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Know the West

Scott Warren reflects on the Borderlands

After two years of federal prosecution the humanitarian aid worker was acquitted in November.

This story was originally published by The Intercept and is republished here with permission. 

SCOTT WARREN HAS lived with a cloud hanging over his head for nearly two years. The 37-year-old geographer was arrested in January 2018, accused of giving two young men from Central America food, water, and a place to sleep over the course of three days. The pair had crossed one of the deadliest stretches of the U.S.-Mexico border without authorization. They arrived at a humanitarian aid station in the unincorporated town of Ajo, Arizona, where Warren lives and works, with nothing but the clothes on their backs. Warren welcomed them inside and examined the blisters on their feet. He told them that he could provide care, but he could not shield them from law enforcement. That was not his role.

 

Scott Warren in Tucson, Ariz., after his retrial

Border Patrol agents descended days later. Warren was arrested along with the two young men. He was charged with two counts of harboring and one count of conspiracy and faced up to 20 years in prison. The government’s first attempt at locking him away ended in a mistrial over the summer. Federal prosecutors at the U.S. attorney’s office of Arizona decided to give it another try, dropping the conspiracy charge and focusing on the harboring counts. Their second attempt collapsed entirely on Nov. 20, when after just two hours of deliberations a jury of Warren’s peers returned a verdict of not guilty.

An overjoyed crowd of family, friends, and supporters met Warren as he stepped out of the federal courthouse in Tucson. He read a brief statement, sent his love to those who have stood by his side, and acknowledged those who continue to provide humanitarian aid in the desert. He accepted many hugs. Warren understood and appreciated the outpouring of support and solidarity, but as he left the courthouse, he felt unsure about how he, personally, should feel. The uncertainty lingered when he woke up the next morning and it was still there when we met that night.

“It’s just so weird and so intense, still,” he told me.

Warren embraces his attorney Amy Knight outside the courthouse after the verdict was announced.

That Scott Warren still feels shaken by what he’s been through should not come as a surprise. His acquittal does not erase the fact that, for nearly two years, the U.S. Department of Justice tried to send him to prison for his efforts to end death and suffering in the Sonoran Desert. Not only did the federal government choose to retry him after a hung jury split eight to four in his favor, but it assigned the No. 2 prosecutor in Arizona, Glenn McCormick, to the case. On Nov. 20, as the two sides laid out their closing arguments, U.S. Attorney for Arizona Michael Bailey, who was appointed by President Donald Trump, made a surprise appearance in the courtroom. Hands clasped behind his back, Bailey stood in the back of the room as Assistant U.S. Attorney Nathaniel Walters made the case for incarcerating Warren.

WARREN’S NATURAL IMPULSE is to care. Following his acquittal, that instinct extended to the people who had tried to send him to prison. “It’s hard because they were prepared to do great violence,” he explained.

In addition to the threat of incarceration directed at Warren, Walters and his co-counsel, Anna Wright, had spent the two trials using smiling selfies taken by Kristian Perez Villanueva and José Arnaldo Sacaria-Godoy, the two young men Warren was arrested with, as evidence that they were never in need of care. “They are cooking, laughing, hanging out with other people, taking shirtless selfies,” Walters said in his closing statement. “It’s almost as if they’re on vacation.” The government also enlisted the migrants as material witnesses in its case against Warren, then, after they gave depositions, deported them to the countries they had fled from. “They dehumanized them and paraded those pictures out,” Warren said. “That all caused harm.”

“So that part, I can’t just be like, ‘No harm no foul’ — because that’s what was at stake,” Warren explained. At the same time, he noted, he felt a stir of compassion for the government’s lawyers. It’s not that he had wanted them to win, but he did want to understand how they had become so committed to his prosecution. “It’s like, ‘What is going on for them?’” Warren said. “It seemed like they felt deeply dejected and I don’t want to take care of them, but also, what happened that it was like that?”

“These are people that we’re in an adversarial relationship with,” Warren said — but it was a relationship nonetheless. The prosecutors across the courtroom were human beings and, after nearly two years, he couldn’t help but feel for them. “I just don’t even know what to do with that,” he said. “I don’t even know.”

