Kuykendall & Associates recently won felony and misdemeanor trials for Dr. Scott Warren, a humanitarian aid volunteer targeted by the Trump Administration, creating important progressive legal precedents in the process.
As part of the government’s unrelenting campaign against migrants, Border Patrol officers arrested Dr. Scott Warren in January of 2018 in the remote western Arizona town of Ajo. Scott volunteered with a ministry of the Unitarian Universalist Church known as “No More Deaths,” to save migrants’ lives by putting water and other supplies on desert trails where the migrants were known to die of exposure. The Pima County Medical Examiner has identified the remains of more than 3,000 bodies as undocumented border crossers, representing a tiny fraction of the lives lost in Arizona’s extreme desert. Scott’s transparent and well-publicized efforts to save lives, as well as the vocal advocacy efforts by No More Deaths to reduce harm to migrants, caused Border Patrol to investigate Scott.
No More Deaths operates a humanitarian aid station outside of Ajo known locally as “the Barn:” a ramshackle building on five-acres, with a small clinic, a bathroom, a kitchen, and a meeting area. No More Deaths and other search and rescue groups openly use the Barn as a staging area for loading pallets of donated gallon jugs of water, blankets, canned food and medical supplies. Volunteers from Arizona and around the country camp out at the Barn. Injured migrants receive medical treatment in the clinic portion and periodically spend nights there while they recuperate. No More Deaths volunteers operate under a set of written protocols and they make clear to any migrants that the Barn is not a way station, it is a medical clinic where migrants are not hidden from Border Patrol. By the same token, No More Deaths volunteers understand no legal obligation exists to alert Border Patrol about migrants at the Barn.
The uneasy peace between No More Deaths and the Border Patrol shattered on the morning of January 17, 2018. To great fanfare, No More Deaths held a press conference and issued a report and accompanying video documenting Border Patrol’s systematic destruction of almost 3,500 gallons of water left in the desert for migrants. Hours later, a convoy of Border Patrol vehicles rolled onto the Barn’s property without a warrant. Scott immediately approached the agents and calmly asked them to leave the humanitarian aid station but because they had seen Scott speaking and gesturing toward landmarks earlier in the day with two brown men, they ignored his lawful request. Instead, they brushed past him, extracted two young migrants from the Barn, and arrested them and Scott.
Scott asked Kuykendall & Associates to represent him on the felony charges of “harboring illegal aliens” and also on misdemeanor charges he received a week earlier related to leaving water in the desert on federal lands. Greg took Scott’s case pro bono, immediately brought onto the case his associate Amy Knight, and engaged many diverse legal communities from around the world who assisted their efforts, ultimately working for two years on the felony and misdemeanor cases.
Kuykendall & Associates first took Scott’s misdemeanor charges to trial, using the novel affirmative defense that Scott’s actions – even if illegal – were immunized from prosecution under the Religious Freedom Restoration Act (RFRA). Except for protecting a few very small religious minorities, RFRA previously has been used on a grand scale as a tool of repression, typically forcing less politically powerful populations like women and the LGBTQ community to accept the domination of socially conservative religions, or be penalized. Moreover, Scott did not belong to a recognized denomination and instead testified he held sincere spiritual beliefs that motivated his actions. After a three-day trial, in a landmark ruling, the judge held that RFRA prevented Scott from being convicted of “abandonment of property,” i.e. “littering on federal lands,” for leaving water jugs in the desert. This ruling established the important legal precedent that RFRA’s categorical protections from criminal liability cover people of progressive conscience whose beliefs do not correspond to any recognized religion’s doctrine.
Greg and Amy next conducted a two-week felony trial. The trial judge allowed the prosecution enormous leeway in its presentation of evidence and argument yet prevented the defense from even suggesting Border Patrol harbored any anger or resentment due to No More Deaths’ viral report and video. After deliberating for three days, the jury returned deadlocked: 8-4 for acquittal. The federal prosecutors chose to retry the case.
Several months and many motions later – in total, the felony trial pleadings folder contained well over 400 filings – Scott and Kuykendall & Associates returned to trial. This time the judge also allowed an extensive jury questionnaire to be sent to 500 prospective jurors ahead of the trial. With an expert jury consultant – Karen Lisko of Perkins Coie – the trial team entered the voir dire process with far more information than in the first trial. And in the second trial, the judge finally let the defense ask the agents about whether they had seen No More Deaths’ report and video; they admitted they watched the video only hours before arresting Scott. They also admitted to texting other Border Patrol agents gleefully about seeing “Toncs” – a racial epithet Border Patrol uses to describe migrants, said to be the sound of a mag flashlight coming onto the heads of migrants – with Scott.
The second jury deliberated less than two hours before returning unanimous not guilty verdicts. Many of the jurors came to the impromptu celebration of Scott’s victory in the federal courthouse plaza, embracing Scott and his family. One juror told the assembled media that the jury did not think humanitarian aid was a crime, they thought it was “fantastic.”
The federal government foolishly chose Dr. Warren – an amazingly articulate and dedicated humanitarian with deep spiritual beliefs – to serve as a test case in one phase of its war on immigrants. Rather than prevailing, the government instead received a severe rebuke from the jury as well as from the judge in his RFRA ruling. Both the felony and misdemeanor acquittals constitute significant gains for progressive movements that will prove extremely difficult to ever undo.