SB 1070 Shooting: County Attorney Will Retry Gary Kelley in White-on-Brown Killing

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The Maricopa County Attorney's Office says it will retry killer Gary Kelley

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."

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27 comments
Jjmckelv
Jjmckelv

way to stay nuetral! I'm writing a story on this case right now, and this is a great example for me on how to not report it. Thanks

JurorNumber7
JurorNumber7

Juan Varela and his brother Antonio are (were) both ex-felons with extensive violent criminal histories. Furthermore, they had a long running dispute with Mr. Kelley and had made several well documented threats against him in the past. Mr. Kelley, while being assaulted by these two ex-felons and in fear for his life used a gun to defend himself. Moreover, no one has corroborated Antonio's accusation that Gary used hateful speech toward the victim. The only reason this case went as far as it did is because immoral and self-aggrandizing reporters like Stephen Lemmons twisted the facts around to make a sensational story. If anyone should be prosecuted in this case it should be Mr. Lemmons, for deliberately making false statements with the intention of stirring up racial animosity.

Coz
Coz

Appears it's OK to shoot Mexicans in Maricopa County for any reason even when they are unarmed.

Arizona is a fucking toilet.

GOTROKKS
GOTROKKS

IF ITS A TOILET HERE MOVE

John
John

Honestly, Gotrokks, your the dumbest piece of shit I have never met! ha I hope to god I also never meet you. I'm afraid your stupidity, racism and ignorance is a disease!

GOTROKKS
GOTROKKS

I HOPE TO GOD YOU ARE SOME DAY PUT IN THIS SITUATION AND THE NEGATIVE PEOPLE IN HERE ARE YOUR JURY .MOST CANT SEE PAST THE BOX

USAdefender1
USAdefender1

MORON Progressives,

It would seem that some form of "Sharia Law" for Hispanics is needed to satisfy this and the rest of you MORONS. Whites can't be trusted to be on a jury when a person of color was the victim or the accused!

The “White Boogy” man is out to get you all. LOL

USAdefender1

Dsafg
Dsafg

LOL - you don't even understand what "Sharia law" is or how it is used in Sharia compliant nations.

Stop listening to the conservative spin. Do some independant reading, especially is you're going to post something that makes you appear so foolish.

Besides, as your Tea Bag buddies inform us, the real boogey man is our Kenyan born, death panel loving, concentration camp planning, black man of a president. (/sarcam)

Adrian Cruz
Adrian Cruz

It's actually not white on brown crime, it's white-trash on brown crime.

Guest
Guest

Dunno - the neighbors all thought the "white-trash" guy was pretty decent, according the New Times at least. Those same people didn't have much nice to say about the ill-tempered, groin-kicking, "anglo-go-home" shouting brown guy.

Maybe it was a white on brown-trash crime.

Or maybe it was white-trash on brown-trash.

Or, most likely, it was neighbor-on-neighbor crime.

Racism is real, don't weaken our vigilance against it with your false claims of wolf.

windtalker
windtalker

If Juan had yelled at Gary, "You Fucking White Trash, go back to Europe!" "If you don't go back to Europe, you're going to die!" and if Juan had shot Gary dead on his own property............ it would have been considered clear cut case of a hate crime against a white man committed by a Mexican -- no ifs ands or buts about it, and it would be on Faux Noise every 15 minutes, and on CNN and other News programs. It would have made the front page of every newspaper in AZ and many cities in states trying to pass hate laws like SB1070. White Supremacists at web sites like Alipac and Minutemen would be talking about it non stop 24-7 for days on end. White supremacists in power like Jan Brewer would be clearing land to build even more for profit prisons that she would benefit from and demonizing President Obama and democrats for lax border security while asking for another 20,000 National Guard troops at the border.

Russel Pierce and those of his ilk would be pushing even more hate bills to become law and the media whore, Sheriff Arpaio would be on Fox and CNN spewing even more lies the way all of these white supremacists did when the Robert Krentz murder hit Faux Noise and national news. You know, the white rancher who was killed and a Mexican was blamed, but to this day there are no suspects. Another example is Sheriff Deputy Louie Purroll's lie when he claimed a gang of drug smugglers attacked him with semiautomatic weapons in the AZ desert, and had a self inflicted flesh wound to prove it, but was fired for making up that lie.

When someone yells, "You fucking Mexican, go back to Mexico!" "If you don't go back to Mexico, you're going to die!" and then shoots a fifth-generation American Citizen (Juan Verala) -- dead outside their own home. That is a clear cut case of murder motivated by bias aka hate crime.

Hate CrimeFBI DefinitionA hate crime, also known as a bias crime, is a criminal offense committed against a person, property, or society that is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.

http://www2.fbi.gov/ucr/cius_0...

