No More Deaths Trial Opens as More Bodies Found Along Border

The grim work provided an apt backdrop for the court proceedings in Tucson, where Warren’s defense team argued that deeply held spiritual beliefs compel the 36-year-old geographer to confront the death and disappearance that encircle Ajo, Arizona, the tiny, unincorporated community where Warren lives and concentrates his humanitarian efforts — and where the remains of hundreds of migrants have been discovered in recent years. To prosecute Warren for those efforts would violate his religious freedom rights, the lawyers argued.

Facing six months in prison on federal littering and trespassing charges, the misdemeanor trial was the first of two for Warren this month. The stakes are even higher in the second case, set to begin on May 29, with Warren fighting multiple felony smuggling and conspiracy charges and facing up to 20 years in prison for allowing two undocumented men access to food, water, and a place to sleep for two nights last year.

Warren’s lawyers have argued that the charges against him point to something bigger than one man’s actions on a given day. It is about a multi-decade story of government policy leading to thousands of lives lost, and the people working to confront and expose that scandal now finding themselves in the crosshairs of the state.

As defense attorney Greg Kuykendall put it in his opening remarks: “Scott knows where the bodies are.”

Volunteers for the humanitarian aid organization No More Deaths walk with buckets of food and jugs of water for undocumented immigrants near Ajo, Ariz, on May 10, 2019.

Photo: John Moore/Getty Images

Bearing Witness

On June 21, 2017, Warren was among a group of No More Deaths volunteers who drove onto Cabeza Prieta to search for bodies and drop gallon jugs of water, cans of beans, blankets, and medical supplies in areas where migrants were known to die. Nearly all of the sprawling desert refuge is federally protected wilderness, meaning that virtually all of the administrative roads that run through the territory are off-limits to the general public without special permits — permits that land managers have steadfastly refused to provide to No More Deaths volunteers.

Warren, who holds a Ph.D. in geography and spent the last decade studying the social and geographic history of southern Arizona’s borderlands, is accused of two violations: driving onto designated wilderness, and abandonment of property (for leaving water and other humanitarian aid supplies).

Federal prosecutors Anna Wright and Nathaniel Walters, assistant U.S. attorneys who have spearheaded multiple No More Deaths prosecutions since 2017, argued in court last week that Warren’s case was clear-cut. Though U.S. Fish and Wildlife Officer Jose Luis Valenzuela testified that he never actually witnessed Warren leaving items in the desert and never described abandonment of property in his report of the incident, Walters nonetheless argued that the presence of both Warren and humanitarian supplies in the area was sufficient to make a “fair inference” to establish Warren’s guilt.

“There’s more than enough circumstantial evidence,” the prosecutor said.

The defense disagreed. In a motion for acquittal, Amy Knight, Kuykendall’s co-counsel, argued that the government failed to prove beyond a reasonable doubt that Warren, specifically, had left aid supplies on the refuge. U.S. District Judge Raner Collins denied the motion. Kuykendall, meanwhile, noted that under the Religious Freedom Restoration Act, efforts to prosecute an individual for actions that are extension of their religious or spiritual beliefs must flow from a government interest of the “highest order” and be applied with the “least restrictive means” possible.

To illustrate why Warren’s humanitarian work should be protected from prosecution under RFRA, Kuykendall called several witnesses. The first was Warren himself. He described his belief that Ajo’s surrounding desert is populated by the souls of people who died crossing through the area. Warren explained that in his particular corner of Arizona, the people who die in the desert often die alone, in horrible, agonizing ways, and as a result, their final moments are unacknowledged by the living.

“In places that I know, they remain in a sort of in-between place until they are witnessed. It is unconscionable to me, and it requires me to act and to do something.”

“In places that I know, they remain in a sort of in-between place until they are witnessed,” Warren said. “It is unconscionable to me, and it requires me to act and to do something.”

In searching for human remains and “witnessing” the places where those remains came to rest, Warren testified, he believes that he is engaging in act of “spiritual completion,” helping to provide the dead with “the thing that makes their soul live on in that place.” The provision of humanitarian aid is an extension of that belief system, Warren testified, one that is “as sacred” as witnessing where people have died.

