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Devereaux writes: "For nearly a year and a half, Walters and his co-counsel, Anna Wright, had been working to put Warren in prison. The then-35-year-old geographer was arrested on January 17, 2018, along with two young migrants in the unincorporated community of Ajo, where Warren lives and works."

Scott Warren stands next to a community mural project created by the Ajo Samaritans, one of the humanitarian aid groups he works with in the region. (photo: Laura Saunders/The Intercept)
Scott Warren stands next to a community mural project created by the Ajo Samaritans, one of the humanitarian aid groups he works with in the region. (photo: Laura Saunders/The Intercept)


The Unraveling of the Conspiracy Case Against No More Deaths Volunteer Scott Warren

By Ryan Devereaux, The Intercept

11 August 19


The Unraveling of the Conspiracy Case Against No More Deaths Volunteer Scott Warren

he federal courthouse in Tucson, Arizona, has always been a place where the borderlands and the American justice system collide. Described by its engineers as “a gateway to the desert and the mountains beyond,” it was completed in 2000, the year that the Pima County medical examiner’s office began tracking an explosion of deaths in that same desert.

Each afternoon, Monday through Thursday, dozens of chained migrants who survived the journey across the border but found themselves in Border Patrol custody are marched up from the building’s bowels for mass hearings. They come in groups of up to 70 at a time. You hear the chains before you see the people — men and women still wearing the clothes they crossed in. Appearing before a judge in clusters, they confess to entering without inspection, receive their sentences, and leave. Cases are adjudicated in minutes.

On May 29, as the prosecutorial machine churned on, a courtroom on the building’s fifth floor filled for a different kind of proceeding. Marshals with radio-linked earpieces lined the back wall. District Judge Raner Collins took his seat. Before him, a crowd of people sat shoulder to shoulder on wooden benches. After 16 emotional months, the moment had finally come.

A young prosecutor in a baggy suit approached the microphone. The American flag pin fixed to his lapel glinted in the light.

“This case is not about humanitarian aid,” Nathaniel J. Walters declared in his first words to the jury. Instead, he said, it was about Scott Warren’s decision to take part in a conspiracy to break the law and “shield two illegal aliens from law enforcement over the course of several days.” Warren was a “high-ranking leader of an organization called No More Deaths,” Walters told the jurors, but “No More Deaths is not on trial. Scott Warren is.”

For nearly a year and a half, Walters and his co-counsel, Anna Wright, had been working to put Warren in prison. The then-35-year-old geographer was arrested on January 17, 2018, along with two young migrants in the unincorporated community of Ajo, where Warren lives and works. He was accused of providing 23-year-old Kristian Perez-Villanueva, of El Salvador, and 20-year-old José Sacaria-Goday, of Honduras, with food, water, and a place to sleep over three days.

By the time the felony trial began, the prosecutors had already brought federal misdemeanor charges against Warren and eight other volunteers with No More Deaths, a faith-based organization headquartered in Tucson, for leaving jugs of water and other aid supplies on federal lands where migrants are known to die. The prosecutors had won four convictions in those cases, but the punishments were relatively light — $250 fines plus probation. The felony case presented an opportunity to mete out real consequences: 20 years in prison if Warren was convicted and sentenced to consecutive terms.

Signs began popping up in front yards and windows across Tucson in the months leading up to the trial. Humanitarian Aid Is Never a Crime, they read, Drop the Charges. Immigrant rights advocates were watching closely. If the prosecution succeeded, they worried, it could set a disastrous precedent. Not only would a conviction threaten aid work in a region where thousands of migrants have died, but it could also conceivably open the door to a broader criminalization of anyone knowingly providing undocumented people with the basics of human life, including individuals living in families with mixed immigration status.

Standing before the jury, Walters promised to tell the story of Warren’s central role in a criminal conspiracy and to show, beyond the shadow of doubt, that Warren chose to violate the law. As the prosecutor took his seat, defense attorney Greg Kuykendall rose. He crossed the courtroom and set a slide on the court projector.

“INTENT,” the slide said, in large, red letters.

“There’s one question in this case,” the defense attorney told the jurors. “Did these government prosecutors prove with evidence beyond a reasonable doubt that Scott Warren intended to violate the law?” Kuykendall contended that he did not. “Scott intended one thing: to provide basic human kindness in the form of humanitarian aid.”

“Keep your eyes on the ball,” he advised.

In the trial of U.S. v. Scott Daniel Warren, 12 jurors were presented with a set of events and told to come to a unanimous conclusion about its meaning. They would fail, but in doing so they became a mirror, reflecting a country deeply divided on the moral and legal questions raised by its border enforcement strategies. As much as the prosecution and defense worked to keep the jurors’ eyes on the ball, there was simply no denying that virtually every element of the trial, right down to the way it ended, felt like a referendum not just on the current political moment, but on a multi-decade government policy of pushing migrants to the border’s deadliest spaces.

The government’s argument was not that Scott Warren had somehow strayed inadvertently into criminal activity in an effort to do the right thing. Far from it. Rather than some innocent do-gooder, the prosecutors argued, Warren was an experienced and wily senior official in an organized, nonprofit human smuggling operation that uses humanitarian aid as a cover, and he led an illegal operation in January 2018 in service of a broader political agenda aimed at abolishing Immigration and Customs Enforcement and the Border Patrol and ushering in a borderless society.

