DAY 3 – November 14
- 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.
- 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.
- 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.”
- 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”.
- 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.
- 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.
- 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.
- 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.
- 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.
Court does not resume until 11:30 in the morning tomorrow! Join No More Deaths outside the courthouse at 10am for screenprinting t-shirts- please bring your own t-shirt 🙂
DAY 2 – November 13
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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).