When asked what he would do if his belief system came into conflict with wilderness regulations, Warren was to the point. “If I were faced with that choice, I would go to those places of greatest need and risk violating those laws,” he testified. To do otherwise, Warren said, “would be engaging in a hollow experience of what’s really needed.” Warren acknowledged that he knew “full well” he was in designated wilderness when he stepped onto the refuge in the summer of 2017.

Walters accused Warren of engaging in a project that was not just spiritual, but political, at one point asking if Warren was aware “that one of the aims of No More Deaths is to build a global movement.” Though the line of questioning was short-lived, Walters would return to a version of it the following day, offering a potentially illuminating window into the political lens through which Trump administration prosecutors seem to view the humanitarian group.

TUCSON, ARIZONA - SEPTEMBER 29: Death investigator Trevis Hairston moves a corpse in the morgue of the Pima County Medical Examiner on September 29, 2016 in Tucson, Arizona. Hundreds of undocumented immigrants die every year, most from dehydration, in the desert while crossing illegally from Mexico into the United States. Forensic anthropologists study personal effects and bodily remains in an effort to identify the bodies and reunite them with loved ones. (Photo by John Moore/Getty Images)

Death investigator Trevis Hairston moves a corpse in the morgue of the Pima County Medical Examiner on Sept. 29, 2016 in Tucson, Ariz.

Photo: John Moore/Getty Images

State of Emergency

Day two of Warren’s trial saw Dr. Gregory Hess, a forensic pathologist and Pima County’s chief medical examiner, on the witness stand. Hess noted that most medical examiner’s offices do not employ a full-time forensic anthropologist. Pima County has two, a reflection of the explosion in deaths that followed a shift in border enforcement in the mid-1990s in which the U.S. government funneled migrants away from cities and into the Sonoran Desert.

With nearly 3,000 case files in his office, Hess testified that migrant deaths in southern Arizona meet the definition of a public health problem. In response, Hess testified, his office began compiling data in 2000 on the extraordinary loss of life. “That’s the year that it really became a problem,” he said.

The numbers indicate that Arizona’s punishing summer months are the most lethal for migrants crossing the desert. In recent years, it has become increasingly clear that the Growler Valley, a remote stretch of Cabeza Prieta, is particularly deadly. Ed McCullough, a retired geology professor who supplies No More Deaths with maps of migrant remains found in southern Arizona each month, testified about the “trails of death” that run through the valley. When asked about the area where Warren was stopped in 2017, McCullough described it as “right in the middle” of one of those trails.

Despite the evidence of deaths, Sidney Slone, the manager of Cabeza Prieta, testified that he did not know how many human bodies had been found on the refuge in the last 20 years. When asked how many remains were found in 2018, Slone was again unsure, noting that it was “not necessarily” his job to know. While Slone’s attention to detail in matters of human death occurring on his refuge was minimal, his focus on Warren and No More Deaths in the summer of 2017 was not. Emails published by The Intercept in January showed the land manager’s intensive efforts to prohibit No More Deaths’ work on Cabeza Prieta.

Catherine Gaffney, a longtime No More Deaths volunteer, testified about the group’s 2014 decision to turn its attention to the so-called Ajo corridor. The mission of No More Deaths is to end death and suffering in the Sonoran Desert, Gaffney said, and the group prioritizes operations based where the most death and suffering is occurring. Ever since 2014, Gaffney testified, “most of the sources were pointing us to the west desert,” and more specifically, to Cabeza Prieta’s Growler Valley. The expansiveness of the region, coupled with Slone’s refusal to grant No More Deaths special access permits allowing them to make water drops and look for people — alive and dead — in areas where migrants were known to be dying, presented a challenge, Gaffney explained.

On cross-examination, Walters again pushed for an admission that No More Deaths’ work was not some altruistic, nonpolitical operation. “Would you agree that one of [No More Deaths’] goals is to abolish ICE?” he asked. Gaffney told the prosecutor that she did not believe that was one of the goals of the organization’s working group. Walters pressed on, fishing for evidence that No More Deaths provides migrants in Mexico with material support to illegally cross the border and questioning the nature of the emergency that the organization devotes itself to.