The critical events in the case boiled down to a nine-day period early last year.

On January 14, Warren arrived at “the Barn,” a building long used by humanitarian groups in Ajo, to find Perez-Villanueva and Sacaria-Goday already inside the bathroom. According to their videotaped depositions, later played for the jury, the pair spent approximately two days crossing the desert. Both said that trauma accompanied their journeys. Sacaria-Goday referred to the suffering of his northbound train trek, while Perez-Villanueva described fleeing problems in El Salvador. The young men said they had been chased by immigration agents and dropped most of their supplies, including their food. They made it to Ajo on foot, where they got two rides from two different drivers at two separate gas stations. The second driver dropped them off at the Barn. Both drivers were strangers, the migrants said.

The two young men asked Warren for food and water. He obliged and performed medical assessments on both of them. A certified wilderness first responder, Warren recorded their conditions in medical forms known as SOAP notes, noting the nickel- and quarter-sized blisters on their feet. Perez-Villanueva also had scratches — “rayones” — on his right hand and reported cold symptoms. Sacaria-Goday complained of serious pain in his torso, the result of falling on a rock days earlier. In keeping with No More Deaths’ protocol, Warren called for advice from two women who have long provided medical services for humanitarian groups in southern Arizona: Susannah Brown, a local nurse in Ajo, and Dr. Norma Price, an award-winning physician.

The migrants spent three days and two nights at the Barn, while Warren and other humanitarian aid volunteers came and went. All three men were arrested on the afternoon of January 17, as the migrants were preparing to carry on north.

The jurors in Warren’s case were told to count one fact as stipulated: that the Pima County medical examiner’s office had recorded approximately 3,000 suspected migrant deaths in southern Arizona since 2000. During deliberations, they were later directed to keep in mind that there is no legal obligation upon citizens to report suspected undocumented immigrants — or any other suspected criminals — to law enforcement. For at least one of the jurors, the premise of the prosecution was a problem. Following the opening arguments, the young woman passed a note to the judge, informing him that she could not participate in an attempt to convict Warren for the events that had been described.

The next morning, she was gone.

With the exception of the two migrants, the government’s witnesses were all Border Patrol agents. Two of them, John Marquez and Brendan Burns, were members of the plainclothes “Disrupt Unit” that took Warren into custody. Both testified in pretrial hearings in the case, describing Disrupt as a specialized unit focused on bringing in smuggling cases linked to organized criminal networks. Marquez had taken a particular interest in Warren in the days leading up to his arrest, text messages showed, and the operation itself was initiated hours after No More Deaths released a report — accompanied with a viral video — documenting the destruction of thousands of gallons of water in the desert and implicating the Border Patrol in the vandalism.

The prosecution leaned hard on selfies and security camera footage of the migrants at two Ajo gas stations as evidence that they were not in need of aid. At Wright’s direction, Burns narrated their actions inside one of the stores, describing the migrants stretching, charging their phones, sharing a Powerade, and laughing with a cashier. The prosecutor then displayed a still image. Shot from overhead, it showed two smiling young men in white undershirts inside a building: Perez-Villanueva and Sacaria-Goday in the Barn. Behind them, a trio of No More Deaths volunteers waved and flashed peace signs for the camera.

“Looking at Mr. Perez-Villanueva and Sacaria-Goday, from what you can see, do either of them have any bruises, cuts, marks on them?” Wright asked.

“No, ma’am,” the Border Patrol agent replied.

Another image showed Perez-Villanueva alone, taking a selfie. A third showed the Central Americans smiling as they cooked a meal in the Barn’s kitchen. In each instance, the prosecutor asked if Burns saw signs of injury. He did not.

By the time the jurors heard from Perez-Villanueva and Sacaria-Goday themselves, in the form of roughly three hours of videotaped deposition testimony, their street clothes and smiles were gone, replaced by detention center jumpsuits.

They described how, by the time they reached the outskirts of Ajo, they were hungry, thirsty, and their feet hurt. Sacaria-Goday said he lied to Border Patrol agents at various points during his initial arrest interview because he was angry. Perez-Villanueva testified that the person who drove them to the Barn told them to keep quiet about his role and that they honored his request when Warren showed up. Both said Warren was “hardly” present during their stay, that they barely spoke with him, and that he never gave them directions north. They said they were free to come and go as they pleased.

The government then laid out its theory of a criminal conspiracy.

In his opening statement, Walters confirmed that a man named Irineo Mujica was Warren’s alleged co-conspirator. Mujica operates a migrant shelter in the Mexican border town of Sonoyta, just south of Ajo. He is better known, however, for his role leading Pueblo Sin Fronteras, an immigration rights group that organized and supported some of the migrant caravans that led President Donald Trump to declare a national emergency and deploy thousands of troops to the border last year. In February, The Intercept revealed that Mujica and Pueblo Sin Fronteras were targets in a sprawling intelligence-gathering operation that swept up a number of activists, journalists, and immigration attorneys working with caravan members in the San Diego, Tijuana, area in late 2018 and early 2019.

These data points together raised a host of questions about what might be revealed in Warren’s trial. On its final day of arguments, the prosecution called Border Patrol agent Rogelio Velasco to the stand. A member of the Tucson sector’s intelligence unit, Velasco examined two key phones in the case: Perez-Villanueva’s and Warren’s.

