AZ - Gabriel Cuen-Buitimea, allegedly shot and killed with an AK-47 by rancher George Alan Kelly, 75, Kino Springs, Jan 2023

[Laughing]

Justice of the Peace in AZ- must be over 18, an AZ voter and speak English. The Jof P Court is of limited jurisdiction:

"Justices of the peace operate in justice courts. These are limited-jurisidction courts that oversee small claims, evictions, orders of protection, traffic violations, drunken driving cases and other misdemeanors."

What is a justice of the peace in Arizona?

Justices of the peace serve in a different capacity from other judges. What are they and how do you become one?

www.azcentral.com

Sounds like a jurisdiction problem, right there, "and other misdemeanors."

imho ymmv lrr

 

[acutename]

Sounds like a jurisdiction problem, right there, "and other misdemeanors."

imho ymmv lrr

It somehow went before a higher level judge to set the trial date which is in September- this previously quoted news clip had the defense asking for a 60 day continuance, but it is 6 mos. until the trial date, so, in a way seems like 60 days and more to prepare, but it does have a trial date.

George Alan Kelly sent to trial-facing second degree murder charges

The George Alan Kelly case has been drawing attention since the end of January after a Mexican citizen was shot dead on his property.

www.kgun9.com

 

[WingsOverTX]

Sounds like a jurisdiction problem, right there, "and other misdemeanors."

imho ymmv lrr

Didn't a JP bind GK over on 1st degree murder or am I confused? It appears that couldn't happen according to the post you responded to. If not the JP, who made that ruling? Did the DA drop it to 2nd degree?
TIA

 

[SteveS]

Didn't a JP bind GK over on 1st degree murder or am I confused? It appears that couldn't happen according to the post you responded to. If not the JP, who made that ruling? Did the DA drop it to 2nd degree?
TIA

Based on what we are seeing and a small amount of personal experience (there are JP jurisdictions in TX as well), I think what we are seeing is how a tiny jurisdiction who only has a JP is supposed to handle a felony accusation.

They arrest the person they think has done such a crime, and take it to the JP, whose task on a felony (and probably more consequential misdemeanors as well) is to take a look and decide if he thinks it's enough of a case to have a trial, or not. He may not be a lawyer, but he's probably elected and represents the best wisdom of the small community. If he thinks it's enough for a trial, he sends it up the ladder to be decided, so to speak, to a court who is empowered to deal with felonies, and where there will be a judge and people who are well versed in the law.

That's what we've seen here.

 

[WingsOverTX]

Based on what we are seeing and a small amount of personal experience (there are JP jurisdictions in TX as well), I think what we are seeing is how a tiny jurisdiction who only has a JP is supposed to handle a felony accusation.

They arrest the person they think has done such a crime, and take it to the JP, whose task on a felony (and probably more consequential misdemeanors as well) is to take a look and decide if he thinks it's enough of a case to have a trial, or not. He may not be a lawyer, but he's probably elected and represents the best wisdom of the small community. If he thinks it's enough for a trial, he sends it up the ladder to be decided, so to speak, to a court who is empowered to deal with felonies, and where there will be a judge and people who are well versed in the law.

That's what we've seen here.

Thanks! I think JPs in Texas do not have this kind of power in the legal system, leading to my puzzlement. And amazement!

 

[Deleted member 39678]

Limited Jurisdiction Courts

www.azcourts.gov

Justice courts have criminal jurisdiction over:
• Petty offenses and misdemeanors.
• Assault or battery — less serious offenses not committed on a public officer while performing his or her duties.
• Breaches of peace and committing a willful injury to property.
• Misdemeanors and criminal offenses punishable by fines not more than $2,500, imprisonment in county jail not to exceed six months, or both fine and imprisonment.
• Felonies for the purpose of issuing warrants and conducting preliminary hearings.

 

[Deleted member 39678]

Arizona Justice of the Peace Qualifications

A justice of the peace:
• Is elected to a four-year term;
• Must be at least 18 years old;
• Must be an Arizona resident;
• Must be a qualified voter in the precinct in which duties of office will be performed;
• Must read and write English, and
• Need not be an attorney.

