell if they’d been armed.

Soon afterward, two Border Patrol agents and a handful of Santa Cruz County sheriff’s deputies arrived at the ranch. They fanned out across the property, looking for Kelly. When they found him, on a road near the barn, he didn’t tell them about the shots he had fired; Wanda didn’t mention them, either. The search didn’t turn up anything, and the officers then left. A few hours later, just before sunset, Morsell received another call from the ranch. “It was a Mr. Kelly I’d never heard before,” he later testified. “He sounded scared. He said it was worse than he could ever imagine.” When Morsell prodded him for details, Kelly spoke in an odd, evasive manner. “You know how shots were fired earlier? Something was possibly struck,” he said eventually, according to Morsell’s report. “An animal?” Morsell asked. “You could possibly classify it as an animal,” Kelly replied. When sheriff’s deputies returned to the ranch that evening, they discovered Gabriel Cuen-Buitimea, a forty-eight-year-old Mexican man, lying face down in the knee-high grass, dead of a gunshot wound. Under questioning, Kelly said that at least one of the men he’d seen that afternoon had turned a gun in his direction, and that he had fired his own weapon in self-defense, “not at them but over their heads.” That night, Kelly was placed under arrest for murder.

Right-wing media quickly took up the story. “We’re being prosecuted for defending ourselves, which is a God-given right, by the way!” one radio host barked; on Fox News, Tucker Carlson called Kelly’s prosecution “true insanity and a danger to us all.” The argument made on Kelly’s behalf, both by the couple and by their defenders, proceeded along a double track: Kelly’s shots weren’t what killed Cuen-Buitimea, but, also, if they had been, his actions would have been justified. On a fund-raising Web page, Wanda depicted her husband, who goes by Alan, as “a humble person with simple needs,” an “animal lover” who “likes socks.” Alan was “innocent,” Wanda wrote, of a crime she described as “killing a Cartel member on our property.” Inspired by the Kelly case, Republicans in the Arizona legislature introduced a bill that would allow property owners to threaten deadly force to stop someone from trespassing or attempting to trespass on their land. (After passing the Arizona House and Senate, the bill was vetoed by Governor Katie Hobbs.)

Many of the facts of the case looked bad for Kelly. He had admitted to firing his high-powered rifle multiple times; nine shell casings were found on the ground; hours later, and a hundred and fifty yards away, there was a man dead of a bullet wound. Kelly’s defense team argued that, because he’d fired his warning shots into the air, someone else must have shot Cuen-Buitimea. (The fatal bullet was never found.) Perhaps the first gunshot that Kelly reported hearing was what had killed him. Or, because law enforcement didn’t find the body on their first visit to the ranch that day, perhaps Cuen-Buitimea had been shot elsewhere, then had staggered, or been dragged, onto the ranch.

Kelly was represented by Brenna Larkin, a trim former mixed-martial-arts fighter with a brisk manner and a cascade of brown hair. In her opening statement, she spoke of her client with a kind of paternal protectiveness; when describing Kelly, she used the words “fear,” “scared,” and “afraid” more than a dozen times. Throughout the trial, Larkin and Kelly’s other defense attorney, Kathy Lowthorp, returned repeatedly to the idea that borderlands are a dangerous zone where different rules apply. This was a way to intimate that someone else could have killed Cuen-Buitimea. But also, and perhaps more important, it was a way to frame Kelly’s actions as a reasonable response to a lawless, threatening environment. “Personally, I wouldn’t have done what he would have done. I would’ve shot at the person with the rifle, not up in the air,” Lowthorp said at one point. “That was pretty gracious, wouldn’t you say?”

In 2src13, Alan Kelly self-published a book called “Far Beyond the Border Fence,” about an Arizona rancher named George; his wife, Wanda; and their two adult sons. The novel’s action begins when George’s son’s horse, Deck, is stolen. When George spots two suspected thieves on his property, heading south, he shoots at them with his AK-47. The men return fire, then escape across the border. The sheriff eventually shows up:

George told the Sheriff and his deputy what he had seen and done. They
wrote it all down and, when the Sheriff asked if George thought that
he had hit either of the riders, George told him that if he had hit
one, he hadn’t hit him hard enough. The Sheriff didn’t reply, he just
smiled and shook his head. George then told the Sheriff that if he
didn’t want him to protect his property by whatever means necessary,
he had better arrest him there and then. The Sheriff acted like he
didn’t hear George, but, as he left the ranch, he told George
privately that if he ever did shoot a Mule he didn’t want to know
about it.

In “Far Beyond the Border Fence,” the sheriff tacitly agrees that moral authority is on the rancher’s side. The men that George shoots at turn out to be cartel members who quickly escalate from trespassing to horse theft to kidnapping George’s son and daughter-in-law. George and his other son eventually undertake a heroic rescue operation, crossing the border (illegally) into Mexico, armed with rifles.

In real life, Kelly also seemed to see himself as a grizzled hero in the Clint Eastwood mold, doing battle against a criminal enterprise. Three weeks before the shooting, he texted a friend, “OVERUN WITH DRUG CARTEL. AK GTN A LOT OF WORK.” A week after that, he exchanged messages with his son Matt: