A journal of the federal felony trial of No More Deaths' volunteer Scott Warren in Tuscon AZ

 

 

This is a journal that Tracy Taft of Ajo AZ, a neighbor of Scott Warren, kept of this trial, in which a conviction carried up to a 20-year sentence.  Ms. Taft began the journal as a letter to a friend. -- blj

 

June 1

 

Hi Mitch - finally a spot of time to "talk".  I assume you saw the interactive NYT opinion piece? (maybe you sent me the link...) I finally had the download power to really look at it and listen -- it's powerful.  Sad that, of all people, Clinton and Obama didn't do better on border policy. It's amazing how ignorant or thoughtless brilliant people can be. The more I learn about NAFTA, it reminds me of the neutron bomb -- moving goods but not people across the border. Ah, I'll add Bill Hatch to this email and you guys can debate or clue me into the politics about which I am relatively ignorant. Hi Bill.

 

Scott and his beliefs?  I've known him for many years, since he first visited Ajo and then came to live here at the Curley School. I can't say we are close friends. But he has always struck me as one of the most "authentic" people I know. Without guise. So, when he talks about helping to put spirits to rest, I don't doubt his sincerity.  If I doubted Scott's truthfulness, I don't know who I would trust -- it's like he's a standard for transparency.  His partner Emily is much the same. And both feel remarkably present. Emily practices at our health clinic in behavioral health, and also teaches mindfulness at our public school. She often leads the vigils held periodically in the Ajo plaza for those who have died in the desert. 

 

The judge (Raner Collins) is talkative, very attentive, friendly and gregarious with all present, both sides. Does it matter that he is a Clinton appointee and African American -- I have no idea. He is reputed to be fair. I liked his questions during jury selection (we listened to jury selection in another room). For example, he asked all the jurors whether they had ever hiked in the desert, or really whether there were any who had never hiked in the desert.  The next morning before Scott's trial resumed, I watched him sentence a series of convicts with parole violations and he seemed thoughtful and kind, while also clear and tough talking. It's hard to imagine him giving Scott a long prison sentence, so that feels good....

 

The trial. My expectations must have been corrupted by years of the pace of detective novels and TV. In fact, this trial, probably like most, is agonizingly slow and tedious. Day one was jury selection, opening statements, and about 2/3 of the first witness. Day two was 1/3 of the first witness, the second witness with lots of time spent playing videotapes, and a third witness. Much paper and exhibit shuffling, long pauses, lots of conferring with the judge with white noise flooding the courtroom. The technology is cool. The lawyers can put an exhibit on some piece of equipment in front of them and have it appear on screens in front of the judge and each juror and sometimes on the big screens we see as well.  

 

Unfortunately, I wasn't able to get into the courtroom for the prosecution opening statement. I got in after the defense statement had begun. Scott's attorney described the week of Scott's life prior to his arrest. Gave a sense of who he is (or was) with his mix of teaching at Tohono O'odham Community College, going out into the desert to drop water and food on migrant trails, going out to search for remains, training a new group of No More Deaths volunteers from Tucson I think, cooking for them, grading student papers, etc.   The pertinent timeline was that on the 14th Scott arrived at the barn (which is on the west edge of town, north of where I live) in the late afternoon with bags of groceries for a dinner he was going to prepare for a group of NMD volunteers he had trained days before and who were out all day in the desert that day on their own. When he got to the barn, he encountered the two migrants who were already there. So he paused the dinner plan and did the NMD  protocol called SOAP (subjective, objective, assessment, plan), finding one severely dehydrated, both with blistered up feet, cuts and scrapes, and one with chest pain. Then he checked in with the NMD doc in Tucson, who ordered slow hydration and monitoring. After all that, he cooked dinner for what turned into a group of 20 or so, then went home. Next day, a retired nurse, Susannah Brown (she was at Stanford a few years after we were) came out and did a second SOAP and treated and monitored them.  On the 17th when Scott arrived in the afternoon, the migrants were packed up and ready to leave. He took them outside to orient them to landmarks, and then before they could leave, the BP agents came onto the property, questioned Scott who was outside and refused them permission to enter private property, and then entered and found and arrested the two guys who by then were hiding in the bathroom. Then they arrested Scott and took all 3 to the BP station in Why.

 

The first two witnesses were the BP agents who arrested Scott and the two migrants (on 1/17/18), with 10-12 other BP agents and Sheriff's deputies, all armed of course. The third was a BP agent fingerprint collector who, along with the second witness, was part of the team who came back with a search warrant and searched the barn on 1/22/18. The first agent established the barn scene -- they were watching it from a wash a few hundred yards away and across the road (BLM land). After an hour or two, they saw Scott exit the barn with the two migrants and gesture to landscape features (esp Childs Mtn and Hat Mtn which you might remember), orienting them to where they were. The second agent repeated most of what the first said, but during his testimony, videotapes were shown. First from the Why Not travel store (in Why...) early the morning of the 14th, the second from the Chevron Station deli area, mid-afternoon on the 14th. The import of the videos was that the two migrants didn't look bad -- they purchased Gatorade in both places, seemed to be walking ok, looked fairly fit -- both men are pretty young. But of course the BP agents are not doctors and, as Mimi (remember her? she cooked your breakfast at the Farm Market restaurant)  explained to me just yesterday, most migrants act like they're fine when in public including walking on blisters w/o a limp, even when they may collapse moments later from dehydration. Inadvertently, the second video established how utterly common it is for migrants like them to go through the Chevron, as nobody paid them any particular mind -- Scott's attorney asked why the employees there weren't arrested for selling beverages to them.  They also showed selfies the migrants had taken with their cell phones -- they looked like really buff guys, showing off to the camera -- I don't know but am guessing this was after a couple of days there at the barn.  I don't think they said yet.  To me, all the videos and photos were troubling, but nobody seemed surprised by them, so I assume they'd been viewed before and will become part of a cogent story at some point.

 

The third witness was the BP agent who gathered fingerprints during a search the BP conducted on 1/22. The prosecutor spent a lot of time establishing how fingerprints were taken, what surfaces hold prints, etc., and that they were taken from all the hard surfaces -- kitchen counter, table, bath sinks, laundry washer and dryer, etc. Suspense. Then the guy said that they had found no/zero fingerprints on anything. Big silence. Clearly, his implication was that the prints had been deliberately wiped out. However, as it turned out, Scott's lawyer established that the BP had failed to secure the barn in between (as in no crime scene tape, no notices, no locks) and that it was being used the whole time by volunteers including a group of students from Flagstaff. Then they introduced notes from the students thanking them for the use of the barn and explaining how they had scoured it best they could before leaving.  Yesterday Mimi mentioned that she had actually never seen the barn so clean....  So much for their fingerprint points.

 

So that's where it stands. None of us knows how many more witnesses the prosecution will present or who they are. The trial is expected to run through all of next week and possibly into the following week.  I'll be back over there on Monday, will give you an update when I can. The courtroom has been filled each day with Scott's and Emily's family, friends, Ajo Samaritans, and NMD volunteers. Apparently people must have been sighing or moaning or the like, as after the jury left the room, the judge several times admonished the gallery to make no sounds. I actually didn't hear any such sounds...but then maybe it's my old ears. And maybe I even sighed, who knows. 

 

No doubt, as Scott said in that NYT piece, the deaths are the government's fault.  Though, risking redundancy, my take on it is still this -- if the border patrol were actually at the border, there would be no migrant deaths. With their large agent numbers, the communications towers, the drones they're operating, there is no reason they couldn't stop every single migrant at the border. 

 

Wish you were here -- but it's nice to have friends "out there" following this process… Tracy

 

June 5

Mitch and Bill --

Day 3 (Monday) was excruciating to sit through -- first, literally, because the gallery (folks like me) is seated on completely flat benches w/ a back. Who knew there could be such a difference btw the curve in a church-type pew and a completely flat bench. After a couple of hours, it was an endless, painful squirm. Thankfully, friends of mine showed up with cushions today.  And second, because the main testimony was a video of the deposition of the two migrants -- each video was just under two hours and the quality of image and sound was really mediocre.
>
> The first was Kristian Perez-Villaneuva, a young man from El Salvador (23 yrs old). The second was Jose Arnaldo Godoy from Honduras (21 yrs old). The two of them and three others crossed into the US the night of 1/12/2018 by climbing and jumping the wall (fence really) about 2 km from Sonoyta, MX and/or Lukeville, AZ.  Prior to crossing, they had spent 1-2 months living in Sonoyta -- Kristian in a migrant shelter, Jose in an abandoned house.  They crossed wearing camouflage gear and under it regular clothes, jackets, hats, and gloves. It was really cold here then. They slept in the desert late the first night, walked through the next day and night.  Somewhere along the way, the three who were with them were complaining loudly about the thorns they had gotten in their hands and feet, so Kristian and Jose left them behind.  Sometime after that, they said, Border Patrol agents were following them, so they threw away their backpacks and water jugs, and Jose either lost or threw away his cell phone (Jose told his story two different ways, later saying that he had lied to the Border Patrol about throwing it away because he was mad, and when he gets mad he lies, an assertion point about which he would prove remarkably consistent, that is that when mad he lies.).