According to the Border Patrol agent, those records showed that Perez-Villanueva texted Mujica the words “we’re here” after making it to Ajo, and that Mujica replied, “I’m on my way.” The records also showed that Warren had communicated with Mujica in June 2017, December 24, 2017, and on January 11, 2018, six days before his arrest. His phone records further revealed communications with Susannah Brown and Norma Price, the nurse and the doctor, respectively, whom he had called after the migrants arrived at the Barn.

On cross-examination, Kuykendall asked Velasco about his process for narrowing down 14,000 pages of records extracted from Warren’s phone into a one-page report.

“Just by talking to the U.S. attorneys,” the Border Patrol agent testified, explaining that Walters and Wright gave him the criteria and date ranges to search for — none of which revealed communications between Warren and Perez-Villanueva, he acknowledged.

Kuykendall asked Velasco if he was aware that Mujica and Warren were involved in humanitarian aid efforts, and that Mujica operates a shelter in Mexico.

“I think I might’ve heard something, but I’m not exactly sure,” Velasco replied.

Kuykendall turned to the January 11 communications between Mujica and Warren, asking the Border Patrol agent if he had seen what Warren Googled after they got off the phone.

As it turned out, Warren’s phone showed that he had looked up backcountry regulations for federal lands south of Ajo and a recent documentary showing a humanitarian group finding human remains in that area. Velasco was unaware. The agent similarly didn’t know that, after the migrants arrived in Ajo, Warren Googled a Spanish word for scratches — “rayones” — before calling Price for medical advice. Nor did Velasco seem familiar with the fact that Perez-Villanueva had worked for Mujica while staying at his shelter, offering a possible explanation for their communications and relationship.

Kuykendall then introduced a June 2017 email between Warren and Mujica and asked if Velasco had come across it in the searches the prosecutors directed him to make. He had not. Kuykendall introduced another email, asked the same question, and received the same answer. The process repeated itself until roughly a dozen emails were introduced. About halfway through, Velasco turned his gaze to the prosecutors, a puzzled expression on his face.

The emails were later shown to be part of an ongoing correspondence between Warren, Mujica, and other humanitarian volunteers, which included Warren providing tips on how to obtain useable information regarding where missing or dead migrants could be found.

As Velasco stepped down, the prosecution recalled agent Burns. Burns was shown selfies Perez-Villanueva took inside a van. Based on the markings on its windows, Burns testified that the vehicle belonged to Mujica. He knew this, in part, because a week after Warren and the migrants were arrested, Mujica was stopped driving the van through a Border Patrol checkpoint outside Ajo. Inside the vehicle, Burns testified, agents found black water jugs often carried by migrants crossing the desert and multiple foreign ID cards belonging to individuals who had been deported.

Burns described racing to the scene as the stop was happening and finding Mujica still there when he arrived. But when Kuykendall asked the obvious question — whether Burns interrogated Mujica about the conspiracy he allegedly facilitated with Warren, a man he had arrested the previous week — the Border Patrol agent testified that he did not.

Instead, Burns said, Warren’s alleged co-conspirator was released.

The second phase of the prosecution’s theory of conspiracy was unveiled on day four, when the defense called Brown to the stand. “Scott told me that there were two young men in need of medical care at the Barn,” Brown testified, referring to a phone conversation she had with Warren soon after the migrants’ arrival. The 67-year-old nurse, currently licensed in Arizona, headed to the Barn the next morning. Brown described inspecting the two young men and confirming the injuries Warren had noted. She had estimated that they might need anywhere from three to five days to recover.

Brown told the jury that it was not uncommon for her and Warren to take volunteers to Mujica’s shelter, though she didn’t specifically recall a trip they had made the weekend ahead of Warren’s arrest. Typically, Brown said, she would drive a pickup truck hauling an enormous tank of potable water. Volunteers would pass out “harm reduction kits,” packets that include chlorine for purifying water, ointment for treating blisters, combs for removing cactus spines, and a list of American emergency phone numbers, including 911. Brown would then spend the rest of her day treating migrants by the dozens.

When Walters had his shot at the nurse, on cross-examination, he zeroed in on these visits to Mexico and what they might really be about. He asked Brown if she had ever met the migrants Warren was arrested with before they made it to Ajo. Brown testified that she wasn’t sure.

“I see a lot of people at the clinics in Sonoyta,” she said.

The prosecutor then introduced three pieces of evidence from December 25, 2017, the same date that the Ajo Samaritans — one of the humanitarian groups both Brown and Warren work with — went to the Sonoyta shelter to serve Christmas dinner.

Walters first flashed an unflattering close-up of Brown’s face at the scene. “Oh, that’s a terrible picture,” Brown responded. He then showed a photo of Mujica at the same location. Then, finally, the assistant U.S. attorney delivered his coup de grâce: cellphone video taken by Perez-Villanueva.

The shot showed a group of retirement-aged volunteers preparing a picnic table. Brown was one of them.

Perez-Villanueva asked her name in Spanish.

“Susannah,” Brown replied. “¿Y usted?”

Normally, video of a 67-year-old white woman with U.S. citizenship preparing Christmas dinner for migrants at a shelter would not be the kind of evidence one would expect to see in a high-profile federal trial.