When conducting preliminary hearings on felonies, justice court judges may require defendants to answer criminal charges in superior court. They also may dismiss charges if there is no probable cause to believe the defendant is guilty.

Limited Jurisdiction Courts

www.azcourts.gov

 

[NuttMegg]

We've seen reports of 1) no bullet found and 2) victim found with backpack/no backpack. To my mind most of this comes from Larkin, the defense, in various documents. Is there a rule that the defense must have access to complete discovery before arraignment? This sure didn't happen in the Watts case. Sounds to me like she may not yet have access to more than the latest search warrant results.

Where, exactly, except for Larkin, have we seen proof that a bullet wasn't found? (Before latest search).

I've been thinking a lot about this case, as much as some want to make it about the victim, I don't see why Kelly should receive a lesser sentence than some random Joe Schmoe in Oregon, who shoots over the heads of teenagers in his orchard at night, and one is killed.
,........
"The state is continuing to collect evidence and pursue an investigation and we obviously need disclosure of the results of that search warrant and all of that stuff so for those reasons we ask that this case not be sent to trial at this time,” said Larkin. "

George Alan Kelly sent to trial-facing second degree murder charges

The George Alan Kelly case has been drawing attention since the end of January after a Mexican citizen was shot dead on his property.

www.kgun9.com

 

[Eli9]

We've seen reports of 1) no bullet found and 2) victim found with backpack/no backpack. To my mind most of this comes from Larkin, the defense, in various documents. Is there a rule that the defense must have access to complete discovery before arraignment? This sure didn't happen in the Watts case. Sounds to me like she may not yet have access to more than the latest search warrant results.

Where, exactly, except for Larkin, have we seen proof that a bullet wasn't found? (Before latest search).

I've been thinking a lot about this case, as much as some want to make it about the victim, I don't see why Kelly should receive a lesser sentence than some random Joe Schmoe in Oregon, who shoots over the heads of teenagers in his orchard at night, and one is killed.
,........
"The state is continuing to collect evidence and pursue an investigation and we obviously need disclosure of the results of that search warrant and all of that stuff so for those reasons we ask that this case not be sent to trial at this time,” said Larkin. "

George Alan Kelly sent to trial-facing second degree murder charges

The George Alan Kelly case has been drawing attention since the end of January after a Mexican citizen was shot dead on his property.

www.kgun9.com

I'm pretty sure that Detective Ainza was asked about finding a bullet and he said no bullet was found. I'd have to check my notes but I'm feeling lazy this morning. lol.
ETA I have no issues with GK facing charges but I haven't seen where 1st degree murder was justified, and the state apparently figured that out as well.

 

[PrairieWind]

We've seen reports of 1) no bullet found and 2) victim found with backpack/no backpack. To my mind most of this comes from Larkin, the defense, in various documents. Is there a rule that the defense must have access to complete discovery before arraignment? This sure didn't happen in the Watts case. Sounds to me like she may not yet have access to more than the latest search warrant results.

Where, exactly, except for Larkin, have we seen proof that a bullet wasn't found? (Before latest search).

I've been thinking a lot about this case, as much as some want to make it about the victim, I don't see why Kelly should receive a lesser sentence than some random Joe Schmoe in Oregon, who shoots over the heads of teenagers in his orchard at night, and one is killed.
,........
"The state is continuing to collect evidence and pursue an investigation and we obviously need disclosure of the results of that search warrant and all of that stuff so for those reasons we ask that this case not be sent to trial at this time,” said Larkin. "

George Alan Kelly sent to trial-facing second degree murder charges

The George Alan Kelly case has been drawing attention since the end of January after a Mexican citizen was shot dead on his property.

www.kgun9.com

It would actually be rare for a defense to have all discovery by arraignment. But, if the State has recovered a bullet it should have been done via a search warrant and a return should have been filed. That doesn't appear to be the case.

 

[NuttMegg]

It would actually be rare for a defense to have all discovery by arraignment. But, if the State has recovered a bullet it should have been done via a search warrant and a return should have been filed. That doesn't appear to be the case.

What is a return?

 

[PrairieWind]

What is a return?

If LE has obtained a search warrant to look for the bullet, and they found the bullet, they need to file a return or itemization of the items seized from the search. They are seizing property. It has to be accounted for.

