George Alan Kelly: Conflicting Statements Can Lead to Convictions

After firing his AK-47 at a band of armed trespassers on his expansive Arizona ranch on the Mexican border, George Alan Kelly made multiple calls to authorities and gave statements to investigators. According to prosecutors, Kelly’s stories contained conflicting information that changed throughout the day.

In a Memorandum of Law filed with the court, Kelly’s lawyer spells out the rancher’s official position on the events that led to the discovery of a dead body on his ranch. He heard a single gunshot in the early afternoon of January 30, 2023. He told his wife to stay inside and he went out on his porch with an AK-47. There he witnessed a group of armed men dressed in camo and wearing backpacks traversing the terrain – trespassing on his ranch. The leader of the men raised his rifle. Kelly fired a series of warning shots. He claims that he took care to shoot well over the intruder’s heads. The men retreated back across the Mexican border. Hours later, just before sunset, Kelly discovered a body facedown in the dirt about 100 yards from his house. He had been shot in the back.

Throughout the day, Kelly made multiple calls to authorities, mostly to agents of the United States Border Patrol Ranch Liaison. Kelly first called after the initial encounter. He reported that “he was being shot at and he was shooting back.” Six minutes later, he called again, saying he had lost sight of the group, that he had heard a gunshot in his direction, and it was “too far to tell if they had any firearms.” During a court hearing, prosecutors claim that on a third call about two hours later, Kelly’s story had “significantly changed” to suggest that the incident began while he and his wife were eating lunch on the porch. Roughly an hour after the third call, after Kelly had discovered the body, he called a Border Patrol Ranch Liasion agent and left a message: “This is serious. Call me immediately. I can’t say more over the phone.” The agent told the sheriff’s deputies that Kelly was being “intentionally vague.”

Kelly’s intentional vagueness is evident in recordings of a 9-1-1 call he made. “It’s very serious ma’am,” he says. “I’m not going to talk over the phone.” According to reporting by News Nation, “He recited part of the Miranda rights, reiterating that he had the right to remain silent in the situation.” Kelly was also reluctant to admit that he had discovered a human body. He told the 9-1-1 operator, “I only approached the body to make sure the animal … it’s not a vegetable or mineral … the animal was not alive, and it is not alive.” The sheriff’s lead investigating officer, Jorge Ainza, told the judge that his decision to arrest Kelly for first-degree murder was based on what he felt were Kelly’s inconsistent statements. Aniza claimed Kelly initially denied shooting at the men but ultimately admitted to it.

Don West, criminal defense attorney and National Trial Counsel for CCW Safe says, “That’s the defense lawyer’s worst nightmare – when you have inconsistent statements by your client. It gives a lot of opportunity for the other side to challenge the defender’s entire version of events.”

For the use of deadly force to be justified, the defender’s actions must be reasonable, and that means the defender’s explanation of why they feared an imminent threat of great bodily harm or death should be clear and coherent. If it is riddled with inconsistencies, or if the story evolves and changes with each telling, it casts serious doubt on the defender’s credibility and on the motives for the shooting.

When a defender’s story changes or if it is intentionally vague – especially in the bizarre way Kelly was obfuscating – it can constitute consciousness of guilt evidence. “Consciousness of guilt” is a theory that suggests a person who acts guilty actually is guilty. If Kelly was confident that his life had been threatened and that he fired in self-defense, then why was he so cagey about revealing that there was a dead body on his property? It’s a question the lead investigator must have asked before charging Kelly with murder.

George Kelly was legally and technically correct when he told the 9-1-1 operator that he had the right to remain silent, but it was strange that Kelly recited his own Miranda rights. When a law enforcement officer recites Miranda, it’s usually a sign that an arrest is happening or is imminent, which means they are sufficiently convinced of the suspect’s guilt. By reciting Miranda, Kelly was reminding the 9-1-1 operator – and anyone who listens to the recording – that he has the right not to incriminate himself, which implies that if he kept speaking, he would incriminate himself. While the protections of the Fifth Amendment make it unlikely that a jury will hear evidence of Kelly reciting his own Miranda rights, the sheriff’s deputy heard it, and it obviously impacted his decision to arrest.

While it is true you have the right to remain silent, and it is generally advised that you shouldn’t make detailed statements to authorities without the advice of a lawyer, an armed defender in the wake of a self-defense shooting needs to make a clear self-defense claim on the record. Had Kelly simply said, “I heard a gunshot, and I saw a group of armed men on my property, and one of them pointed a rifle at me, and I fired in self-defense,” then he might not be facing a murder prosecution right now.

It is also possible for an armed defender to cooperate with the investigation without making substantial statements about the shooting itself. Kelly’s attorney noted in a Memorandum of Law that Kelly, “Put a lit flashlight on the ground in order to be able to find the body again. Mr. Kelly then called the Border Patrol Ranch Liaison again in order to report the discovery and request assistance.” Kelly’s lawyer is trying to show the court that Kelly was being helpful – which makes it all the more mystifying that he was so reluctant to admit to the 9-1-1 operator that he had discovered the body. If conflicting statements are bad, conflicting actions are worse.

The lesson for armed defenders is that what you say — and even what you don’t say — can and will be used against you. In the wake of a self-defense shooting, it is important that you clearly make your self-defense claim, but if asked to make more detailed statements, it is appropriate to politely tell investigators that you would prefer not to make in-depth statements, but that you want to cooperate with the investigation. Feel free to point out evidence or draw notice to witnesses that will likely support your case. There is no prescribed script for what to say or what not to say in the wake of a self-defense shooting. In fact, if you sound too scripted, it could make you seem disingenuous. Interacting with 9-1-1 operators, first responders, and investigators is tricky and the stakes are high. Don West says it’s like trying to waltz through a minefield. Be confident, be cooperative, make your self-defense claim, but when it doubt, shut your mouth.