By early morning the 14th, they made it to the gas station in Why / the Why Not convenience store. They were caught on that facility's (also poor quality) videotape approaching customers coming to gas up. They spent much of the morning there until they were finally able to get a ride from a stranger to the Chevron Station and convenience store, across from the IGA in Ajo. The stranger also gave them $40, so they were able to buy some Gatorade and a burrito there.  They drank the Gatorade, but it looked like the burrito went uneaten.  Then they hung out there quite a while and were caught on the (somewhat clearer) videotape inside the convenience store/deli. They got a ride from there to the Barn, which was only a mile away.  They got to the Barn sometime mid-afternoon. There's a separate bathroom structure behind the barn w/shower, toilet, sinks, washer/dryer, etc. which is left unlocked. They used those facilities and had cleaned themselves up already when Scott arrived in the late afternoon.

It looks like the ride to the barn is going to be an important piece of this.  Kristian said that a guy approached him and asked about the other three who had crossed with them, saying that one of them was a good friend of his. He said he could take them to someone who would help them, but not to say who gave them the ride. Later (not their depositions, but at some point today) we learned that this last ride-giver may have been Ireneo Mujica (sp?). He runs the larger of two migrant shelters in Sonoyta, across the border, where Kristian was staying and also, it seems, also working for that guy. The cell phone records show that Kristian called him sometime after crossing to the US (I forget when).

So far as I understand, it is this same man Ireneo Mujica who is named as co-conspirator in that charge (conspiracy is the heaviest charge against Scott, with 10 years max penalty).  Cell phone records (Scotts comprised 14,000 pages) show that Scott called Mujica a few days earlier.  Scott's attorney has already argued that Scott talked to Mujica frequently -- Mujica would get calls from families about people missing in the desert and would talk with Scott who would get a group of volunteers together to go look for them...often finding no one, or finding only their remains.

Regarding the two video depositions, much of what Jose said corroborated what Kristian said. Anything else was pretty much discredited by his admitting to several lies, which he always did when he was mad, he said. The most startling part was looking at the videotapes from the gas stations and then a bunch of photos from Kristian's phone, selfies they took at the Barn.  They look relatively healthy in the videos and then even more so in the selfies.  Hopefully the selfies were taken at the end of their stay at the Barn after they had rehydrated...I think we haven't been told that yet. However, one of the frustrations several of us are experiencing is that the female of the male/female prosecutor team speaks very fast, somewhat softly, and mumbles.  So those of us whose hearing isn't great are often are unsure what she's said.

Both Kristian and Jose answered "no" to the questions: did Scott give them directions further north, or where to go? Did anyone give them first aid? Did anyone tell them what to do if BP agents came? Their plan was to get to Interstate 8 (40 mi north of Ajo). They said they spoke little with Scott because he had little Spanish and they had only a few words of English. "No" to did he give them a flashlight? a map? any help getting to I-8? did he tell them to stay inside? to hide? did he lock them in?  They cooked for themselves, got their own water, etc. But "yes" to did Scott give them permission to eat the food that was there and use the stove, etc. Much focus by the prosecutor questioning them on their having asked permission to use this and that, and Scott giving it.

The next witness was the 4th Border Patrol agent, last name Velasco. He is the cell phone analyst/expert (though he said he'd analyzed only about 50 prior sets of phone records).  What he looked at was something like 4,000 records from Kristian's phone and 14,000 from Scott's.  On 1/10 Kristian texted his mother that he would leave soon. On 1/12 he texted several unidentified people that he would leave that he would be leaving that night at 8. On 1/13 btw 2 and 3 a.m., he texted someone that they were in the US close to a road. On 1/14 someone texted him the coordinates of the Chevron station in Ajo.  From Scott's phone they noted a call to Mujica on 1/11 (the last previous call was in Nov 2017), a call to a Tucson doctor on 1/14 and to an Ajo nurse, Susannah Brown who works with the Samaritans.

A startling thing was that they showed selfies again from Kristian's phone showing him and Jose riding in a van.  Then they recalled one of the BP agents from Day 1 (Burns) who said that he had identified this van on 1/24/18 (a week after their arrests) when BP held it at the checkpoint south of Ajo -- it was registered to and at that time driven by Irena Mujica.  So, the implication seems to be that Mujica came up to Ajo and gave them a ride from the Chevron to the Barn...though I'm not sure it's been said that clearly yet.

That was Day 3 -- I'm headed over now to see what Day 5 brings (yesterday began the defense presentation -- very rich stuff, will email you about it tonight)...

Tracy

 

June 7

The day began with the Prosecution resting.

 

The first witness for the Defense was the Pima County Medical Examiner who submitted a statement accepted by stipulation to the effect that in the last decade there have been 2700 (or 2800) deaths in the desert -- which means only the number of human remains recovered.

 

The second witness was Dr. Edward McCullough, retired field geologist and professor at UA, now with the Tucson Samaritans. Has been a Samaritan since they formed in 2003.  In 2004 it was clear that what they were doing was not enough, so a contingent of Tucson and Green Valley Samaritans formed No More Deaths who set out to establish a 24/7 encampment in the desert to provide water, medical assessments, and food to migrants.  He took all of the medical examiner's public records (which include the location and date that remains are found and which are provided to him annually) and created maps showing all the locations of RHR (recovered human remains). From these (known as the red dot maps) he created maps of the migrant trails which No More Deaths volunteers then used to look for migrants in distress and to make drops of water and food. They are also able to use these maps (with the annual updates) to track trends so that they leave water etc in the best places. The highest concentration of deaths in the current period is west of Ajo in the valley that runs north next to the Growler Mountains -- it's a long ways out, 20 miles or so west of Ajo, rugged and remote, without water. 

 

The third witness was Dr. Andy Silverman, an attorney whose expertise is in the areas of immigration and criminal law, who teaches at UA, and who has been the Director of the Civil Rights Restoration Clinic at UA since 1970. He looks our age but still teaches. He knows Scott as a NMD volunteer in Ajo because Scott has attended training programs he provided for NMD. Silverman has been involved with NMD from its inception as part of its legal team, which trains volunteers on legal issues and represents anyone arrested. Their aim is to ensure (through creating protocols and training on them) that the work NMD does is proper and legal.  He was involved in creating NMD protocols, all of which are written. Protocols provide guidance to volunteers to ensure their own safety in a legal context. The legal context is "Civil Initiative" -- NMD volunteers must do things transparently and it's very important to their work that they do things in legal ways. NMD does not conceal or hide anyone; they advocate transparency. If volunteers are following a protocol, they are following legal advice. How does he do the legal training? He presents hypothetical situations (as he would in a law school class) -- and goes over protocols for their action. Volunteers are not obligated to call the BP and are not advised that they must. (In the US, there is no legal requirement of citizens that they snitch on each other or on anyone else, here legally or not.)

 

The prosecution cross:  the prosecutor argued that the protocols are general and do not cover all specific situations. She focused on the provision of "orientation" to migrants -- geographical orientation. Silverman made it clear that NMD volunteers are trained that they cannot give information or instructions on how to avoid law enforcement, BP, etc. The prosecutor argued that if NMD were transparent, they would share this protocol with BP. Silverman seemed fine with this, didn't know if it had already been shared or not. Prosecutor made a big deal of the protocol not being on the NMD website.  She tried to get Silverman to agree that the NMD approach makes calling BP the last option for migrants -- he didn't agree, says sometimes its the first option. But a NMD volunteer would never call BP or 911 unless the migrant agreed (calling 911 amounts to the same thing), provided they are conscious. If unconscious, the volunteer would call. Finally, NMD volunteers follow the advice of the medical team. If observation is advised, this does not mean a volunteer needs to call BP or 911. The duration of a migrant's stay in a NMD camp is normally determined by a medical professional. Things a NMD volunteer may not do: conceal, harbor (includes concealing)...etc.

 

At the end of the morning, Scott's attorneys made a motion asking the judge for an aquittal on all 3 charges because the prosecution had failed to provide evidence supporting the charges to a degree that any reasonable jury would find persuasive (well, persuasive wasn't the word, but I don't remember what was). I thought she was eloquent actually (like the prosecution team, there's a male and female on Scott's team). But the judge ruled against the motion.