AT THE HEART OF WARREN’S CASE were questions of perception. For Border Patrol Agent John Marquez, the man who began the investigation that led to Warren’s arrest, the mountains in Arizona’s west desert are “large terrain features” in his “area of responsibility” that facilitate the illicit movement of goods and people. The landscape is not an intricate ecosystem of human and non-human inhabitants with a complex history stretching back thousands of years — which is how Warren and others see it.

When Marquez looked up a college newspaper article about a man named Scott Warren who took students into the desert, he did not see a story about a highly educated border expert introducing students to the complicated region. He saw a guy who was bringing young people into what he viewed as a dangerous place, a quasi-war zone reserved for him and his colleagues, where they chased people down and the general public was not welcome.

These were the datapoints and the worldview Marquez and his partner, Brendan Burns, described to the jury in Warren’s case. They were also the datapoints and worldview embraced by Walters, Wright, and other top officials at the U.S. attorney’s office. It is why, when Marquez and Burns looked through their spotting scope while doing “covert surveillance” on January 17, 2018, and saw Warren speaking to two young men who they assumed were undocumented, they concluded that he was committing a crime. Warren was gesturing north — thus he must have been giving the suspected migrants directions to evade the Border Patrol and further their illegal entry. The prosecutors drew similar conclusions when reviewing the notes Warren took documenting the blisters, chest pain, and sickness the migrants described when they got to Ajo. This wasn’t evidence of humanitarian aid being rendered, they argued, it was evidence of a cover-up in action.

The line between humanitarian aid and illegally harboring a person is criminal intent. The prosecutors needed to prove beyond a reasonable doubt that Warren’s intention was not to provide humanitarian aid to Perez Villanueva and Sacaria-Godoy, but rather to violate the law. The problem for the government, in this trial and the last, was that Warren was as legally careful and philosophically committed to providing humanitarian aid as anyone could be.

A makeshift memorial near the side of Route 85 in the Sonoran Desert, which runs from Mexico, through Ajo, and into Phoenix.

THE WEST DESERT of Arizona is more than just a place where Border Patrol agents chase migrants. It is also a place where migrants die in staggering numbers. For the past six years, Warren and a community of committed humanitarian volunteers have been working to address that crisis, dropping jugs of water on migrant trails, recovering the remains of those who have perished, and rescuing those who have survived.

When he stood outside with the two migrants and gestured north, Warren told the jury, he was providing orientation. He was pointing out a pair of distinctive mountains. The only highway for miles around ran between them. If the two young men needed to rescue themselves, that’s where they would need to go. And if they found themselves to the outside of either mountain, they would stray into an active bombing range and some of the deadliest patches of desert in Arizona.

The work he and others do in the borderlands, Warren explained, is the same thing that groups like the International Red Cross do in conflict zones around the world. It is the neutral provision of aid in the midst of a humanitarian crisis, and it is legal. Despite spending nearly two years on the case, despite gathering data from Perez Villanueva’s and Warren’s cellphones — producing 14,000 pages of records — the government failed to prove Warren had done anything less than what he described.

“He seemed like a humanitarian that was just trying to help. He seemed very kind and not like he was trying to harbor somebody or do anything illegal at all.”

“We came to this decision because the prosecution just didn’t present enough evidence to find Scott guilty,” Teyonna Gallardo, a 24-year-old member of the jury, told me. For Gallardo, a Tucson resident, the government’s case was never convincing. “I was ‘not guilty’ the entire time,” she said. “He seemed like a humanitarian that was just trying to help. He seemed very kind and not like he was trying to harbor somebody or do anything illegal at all.”

Ricardo, a second member of the jury, who asked that his last name not be used, said it was important to make one thing clear: The jury’s decision was based on the government’s failures to make its case and nothing else — it was not, notably, a case of jury nullification, where there is a moralistic finding of innocence when the jury believes the crime was committed. “There was just too much of a lack of evidence to convict,” Ricardo said. “What we were looking at itself was: the evidence that was listed, the evidence that was not listed. Evidence that was there. Evidence that was not there.” It all came down to one thing. “I think we can all agree, it was the intent,” he said. “That was the main focus. That was where there was not enough evidence to be able to say beyond a reasonable doubt that Dr. Warren was guilty.”