Warren’s trial was not normal.

As a matter of law enforcement prioritization, harboring cases are historically rare (though that’s changed a bit under the Trump administration) and are typically focused on for-profit, criminal networks. An analysis by the Arizona Daily Star uncovered just two cases out of 119 filed in the U.S. District Court in Tucson in the first six months of 2018 where the defendant was not suspected of attempting to turn a profit. Warren’s case was one of them.

Over and over, as the defense called its witnesses to the stand, prosecutors Walters and Wright implored the jury to understand that these individuals were not who they said they were — they were smugglers too.

After Warren was arrested, the Border Patrol either forgot or failed to secure the Barn as a crime scene. In the days that followed, volunteer Flannery Shay-Nimrow took the SOAP notes and locations of water drops from the Barn. Walters challenged the decision: What kind of transparent organization removes its materials from an aid station? Shay-Nimrow reminded the prosecutor that No More Deaths has documented the Border Patrol destroying its water drops.

When longtime volunteer Geena Jackson told the jury that No More Deaths models its protocols after the international Red Cross, which requires that “humanitarian aid be separate and distinguished from law enforcement to be effective,” Walters pounced again.

“Isn’t it true that No More Deaths has openly advocated for the abolishment of ICE?” he asked.

Walters had taken the same line of attack in previous No More Deaths hearings and would turn to it more than once during Warren’s felony trial.

Jackson told the prosecutor that she was unsure if that was true.

“Are you aware that No More Deaths has also called for the abolishment for the entire Border Patrol?” Walters asked, pressing on. Given No More Deaths’ mission to end death and suffering in the desert, Jackson acknowledged, “the end of the agency that causes the death and suffering would make sense, yes.”

For a prosecution that was ostensibly not about humanitarian aid or No More Deaths, the two subjects were coming up quite a bit. That remained so when, late in the afternoon on day five, Warren stepped onto the witness stand for the first time.

As people who know him often point out, Warren was perhaps the most challenging person the prosecution could have chosen to make an example of. Not only did he have the unearned advantage of being a well-educated white man in a prosecutorial system that comes down harder on people who are not, he also happened to be a profoundly effective speaker — and a literal expert — on the issues core to his case.

Testifying over two days, Warren told the jurors how he came to Ajo looking for “a quiet place to write my dissertation” and soon found himself immersed in a generations-old community effort to confront migrant deaths in the borderlands. His field is geography, he explained, and his focus is on the human and cultural geography of the U.S.-Mexico border. Warren likened Ajo to a lone population center in a “a low-intensity conflict zone.” It’s not as though there are out-and-out gun battles, he explained — “The border is not this scary, deadly place that you hear about in the media.” What there is, however, is an enormous build-up of security and surveillance infrastructure; armed state and nonstate actors; and civilians, some of whom happen to be migrating through one of the deadliest landscapes in the Western hemisphere, while an army of federal agents searches for them night and day.

Knowing what he did as an academic — the push and pull and factors that cause people to migrate, and the manner and scale at which they die in the Sonoran Desert — left him with little alternative but to act, Warren testified. “In one sense, it feels a little choice-less,” he said. “How could you not do that?” Geographers research and write about places, Warren acknowledged, but to him, making the place where you live “more humane, more just” is also part of the job.

Crossing the desert is an “epic undertaking where you have to put everything you’ve got on the line in order to make it,” Warren explained; one where it is impossible to carry enough water and “there is the expectation that you are going to witness death.” Warren told the jury about the 19 times he has recovered human remains in the desert, how he fixates on the loneliness that accompanies such deaths, and the mark those encounters have left on him. When he meets people preparing to, or already crossing, the desert, Warren said, a vision flashes through his mind. “I see these bones,” he said. “Almost like a split screen.”

The person in the flesh, and the ones who didn’t make it.

“It’s not a stretch to say that every day, migrants are kind of coming stumbling out of the wilderness, knocking on doors in Ajo, needing food and water and other kinds of basic care,” Warren testified.

“People have been giving aid for generations in that town,” he explained. “The great thing about it,” he added as his first day of testimony wrapped up, “is humanitarian aid work is legal.”

Court resumed the next morning under a darkened cloud of conspiracy. Approximately two hours before Warren took the witness stand the previous afternoon, Mujica was arrested in Sonoyta along with another activist. The charges, which soon became public, were related to illegally moving human beings across borders.

Though Mujica, who did not respond to a request for comment for this story, was released from custody days later, the news of his arrest reverberated in whispers through the Tucson courthouse. While day one of Warren’s testimony focused on his beliefs, day two would address the facts of his case. If the government planned to spring some surprise evidence linking Warren to the newly arrested Mujica during cross-examination, as they did with nurse Brown, this would be the day to do it.

Returning to the witness stand, with Kuykendall asking the questions, Warren told the jury how the first weeks of 2018 were a busy time. In addition to teaching classes at Arizona State University, he was also beginning a new gig at a community college for residents of the Tohono O’odham Nation Reservation, up the road from Ajo. On top of that, he was working as a facilitator at No More Deaths for a new monthlong volunteer program based out of the Barn.