 

The fourth witness was Susannah Brown from Ajo, an RN w/a current AZ license. She does medical assessments for NMD and the Samaritans.  Received a call from Scott on 1/14, re two young men in need of medical assessment and care.  She had been with Scott at the Sonoyta migrant shelter the previous Friday, the 12th January -- she held a medical clinic there while Scott did other things. (This was surprise info to me. This is the clinic in MX that Mujica runs, and so I imagine this visit is part of the prosecution's circumstantial case for conspiracy -- perhaps Susannah will be included in that as well.)  Most of Susannah's testimony focused on her reading and interpreting the SOAP notes which are the medical assessment record -- first Scott's notes and then hers on the same form. They were incomplete because Susannah had taken her own set of notes, planning to transfer them later on to the SOAP sheet but never got the opportunity and can't find them now. She also testified about the medical problems migrants have after walking for two to three days. These are dehydration which leads to lethargy, disorientation, confusion, skin turgor, urine that can be the color of root beer, and then kidneys stop functioning. It is essential to rehydrate slowly with water and electrolytes. Patients are not always aware of their own condition.  Everyone gets blisters which can become infected. Treatment requires staying off your feet. It takes longer with a compromised immune system. Dehydration requires monitoring, which involves measurement over time to determine if progress is being made -- with dehydration this includes low blood pressure, so it will rise over time. Monitoring follows blood pressure, heart rate, temperature, etc. Susannah went to the Barn on the 15th mid-morning as requested.  Scott had talked with Dr. Norma Price (the Samaritans doctor on call) the evening of the 14th and she had requested monitoring. Jose's rib pain was worse (from having fallen on a rock) - Susannah applied a tight ace-type binding to help alleviate the pain. Her medical conclusion was that they would need three to five days respite.

 

During the prosecutor's cross, there was a bizarre focus on diagnosing dehydration through tests for orthostatic hypotension -- they tried to get Susannah to agree that this was a proper diagnostic procedure, but she did not.  There was also much focus on informed consent, would she really abide by a patient's wishes that she not call 911 even if the patient was near death? She explained again and again that informed consent is the medical standard and that as a nurse she is required to obtain it. The only exception is if a patient is unconscious or mentally incapacitated so that they could not make a rational decision. In this case "implied consent" is assumed and 911 would be called. Toward the end, the prosecutor asked if she had known Kristian before treating him as a patient. She said no. Then she produced another of Kristian's cell phone videos of a Christmas party at the Sonoyta shelter, during which he pointed the camera at her and she introduced herself.  Easy to see why she'd forget.  Jury questions focused on the informed consent issue.

 

The fifth and last witness for the day was Dr. Norma Price. She is a retired MD, has been in Arizona for 20 years. Specialties were internal medicine and hematology first, and then she changed her focus to Urgent Care. In May 2018 she received the Physicians in Human Rights HERO award. Has been involved with the Samaritans since the beginning (2002) and joined NMD a few years later when it formed to establish a 24/7 presence in the desert, i.e. Byrd camp in Arivaca. She does medical training for the Samaritans and sometimes for NMD. Knows Scott, who has taken her training several times and has brought groups of volunteers to her trainings.  She bases her training on the Army Manual of Desert Survival, chapter 13. An individual will lose 15 1/2 liters of fluid (i.e., 4 gallons) exerting themselves in the desert (walking in heat) -- oops, over how many hours? -- 4 gallons of water weighs 32 lbs. Migrants can't carry enough water to make the whole distance.  Also, many migrants are coming from wetter climates -- it takes a body 3 weeks to acclimate to our dry desert climate. After walking 2-5 days they are very dehydrated.  How to assess a migrant for dehydration? Dry mouth (you can tell by looking), tenting skin, etc. She said you could not tell if someone was dehydrated by looking at surveillance videotapes. Rehydration requires drinking small amounts of water every 15 minutes then a little bit more. It takes several days to rehydrate.  Migrants re also exhausted and have blisters. The only way to heal is to rest and stay off feet.  Blisters can be a death sentence -- people who can't keep up get left behind by their groups. A blister can be equivalent to a serious burn. To heal blisters, you would stay off your feet for 4-5 days ideally. Most migrants are unwilling to stay that long.  She was asked if she knew Susannah Brown and responded that she has worked with her before and believes she is an excellent nurse. She is very confident in her capability. 

 

Dr. Price testified that she received a phone call from Scott the evening of the 14th at her home. She took notes (oops, they never saw her notes so wouldn't let her refer to them, only to the SOAP notes). She agreed with Scott's assessment and recommended rest and ongoing monitoring. During the prosecutor cross, he tried to get Dr. Price to agree that methods of diagnosing orthostatic hypotension were appropriate for dehydration -- she would have none of it and disagreed with all of his medical suggestions. He also pushed her on the issue of informed consent and again she cited standards of medicine that require fully informing a patient regarding their medical condition and then respecting the patient's wishes.  She was asked why she didn't go to Ajo to treat the patients in person. She explained it was unnecessary, she had confidence in Scott's ability and knew that Susannah Brown would do a follow-up assessment. When pushed further, she noted that she cannot drive at night. She also pointed out that current medical practices employ extensive use of telemedicine. Jury questions again focused on informed consent.

 

End of Day 4

 

June 7

 

The pre-trial street activity on Day 5 was faith leaders. When I arrived a bit later than usual, there were about 100 lined up to get into the building, so I passed on the morning opening.  Notes on the first witness are from Sandy Martynec who was also there every day.

 

Day 5

 

First witness -- Isabella Marie Reis Newsome.  Isabella is a NMD volunteer who studied law (injury and women and children) - she took the NMD training in Tucson. Much of her testimony focuses on the NMD Harm Reduction packet and then on the days she was at the Barn just prior to Scott's arrest.

 

Harm Reduction packet distributed to migrants by NMD (for example at the shelters in Mexico) includes:  info for travelers re water, cell coverage, #s for emergency calls; gauze and bandages; chlorine tablets to use with water taken from animal troughs (okay to drink from the plastic jugs); info on dehydration; and a comb (to remove desert thorns). 

 

Isabella's story.  On Saturday the 13th, she was out in the desert on a water drop -- another group was out searching for human remains. On Sunday the 14th, she went out with that other group to assist the Sheriff's Deputies in recovering the remains the group found the day before. It was a long way out (10-12 miles) so she got back late.  The two migrants ("patients" now) were at the Barn, she met them outside smoking.  On Monday the 15th, she didn't go out but stayed at the Barn and did some deep cleaning since she would leave the next day. The two patients were asleep much of the day.  On Tuesday the 16th, she left. 

 

I don't have any more detail on her story.

 

(now I'm in the Courtroom)

 

Second witness  -- Flannery Shey-Nimerson.  She's an EMT from Colorado, also a professional rock climber. Started volunteering with NMD in May 2017. Lives in Tucson now. Before being invited to go on water drops, she was required to go through NMD training and NMD provided her with a protocol book.  This is her third trip to the Barn...she was there in the days prior to Scott's arrest.

 

In January 2018, Flannery was a NMD Facilitator, helping new NMD volunteers get the "lay of the land".  She was at the Barn helping with the training the week Scott got arrested. This was her first time as a NMD Facilitator (Scott is a seasoned Facilitator).

 

Flannery's story.  On Saturday the 13th, she was with the group in the desert that found human remains and called the Sheriff's Department to ask for recovery.  On Sunday the 14th, she went out with Isabella and other volunteers to the Growler Valley to help Sheriff's Deputies recover human remains -- they assist the Deputies in finding all the remains and personal effects, some of which are often inadvertently left behind by the Deputies. There's no cell service in the Growlers, so they used walkie talkies while they did a grid search for the remains. They also had a satellite phone (big antenna) and so could make calls out -- they don't leave it on usually, so it's only used for outgoing calls. Flannery had spent approximately 30 previous days at the Barn. Volunteers normally sleep in tents, but may also sleep in the Barn if they prefer.   She had never previously seen migrants at the Barn. 

 

She came back late on the 14th, tired after their work doing the remains recovery. There was dinner in the kitchen area of the Barn. Yes, the patients (migrants) were there, someone said. But she didn't meet them then on the 14th... They were in the clinic room (where the mattresses are) and the door was closed. She did meet them later but all she did is shake hands with them. Her Spanish is awful, she said.  Scott?  She said he was at the Barn off and on, in and out one, or two times a day. There was a bout of food poisoning going on and he wasn't entirely well, so that was happening too.  There was a day everyone was hanging out at the Barn, and she saw them that day. The month-long volunteers had left the previous day, the 16th, so the day they were hanging out must have been the 17th. She was in and out, running errands. It was a Day off from the patrols in the Growler Valley.  She was out running errands when Scott was arrested.

 

What happened after Scott was arrested and taken away?  They (the remaining NMD volunteers) assumed the Barn was no longer a secure location. So, on the 18th, they removed expensive things (like the GPS, walkie talkies, putting them in a box or bag); and they removed "sensitive" things (including the log books with water drop info like the # of jugs dropped and # of empties retrieved, GPS coordinates; and also information about patients including the SOAP notes). These they put in a black bag. Why is this information sensitive? Because the volunteers often find that the water drops are vandalized. If they secure the logs, vandalism may decrease.  Why does she think BP will vandalize the water drops? Well, she said, everyone knows they do -- she's seen the videos. She put all this stuff in the locked Thule box on the roof of her vehicle and after she was back in Tucson, she gave it to NMD volunteer Gina Jackson.   On the 17th, was she expecting a high school group to arrive?  Yes, she said, from Flagstaff, and expecting to spend the night at the Barn as many groups do.

 

Prosecutor Cross -- where in the protocol does it say "remove evidence when a member is arrested?"  "Did you also wipe down surfaces?"  She replied "No I'm not known for that" and got a good laugh from the gallery.  He asked re the SOAP notes "why did you get rid of them?" She said she didn't get rid of them. He said "why remove them when they could be helpful" and she replied "because the patients were gone."  The prosecutor kept pushing. The NMD theory of "civil iniative" advocates "transparency" -- how could clearing sensitive info out of the barn be transparent?  Is it?  She replied "I guess not."

 

Scott's attorney -- "Let's talk some more about transparency. Is it right that you are transparent about what you do but not where?" Yes, she said. "Why do you care of Border Patrol knows where the water is?"  "Because we have knowledge that they destroy water bottles. A lost water bottle can mean a lost life."  And re the SOAP notes, what happens to them normally after patients are gone? Usually they are destroyed. [See later, Gina Jackson has a different answer.]

 

Answers to questions asked by Jurors:

Volunteers sleep in any of the rooms at hte Barn, on the floor, on couches, whatever they want;

Gina Jackson is another NMD volunteer who has been doing this a long time

No, one from law enforcement ever talked with her about leaving things in the Barn.

No, to her knowledge, the Barn was not ever marked as a crime scene.

In the manual there is a protocol about contacting the legal or medical team to discuss options re transporting patients

Re the Red Cross phone to which NMD has access -- yes, they keep track of the phone usage.

Does that phone record calls out of the country?  She doesn't know. 

Third witness -- Gina Jackson    She's been in Tucson and w/ NMD since 2012. Gina is a wilderness EMT.  Knows Scott through NMD. Works on NMD protocols.  These are based on the Red Cross protocols for disaster response. NMD used RC documents as a model and also consulted with RC staff.

 

Humanitarian aid must be separate from law enforcement. This is an international standard for humanitarian aid. ALL the international aid agencies maintain this standard of separating aid providers and law enforcement.

 

Transparency.   NMD shares info with BP about what they are doing, etc.  Gina has met with BP, the head of the Tucson Sector for BP, for example. She has also met with the law enforcement staff at CPNWR, BMGR, and ORPI in the last month or so. The goal of NMD is to end deaths in the desert. One way is to give good info to migrants-- for example, that the trip is too far to carry enough water. That they can call 911. What the signs are of dehydration.  How to orient yourself to landmarks in the wilderness.  Does NMD  advise migrants where the water drops are?  No, this would be irresponsible. No location can be depended upon to have water at any given time, so it isn't appropriate to tell migrants where any drops are.

 

Gina removed some drawings and paintings of sentimental value from the Barn living room wall. No, she never saw any notice not to remove things, and there was no crime scene tape. She did not perceive the Barn to be a safe space and wanted to leave the log books in a safe space.  "If BP had access to information on where all the water drops are, they would destroy them."  Yes, she has seen the videotapes with BP pouring out water.  She also removed SOAP notes -- because they have medical history info on patients, they should be kept private. 

 

Prosecutor cross -- let's talk about the Red Cross code of conduct. The RC would not condone breaking the law, right?  And humanitarian aid must be free of political motivation, right?  He asked, is she aware that NMD openly calls for the abolishment of ICE?  She responded "no".  That NMD calls for the abolishment of the whole Border Patrol? She responded "yes"  He pushed her on how it could make sense to abolish BP. Finally, with apparent reluctance, she said: if there is an agency that is responsible for so many deaths (lethal deterrence policy), then removing that agency will save lives.  He asked if she was aware that BP has an entire program designed to do search and rescue and find missing migrants. She said "yes". 

 

How does MD find where its own water drops are?  The logbook. 

 

The purpose of SOAP notes is to get all pertinent information on paper so it can be communicated. Did she give those to BP to help them care for the patients they took into custody? No. She has tried to do that in the past and BP was not interested.  Did she try in this case?  What case?  (confusion)  No, she gave them to the lawyers.  What happens to SOAP notes long term, are they destroyed?  No, they are kept in case of long term usefulness, in reviewing procedures, etc. When did she receive the SOAP notes? A few days after the arrest. How long did she have them? Maybe a month. 

 

What about the lists on the whiteboards in the Barn? The whiteboards were blank when the search warrant was executed.  What's on them normally?  Lists -- like grocery lists, or who is out on patrol, or repairs needed.  Did she erase them?  No. 

 

Defense redirect -- Do you advocate doing anything illegal? No.  What is the purpose of your work? To provide humanitarian aid.  By what method do you determine where to put water?  By looking at the red dots map -- where people have died.  Besides you, who might have erased the whiteboard? Anyone -- it is temporary information.  What about the BP BORSTAR program?  She said she has called BORSTAR many times when relatives call to ask help finding loved ones, she asks do they want her to contact law enforcement and they usually do.  But only once in seven years has BORSTAR responded with a search. The criteria required by BORSTAR to initiate a search are very specific -- they require location info and a contact person -- the mother who called isn't enough. NMD will go out and search on a much wider range of criteria.

 

Juror questions -- there were lots of questions about informed consent -- I seemed to have not taken notes on how she was questioned on that but she said what all the others have said, that she would not call 911 (same as calling BP) unless her patient gave their consent. Unless the patient was unconscious or mentally impaired.

 

Fourth witness -- Reverand Bethany Russell w/the Unitarian Universalist Church of Tucson.  Has been in Tucson since May 2018.  They believe that actions are more important than beliefs and that all people are worthy of love.  NMD is their ministry partner and the church lends NMD their 501(c)3 nonprofit status. The church also shares property w/NMD -- vehicles, with insurance provided by the church. NMD pays a fee of $3600/eyar to handle administrative costs, including handling NMD payroll. Does the church have the power to revoke the NMD relationship?  Yes.

 

Prosecutor cross -- the prosecutor made the point strongly that the association of NMD with this church did not give it any religious standing -- or something like that.  All I remember is that it was effective.

 

Fifth witness -- Scott Warren

 

Scott has Ph.D. in geography, human and cultural. His specialty is the US/MX border region. His dissertation was an historical geographical look at how borders have changed over time in the Arizona-Mexico-Tohono O'odham Nation region. How people have moved over time. Cultural geography is a large subfield within geography.  He is a teacher (ASU, TOCC).  Wilderness EMT. He also attended the BP Citizens Academy, the first time it was held in the Ajo area. That's where he met people from the Ajo Samaritans (SAMS) group. Then he went to SAMS meetings. 

 

His first experience finding human remains? There were some men who had been looking for something in the BMGR when they came across some skeletons. They reported their find to the Sheriff's Department but because they were not confident that recovery would actually be made, they then came to a SAMS meeting to ask for help. Scott and others went out with them--a few bones had been recovered but many had not been. They did a grid search to find the bones. Then they went back to the Sheriff's Office to get them to come to retrieve them. How did this affect Scott? It was a haunting experience. Very disturbing. Did it push you in a different direction? Lead you to act differently?  Yes. When he sees people starting out to cross the desert, or in the desert, or stumbling out of the desert, he sees bones at the same time. It sounds like it's more disturbing to you than just someone dying? Yes -- these people die alone, away from friends, families, their group -- alone in the midst of this vast desert. Their deaths have not been witnessed. 

 

Scott has been involved in 18 human remains/body recoveries, all around Ajo. His involvement is to stop suffering and dying. Finding people who have died is a very spiritual thing. Also those who have suffered -- which is almost everyone who has passed through here. Is his involvement w/NMD to provide life-saving humanitarian aid? Yes, he is not involved in the decision-making functions of NMD.  Does he advocate the abolishment of ICE or BP? No.  

 

At some point Scott said "Everyone who passes through there will have to self-rescue."  What did he mean?  Despite all these rescue organizations, most of the people who survive have worked to self-rescue, to find help. They have been carried out by their group. They have found the highway. Etc. 

 

The Ajo SAMS is relatively new. In early 2014 Scott went to visit with NMD people in Arivaca. It had become clear to Scott that the Ajo corridor was a major crisis with very little presence from the various rescue organizations. NMD was in a good position to help. He had learned about NMD through his academic research.  So in early 2014, NMD came to Ajo and began to work there. First, they looked at the human remains recover maps (the red dot maps) to identify migrant routes. You go out there, he said, and you see large clear trails that people have been using for years. Do NMD volunteers pick up trash? Yes, they carry large trash bags and pick up all their own trash and a lot more.  Are you an environmentalist?  Yes, he has always wanted the land to prosper. He finds solace oin wildneress, in wild places. What did they do with the information on the places where people died? They created log books--to learn the patterns of trail use, to know where to leave water. They also leave food in buckets with lids (to protect from the desert animals). 