Ricardo was standing outside the courthouse as he explained the reasoning behind the jury’s verdict. Kelly, a third juror standing nearby, who also asked that her last name not be used, agreed that the government had failed to prove that it was Warren’s intent to break the law, rather than to provide humanitarian aid. “I think we all agreed,” she said, “what he and these people do is fantastic.”

“We had to look at what we thought was in his heart and in his head,” she said. “That’s what it came down to.”

SITTING IN HIS OFFICE the day after the acquittal, Warren’s lead defense attorney, Greg Kuykendall, picked up a copy of the Arizona Daily Star. Warren’s victory was front-page news. Kuykendall read aloud from a statement that Bailey, the U.S. attorney, had given to the press. The statement said, “And we won’t distinguish between whether somebody is trafficking or harboring for money or whether they’re doing it out of, you know, what I would say is a misguided sense of social justice or belief in open borders or whatever.”

Kuykendall’s co-counsel, Amy Knight, was disturbed by the prosecutor’s words. “The word ‘misguided’ — that’s a value judgment, not a legal judgment,” she said. “If you’re doing it out of a sense of social justice, then you don’t intend to violate the law.”

“They still don’t understand what the law is,” Kuykendall replied. “That’s the fundamental problem. They don’t like the law, so they’re just saying, ‘Well, that’s not the law,’ even though the jury instructions are just crystal clear that’s the law.”

The defense attorney opened the folder of documents and filings in Warren’s case on his computer. There were more than 400 of them. If there was that much material on the defense side, I noted, it seemed reasonable to assume an equal level of investment on the government’s side. “It’s a shocking amount of resources,” Kuykendall said. “And we don’t have a clue about all of their investigative expenses. I mean, they investigated a shit pile of things that we’ll never know about.”

Greg Kuykendall, Warren’s lead defense attorney, outside his office in Tucson on Nov. 21, 2019.

For Kuykendall and Knight, representing Warren was an experience far removed from their normal work as federal death penalty defense lawyers. “I’ve never before represented somebody who was publicly beloved,” Knight said. “The vast majority of our clients are reviled, and I’ve never been in a courtroom where anybody was there except for the family of a victim, and maybe the family of a defendant. But I’ve never had a case where there are supporters and that’s just a very, very different experience.” The pair both saw Warren’s trial as its own kind of life or death case, one with uniquely significant implications. “I’ve also not had cases where the consequence of winning is actually to provide hope to a whole lot of people,” Kuykendall said. “I’ve won a lot of cases, but they’ve had a very limited ripple effect, if you will. But this one makes it really viable to keep resisting.”

PERHAPS THE MOST significant beacon of hope to emerge from Warren’s appearance in court was not his felony acquittal, but a second decision read from the bench this week by U.S. District Judge Raner Collins.

Warren was one of nine volunteers with the faith-based humanitarian group No More Deaths to receive federal misdemeanor charges for leaving food, water, and other humanitarian aid supplies on protected public lands and trespassing by driving on restricted roads in 2017. Kuykendall and Knight invoked the Religious Freedom Restoration Act in his defense, arguing that the provision of humanitarian aid was a central tenet of Warren’s deeply held spiritual beliefs. The misdemeanor trial was held earlier this year, but Collins refrained from delivering his decision until Warren’ felony case concluded. After reading Warren’s not guilty verdict, Collins did just that.

The government had proven its case on both counts, Collins told the court. But in the case of the provision of humanitarian aid, he ruled that the religious freedom defense was a success. Kuykendall and Knight believe there could be grounds for a religious freedom appeal on the trespassing charge, but the victory they did achieve was an unexpected and truly significant win. “I think it’s a much bigger deal than it’s getting credit for right now because it’s in the shadow of the felony charges,” Knight said. “But I think it’s actually more groundbreaking and unexpected than the felony acquittal.”