Describing his January 11 communications with Mujica, Warren told the jury that Mujica had called with information about some human remains that migrants coming through his shelter had reported spotting. The tip, Warren testified, jogged his memory. He got off the phone and looked up a recently published Vice News documentary that depicted a humanitarian group, the Armadillos Búsqueda y Rescate, on an operation outside Ajo in which it reported the discovery of human remains.

“For whatever reason, the recovery was never done,” Warren said. He wondered if the remains the Armadillos found might be the ones Mujica was hearing about at the shelter.

Warren went on to explain that he and Mujica had “many email conversations” about search-and-recovery work in the desert and the coordination of volunteer visits to the shelter.

The Friday before he was taken into custody, Warren told the jury, he and Brown took the new volunteers to the shelter. One of those volunteers, Isabella Reis-Newsom, who served as Brown’s translator for the day, testified that the goals of the visit were to supply clean water, perform medical assessments, and provide information on the risks associated with crossing the desert. She estimated that Brown treated between 50 and 70 patients over multiple hours.

The new volunteers headed out into the field the following day, locating the human remains the Armadillos had reported. The next morning, Warren went to the local sheriff’s office substation to coordinate a recovery operation, which was completed later that afternoon. It was around sunset, Warren said, when he pulled into the Barn with a bag of groceries to make dinner for the returning volunteers. As he approached the building, he noticed that the bathroom door was open. Perez-Villanueva and Sacaria-Goday were standing in the doorway.

Perez-Villanueva did most of the talking, Warren said, explaining that they were looking for water and asking if they could help him with his groceries.

“This kind of thing happens a lot in Ajo,” Warren told the jury.

Placing the perishables in the fridge, Warren began his medical assessments. He made his calls to Brown and Price, the doctor. Among the new volunteers was a fluent Spanish-speaking EMT, he added, who took over much of the medical supervision responsibilities when the group returned to the Barn. Kuykendall asked if Warren ever instructed the migrants to hide. Warren replied that he had not. “We can’t break the law,” he explained. “We want to be spending our time in the desert getting water out, getting food and water and medical care to people — not here.”

“My intention was to provide them some basic humanitarian aid,” he testified, and to “treat them as I would any human being who showed up on my doorstep.”

The following days saw Warren making a handful of appearances at the Barn. He spent the day of his arrest working for home, prepping classwork and ironing out logistics for the arrival of a group of high school students that night. It was around 4 p.m. when he got to the Barn, he said. There were three No More Deaths facilitators inside. Perez-Villanueva and Sacaria-Goday were still there, though they were on their way out. Warren took the two outside.

“I pointed out two landmarks to them,” Warren testified — Childs Mountain and Hat Mountain. “I told them that the critical piece of information that they need to know is that Highway 85 runs between those two mountains.”

This was not about giving the pair directions to find a ride or evade the Border Patrol, Warren explained. “There’s only one paved highway in all of this desert area,” he told the jury — it’s “the only piece of civilization out there.” If Perez-Villanueva and Sacaria-Goday somehow got to the left of Childs Mountain, they could stray into the Growler Valley, a profoundly remote stretch of desert where the remains of hundreds of migrants have been found.

If you need help, Warren told the young men, “you walk this way — you don’t walk that way.”

As the prosecution came in for cross-examination, it felt as though Walters and Warren weren’t just on opposing sides but in alternate realities.

“In terms of No More Deaths, you would agree that you’re a high-ranking leader in that organization?” the prosecutor told Warren.

Warren explained that No More Deaths is more of a “flat-power organization,” and that “experienced volunteer” would be a fair description.

Carrying on, Walters shifted attention to the day of his arrest. Despite “his entire testimony” centering around the migrants’ well being, the prosecutor submitted for the jury that Warren’s actions in those moments revealed his true motives.

“You know the jig is up,” Walters said.

“The jig?” Warren asked.

“You didn’t hand over the SOAP notes,” Walters explained. These were hardly the actions of an innocent man.

“Well,” Warren replied. “I was in handcuffs.”

Undeterred, Walters pressed on, positioning himself to score a spectacular prosecutorial goal.

On the eve of his trial, Warren published an opinion piece in the Washington Post laying out the facts of his case and describing the potential precedents his conviction could set. Walters pointed to a line Warren wrote that “someone” had told the migrants they might be able to find help at the Barn.

“You knew that it was Irineo Mujica,” Walters said.

“No,” Warren testified, he didn’t know who dropped the migrants off.

The prosecutor then noted that Warren had described the deaths of migrants in the borderlands as “violent.” He asked Warren to tell the jury what he meant by “violent.” The border studies instructor, with a Ph.D. in the human and social geography of the region, appeared more than willing to offer his thoughts on the issue.

“When I think of violence, it’s more like systemic and institutional violence,” Warren explained — violence within “much larger policies that are at play.”

The mess the prosecutor made for himself became even more clear on rebuttal, when Kuykendall started reading Warren’s op-ed from the beginning. Walters objected but Collins overruled, directing the defendant himself to read the text.

Reading his article slowly and carefully, Warren described the dire humanitarian situation around Ajo and how, for years, “humanitarian groups and local residents navigated a coexistence with the Border Patrol.” After all, he noted, “in a town as small as Ajo, we’re all neighbors, and everybody’s kids go to the same school.” Warren referenced the other cases Walters and Wright had brought against No More Deaths volunteers for leaving water in the desert and outlined the “dangerous precedent” his case could set for mixed-status families.