 

Why do you do this yourself? It is who I am, how I am put together. Are they law breakers? No. These accusations don't matter to him. Many thousands of people have died and are dying all the time trying to cross. We have to figure out how to be there and to know this and to be engaged.  Why do you care about the law? The humanitarian imperative is easy because it is legal. What is your intention in providing humanitarian aid? To relieve suffering and to support basic human dignity and the right to self-determination.  Those beliefts . . . do you know where they came from?  These are the values of my parents. Did they come from organized religion? No, but they are spiritual values.  What are those spiritual values that compel you to provide humanitarian aid to people in need?  To live ethically in a place you have to be engaged and in ways that people and the land interconnect. THis is the essence of rootedness, of being-in-place. I have a spiritual connection to this place and the peple who have come through here. 

 

When a person dies alone in the desert, do you believe their soul remais there until you or someone else witnesses their death?  Yes, their essence is there, their soul or whatever you call it.  Because they died alone, witnessing their death puts their spirit to rest -- or brings peace to them and to their families. Do you conduct a ritual at these death sites?  Yes, I acknowledge the person by facing them. Then I turn away and look out onto the land, seeing with their eyes what they would have seen. It makes a spiritual connection for me personally. Then I kneel down and take a handful of the desert, releasing it slowly through my hands, breating deeply, and acknowledging what they felt. It's a moment (word?) of bringing some rest.  Then I deal with the logistical work, first checking in on the emotional welfare of the volunteers -- are they okay? Then searching for other bones or body parts.  Does this experience inform your desire to continue taking water into the desert?  Yes.

 

Let's talk about the protocols of the NMD handbook. Why do you care about protocols?  I want to work within the framework of the law, and I am responsible for students as well, to help them stay within the law. Have you ever called Border Patrol? Yes, several dozen times. Also the Pima County Sheriff…

…Here it is Friday afternoon -- closing statements were this morning, followed by the judge's instructions to the jury.  The jury has been out since about 11:30 a.m.  After sort of recovering from the truly poisonous final statement from the prosecutor, having lunch here with friends, I went up to my place here, packed up, fetched my computer, and came back to wait here outside the courtroom with the reporters, family, friends -- there are 20-30 people scattered around and outside.  When I say poisonous, it was her tone of voice as much as anything -- it was so dripping with disrespect for Scott, for "aliens", that I could barely listen to what she said. My notes stopped there.  I think I am not a very emotional person, but listening to her actually made me feel physically sick. Whew... something to think about there.  But you are behind a day and a half...so I'm seizing the moment to finish transcribing my notes.  Just finished the last bit of Day 5 and sent it off to you.

 

June 8

 

Scott Warren testimony continued

 

I'd like you to talk about the Barn.  It's owned by Carol Johnson, a retired town doctor, right?  Yes. She allows humanitarian aid and search and rescue organizations to use it as a staging area. These organizations receive search and rescue calls from all along the border, but often from the Ajo area because for a few years it has been the epicenter.  Are search and rescue groups mostly Hispanic? Yes, mostly. Some members are immigrants themselves. Some have lost family members in the desert. One man recently recovered the remains of his brother. 

 

PIctures of the Barn interior on the screen...

What is this? The medical cabinet at the barn, in the clinic room, the room with beds. Volunteers take supplies from it for their desert patrols.

What is this? The inside of a shed outside the barn. It is filled with supplies intended for shelters in northern Mexico, two in Sonoyta and one in Caborca. 

What is this? The same shed with shoes and other supplies for the Mexico shelters

What is this? Inside the barn, an office room next to the clinic with supplies that volunteers use to take into the desert -- backpacks, car jacks, etc.

The barn has a lock and a lockbox with a combination, right? Yes. Who has the combination? Anyone who uses the barn. 100s of people at this point.  Is there an iron gate in front of the door?  Scott: there's a breezeway between the house and bathroom building. There is an iron gate into that area. It does not have a lock. The distance between the two buildings is about 6-8 feet. The bathroom door is always unlocked. But someone using the bathroom can use the door handle lock on the inside. 

 

Where do you live?  About 4 miles from the Barn, in the Curley School? It's not a school, is it?  No, it's an apartment building. How often did you go to the Barn? It varied, but quite frequently. I kept a sleeping bag and overnight kit there in case I had to sleep out there -- e.g., if there were a group of volunteers without an experienced facilitator.

 

Let's go to January 2018. Describe the first few weeks.  Scott was the lead facilitator for a group of month-long volunteers and was preparing to teach both at ASU and TOCC. He wasn't the only facilitator. There were 3-4 other facilitators rotating responsibilities. There were only 5 volunteers in the group. They were excellent but there is a lot to learn and be prepared for. The new volunteers were: Michael, Isabella, Isaac, Chris, and Greg. There were 5 cofacilitators plus Scott -- Rose, Ana, Tamar...I didn't all the names.  Isabella explained previously that she got there Monday.

 

Let's go to Sunday, 1/14 -- explain the day.  Scott stayed in town while the volunteers went out to help the Sheriff's deputies do a remains recovery. He did a lot of calls with Sheriff's deputies coordinating getting them together. These remains had been located the day before, Saturday the 13th. But actually, they had been reported o the Sheriff two weeks before by the Armadillos (a search and rescue group from California).  Here Scott's attorney tried to introduce a video but it was denied. Is Scott confident that the remains videoed were the ones Irineo Mujica described on his call of Jan 11?  Yes, the Armadillos cover the remains with a white sheet w/Armadillos on it. They do a prayer and place a cross in the area. On the afternoon of the 14th, around sunset, Scott returned to the Barn to receive and debrief the volunteers. Debriefs are logistical and emotional too. All the work is intense, but human remains recovery is especially intense. 

 

Scott did not go to the Barn expecting to receive migrants. He had just gone shopping for the volunteer dinner, drove in and parked his car, and walked toward the barn carrying his grocery bags. He saw the iron gage open. The bathroom door was also open and Kristian and Jose were there, standing near the bathroom door. He said, "hello, who are you?" They responded... He asked, "how is it you are here at the Barn?" Kristian said they were at the gas station engaging with people and someone told them they should walk to the Barn for help and showed them where to go. This conversation was in Spanish.  How is your Spanish? Intermediate Level.

 

What phone calls did you make on the 14th?  Scott said he went to the Sheriff's Substation. He called Deputy Olsen's cell number. He also called to the Satellite phone -- it was with the volunteer group in the Growler Valley. He was trying to coordinate getting them together. He does not remember if the Sat phone was answered. 

 

So, Scott opened the main Barn door, put away the groceries, got Kristian and Jose settled in the clinic room and then began the medical assessment.  Couldn't you just eyeball them and tell they were okay? No. You have to do the assessment to know if there are medical conditions not "present" -- i.e., not obvious. This procedure is mandated both by his training as a wilderness EMT and through NMD. 

 

SOAP Notes exhibited -- Kristian's

walked for two days

last water 8 hours ago

blisters (Scott observed these himself)

scratches on his right hand

coughing and cold

last urinated 12 hours ago

forgot to ask last BM

pain assessment not filled out

vitals taken at 5:15.

SOAP Notes exhibited -- Jose's

blisters: outside heel w/quarter size blister; ball of foot w/nickel size blister; left toes w/dime size blister

pain in upper torso left side, just below the armpit. It hurts more now in the day than it did last night. It hurts more when he stretches or walks.

vitals taken at 5:17.

Scott then called Nurse Susannah Brown -- apparently, she was unavailable as he then called Dr. Norma Price at 6:44.  The Plan (what she said to do)--hold the area over Jose's ribs tight, get him to cough to open up his lungs. Both should rest and stay off their feet. Rehydrate.  The SOAP notes include two entries by Michael re administering two 500mg actomyosin (sp? i.e. Tylenol) pills on the 14th and 15th. Susannah Brown also did this on the 15th. Was he concerned?  Yes, about the blisters and the cold symptoms. Also the pain, but on that he was reassured by Dr. Norma's assessment.  Did he explain their options to Kristian and Jose?  Yes, he explained their options. 

 

Exhibit shown -- the Protocol paragraph re informing patients of all their options, giving them time to consider and to make an informed decision. Includes orientation to area geography. 

 

What about Mike? He is one of the new month-long volunteers. He spoke fluent Spanish and took over patient care from Scott on the 14th.

 

After dinner at the Barn on the 14th, Scott went home. Other people were staying at the Barn.  Did Scott tell them to hide? No  Did he tell them to lock the bathroom if BP comes? No   Why?  "We do not hide people -- we can't break the law.  And we explain this to the patients so that it is part of their informed consent."  Why not break the law?  Because we want to be in the desert providing aid, not here in court.  And because from a community-building perspective, we want all to know what is legal -- it is okay to give water, food, and beds. 

 

Was it cold then?  Yes, the volunteers slept inside during that time, and Michael also slept there to be "on call."