Katherine Franke, a law professor at Columbia, where she is faculty director of the Law, Rights, and Religion Project, agreed. “Oh, it’s enormous,” she told me. Franke has been following Warren’s case closely, filing motions on his behalf based on her expertise in the intersection of law and religion.

“Not only is the verdict a kind of indictment of the federal government’s immigration policy, but it’s also an indictment of the way they’re protecting religious liberty.” 

On day one of Warren’s trial, Franke and her colleagues Elizabeth Reiner Platt, Kira Shepherd, and Lilia Hadjiivanova published a sweeping report illustrating how the federal government has routinely sided with right-wing or conservative causes in religious freedom cases. “The federal judiciary has been treating religious liberty claims, RFRA claims of progressive social activists, very differently than when those faith-based claims are being made by conservative evangelicals,” Franke said.

Collins’s decision in Warren’s case signaled a repudiation of that trend, Franke went on to say. “Not only is the verdict a kind of indictment of the federal government’s immigration policy, but it’s also an indictment of the way they’re protecting religious liberty,” she added. “I have to say, I am delighted because the other RFRA claims that have been raised in the last several years by progressive social activists have been rejected completely by federal judges. So, this is the first one we’ve seen where the judge has positively analyzed a RFRA claim in favor of the defendant, and it’s quite remarkable.”

Geena Jackson, far right, a volunteer with No More Deaths, addresses press alongside attorney Greg Kuykendall, far left, Warren, and attorney Amy Knight, moments after a jury returned two not-guilty verdicts.

Warren has now had a similar experience with the American criminal justice system. When he looks at stories in the news, the cases of Trump administration associates facing prison time, for example, and he sees people cheering prosecutions and incarceration, he feels something different.

IN DESCRIBING HOW he got involved in humanitarian aid work, Warren told the jury that, when he moved to Ajo in 2013, he was already well aware of the problem of migrants dying in the desert. After all, his doctorate is in the social geographic history of the Arizona borderlands. But, as Warren explained, there is a difference between knowing an issue intellectually and living with it.

“I can empathize with being a defendant and knowing what that’s like,” Warren said. “You have the power of the state crashing down on you.”

Since 2000, the Pima County medical examiner’s office has tallied the deaths of roughly 3,000 migrants who tried and failed to cross the Sonoran Desert. This was the context Warren and his legal team sought to provide for the jurors in his case; that his efforts to combat a pattern of death and disappearance was the reason he appeared before them. “Our work has been basically education,” Warren said. “I was really proud of that theme.”

If there’s anything Warren has learned both as an academic and a humanitarian aid volunteer, it’s that simplistic, one-dimensional pictures fail to capture the complexity of the borderlands. “You have this place, this complicated place — you can look at it from many different angles,” he explained. What you cannot do, he argued, is reduce it to a single lens and forsake all others, which is what the Border Patrol and the U.S. attorney’s office attempted to do in his case.

[RELATED:https://www.hcn.org/issues/51.4/activism-humanitarian-aid-is-being-criminalized-at-the-border]

“They’re really frustrated because they have this laser focus on this one aspect of it and they’re like, ‘Why are people not understanding what we’re saying?’” Warren said. “It’s just not the totality of what’s happening.”

Warren lingered on the government’s vision of life in the Arizona desert and the dueling explanations for why he experienced what he did. “Do they have a complex view of it and understand that there is a crisis on the border?” he asked. “People are dying, going missing, and local people are responding to it. Do they understand that it’s complicated but make a choice for the hope of winning to not acknowledge any of that?” he said. “Or do they really not understand that piece at all?”

“I probably will never really know.”

The Intercept is an award-winning nonprofit news organization dedicated to holding the powerful accountable through fearless, adversarial journalism. This story was originally published on November 23, 2019. Sign up for The Intercept’s Newsletter.

Ryan Devereaux is an award-winning investigative journalist for The Intercept. He covers immigration enforcement, criminal justice and national security. Email High Country News at [email protected] or submit a letter to the editor.