“The Trump administration’s policies — warehousing asylees, separating families, caging children — seek to impose hardship and cruelty,” he read. “For this strategy to work, it must also stamp out kindness.”

Collins had made a daily point of telling the jurors not to research Warren’s case, not to discuss it with anyone, to pay no mind to the fact that this particular trial, for some reason, drew a packed audience and a crowd of demonstrators every single day. Much of what the judge would hope to exclude from the jurors’ minds was now trial testimony. The president’s name was invoked, and the case was tied directly to his most controversial immigration initiatives.

As Warren read from his piece, Walters stared straight ahead, posture rigid as he took large gulps from a Styrofoam cup.

The next morning, the line to get into the courthouse was out the door. Wright delivered the government’s closing arguments.

On Christmas Eve, 2017, she said, Warren texted Mujica. The following day, Brown was at Mujica’s shelter serving food. Both Mujica and Perez-Villanueva were there. Weeks later, on January 11, Warren and Mujica spoke by phone. The next day, Warren and Brown visited the shelter, where they delivered No More Deaths’ harm reduction kits — or, as Wright referred to them, “predeparture kits.” Perez-Villanueva and Sacaria-Goday crossed the border the following night. Two days later, they made it to Ajo, where Perez-Villanueva called Mujica and got a ride to the Barn. Warren arrived shortly thereafter.

“That is evidence not of coincidence,” Wright told the jury. “But of planning.”

Everything Warren did in the days that followed was in furtherance of this “well-made-off” criminal plan, Wright said, and nothing his attorneys said could be taken seriously. Warren made two calls after the migrants arrived, she pointed out, but the first, to the nurse, was not included in his SOAP notes. “That call doesn’t show up in the SOAP notes because it’s not about medical care,” Wright asserted. “That call is letting her know that he made it and the plan worked.” The notes were part of the cover-up, Wright said, and the migrants were never in need of medical care. “Mujica and the defendant have an ongoing relationship,” she explained. “That relationship involved activities around illegal aliens. Sometimes they’re search and rescue. Sometimes they’re this.” Warren was “the hub” in a criminal operation, she insisted, in which, he, Mujica, Brown, and unspecified “others conspired to further Kristian and José’s illegal journey into the United States.”

“The question is, what’s the benefit to him of all this?” Wright asked the jury. “He’s not getting any money out of it. That much is clear. So what does he get?”

The answer, the prosecutor argued, was that “he gets to further the goals of the organization,” of which he is “a high-ranking leader.” One of the goals of that organization, Wright told the jury, “although never stated outright, is to thwart Border Patrol at every possible turn.”

As Kuykendall replaced Wright at the microphone, the word “INTENT,” in large, red letters, returned to the jurors’ screens.

“Like I said at the beginning of this case, there’s one issue,” he said.

Walking through the legal system’s different standards of proof, the defense attorney stressed the high bar of proof beyond a reasonable doubt.

In Warren’s case, the government had at its disposal some 500 Border Patrol agents in Ajo and “14,000-plus pages” of Warren’s phone records. “Everything about Scott’s life,” Kuykendall said. Not only did the prosecutors fail to produce evidence beyond a reasonable doubt, he argued, but there was in fact “an intentional absence of evidence.” Kuykendall pointed to the testimony of the agent who examined Warren’s cellphone, who was oblivious to a history of communications between Warren and Mujica.

“They’re alleging Scott talked to Irineo about some far-flung conspiracy, some conspiracy that doesn’t make a bit of sense, but they intentionally told the agent, ‘Don’t look at the emails,’” Kuykendall said. “If you’re the government of the United States, with all the power in the world, you direct your agents to review precisely this kind of evidence and present it to folks like you.”

And then there was the testimony of agent Burns, Kuykendall went on to say, who had Mujica in front of him at a Border Patrol checkpoint a week after Warren’s arrest and did not ask him about the alleged conspiracy. “If the government wanted to produce evidence to you of a conspiracy between Scott Warren and Irineo Mujica, what better evidence than finding out from Mujica what they were talking about?” Kuykendall asked. “Why didn’t they do that? That right there constitutes a gigantic, gaping, reasonable doubt.”

“If it weren’t so scary, it would be laughable,” he added. “But it isn’t laughable. It’s the most important day of Scott’s life.”

The defense attorney wrapped up by returning to the two stipulated facts in the trial. “It’s not against the law in our country to provide humanitarian aid unless, in doing so, you intend to violate the law,” he said. “There’s absolutely no evidence that Scott intended to violate the law. The evidence in this case is precisely the contrary.”

“Scott wanted to alleviate human suffering,” Kuykendall told the jurors. “This isn’t a close call.”

Wright’s rebuttal lasted more than half an hour. “We’re not saying the defendant is evil,” she said. “No, he did a bad thing and that’s what’s charged in the indictment.” The jurors had to know, Wright argued, her intensity building as she made her final pleas, that “this is not a case about deaths in the desert and a crisis and all this.”

“That is a smokescreen to distract you from what happened,” she said.