 

Let's talk about the BP Citizens Academy.  Did they teach you that you had an obligation to call BP if you encounter a migrant?  No, the opposite. If a migrant comes to your door asking for food and water, the BP said you have no obligation to call them.  Also, Andy Silverman's training concurs -- it is not illegal. 

 

Monday the 15th.  Scott stayed at his house on the 14th. He went out to the Barn Monday morning -- after breakfast, maybe around 9 a.m. to help the volunteers get going and because Susannah Brown was coming out. The two patients were sleeping, so Scott didn't have any contact with them.  Susannah took over their medical care on Monday.  Scott stayed until Susannah arrived, talked with her briefly, and then went home. Did he return on Monday? Maybe for dinner, but he doesn't remember for sure.  How many hours on Monday was Scott at the Barn?  Maybe 3 hours, and none interacting with Kristian and Jose.

 

Tuesday the 16th.  Scott stayed at his home Monday night.  Tuesday morning he drove to TOCC (it's past Sells -- an hour and a half each way). He taught there all day and came home to Ajo that evening.  Was he dodging facilitator responsibilities at the Barn?  No, he wasn't worried -- there were other facilitators there.  He did contact Ellie (another of the facilitators) and Susannah in the morning to make sure they had each other's phone numbers.  And, he was checking in to be sure Ellie was there, etc.  Tuesday was Ellie's last day at the Barn. On Monday she had stayed behind and didn't go because it was protocol that someone should be with the patients.  Tuesday night Scott did go back to the Barn. Susannah and other volunteers were handling medical care. But he had dinner with them -- Kristian and Jose ate with them also. On Tuesday he was at the Barn about an hour total. 

 

Wednesday the 17th.  Scott worked at home, doing academic course preparation and logistical things to get ready for students coming in that day from Flagstaff. He did not know if Kristian and Jose were still at the Barn.  Late afternoon Scott went out to the Barn to get ready for the Flagstaff group. He went inside the Barn -- there were three facilitators there (Rose, Alima, and...) To Scott's knowledge, they had been there all day.  Kristian and Jose were there. He wasn't especially surprised and did not know if they were completely recovered. He was still concerned about their condition and told them they could stay another day if they wanted to, but they said they were ready to go. 

 

NMD Protocol 203A covers the necessity of orienting patients to the geography of the surrounding area, right?  Yes. Scott took Kristian and Jose outside the Barn to an elevated parking area and pointed to Childs Mountain and Hat Mountain.  When the defense attorney asked whether he did the wavy thing with his hand that the two BP agents who were surveilling him at the time both said he did, he said: "no, and I never have."  Why did he point to these two mountains?  To explain that Hwy 85 runs between the two mountains. It was critical for them to know there is only one paved highway. To self-rescue, they would have to walk toward the highway. When you showed them the two mountains, did you intend to tell them to go to the highway to get a ride or the like?  No. If they went south, they would need to know Hwy 85 too.  This was the only way for them to be safe.   You were standing where? In the driveway.  If you wanted to hide the migrants, could you have oriented them from another place?  Yes, from the other side of the house, or even from inside the house at the north-facing window.  How long was the orienting conversation?  Maybe 5 minutes, not much more. They had the general idea. Kristian seemed to understand better. Jose asked a couple of questions that made Scott think he did not understand. But Kristian nodded and seemed clear.  Then the two young men went inside. Scott may have also (he doesn't remember), but if so, he came back out soon and began building a fire.  Then he saw the convoy of Sheriff's and BP vehicles coming up Snyder Road.

 

Back up a bit.  Before Nurse Brown came out to the Barn, did you feel you were responsible for the patients?  Yes, but I shared the responsibility with Michael who had a higher level of medical training. It was a relief when Susannah Brown came. In Scott's mind, he had then handed off the medical responsibility

 

Back up some more. The government stated that Scott was in phone contact with Irenia Mujica on 1/11/18 and had had previous email conversations. Yes, according to Scott this was all about search and recovery efforts (Mujica often received information from families on missing loved ones and also heard from migrants returning to the shelter about bones they had seen) and also to coordinate visits to the shelter that Mujica runs in Sonoyta, MX.  The defense attorney showed a string of emails between Scott and Irineo Mujica and others from June 2017 which Scott said was a typical exchange regarding the recovery of human remains. Another of these emails included the attachment of an interview form that NMD uses to record calls from families. Why? Because Mujica was saying that he was hearing a lot of people talking about bodies in the desert, and Scott wanted to pass on information letting him know that the most important thing is to narrow the search as much as possible. The most critical piece of information, Scott said, is the geography of where the migrant is. The interview form has clear, pointed questions to help narrow the search efforts. His attorney asked Scott -- re any phone conversations with Irineo Mujica, did you ever enter into an agreement to commit a crime? No.  Did you by text, or in person? No.

 

Court break for lunch

 

Scott testimony continued...

 

Moving forward from the January 11 phone conversation re both the search and rescue needed and the January 12 trip to the Sonotya shelter to January 14th.  When you saw Kristian and Jose at the Barn, did you believe they needed medical attention? Yes. Anybody who crosses that desert is likely to have medical needs. And Scott thought they had walked from the Chevron to the Barn as well.  No, Scott did not tell them how long they could stay, rather something like "you can stay as long as you need to." 

 

Scott was asked about his usual presence at the Barn. He said in the past some weeks he was there more, some less. At times it was a full-time schedule. Sometimes he paid utilities to reimburse Carol, and then NMD reimbursed him. 

 

Scott's viewpoints are not the same as everyone's in NMD.

 

The difference between Orientation and GIving Directions is that Giving Directions is showing how to get somewhere specific, whereas Orientation is showing where you are in relation to the landscape you are in.

 

Protocols.  Scott knew the protocols were drafted and prepared by attorneys and he followed the protocols to the letter. All his actions were consistent with NMD protocols.

 

Prosecutor Cross.  

 

At Irineo's shelter in Mexico, you met deportees and people preparing to cross the border, correct?  No. The shelter does not get deportees since they are sent to their countries, not to Sonoyta.  It mostly has people from Central America and also people who have tried to cross the border, failed and come back. Are there some people there who are going to cross?  Yes.  And on 1/12, you went to Irineo's shelter (where Kristian was) with Susannah Brown? Yes.

 

You arrived at the Barn between 4:34 and 4:45, right? I thought it was a bit later. There was back and forth about the time on the grocery store receipt and how long it takes to get from there to the Barn (5 min) and the suggested time frame was agreed. Then the prosecutor focused on the schedule of when Scott called Nurse Susannah Brown, when he did the medical assessments (the time vitals were taken was recorded as 5:15 and 5:17), and then when he called Dr. Norma Price which was at 6:44. I had difficulty seeing what was wrong with it -- but she found it disturbing that Scott's phone call to Susannah Brown was not recorded on the SOAP notes and seemed to be implying that the call was not to Susannah in her medical capacity. 

 

You are a high ranking leader in NMD, right?  No, it doesn't work that way -- he said he is an experienced volunteer.  The prosecutor referred to Scott's testimony in a previous phase of the trial where he agreed that he was a leader -- so he let it go. She then said he was the Volunteer Coordinator for NMD -- he said that he had briefly had this role, for which he was paid by the Unitarian Universalist Church, but this was a short period. 

 

He was asked about his relationship with the Barn owner, Dr. Carol Johnson.  The prosecutor gave import to Carol having given Scott his own key -- he clarified that this is the key that is in the lockbox on the main door, for which many people have the combo. He doesn't have another key.  Scott was at the Barn a lot, sometimes 40 hours a week. Prior to his arrest, he stayed there an average of one night a week. He said his days were longer when volunteers were at the Barn.  The prosecutor asserted that Carol trusted Scott to see that the Barn was not destroyed, and he didn't disagree. She said he sometimes fixes things. Here he said no, it's more like he would call a repair person to come fix something.  So, now she wanted to know why on 1/14-17 he did not spend at least 5-6 hours a day at the Barn and did not sleep there. When Kristian and Jose arrived, his schedule "thrown out the window", right?  No, he said, he wouldn't say that. 

 

She asked if the Barn is still in active use today. Scott said yes.  The Barn has a Red Cross phone, right?  Yes. Scott said that the purpose of the RC  phone is to enable migrants to let their families know that they are okay.

 

Why again did Scott attend the BP Citizens Academy? Was it to make contacts in the BP?  No, it was mostly academic research. 

 

The prosecutor returned to the issue of informed consent in the medical protocols. Scott reaffirmed that to call 911 requires informed consent and that a patient cannot be evacuated for medical care without their informed consent -- unless a patient is unconscious or mentally impaired in which case implied consent is assumed.  [Note -- it is really strange how much repeated attention the prosecution is giving to the question of informed consent when it is, in fact, a general medical standard. It is as though they are trying to get the jury to feel that NMD and the Samaritans made up the protocol in order to hide migrants from law enforcement and in so doing to deliberately put the migrants' lives at risk.]

 

Juror Questions -- jurors asked a lot of questions of Scott. They were thoughtful, clarifying questions.

