PHOENIX (AP) — The judge overseeing the case of an Arizona border rancher who was unsuccessfully tried in the fatal shooting of a Mexican man on his property said Monday he will mull whether to leave open the possibility of a new trial later.

Santa Cruz County Superior Court Judge Thomas Fink said he would consider the prosecution’s request to dismiss the case but leave the door open to another trial in case new evidence or witnesses emerge. It was unclear when the judge would decide.

Fink declared a mistrial on April 22 after jurors in the trial of George Alan Kelly were unable to reach a unanimous decision on a verdict.

Afterward, the Santa Cruz County Attorney’s Office had the option to retry Kelly — or to drop the case.

Deputy County Attorney Kimberly Hunley said the prosecution supported dismissing the case now, but want the option to retry it if circumstances change. She asked that the case be dismissed without prejudice, which would mean it could be brought back to court.

“Unknown witnesses may come forward,” said Hunley. “Known witnesses in Mexico may become available.”

Kelly’s defense attorney Brenna Larkin asked that the case to be dismissed with prejudice.

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“It’s not appropriate to let the state fish for other witnesses,” said Larkin. “The state was presented with an adequate opportunity to present its evidence.”

The 75-year-old Kelly was on trial for nearly a month in Nogales, a city on the border with Mexico, in the death of 48-year-old Gabriel Cuen-Buitimea, who was fatally shot on Jan. 30, 2023. The rancher been charged with second-degree murder.

Cuen-Buitimea, who lived just south of the border in Nogales, Mexico, was in group of men that Kelly encountered that day on his cattle ranch.

Prosecutors had said Kelly recklessly fired nine shots from an AK-47 style rifle toward a group of men on his cattle ranch, including Cuen-Buitimea, about 100 yards (90 meters) away. Kelly has said he fired warning shots in the air, but argued he didn’t shoot directly at anyone.

The trial coincided with a presidential election year that has drawn widespread interest in border security. During it, court officials took jurors to Kelly’s ranch as well as a section of the U.S.-Mexico border.

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