 

[PriorTheCreator]

thinking of Gabriel Cuen-Buitimea's family today.

 

[Cool Cats]

thinking of Gabriel Cuen-Buitimea's family today.

Yup!

If Kelly did not shoot the fatal bullet then whoever did won't be brought to justice because the State of Arizona is only looking at Kelly.

If there is proof Kelly did shoot Mr Cuen-Buitimea then Kelly must answer for it. If Kelly is guilty I think it is probably manslaughter or involuntary manslaughter or negligent homicide. Probably should let the jury decide the charge if he is found guilty unless he pleas down to a lesser charge, forgoing a trial.

Understanding Homicide and Murder Charges in Arizona - Gaxiola & Litwak Law Group

Because a murder accusation is one of the most serious charges levied against you, you need an aggressive attorney who also has a deep understanding of Arizona’s Penal Code. The state has several classes of murder, including first- and second-degree murder, vehicular homicide, vehicular...

www.criminallawaz.com

 

[Cool Cats]

@PrairieWind (and other posters)

If Kelly's intent was to only shoot over everyone's heads - to only shoot up into the air - to scare away the group, then do you think he should be charged with 2nd Degree Murder?

Do you think a lesser charge would fit better?

After all, they 2nd guessed themselves and quickly dropped 1st degree murder.

 

[PrairieWind]

@PrairieWind (and other posters)

If Kelly's intent was to only shoot over everyone's heads - to only shoot up into the air - to scare away the group, then do you think he should be charged with 2nd degree murder?

Do you think a lesser charge would fit better?

After all, they 2nd guessed themselves and quickly dropped 1st degree murder.

If the intent had been to shoot over their heads but instead hit and killed one, then I think a manslaughter type charge would be more appropriate. But the prosecution went quickly to 1st Degree murder. Why? I can't help think that there must be something else in play here. There must be something else, evidence/witness, we don't know about. But with the case now set for trial the Prosecutor has to turn that all over. So we will see.

 

[Cool Cats]

If the intent had been to shoot over their heads but instead hit and killed one, then I think a manslaughter type charge would be more appropriate. But the prosecution went quickly to 1st Degree murder. Why? I can't help think that there must be something else in play here. There must be something else, evidence/witness, we don't know about. But with the case now set for trial the Prosecutor has to turn that all over. So we will see.

Thanks.

I would like to ask this also if you don't mind. Thanks.

Do you think that the prosecution, common in AZ, is deliberately '"stacking on the charges" to force Kelly into a plea deal?

The 2 charges of Aggravated Assault.

Do you think he should be charged with these 2 extra charges if all he was doing was shooting over their heads?

These 2 charges were added on later, he was not originally charged with them.

What is Prosecutorial Stacking of Charges?

In Arizona, repeat felony offenders face harsher sentencing guidelines than first-time offenders and the defendants can be sentenced as repeat offenders.

www.michaelharwinlaw.com

From 2020

Arizona voters are likely to see a measure on the ballots in November that would address prosecutorial “stacking” of charges and mandate other sentencing reforms.

In Arizona, repeat felony offenders face harsher sentencing guidelines than first-time offenders. When prosecutors “stack” charges, defendants can be sentenced as repeat offenders even if the defendant has no prior convictions.

A common criticism of stacking is that the tactic is primarily used to encourage defendants to accept plea deals.

 

[PrairieWind]

Thanks.

I would like to ask this also if you don't mind. Thanks.

Do you think that the prosecution, common in AZ, is deliberately '"stacking on the charges" to force Kelly into a plea deal?

The 2 charges of Aggravated Assault.

Do you think he should be charged with these 2 extra charges if all he was doing was shooting over their heads?

These 2 charges were added on later, he was not originally charged with them.

What is Prosecutorial Stacking of Charges?

In Arizona, repeat felony offenders face harsher sentencing guidelines than first-time offenders and the defendants can be sentenced as repeat offenders.

www.michaelharwinlaw.com

From 2020

Arizona voters are likely to see a measure on the ballots in November that would address prosecutorial “stacking” of charges and mandate other sentencing reforms.