 

The Defense Rested

 

Prosecution Rebuttal Witness -- BP Agent Carraso (sp?) -- he is a Special Ops Supervisor, 20 years w/BP, a member of BORSTAR (BP Search and Rescue), an instructor in the BP medical program, running the national program out of DC. Formerly he was a Marine and a Tucson firefighter. He has been a paramedic since 2005 and is part of the paramedic BORSTAR team that goes outside of the US.

 

The prosecutor asked all kinds of general questions about the Tucson Sector. Then she focused on medical assessments: first, he was far less concerned about blisters -- he said if they weren't popped, you could cushion them and keep on walking in boots or sandals -- he himself works when he has blisters; second, he described dehydration and its seriousness and the orthostatic TILT test he always uses [this is the text that  Dr. Norma Price and Nurse Susannah Brown both poo-pooed as an effective diagnostic tool for dehydration -- the prosecutor seemed to be suggesting that this BP agent is more up to date on medical practice than Dr. Price or Nurse Brown]; and third, he said that if you had a rib injury of the sort claimed about Jose, then you would not be able to stretch your arms or lean sideways the way Jose is shown to do in the videotapes from the Chevron Station; fourth, he spoke about the importance of SOAP notes and having them be complete, including documentation of pain level and types of pain. 

 

Defense Cross --  First, the defense attorney asked the agent if when he worked with blisters he rode in an air conditioned vehicle, had access to water, had access to other agents for assistance, etc., in obvious contrast with walking for days in the desert.  Second, he addressed the agent's medical training, establishing that both an MD and a RN far outrank a Paramedic in medical training and expertise. 

 

The defense attorney asked the BP agent if he was aware of the large number of migrant deaths in the Tucson Sector and whether he had seen the red dot map, which he then showed him.  He was completely unaware of the large number of human remains recovered in the Tucson Sector and had never seen the red dot map. As an explantion for why BP does not target their attention to the Growler Valley, to the west of Ajo, where there is the highest concentration of bodies recovered, he suggested that BP prefers to get to the migrants earlier, before they get in such bad shape. [The agent seemed sincere and not to have recognized how shocking his statement would be.]

 

End of Day 6

 

 

June 9

 

CLOSING STATEMENT -- PROSECUTION

 

In Jan 2018, Scott Warren gave shelter to illegal aliens. This was part of a plan made with Irineo Mujica, Susannah Brown, and others. The aliens' ride with Mujica was arranged in advance. No accident that Scott arrived moments later. Then he called Susannah Brown and talked for three minutes, then waited an hour to call Dr. Price. From the videotapes and selfies, you can see the aliens are fine. And that they don't follow Susannah's advice to stay off their feet. Instead, they're up and cooking dinner and taking pictures. Then it's time for them to leave just before the high school students are scheduled to show up -- that's when Scott takes them outside and points out the mountains to the north. So they'll be gone when the students get there.

 

Consider credibility (she reviewed the 8 points for evaluating credibility--these are in the Jurors' notebooks, I believe).  She claimed that all the witnesses for the defense, including Scott, had an interest in the outcome and therefore a motive to lie. But the videotapes and selfies are objective, unbiased, with no interest or motive.

 

Harboring. There are 4 elements to harboring, only one of which is at issue -- that Scott Warren "harbored, concealed, or sheltered from detection the two aliens with intent to violate the law."  Each alien is to be considered separately. Consider this:

Scott gave them permission to stay in the Barn

In the Barn, they stayed inside the clinic, while volunteers stayed outside in tents (there were no couches in the barn, as the photos showed)

When they were ready to go in two days, Scott said they could stay another day if they wanted to, or go, as they pleased

The advantage of being inside is concealment.  Scott did not lock them in, say they had to stay in, or the like, but obvioulsy they knew to stay concealed.

He gave them directions to go NORTH.  How do you know?  Both BP agents describe the same hand motions. Also there was a huge map on a wall in the Barn and access to Kristian's cell phone to get directions

There was no need for medical care. In the gas station videotape, Jose stretches multiple times, making it clear that he has no pain from a rib injury, and both of them are shown to walk just fine. Also the selfies show this. The first  ones were taken just after Scott called Susannah, the selfie of Kristian posing in the bathroom and looking good. 

They weren't hungry and dehydrated -- witness the video of Jose at the Chevron Station with a burrito and gatorade. He said he didn't eat the burrito because the beans taste bad. Beans don't taste bad if you're starving . . . .

The SOAP notes are slipshod -- no temperatures taken, no pain scale noted, they're just a ruse

Scott didn't know the number of blisters, Susanna didn't know other care given, and there are no care notes after 2:40 on January 15. After that the selfies they took show them both looking good.

The timing of events. The high school students are supposed to arrive between 4:00 and 6:00. Scott is outside giving directions before the high school students were to show. Up to now, the only poeple who know Kristian and Jose are there are peopel who Scott knows well and trusts not to call BP.  Now he is getting them on their way before the high school students who he doens't know well arrive. Obviously the intent is to conceal.
Conspiracy.  First she coached the jury that circumstantial evidence and direct evidence are the same, that they have equal weight in determining guilt. (I was not aware this is true -- it doesn't seem quite right.)  This is the conspiracy trail that she laid out:

12/25 Susannah goes to Sonoyta to the shelter where Mujica and Kristian are

1/11  Scott talks to Mujica

1/12  Scott and Susannah go to the shelter and take the Harm Reduction kits

1/12  Kristian and Jose leave that night

1/14  Scott arrives at the Barn just after Kristian and Jose arrive

1/14  Scott's first call is to Susannah but it is not noted on the SOAP notes -- becasue it is not about medical care, it is to let her know that Kristian and Jose have arrived.  Only later does he call Dr. Price and put that in the SOAP notes (she kept saying Dr. Brown but obviously meant Dr. Price)

1/14-17  Scott spends minimal time at the Barn, completely unlike his scheudle prior to the aliens arriving.  But Scott continues to manage the schedule up until their departure
All that matters for proving conspiracy is that there is a common understanding. What is the benefit to Scott o the conspiracy? One of his goals is to thwart BP at every turn and to enable illegal aliens to cross the border and to succeed in their journeys north.
 
She declared that the government has proved its case beyond a reasonable doubt. 
 
CLOSING STATEMENT -- DEFENSE
 
INTENT.  (This word in large block letters was on the screen in front of each Juror and the courtroom when the jurors returned from a break.)
 
The government has to prove each and every element of each charge beyond a reasonable doubt. The government always has the burden of proof. It does not shift to the Defense when the Defense puts on evidence.
 
Beyond a reasonable doubt. In the law there is a Burden of Proof (the Government's) and there is a Standard of Proof (Beyond a reasonable doubt).  To be "beyond a reasonable doubt" the "preponderance" of the evidencemust be "clear and convincing". This means that 51% of the evidence must be clear and convincing. We do not take away the liberty of a citizen unless it is clear that they will do harm to themselves or others. The government has to prove eah and every element against the defendant beyond a reasonable doubt.  Why?  Because the government has all the resources. 500 BP agents in Ajo. 14,000 pages of cell phone records. So if the defendant is guilty, the government has the capacity to prove it.  In this trial the government has tried to take your eye off the ball. For example, they questioned young volunteers at length about hypothetical situations that have never happened. 
 
The point is that Scott Warren never intended to commit a crime. His whole life is about providing humanitarian aid and alleving suffering. 
 
Presumption of Innocence
Burden of Proof
Standards of Proof
Beyond a Reasonable Doubt
 
Think about these in an everyday context. Say you are buying a house. There are two properties that you like equally.  But the realtor hides evidence from you. Why did agent  Velasco reduce 14,000 pages of cell phone information to one page? Why? Because he only looked for what they asked him to find. There are emails between Scott and Irineo about waht they talked about, but they didn't ask him to look for those.
 
Sometimes people put on "Guilty Goggles" -- no matter what Scott did, the government is going to twist it to look like evidence of guilt. 
 
Evidence?  Consider the depositions of Kristian and Jose. They were given immunity beforehand, so had no motive to lie.  Here in the deposition they said they were hungry and tired and that their feet hurt. (He showed multiple sections of deposition text.)
 
Irineo Mujica?  Not only did the government have access to the emails, but they also had access to Irineo himself. Agent Burns testified that a week after he took Scott to jain, he went to a checkpoint and interviewed Mujica. But he said he did not interrogate him about the supposed conspiracy he had with Scott. If the government wanted to present evidence of this supposed conspiracy, what better evidence than asking Mujica about the supposed conspiracy and about the migrants he supposedly drove, etc.  
 
Look at the government's records from the cell phones -- Kristian writes that he will be in Phoenix tonight. How can that be? Scott somehow just knows that these guys are going to arrive?  And Kristian says he's going to Phoenix? This makes no sense. It is terrifying that we  live in a world where this amount of supposition and lack of evidence can . . . .  Consider the notion that at the end Scott was directing the migrants how to get around a checkpoint when he pointed to the two mountains. Agent Burns testified that the checkpoint is north of these. How does that get them past a checkpoint?  Remember, orientation is just as much a human right as to receive food and water. 
 