“The fact that this emergency has been going on for more than a decade doesn’t make it any less of an emergency,” Gaffney testified. “It just makes it more of tragedy.”

Unnecessarily Thoughtful

On the Sunday before Warren appeared in court, as No More Deaths was scouring the desert, Ana Adlerstein, a volunteer at Casa del Migrantes, a migrant shelter in the Mexican town of Sonoyta, was arrested as she accompanied an asylum-seeker to the Lukeville port of entry, just south of Ajo. Adlerstein told The Intercept that Customs and Border Protection officers had accused her of the same human smuggling charges Warren is currently facing in his felony case. The following morning, hours before Warren took the witness stand, more than 120 students at a Tucson high school walked out of class, protesting the detention of a classmate who, just a few weeks away from graduation, was pulled over in a traffic stop and landed in Border Patrol custody.

The walkout, the arrest, and the active search operations around Ajo hovered over the days of testimony that followed. They also served as a window into the atmosphere immigrant rights advocates in southern Arizona are operating under as Warren’s felony trial approaches. As the misdemeanor trial came to a close, prosecutors offered a preview of what that fight could look like.

“What Scott Warren does in his free time should earn him a medal.”

In her closing arguments, Wright took aim at Warren’s religious freedom defense, asserting that the government can administer its lands as it sees fit — to do otherwise in an effort to accommodate an individual citizen’s religious needs would provide that citizen “a veto” over the federal government, she said. In Warren’s case, she went on to say, “there’s still ways for him to aid people who are crossing the desert” without violating the rules of the Cabeza Prieta refuge.

Wright then turned her attention to Warren, arguing that there were “several reasons” he was not credible. Warren was “construing his beliefs in a way to fit a legal theory,” the prosecutor alleged. Not only that, his habit of pausing to consider questions before answering them was a sign that he could not be trusted. Warren “took long pauses that were unnecessary,” Wright said.

The prosecutor made the accusation in a courtroom filled with Warren’s closest friends and supporters, as well as his mother and father, who were sitting in the front row. The anger in the room was palpable. “I am at once saddened and terrified to hear the prosecutor describe Scott Warren the way she did,” Kuykendall told the court. Rather than time in prison, he said, “what Scott Warren does in his free time should earn him a medal.”

The trial came to a close Thursday without a verdict. Collins, the judge, gave both sides until May 24 to file final motions, raising the likelihood that his decision could come just days before Warren’s felony trial, which he is also presiding over.

AJO, ARIZONA - MAY 10: Scott Warren, a volunteer for the humanitarian aid organization No More Deaths speaks with local residents during a community meeting to discuss federal charges against him for aiding undocumented immigrants on May 10, 2019 in Ajo, Arizona. Warren is scheduled to appear in court for felony charges on May 29 in Tucson, accused by the U.S. government on two counts of harboring and one count of conspiracy for providing food, water, and beds to two Central American immigrants in January, 2018. If found guilty Warren could face up to 20 years in prison. The trial is seen as a watershed case by the Trump Administration, as it pressures humanitarian organizations working to reduce suffering and deaths of immigrants along the border. The government says the aid encourages human smuggling. In a separate misdemeanor case, federal prosecutors have charged Warren with public littering, for distributing food and water along migrant trails. (Photo by John Moore/Getty Images)

Warren, right, speaks with local residents during a community meeting to discuss federal charges against him for aiding undocumented immigrants on May 10, 2019 in Ajo, Ariz.

Photo: John Moore/Getty Images

Criminalizing Kindness

In the desert outside Ajo, the work continued. By the end of the weekend, two human sets of suspected human remains reported by humanitarian groups had been collected by law enforcement and turned over to the medical examiner’s office, Pima County Sheriffs Deputy Daniel Jelieno told The Intercept.

