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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, February 22nd.
Today is George Washington's birthday. Remember those days when we used to celebrate George Washington's birthday. No longer. Anyway, today is Wednesday, February 22, 2023.
It's about 425 in the afternoon here on the east coast of the United States.
Do you remember this guy?
George Allen Kelly, 73-year-old rancher from Santa Cruz County, Arizona.
Mr. Kelly was having lunch with his wife in his house on his 170-year-old ranch,
which abuts the Arizona-Mexico border, when he heard gunshots outside the house.
He went outside and he saw a gang of men who looked as though they were not local storming toward his house.
And he fired some warning shots above them and they left.
And they ran in the direction of the Mexico-Arizona border.
And though he didn't see them cross the border, he assumed that they did. About two hours later, he went to bring his horse in, which had been grazing on a fenced-in range not far from the house.
And while he was looking for the horse, he saw a dead body in his property.
He immediately called the police.
The police came, looked at the body, examined the body, and arrested Mr. Kelly and charged him with first-degree murder.
First-degree murder is a planned, plotted murder where you know in advance who the victim is and you make plans to kill the victim.
That's the highest degree of murder that we have, planned, plotted murder.
Mr. Kelly said, all I did was fire shots over their heads and everybody ran away. I didn't
name it this guy. I don't know who he is. I don't know what he was doing on my property. I don't
know how he got here. If I was the murderer, why would I call you when we found the body? In fact,
I actually called 911 and said, somebody's on my property.
It looks like he's dead. I don't know. You better send an EMS here. The EMS and the police came.
Would a person who had planned and plotted to kill him have done that? All right. Kelly was arrested
and bail was imposed at a million dollars. Mr. Kelly does not have a million dollars. His
property is not worth a million dollars. The government wanted to make an example of him. The government told the judge
that he was hunting down illegal immigrants and trying to kill them like they were animals,
and that he, in fact, had killed this person, whose name we don't even have yet,
by shooting him in the back. Kelly said,
I never shot at anybody. I don't kill people. I don't even like to kill animals. I just use the
shotgun to scare animals away and to scare people off my property by shooting the gun well over
their heads in a place and in a manner so that the rounds that will land from the gun won't harm
anyone. Okay, so Kelly's lawyers asked for the bail to be reduced and the court said no. Then
Kelly's lawyers asked for the bail to be reduced again. This time the government said you can't
reduce the bail. If anything, you should increase it. He's dangerous. He's a murderer. He hunts people down. He tries to kill them.
The court reduced the bail. The court dropped the million-dollar bail and allowed Mr. Kelly
to post his property, which isn't worth anywhere near a million dollars. All he does, all that does
is file a document with the county courthouse in which the property is located so that he can't sell it, he can't lease
it, can't do anything with it, but he's free, free to live on his property. Now, when the court does
this, what is the court doing? The court is basically saying, I don't believe the government's
argument. The government hasn't given me enough evidence to substantiate his argument that he's a killer, that he's a murderer, that he hunts people down, that he tries to kill immigrants, legal or illegal.
That's the type of judgment call that judges have to make.
In my career, I probably fixed bail for thousands of people. bail days where I would sit on the bench for four hours before lunch and four hours after lunch,
and the police would bring in hundreds and hundreds of people to fix bail. The government
doesn't know these people. It barely knows the cases. I would say to the government,
tell me what evidence you have against this person and what bail the government wants.
Sometimes the bail is agreed
to by defense counsel and government prosecutors, and then you just fix the amount that they agree
to. Often it's not, and you have to decide what to do. You only have about two minutes per case.
In this case, the judge has had several hours because this is the third time Mr. Kelly was in this judge's courtroom.
When defense counsel and the prosecutor actually argue the case, defense counsel is telling the
court what his investigators have found out for him about the case and what his client has told
him. The prosecutor is telling the court what the government thinks it can prove. The government, the court makes a very quick, snap my fingers a little better, make a very quick determination, makes a very quick determination about who to believe.
You know, you let a dangerous guy go free and somebody else gets killed.
Hell comes down on you as the trial judge.
You try to do the right thing.
The Sixth Amendment says unreasonable bail shall
not be required. You make a legitimate, prudent inquiry. What are his connections to the community?
Does he have any prior offenses? Is he likely to do this again? How strong is the case against him?
Is the government exaggerating, as they often do in these cases? Why does the government exaggerate?
Self-protection.
The government doesn't want to walk in and say, yeah, don't give them any bail, and then it goes
out and harms somebody else. So the government almost always exaggerates what its proofs are.
This case sort of struck my heart when it first came to me. I don't usually cover cases like this
on judging freedom, even though, of course,
those of you who know me know that my background is as a trial judge, having heard many, many, many
criminal cases, thousands of bail, over a thousand sentences, and well over a hundred jury trials
of criminal cases. So you try and do the right thing. Fortunately for Arizona,
they don't have the New York system where a computer tells you what the bail is or that
there is no bail. Judge is a human being hearing the arguments and weighing and evaluating the
evidence. So Mr. Kelly is home. The government will have to prove its case that it intentionally
hunted him down. He intentionally hunted this guy down and murdered him on the back. If they can prove that, Mr. Kelly will go to jail for the
rest of his life. If they can't, he'll either be convicted of some lesser charge or be found not
guilty. I think we're going to follow this for you more as we get it. Judge Napolitano for judging
freedom.