You might wonder why I made a big deal about the TONKS matching.  The BP agent put in his report that the migrants at the Barn matched the TONKS. But in fact he didn't know if they were tall, short, skinny, fat . . . etc. Noghing. No evidence the human beings he was looking for matched in any way the human beings he looked at from 1/4 mile away on a scope.  And Agent Burns, how about his not being aware for 18 months that the Barn was left unsecurd. Shat sort of forensic value can you get when you leave a crime scene unsecured for 120 hour?
 
Very briefly, I want to touch on the notion that Scott -- it's crazy, I don't know how to say it -- that Scott wanted to conceal the migrants.  If he wanted to conceal them, he could have oriented them from the north window  inside the Barn. (He showed a picture of the Barn and that window.)  It is scary, crazy. If it were not so scary, it would be laughable. But this is the most important day in Scott's life. 
 
Remember the stipulation at hte beginning concerning the number of human remains that the Pima County Medical Examiner has recorded. The Red Dot map.  This establishes the urgency of the work Scott was doing.
 
Be aware "the law does not impose any general affirmative obligation to report suspected or known violations of the law to authorities."  There is no obligation to turn in migrants in this country.  
 
Remember mere presence at the scene of a crime, or mere knowledge that a crime is being committed is not sufficient to estabish that the defendent is guilty of one.
 
Conspiracy.  You must find that there was a plan to commit at least one fo the crimes alledged in the indictment -- with all of you unanimously agreeing.
Harboring. You must know that he did this with "intent to violate the law" with proof beyond a reasonable doubt.  All the evidence points the opposite way. The Defense does not have to prove this. The prosecution does. It is not a close call.
 
By the way, it is not against the law in our country to provide humanitarian aid, unless you intend to violate the law. The evidence is to the contrary. Scott wanted to alleviate human suffering. The red dots are human beings with dreams, souls, and fears. Every one of them deserves our respect and our dignity.  
 
Thank you.
 
PROSECUTION FINAL STATEMENT
 
What is the real evidence?  The exhibits. Photos. Videotapes. Etc.
The "what ifs" don't matter
The emails that agent Velasco did not testify to on direct. They are way old (October 2017, not December 2017).
This case is not about deaths in the desert. These aliens went right up Hwy 85. It happened as planned.
The Barn? After the arrest things get taken away. And SOAP notes are not given to the BP but to the lawyers. The purpose of the SOAP notes was to provide a screen.
Evidence? BP agents Velasco and Burns both described the pointing and hand motions that gave directions.
The depositions?  Yes, Kristian and Jose received immunity. But they are not fans of the government. They aren't trying to help the government's position.  They both say they were not offered medical care. At first they said Scott had given them directions. Then when Scott was present at the deposition, they said he didn't. What they said first is the truth. 
How did they konw the Barn was a place that could be safe?
###
 
These notes I took on her final statement are very sketchy. I did make a note that she seemed a little desperate. But really what was happening is that her tone of voice was dripping with sarcasm and hatred, implying again and again that anyone who didn't believe what she was saying was deluded. To her Scott's guilt was so obvious, that if you didn't see it there was something seriously wrong with you. What the Defense attorney had said about this being terrifying, that the government would twist every single thing Scott did into evidence of guilt, took on another dimension and to me felt really deeply sick. And it made me--someone who is normally only angered by such presumption--feel sick, literally. So I couldn't write many notes, I just listened and was stunned. And then afraid that in this political climate, in this conservative state, there would be many who would be sucked right in to her anger and hatred, including jurors who would be comfortable wearing those guilty goggles the Defense attorney described. The entire conspiracy case is circumstantial -- I cannot think of one moment of it that is more than circumstantial. So it is terrifying to see that Scott could be convicted by the prosecutor having strung this set of circumstances together. And anyone who thought Scott guility of conspiracy would of course find him guilty of harboring, since Intent was so key to his defense on harboring. Still, among 12 people vetted by the judge and attorneys in the selection process, it is hard to imagine that there won't be at least a few who see through the prosecutiors summation and remember critical points made by the Defense. I have no knowledge to back this up, but I am feeling that getting a hung jury would be a win here. 
 
The jury deliberated about 5 hours on Friday afternoon, calling the attorneys and Scott back late in the day to answer questions. They then adjourned for the weekend and will resume their deliberation on Monday. In addition to the press, about 30 people stayed through the afternoon, with more within easy reach if the jury came back with a verdict. 
 
June 13
 
At Bill's urging, here's another (let's hope final) journal installment . . . 
 
There were at least 30 of us who waited in the spacious hallways outside the courtroom or in other nearby venues while the jury deliberated. Late afternoon Monday, they sent the judge a note saying they were unable to agree on any of the three charges. The judge allowed us all to be in the courtroom while he talked with the attorneys for both sides about what to tell the jury. They agreed quickly to give the jury the Allen charge which basically asks them each to reflect on their beliefs to see if they could change their mind and to give it another try as a group. But then there was a skirmish about what more to say. Defense asked that there be an additional instruction that the jury is only to consider what is directly relevant to the charges against Scott Warren -- he suggested the prosecution had made the trial political by questioning young NMD witnesses about advocating for the abolishment of BP and ICE and alluded to the questions the jury had asked on Friday as concerning in this respect. (We don't know what those questions were, only that they were related to legal aspects of Intent.) The prosecutor ranted about that suggestion, claiming that on the contrary, the Defense had politicized the trial by packing the courtroom with supporters, and nurses with stethoscopes accosting the jury (actually the nurses and doctors with stethoscopes were outside the building across the street on one of the mornings of the trial -- NMD had gatherings of faith leaders one day, medical professionals another, educators another, etc., all outside).
 
On Tuesday the tension built hour by hour, as there was no more communication from the jury. Scott dealt with this by immersing himself in a book on geography at a nearby restaurant. Finally, mid-afternoon the jury sent the judge the same note that they were unable to reach agreement.  We all returned to the courtroom where the judge asked the jurors individually whether any of them felt it was still possible to reach an agreement. None did. The attorneys agreed to his declaring a mistrial.  The judge then took a good bit of time thanking the jury, making sure they understood that they had not failed, etc.  Finally, calendars were coordinated and the judge set July 2nd as the date for a status update -- our understanding is that this is when the prosecution will declare whether they plan a retrial.
 
Feelings in the crowd were mixed. So many had hoped for a clear decision in Scott's favor. For myself and at least some others, the hung jury felt like a real win. It meant that at least some jurors had seen through the conspiracy scenario woven wholly out of circumstantial evidence and conveyed by the prosecutor in a  damning, sarcastic, and hateful tone of voice.  I didn't stay for the statements to come later from Scott and Greg Kuykendall, his attorney, but have since seen them online.  And it was heartening to learn that the jury split was 8 to 4 in favor of acquittal.
 
For me, I felt compelled to get back to Ajo as did Susannah Brown who was riding with me -- so we headed out.  Back in Ajo, Kuykendall's statement that what the government did in this case is terrifying keeps playing out in my dreams [sic, nightmares]. I've since read that a conspiracy theorist starts with the conclusion s/he wants and then selects facts to support it, discarding any that don't.  This is exactly what the prosecutor did -- that there were only records of phone calls, for example, and not of their content, was an advantage to her, leaving her free to assume what she chose. That such a string of circumstances and fabricated assumptions about them could be viewed as credible, be put forward by the government as the truth, and then cost a person 10-20 years in prison really is terrifying. 
*****************************************
 
 

TRACY TAFT

Worked as Executive Director of the International Sonoran Desert Alliance (ISDA) for 15 years, served as a board member before that, and having completed a successful leadership transition, she now coordinates ISDA’s artisan ecommerce initiative as a volunteer.

Based in Ajo, Arizona near the U.S./Mexico border and the border of the Tohono O'odham Nation, ISDA is known for using creative placemaking strategies to build community across borders and across long-standing racial and ethnic divisions, while also weaving art and culture throughout its comprehensive community development and economic revitalization work.

Under her leadership, ISDA won regional and national awards for its historic preservation projects, including the redevelopment of Ajo’s 7-acre Curley School campus into 30 units of affordable artist live-work housing plus the Sonoran Desert Inn & Conference Center, a commercial kitchen, clay studio, woodshop and also including the revitalization of Ajo’s 7-acre historic town plaza.

Taft is a tenacious visionary with a background in academic and community education and experience in most elements of strategic nonprofit development and management. Prior to working in Ajo, she spent 15 years in Washington, DC, building the NeighborWorks Training Institute. She holds MA and PhD degrees in Philosophy from SUNY/Buffalo. Throughout these more public careers, Tracy Taft has also always been a glass artist. Her business, Sonoran Fused, is part of ISDA’s new ecommerce initiative.

 

 

 

 

 

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