Warren and his lawyers were deploying slippery language and fancy words, the prosecutor argued. The idea that orientation is a human right — and that’s what Warren provided the migrants as he pointed out landmarks in the moments before their arrests — was just another “smokescreen,” she said. “Orientation is a fancy word for giving people directions,” Wight argued. “It is an attempt to make legitimate what is actually illegal.” Similarly, she said, the word “context,” which Warren used in attempt to explain his role in No More Deaths, was just “another fancy word for confusion.”

The fact that Perez-Villanueva’s text messages showed that he planned to get to Phoenix the first night he made it to the U.S. — undercutting the idea of a plan to stay in Ajo — didn’t matter, Wright argued. “Travel plans change,” she said. “That doesn’t mean that there’s not a plan, not a conspiracy. It simply means that Kristian doesn’t know all the details. And that would make sense. Who’s the experts? Who’s been doing this awhile? Who’s been around people who’ve been crossing and have that information? Not Kristian. It’s the other people planning.”

As she brought her case to close, Wright returned to the selfies, encouraging the jurors to trust what they saw. “Looking with your own eyes, you can make your own assessment,” she said. “They are not injured. They were not sick. They were not resting and recuperating on their sick beds. They were taking their time getting to the place that they wanted to get to, with all the help they could possibly need from the defendant. They got food. They got water. They got shelter. They got directions. They had everything brought to the Barn that they could possibly need. Everything. For four days.”

“Coincidences don’t happen like this,” the prosecutor said. “This was a plan and under the law, a plan like this is a conspiracy.”

As the jurors headed into deliberations, I headed to Warren’s attorneys’ office.

Kuykendall and his co-counsel, Amy Knight, are death penalty defense attorneys by trade. They took on Warren’s case pro bono, as a matter of principle. During their 16 months working on it, they had maintained a low media profile. Though Warren’s prosecution had precedent-setting potential, the charges he faced were low-level felonies compared to the capital crimes Kuykendall and Knight usually litigate. The attorneys kept up their death penalty defense posture nonetheless, hammering the prosecution with pretrial motions in an effort to force the government to truly prove its case — or back down.

“The Border Patrol’s not accustomed to trying cases,” Kuykendall said, as the lawyers settled in for lunch, waiting for the jury to return its verdict. In a system in which an agent’s investigative responsibility often boils down to proving a person lacks papers, and a right to attorney is not a given, “nobody goes to trial,” Kuykendall said. “Nobody fights back.”

While Kuykendall made most of the arguments in court, Knight was in many ways the tactician behind Warren’s defense. She had accepted early on that she wasn’t going to find an expert witness on migrant deaths in the Arizona desert who would not be perceived as being on Warren’s “side.” “There’s no such person,” she said. The U.S. government has maintained a multi-decade policy of channeling migrants into the deadliest areas of the desert, resulting in thousands of deaths, in order to deter others from coming. “Once you know this information, you can’t not be an advocate.”

“Their policy doesn’t work if it’s not deadly,” she added.

As Warren’s trial played out, Knight said, she was struck by the “shocking amount of power the federal government really has.” Here were two assistant U.S. attorneys interpreting a law in a new, and radically more aggressive, direction and getting institutional support from the Department of Justice to do so. Kuykendall agreed. The defense attorney said it wouldn’t surprise him if Warren’s prosecution cost the government upwards of $1 million. “How you could not believe that Scott’s primary intention in life is to alleviate suffering, I don’t understand,” he said, adding that it was an interpretation of the facts that made him “aware of what a polarized universe we live in.”

“It’s like they came from Mars or something, and they have a completely different set of receptors,” Kuykendall said.

The day ended without a verdict. The weekend came and went. The following Monday morning, I found Susannah Brown mingling with No More Deaths volunteers outside the courthouse. Just a few days earlier, she had walked into the building and been blindsided by a federal prosecutor naming her as an unindicted co-conspirator in a felony conspiracy. She was clearly still processing. “I felt pretty good until Friday,” Brown told me with a laugh. “And then it was like, holy shit. I couldn’t believe what I was hearing.”

“It was like, this is preposterous, you’re crazy,” she said. The chilling part, she added, was that Wright was skillful at crafting a narrative that could sound compelling, “if you didn’t know what the facts were.”

“That was scary,” Brown said.

Brown was one of several Ajo residents I had come to know over the last year who saw Warren’s prosecution as a defining moment in their town’s recent history and a test of their own principles. At a community meeting earlier this year, I heard residents like her describe a proud history of providing aid to migrants in Ajo, and the fear and confusion they were feeling now. It was clear that Warren’s experience and actions were not unusual. The federal government’s posture was at odds with traditions that many people viewed as moral obligations. Some, like Brown, had built their lives around the fulfillment of those obligations and weren’t planning to change course now.

“We’re gonna carry on,” she told me. “We have to.”

Late on the afternoon of June 10, a phone rang in Warren’s attorneys’ office: The court clerk was calling to say that the jury had delivered a note to Judge Raner Collins. The lawyers piled into a car and headed for the courthouse.

After 11 hours and 23 minutes of deliberations, Collins told the court, the jurors were “unable to reach consensus.” He ordered them to go back and try again. “Each of you must decide the case for yourself,” he said. “I’m going to ask you to retire again and continue deliberations.”

The following day, at 12:36 p.m., the phone rang again. Warren’s lawyers hustled back to court. An hour later, the jurors filed in. They were deadlocked. Collins asked if they all agreed that further deliberation would not result in a resolution. On that point, there was unanimity. It would not.

