After only 2 hours of deliberation, on the afternoon of November 20th, 2019, the jury returned a not guilty verdict on both counts of felony harboring.

Day 6 – November 20th

  1. Over 100 faith leaders gathered this morning outside the courthouse to profess how their faith calls them to support No More Deaths’ work in the desert. “They thought that they could stop us, but we can’t stop. To do so would be to cut the cords that connect us to God, to ourselves, and to one another.” – The Reverend Hannah Bonner
  2. Inside the courthouse, attorneys made their closing arguments. Prosecutor Nate Walters argued: “When the defendant made a choice to help [the two men], that’s when he crossed the line and broke the law. … He could have told Jose and Kristian to leave. [He] could have given them food, water, and medical supplies and said good luck. But that’s not what he did. … Scott Warren is guilty. He provided shelter to two undocumented people.”
  3. Defense attorney Greg Kuykendall began his closing statement by saying, “Being a Good Samaritan is not against the law. Practicing the Golden Rule is not a felony.”
  4. He reminded the jury that it was necessary for the prosecution to prove that Scott had helped Jose and Kristian with the specific intention of harboring them from Border Patrol. Scott did not have reason to help Jose and Kristian avoid arrest, “but he did have reason to care whether they were alive and safe, and that reason is that he’s a fundamentally good and decent human being.”
  5. He also reinforced that Scott not calling Border Patrol on the two men was not an act of criminal intent. “Our country never requires regular people to inform. We have to obey the law, but we don’t have to obey somebody else’s moral code. Reporting people to Border Patrol is somebody else’s moral code, it’s not the law.”
  6. Prosecutor Walters presented his rebuttal. He attempted to cast doubt on Jose and Kristian’s need for humanitarian aid by referencing the selfies that they took at the Barn: “It’s almost like they’re on a vacation, resting up in order to continue their journey further north.” Jose and Kristian had just survived walking through a desert where over 3,000 people have died since 2001.
  7. After closing arguments, Judge Collins gave the instructions for deliberation. The case is now in the jury’s hands and we await a verdict.

Day 5 – November 19th

  1. This morning we gathered outside the courthouse to write letters and collect funds for folks detained in immigration jails. For people who cross the desert, surviving the journey may mean the beginning of being trapped in dehumanizing & dangerous detention facilities. These spaces can be especially harmful for LGBTQ individuals. Letters and donations will go to support Trans Queer Pueblo, the LGBTQ Detainee Support Collective, and the Casa Mariposa Visitation Program. If you’d like to make a donation, click here: https://www.gofundme.com/f/zyb568-support-trans-asylum-seekers
  2. Dr. Scott Warren took the stand this morning. His testimony focused on the dire need for humanitarian aid in the desert around Ajo.  He spoke at length about his personal experience recovering the bodies of eighteen individuals who perished during their journey. He explained that, “It doesn’t get easier….but one thing that’s a bit disturbing, frankly, is you start to expect it.”
  3. Scott spoke about how his first Search and Recovery led him to get more involved with humanitarian aid, and that the experience underscored how being oriented to one’s surroundings can mean the difference between life and death. Being oriented gives people a chance to self-rescue, and the ability to share enough information with a Search and Rescue team to make a rescue possible. He specifically testified about the landmarks he pointed out to Jose and Kristian – two landmarks visible from a long distance than can be used to find one’s way to the only paved road for miles if they need help. If someone becomes disoriented and walks away from the highway, they will find themselves in an active bombing range.
  4. Scott spoke in more detail about the horrors faced by people on their journeys.  “For any migrant who enters the desert or for Central American folks traveling up through Mexico they have experienced all kinds of violence along the way. […] The intensity of having to travel that distance, people being left behind, people being kidnapped or killed, encountering the bodies of other people dying from the elements. This leaves trauma and PTSD for those that keep going.”
  5. In providing the humanitarian aid of water, food, and orientation, Scott testified about the internationally recognized standards of neutrality, set out by organizations such as the Red Cross. He explained that, here in Arizona, neutrality means, “We are not there to help migrants evade Border Patrol and we are not there to help Border Patrol arrest migrants.”    
  6. During the afternoon, Scott was cross-examined by Prosecutor Anna Wright, who dug into the organization’s protocols and his role. Anna Wright repeatedly tried and failed to undermine Scott’s credibility based on his previous testimony. She grilled Scott on testimony that he viewed it as part of his role to maintain a safe space for volunteers and migrants alike, and his testimony that he respects the self-determination of migrants while providing humanitarian aid. In a show of remarkable insensitivity, Ms. Wright questioned Scott on whether or not he conducted criminal background checks and ran fingerprints on Jose and Kristian before offering food and water.
  7. The prosecutors continued to accuse Scott of concealing Jose and Kristian because he did not call Border Patrol when he encountered the two men on the property. However, Scott had previously testified about participating in Ajo Border Patrol’s Citizens Academy in 2013. He confirmed that Border Patrol agents stated that no one had any obligation to report undocumented migrants to them.