Kit Carson
Kit Carson

Sorry, but you get a fail for your understanding of hate crime.

Points for cut and pasting it correctly, compete fail in your analysis.

Use of slurs does not make a hate crime. It not about how the victim is made to feel, it is about the intent of the perpetrator. As we all know, in the heat of the moment, when we are mad as hell and trying to verbally hurt someone else, we can and will say some hurtful things. Often these are things that don't reflect our true selves. If you deny this point, then you are simply a liar.

The examination must turn on motivation. The first step is to ask "but for ..."

For example, but for the boy being African American, the white crowd never would have killed him. Even once you reach a but-for determination, the defense can argue "not but-for." Even if the prosecution does believe the motivation was hate, if the prosecutor does not believe he as a good faith chance of winning a conviction, the hate crime can not be charged.

Here, the motivation seems to be a fight between two neighboors. Given the accused is married to a Mexican woman, lives in a neighborhood with a large Mexican community and likely has several Mexican friends, there would seem to be no chance of proving beyond a reasonable doubt that the killing was motivated, even in part, by the deceased race or national origin.

I know this hurts, and I am sorry for the family of the deceased, and hope that justice will prevail, but don't dillute what is a very important and powerful tool for prosecutors by raising demonstratively false claims of hate crime simply because some ugly words were used.

Demand more of yourself.

L6222
L6222

Wow Windtalker that was so well said!! You inspire many. Keep it up!!

Coz
Coz

You just explained Arizona to a T !

Meliketacos
Meliketacos

Soooooo Dude shoots Mexican? Whats the problem? Quit joking around and let him out of jail.

L6222
L6222

"TIA" used to mean, "This is Africa." TIA now also means, this is Arizona for the many of the same reasons.

Gotrokks
Gotrokks

i honestly hope that gary walk away a free man

Johnny White Man
Johnny White Man

Look, the racist faggot in the mug, unlawfully treaded on the property of Juan. He was disrespecting a man's property by trespassing with threats of violence. So Juan was just trying to kick his fanny ass off his lawn.

The racist faggot should be tried with a hate crime and serve time.

Gotrokks
Gotrokks

johhny i think you need to go eat an apple like johnny apple seed

Gcubed
Gcubed

the defense raised many important points, hopefully the jury will aquit defendant at the next trial.

Gotrokks
Gotrokks

i lived across the street from gary and his family when he lived in north phx like 7 yrsa ago i employeed gary for a time and i can say he would never kill anyone he was married to a mexican woman he was not racist. nor would he brandish a gun i never knew of him to own one iu remember him telling got beaten up in that neighbor hood i would have done the same if it were me . you can only get ur ass kicked so many times until you look to protect ur self it is 20011 here and no one fights like it was 1960 everyone has some sort of weapon their is no fair fight

hungjurymember
hungjurymember

I was one of the members of the "all white" jury. The Majority of us wanted to convict him. There were 3 that were not convinced that the state had met the burden of proof beyond a resonable doubt. I hope that the next jury can get past the problems that we had on this jury. I can tell you that race was not an issue at all in the deliberations Meaining "all white" jurors tending to be on Mr. Kelley's side. In fact it was the other way. There was a great feeling of letting down the Varela Family amongst us. I was disapointed after reading many articles about the trial online after I was released from the jury's admonition that many of the things brought up in the articles that I read were not brought up in the trial. Such as Mr. Kelleys repeated arguments with the Varela Family. This is my opinion.

Hung Jury Member

Kit Carson
Kit Carson

Thank you for your service as a juror.

I am sorry so many under-educated media hacks have allowed their failing to cause injury to your reputation.

Three jurors thought the state failed to reach its burden. You identify facts that were never admitted at trial (most likely for good reason.)

A real journalist would have evaluated the trial transcripts, commented on the evidence and testimony admitted at trial, and then commented on what caused the dismissal.

But that takes effort, and once you start down the path of yellow journalism, it's hard to make your way back to behaving respectfully.

Bottom line: this was not what Lemons implies when he writes "all-white jury" and was, in fact, three jurors doing their job and holding the prosecution to its obligation to prove beyond a reasonable doubt.

Sadly, that's not as sexy a story.

Porter M. Corn
Porter M. Corn

Thanks for the explanation. You can see though why some of us feel as we do, being on the outside looking in, when it seems almost impossible to get a conviction in White on Brown crimes.

Just my opinion as I sit here wondering if the jury in the Shawna Forde trial will have the same problem.

Porter M. Corn
Porter M. Corn

Reminds you of the Nicholas Corbett case doesn't it! Difficult to get a conviction in Arizona it seems when the victim is Hispanic and the criminal is a whitebread peckerwood!

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