The hung jury wanted to acquit the Arizan farmer of murder

The jury was split 7-1 in favor of acquittal, attorney Kathy Lowthorp confirmed to the Arizona Daily Star on Tuesday.

Kelly is accused of killing an unarmed migrant on his property last year. Lowthorp said he has received “a lot” of support and the Kelly family is grateful and optimistic despite the possibility of a new trial, she said.

“They would have liked to see an ending to this story,” she said. “They know it was a win, but not the 100% win they were hoping for.”

Santa Cruz County Superior Court Judge Thomas Fink declared a mistrial Monday because of the standoff. Jurors deliberated for about 16 hours after the nearly four-week trial, which drew national attention.

Santa Cruz County Attorney Kim Hunley is expected to announce during a status hearing Monday whether the case is headed for a new trial or not. Kelly is charged with second-degree murder and one count of aggravated assault with a deadly weapon.

Fink had instructed the jury that they could consider lesser charges of manslaughter or negligent homicide if they could not agree to a conviction on the second-degree murder charge.

Hunley declined to comment after the annulment. Prosecutor Mike Jette said Tuesday he could not comment on the case at this time.

Representatives of the Mexican Consulate in Nogales, Arizona, have been following the case closely and supporting the family of Mexican national Gabriel Cuen Buitimea, who prosecutors say was killed last year by a bullet from Kelly’s AK-47.

Cuen Buitimea’s body was found 100 yards from Kelly’s patio, where law enforcement officers recovered nine spent shell casings from Kelly’s AK-47. The bullet that killed Cuen Buitimea was never found.

Nogales Consul General Marcos Moreno Báez said his office was “surprised” by Monday’s outcome but is confident that justice will prevail.

“We will continue to accompany Mr. Cuen Buitmea’s family very closely,” Moreno Báez said in an email Tuesday. “Mr Cuen Buitimea’s two young daughters are devastated, but they will continue to seek justice.”

Moreno Báez said the prosecution has shown that Cuen Buitimea was an innocent victim, despite attempts by lawyers to portray him as involved in criminal activities.

“During the 17 days of hearings and closing remarks from both sides, it was clear that Mr Gabriel Cuen Buitimea posed no threat to anyone,” he said. “He walked unarmed towards Mexico and there was no indication that he was involved in any alleged illegal activities. He was shot in the back with an AK-47, an unprovoked fatal attack while he was 100 meters from the suspect’s home found.”

On Tuesday, Lowthorp reiterated the defense’s argument that the investigation into Cuen Buitimea’s death was biased from the start. She said the Border Patrol contact to whom Kelly reported Cuen Buitmea’s body incorrectly reported to the sheriff’s office that Kelly had said he had shot someone. So detectives entered the investigation believing that Kelly had stated that he had shot someone and had failed to investigate other possible perpetrators, she said.

‘It was that old telephone game. From that point on the investigation was stopped,” Lowthorp said.

During the trial, pRosecutors Hunley and Jette argued that Kelly was evasive and inconsistent when he reported finding Cuen Buitimea’s body at a Border Patrol ranch contact, suggesting Kelly thought the matter could be “swept under the rug.”

Later, in a conversation with a 911 dispatcher, prosecutors said Kelly went out of his way to avoid saying he found a dead person on his property. Instead, Kelly described Cuen Buitimea’s body as that of “an animal — it’s not a vegetable or a mineral.”

Kelly only admitted to firing his AK-47 for about 30 minutes that evening during a 50-minute interview with detectives, prosecutors said. That was after he also failed to tell other law enforcement officers on his property earlier in the day that he had fired his weapon.

Defense attorneys said Santa Cruz County detectives “beat up” Kelly during an interrogation. But prosecutors quoted Kelly telling investigators they were “very professional.”

Lowthorp told the Star she was allowed to speak to two jurors, who voted to acquit, for about 30 minutes after court adjourned on Monday. Jurors indicated they thought the defense’s story was effective and thorough, she said. Still, Lowthorp said the defense could adjust its strategy somewhat if prosecutors decide to retry the case.

“You have to do something to keep them (prosecutors) on their toes,” she said.

Lowthorp said the only other hung jury she has encountered in her 24-year career resulted in a new trial and eventual acquittal for her client.

She said she hopes people will “pray for Monday so we don’t have to go through this again.”