For more information on No More Deaths’ Search and Rescue efforts or information on how to look for someone who has gone missing after crossing the border, see our website: https://nomoredeaths.org/searching-for-someone-missing-at-the-border/

Day 4 – November 15th

  1. Court started late today. Andy Silverman, member of No More Deaths legal team and Professor Emeritus of Law at the University of Arizona took the stand first. He discussed the No More Deaths legal protocols and volunteer trainings: “One of the very basic principles of No More Deaths and civil initiative is that we are transparent in everything we do. The work we do, and the way we do it, is proper and legal. We provide all information and materials to prevent loss of life.” 
  2. Two long term volunteers also testified. Ellie spoke about her experience with No More Deaths and her drive to do humanitarian aid work “I grew up in Tucson, hiking and recreating in the desert. When I began to hear of deaths in the desert, it hit quite literally close to home. When a tragedy is happening in a place you call home, it compels you to act.”
  3. Ellie testified about her motives, rooted in compassion, the consequences of getting lost in the desert and the value being oriented to where you are: “I carry a high level of concern for people getting lost. If someone is in trouble, you can’t sit down and wait for somebody to find you, you need to find yourself help. In that area, it is a much more vast distance between roads or towns.”
  4. Isabella, another volunteer, also testified. January 2018 was her first month in the desert with No More Deaths and she described what happened in the week leading up to the arrests. Three days prior, volunteers had come across human remains in the desert near Ajo. “We hiked several miles down until we came to the skull, then we did a grid search…it was my first time encountering a human body in the desert.” 
  5. She explained that the experience had an emotional toll on her and her fellow volunteers. Scott lead a debrief for the volunteers that evening, creating a space for everyone to process the experience. She said it helped her think about “what it means to come face to face with death everyday while constantly fighting for life.”
  6. Dr. Norma Price, a member of the No More Deaths medical team, who has volunteered along the border since before the founding of No More Deaths, took the stand. She testified about her consultation with Scott regarding Jose and Kristian, affirming their need for medical care. 
  7. She testified about the dangers that all migrants face in the desert, and the way aid workers respond. She stressed the excessive vulnerabilities to dehydration and exposure in cold and hot environments alike. She also spoke about injuries that in other contexts, might be viewed as minor, when asked by defense counsel; “can you die of blisters?” She responded: “Any injury to the lower extremity…can impair someone’s travel.  if they can’t keep up with the group they are left behind. if they are left behind, they get lost and if they’re not found… they will die.”

DAY 3 – November 14

  1. We started off the day outside court by decorating water gallons with messages of solidarity and love. Volunteers then went out to the desert on water drops, joined by members of the Catholic Worker Movement and Jewish Voice for Peace. Throughout the past two years of prosecution, we have not stopped our work in the field, and regardless of the outcome of this case will continue to give aid where it is most needed.
  2. Trial began with video of the interrogation of the two men arrested with Dr. Warren–José and Kristian–both of whom were detained until they testified and then deported. We acknowledge that these stories are not ours to tell, but we also don’t want their experiences to be erased.
  3. José and Kristian are from Honduras and El Salvador, respectively. Like so many people who attempt this journey, they traveled for months before they scaled the wall and entered the Arizona desert. They described dropping their food and water after seeing Border Patrol agents in the desert near Ajo and continued on through the cold, without any supplies. In video deposition, José explained how he and Kristian supported each other as they navigated north – “We guided ourselves by the stars. Between the two of us, we made a good team. We supported each other mutually.”
  4. In the afternoon the prosecution called Patti Fitzsimmons, a US Border Patrol Enforcement Analysis Specialist who does forensic extractions of cell phones and described their job as tracking “criminal activity” throughout the Tucson sector, and network analysis “to take down an entire organization”.
  5. The prosecution focused their questioning of Fitzsimmons on selfies extracted from Kristian’s cell phone that showed José and him at a gas station and later, at the Barn cooking themselves dinner. As with the last trial, the government’s argument seems to be that the men were not visibly ill and therefore not deserving of food and water. 
  6. Cross-examination focused on cell phone records extracted from Dr. Warren’s phone, which included calls and texts with nurses, doctors, volunteers, and the local sheriff’s department. From the previous trial we know these communications to be medical consultations and reports of recovered remains. The defense clarified that there was no evidence of contact between Dr. Warren and Kristian.
  7. After Fitzsimmon’s testimony, the prosecution rested their case. Defense Attorney, Amy Knight, then moved for all charges to be dropped based on insufficient evidence in the case. Judge Collins denied the motion.
  8. The defense called their first witness, Dr. Greg Hess. Dr. Hess is the Chief Medical Examiner for Pima County. Dr. Hess, a Forensic Pathologist, examines the remains of hundreds of people that are recovered from the desert surrounding Tucson every year. He described the increase in deaths over the last decade, stating that prior to the year 2000, less than 20 remains were recovered every year in Arizona. By 2002 this jumped to over 100, and has averaged 164 for the last 20 years. The majority of deaths are caused by exposure. The prosecution repeatedly tried to object to Dr. Hess’s testimony based on relevance stating that “there are no deaths in this case”, but were overruled.
  9. The final witness for the day was Dr. Ed McCullough, Professor of Geosciences at the University of Arizona and volunteer with the humanitarian aid organization Tucson Samaritans. Dr. McCullough was absent from trial, so the defense had the transcript of his testimony read from the previous felony trial. His testimony described geographic trends of undocumented recovered remains, focusing on the increase in remains being recovered in the west desert surrounding Ajo, Arizona – specifically, the “trail of deaths” documented in the Growler Valley.

