Maricopa County Superior Court judge Susan Brnovich today declared a mistrial in the case of a white-on-brown killing that occurred May 6, 2010 in South Phoenix. This, after an all-white jury was unable to reach a verdict.
Gary Kelley, 50, was charged with second degree murder and aggravated assault in the shooting of his neighbor, 44-year-old Juan Varela, just outside Varela's home.
The Phoenix Police Department's report on the incident states that Kelley, who is white, gunned down Varela with his .38 revolver after an altercation in which Kelley hurled racial slurs at his Hispanic neighbor.
"You fucking Mexican, go back to Mexico!" yelled Kelley, according to Varela's brother Antonio, who witnessed the shooting.
Later Kelley reportedly screamed, "If you don't go back to Mexico, you're going to die!"
After being arrested, Kelley claimed the killing was not a bias incident. He insisted that Varela assaulted him.
"He kicked me in the balls. What else could I do?" Kelley exclaimed to one police officer.
Antonio Varela told cops his brother tried to kick Kelley after Kelley approached Juan, but the kick didn't land. Shortly thereafter, Kelley shot Juan Varela.
Mistrial aside, the Maricopa County Attorney's Office is vowing that the case will not die.
"We are preparing to retry the case before a new jury," explained County Attorney spokesman Jerry Cobb via e-mail. "[The] court has set a status conference next Thursday 2/17 at 8:45 to pick a new trial date."
As many speculated shortly after the killing, there was a link to Arizona's controversial immigration law Senate Bill 1070.
In a report filed February 7 with New American Media, journalist Valeria Fernandez reports that Kelley's attorney brought up SB 1070 during the trial.
"According to Kelley's attorney," she writes, "Kelley approached Juan Varela to talk about Arizona's new immigration law, SB 1070, and shot Varela in self-defense."
(Governor Jan Brewer had signed SB 1070 into law on April 23, just days before the shooting.)
Kelley had to be pepper-sprayed before being taken into custody, and he obviously had been drinking heavily.
Phoenix police officer stated,
"I observed the subject was holding what appeared to be two beer bottles in his hand. The subject had a smile on his face and put one of the bottles to his mouth and tilted the bottle up and gulped. The subject then took the other bottle and held it over his head. Beer poured out of the bottle onto his head and he shook his head back and forth."
I was cautious in my initial report on the shooting, as the Phoenix PD were reluctant to call the shooting a "hate crime." Also, some neighbors of Kelley declined to label him a bigot.
Interim County Attorney Rick Romley later decided to seek a hate crime-enhancement, allowing prosecutors to ask for the maximum sentence for the crimes.
Beyond the ethnic/racial implications, the hung jury is disturbing. Varela was unarmed. Hypothetically, even if he had tried to kick Kelley or, let's say, succeeded in kicking Kelley, would that warrant Kelley killing him?
Only an Arizona gun nut would argue that it did. You have to wonder how many of them were on the jury.
Note: County Attorney spokesman Cobb confirmed the following: "It was a 15 person jury (12 + 3 alternates). Of the 15 on the jury, one was Hispanic, but she was designated as an alternate so the jury that actually deliberated was all Caucasian."