“I want to thank you for your time and your attention,” Collins told the jurors, and with that, they were dismissed. Collins filed a formal mistrial later that afternoon.

After their dismissal, the jurors invited Kuykendall and Wright in for a conversation. Eight of them believed that Warren was innocent on all counts, the lawyers learned, and four believed that he was guilty as charged. This did not appear to be a case of jury nullification, when jurors take a position against a certain type of prosecution or charge and refuse to convict regardless of the evidence. On the contrary, Kuykendall told me, it was a jury that started from a position of guilt and evolved as more evidence was presented.

“They were all very suspicious,” he said, and their deliberations appeared sincere.

Warren walked out of the courthouse to a crowd of friends and the press. Standing under the shade of a tree in a light gray suit, he thanked the people who had supported him and called attention to the fact that Perez-Villanueva and Sacaria-Goday had regrettably not received the same support. “Since my arrest in January 2018, at least 88 bodies were recovered from the Ajo corridor of the Arizona desert,” Warren told the crowd. “We know that’s a minimum number and that many more are out there and have not been found.”

“The government’s plan, in the midst of this humanitarian crisis?” he asked. “Policies to target undocumented people, refugees, and their families; prosecutions to criminalize humanitarian aid, kindness, and solidarity.”

Border Patrol agents recovered the body of 6-year-old Gurupreet Kaur the following day. She was found south of Ajo, on the Organ Pipe Cactus National Monument, where Warren and other area humanitarian groups have directed much of their work. Her cause of death was heat stroke. According to U.S. Customs and Border Protection, temperatures had reached a high of 108 degrees in the area where she was found. The second grader passed away while her mother, who came to the U.S. from India to seek asylum, was searching for water.

That afternoon, U.S. Attorney’s office issued a statement saying that it would make a determination as to whether to retry Warren’s case ahead of a July 2 hearing.

The knot of compounding disasters, tragedies, and outrages on the border seemed to somehow worsen in the days that followed, with fresh evidence of children held in horrifying conditions at immigration detention centers, the drowning of a father and daughter who attempted to cross the Rio Grande, and revelations of a secret Border Patrol Facebook group that was a cesspool of rage and hate and boasted nearly 10,000 members, including the Border Patrol chief herself.

Nobody knew what to expect when Warren returned to court in early July. Would the U.S. Attorney’s office take the 8-to-4 split as a sign that their case was flawed and pack it up? Or, after all this time and effort, would they stay the course?

At 9:37 a.m. on July 2, Collins’s courtroom filled. Anna Wright, who just a few weeks earlier had passionately argued that Warren was the ringleader in a network of nonprofit human smugglers, informed the judge that the government was dropping its conspiracy charge. The U.S. Attorney’s office would continue to pursue the two harboring charges, Wright said, though Warren had the option to accept a plea deal, if he so desired.

The government had split the difference, abandoning a core component of its criminal narrative, while holding on to the possibility of still eking out a win down the line. Standing outside the court, under the same trees where he had addressed the media weeks before, Warren said in a statement that he and his attorneys were “ready for the second trial and more prepared than ever.” Though, he added, it remained “unclear what the point of all this effort, time, and money has been and now continues to be.”

“While I do not know what the government has hoped to accomplish here,” Warren said, “I do know what the effect of all this has been and will continue to be: a raising of public consciousness, a greater awareness of the humanitarian crisis in the borderlands, more volunteers who want to stand in solidarity with migrants, local residents stiffened in their resistance to border walls and the militarization of our communities, and a flood of water into the desert at a time when it is most needed.”

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Comments  

 
+10 # Texas Aggie 2019-08-12 00:00
You think that you can't possibly despise the drumpf administration and all its minions any more than you do, and then you read something like this and you realize you haven't even begun to hate them.
 
 
+8 # tedrey 2019-08-12 06:42
An excessive respect for law is a stopgap substitute for conscience.
 
 
+12 # Kootenay Coyote 2019-08-12 08:34
The present evil of the US government, which the structure & conduct of this case illustrates plainly, is appalling, & still denied by too many citizens.
 
 
+6 # Lgfoot 2019-08-12 09:58
Warren is a hero.So are Kuykendall and Knight.
Trump, on the other hand; I guess Bone Spurs and Putin's Usefull Idiot say most of it, along with Sadist who doesn't mind caging and even killing children of tender years.
 
 
0 # elizabethblock 2019-08-12 18:59
I'm seeing here a profound disconnect between the people of Ajo and the government. The prosecution apparently believed, and thought they could make a jury believe, a version of what's going on that is contrary to fact and also contrary to ordinary common sense.
What were they thinking?
 
 
0 # coberly 2019-08-12 22:05
the tortured logic of the prosecution was unfortunately typical of courtrooms and politics. it is hard for me to imagine that these people believe themselves. on the other hand it may be that any string of words they can construct BECOMES truth and logic to them: there is no evidence that the human brain cares anything for truth, logic, or even decency. it just follows associations laid down by repetition.

which is probably why one third of jurors found him guilty: the same percent as that of the electorate that believes Trump.

and also why "no double jeopardy" has been twisted by the courts to mean that Warren can be tried again.

and again until the luck of the draw finds 12 good men and true who can say, "yep, looks like conspiracy to me."
 

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