DAY 2 – November 13

  1. Today in court, the prosecution called BP agent John Marquez and agent Brendan Burns to the stand. Coincidentally, Agent Burns is currently facing a lawsuit by the ACLU for violating immigrant constitutional rights to due process.
  2. John Marquez, the agent who initiated the surveillance the day of the arrest, testified that part of the reason he suspected Scott Warren of criminal behavior was precisely because of his humanitarian aid work with No More Deaths. In his post-arrest report, Marquez quoted an article from Northern Arizona University’s newspaper, The Lumberjack, which describes a time in 2017 when Scott took a group of highschool students out to the Growler valley. There he and the students gave water and food to migrants, and came across human remains.
  3. For the first time since this case began, both arresting agents admitted under oath this morning to knowing about NMD’s Disappeared Report exposing Border Patrol destruction of water supplies before they arrested Dr. Warren, Jose & Kristian.  Marquez revealed that he became aware of the report shortly after beginning surveillance of the Barn on January 17th. Agent Brendan Burns also testified that Marquez made him aware of the video footage released by NMD that afternoon.
  4. Marquez and Burns revealed both their personal and wider systemic BP racial bias on the stand. Marquez testified that his reason for believing Jose and Kristian were migrants was based on them wearing clothes that “looked like they were from the thrift store,” and claimed that they “matched a description” of two Central American migrants. Defense Attorney Greg Kuykendall questioned Marquez’s logic when he asked, “you didn’t know if they were men or women, short or tall, bearded or not, how old they were, you didn’t know any distinguishing characteristics? You ASSUMED these guys must be the two people who supposedly had left the day before?”, to which Marquez replied: ”Yes.” 
  5. The agents’ racial profiling was obvious to at least one juror, who asked: “If Scott had been talking to two women or anglo people would you still have moved in for the knock and talk or was it based on the fact that they were hispanic?” Agent Burns deflected the question, stating that it was Scott’s “actions” and the “whole picture” that influenced his decision.
  6. Agent Burns was also questioned regarding text messages he and other agents exchanged while surveilling the Barn. Most notably, Agent Burns’ was questioned about his text message “2 toncs at the house”, and a fellow agent’s response that read, “What!?!?!?!?!?! Nice!” Border Patrol agents claimed that the term ‘toncs’ is an acronym for “traveling outside of native country”, but it is widely known to be a racist term that refers to the sound a person’s skull makes when they are hit in the head with a flashlight. Marquez and Burns were questioned about the fact that the Barn was not secured as a crime scene following the arrest of Scott, Jose, and Kristian. It was once again stated that Border Patrol entered private property without a warrant and took unauthorized photos of interior spaces. Border Patrol did not return until January 22nd —5 days later— to carry out a search warrant to gather evidence. Agent Marquez confirmed that, “if you’re looking for evidence and you don’t secure the scene, people come in and out, in and out, then it’s a polluted scene. Then it doesn’t provide a valid crime scene.” Despite this, the government is still submitting all the evidence they gathered before and after obtaining a warrant.

DAY 1 – November 12

  1. The retrial of Dr. Scott Warren on federal harboring charges began today. The morning was spent seating a jury – a process the public was not welcome to witness.
  2. Just before court proceedings officially began, Judge Raner Collins granted a last-minute pretrial motion put forth by the prosecution that forbids the defense team from mentioning the Trump administration or it’s immigration policies
  3. Judge Collins provided instructions for the jurors, including the need for the government to prove beyond a reasonable doubt that Scott acted with intent to violate the law. Also included was the fact that there is no obligation, under the law, for an individual to report a suspected or known crime to authorities.
  4. In her opening statements, Prosecutor Anna Wright, explained that in this case “there may be distractions. This case is not about those distractions. This case is about the law and evidence. It is only about Scott Warren… The evidence shows he intended to shelter and shield safe from a watchful eye of border patrol.
  5. Defense Attorney Greg Kuyendall countered, explaining the context of the desert around Ajo: “He helps migrants in the most lethal desert environment imaginable. He, and others, put supplies in the desert because of one simple truth: water will keep you alive
  6. Kuykendall explained that deeply rooted biases held by Border Patrol agents cause them to perceive humanitarian aid work as criminal. Describing that assumptions based in bias lead to the surveillance, arrest, trial and the current re-trial of this case.
  7. The Disappeared Report Part II and viral video released the morning of the arrest was mentioned for the first time in front of jurors (the report and mentioning of the report was excluded from evidence in the first trial).