As for the remains reported in December 2017 and seemingly left in the field, Jelieno said his office received the report at the time, and that a recovery team collected the remains and turned them over to the medical examiner’s office. However, an interactive map of migrant deaths in southern Arizona, based on medical examiner case files, offers no indication of remains received by the office on the date in question, raising questions as to whether the remains No More Deaths came upon last week were indeed new, or if they were never completely recovered.

As the sun dipped behind the mountains in Ajo on Friday night, a crowd of people made their way into the parish hall at the Immaculate Conception Church. For more than a century, the white adobe building has sat in the center of the community, which itself sits like an oasis in the middle of a vast stretch of the Sonoran Desert.

Inside the hall were rows of tables and a spread of home-cooked food. Advertised in the local paper, the potluck was billed as a topical affair, titled “How to Support Scott Warren’s Trial and the Right to Give and Receive Humanitarian Aid.” By Ajo standards, the event drew an unusually large crowd. Many attendees were part of the retired snowbird community that inflates Ajo’s population up to about 3,000 people in the off-summer months. They were joined by Nahuatl-speaking activists from southern California, No More Deaths volunteers, college students visiting from Montana State University, and off-the-grid desert rats.

Jose Castillo, a lifelong Ajo resident born in 1939, was first to speak. Castillo had lived through Ajo’s boom and bust, having worked in the copper mine that provided the backbone of Ajo’s economy before closing in the mid-1980s. A quintessential border-dweller, toggling between English and Spanish, he speaks of migration the way most people here do — as a fact of life. Addressing the crowd Friday night, Castillo noted the risks migrants face, now exacerbated by the legal action taken against Warren and other aid providers. For him, Castillo said, “it’s personal.”

Warren was next at the podium. He had spent the day in the desert with the students from Montana. His suit replaced by dusty jeans, it was a stark departure from his appearances in court that week. Warren began by thanking the community that has rallied around him. “This past week has been a difficult one for those of us working in the desert,” Warren said, noting the ongoing search-and-rescue operations and the human remains they had uncovered.

“I wish could say that that was uncommon,” he said. “But those kinds of experiences, particularly in the Growler, are pretty typical.”

Warren then addressed his cases. Speaking of his upcoming felony trial, he noted a fact often absent from accounts of his experience: that he was arrested with two other people, 21-year-old Jose Arnaldo Sacaria-Goday, of Honduras, and 23-year-old Kristian Gerardo Perez-Villanueva, of El Salvador. “The judge released me on my own recognizance after about 24 hours,” he explained. That was not the case for Sacaria-Goday and Perez-Villanueva. “They kept Jose and Kristian in detention for something like eight weeks,” Warren said. The young men were held as material witnesses and deposed in the government’s case. Once those needs were met, the government “very quickly deported them back to places which they had been fleeing.”

“Is it my responsibility as a United States citizen to get identification for every person I give a glass of water to?”

Soon, the conversation in the parish hall opened to the audience. As questions and comments piled up, the extraordinary moment that the community of Ajo is living through became clear. One by one, people shared their experiences of providing help to migrants in need in the desert, their outrage over Warren’s arrest, and their fears about what it might mean for their lives in the borderlands.

“Is it my responsibility as a United States citizen to get identification for every person I give a glass of water to?” Bevin Anumpa asked.

Micah Perry, who lives outside Ajo in what he described as “the sticks,” echoed that sentiment.

With a property that sits alongside several million acres of remote wilderness, Perry said the government was using “lethal deterrence” in his backyard, and pressuring him to join in. “If I don’t intervene to help them, then I’m complicit in lethal deterrence. We all are. Everyone here is if they’re not willing to help people,” he said. “If I don’t stand up and make noise on Scott’s behalf, then I’m complicit in that lethal deterrence, and that’s not OK, that’s sociopathic.”

“If Scott goes to prison, what’s going to happen to me, as his neighbor?” he added. “My garden is not a war zone.”

Kathy Sicora, a longtime volunteer with the Ajo Samaritans, a local humanitarian group, then rose to her feet. “I know we’re frustrated,” she said. “We want to know: What is legal? What can we do legally?”

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