In Arizona, repeat felony offenders face harsher sentencing guidelines than first-time offenders. When prosecutors “stack” charges, defendants can be sentenced as repeat offenders even if the defendant has no prior convictions.

A common criticism of stacking is that the tactic is primarily used to encourage defendants to accept plea deals.

I think it is difficult to say right now because we don't know what the prosecutor knows and has as evidence. Time will tell. The assault charges make sense if that is the State's case, but it really seems like they are going ALL IN on this case. And this seems like a strange case to do that on. The rush to the preliminary hearing in my opinion puts any conviction at risk at this point. I really don't understand why that happened from a procedural stand point.

 

[WingsOverTX]

Thanks.

I would like to ask this also if you don't mind. Thanks.

Do you think that the prosecution, common in AZ, is deliberately '"stacking on the charges" to force Kelly into a plea deal?

The 2 charges of Aggravated Assault.

Do you think he should be charged with these 2 extra charges if all he was doing was shooting over their heads?

These 2 charges were added on later, he was not originally charged with them.

What is Prosecutorial Stacking of Charges?

In Arizona, repeat felony offenders face harsher sentencing guidelines than first-time offenders and the defendants can be sentenced as repeat offenders.

www.michaelharwinlaw.com

From 2020

Arizona voters are likely to see a measure on the ballots in November that would address prosecutorial “stacking” of charges and mandate other sentencing reforms.

In Arizona, repeat felony offenders face harsher sentencing guidelines than first-time offenders. When prosecutors “stack” charges, defendants can be sentenced as repeat offenders even if the defendant has no prior convictions.

A common criticism of stacking is that the tactic is primarily used to encourage defendants to accept plea deals.

You only plea if you're guilty. I do not think GK will ever agree to plea bargain & I doubt his attorney would advise that. The way this case is going, a plea deal will include serving time for sure IMO. So if you're not guilty it serves no real purpose to plea bargain.

Giving the government more power to arrest & charge maximum penalty first, ask for evidence later does not bode well. This needs to be a fight for truth & justice, not a capitulation in service of personal interest.

Let us remember C-B chose to cross over into two places where it was illegal for him to be. The life of an outlaw is dangerous. And we don't know who fired the shot that killed this one.
JMO

 

[Cool Cats]

You only plea if you're guilty. I do not think GK will ever agree to plea bargain & I doubt his attorney would advise that. The way this case is going, a plea deal will include serving time for sure IMO. So if you're not guilty it serves no real purpose to plea bargain.

Giving the government more power to arrest & charge maximum penalty first, ask for evidence later does not bode well. This needs to be a fight for truth & justice, not a capitulation in service of personal interest.

Let us remember C-B chose to cross over into two places where it was illegal for him to be. The life of an outlaw is dangerous. And we don't know who fired the shot that killed this one.
JMO

Actually, the sad fact is that our "justice" system is so screwed up that many innocent people plead guilty to avoid trial due to over-charging and piling on charges and unfair lengthy prison sentences.

It is a fat mess and Kelly being hit with the 2 extra charges based on lies, hidden statements, contradictory stories, etc... is par for the course in the USA. Both at Federal and State level.

https://santacruzcountyaz.gov/DocumentCenter/View/16773/CR-23-026-MOTION-FOR-REVIEW

Innocent People Who Plead Guilty - Above the Law

Many innocent defendants plead guilty in part due to fear of what they call 'the trial penalty' -- that the punishment will be greater after trial.

abovethelaw.com

In its 84-page report, the NACDL cites specific cases, data and statistics illustrating how many defendants plead guilty in part due to fear of what they call “the trial penalty.” This causes fewer and fewer defendants go to trial every year. What used to be 20 percent of those arrested choosing trial 30 years ago, is now down to 3 percent.

This fear of trial saves the prosecution from having their evidence tested for both accuracy and sufficiency. It makes them lazy, invites corruption, and coerces defendants who stand a chance of being acquitted to back off.

It also creates injustices. A more culpable defendant, let’s say the guy who pointed the gun in a bank robbery, might plead to a five-year sentence, while the guy driving the car who didn’t know what was going on inside but who went to trial and lost, could get 15.

(Sounds like this Case)