Defense: Trial ban on talking about Trump would violate Scott Warren's rights

Defense attorneys for Scott Warren, the No More Deaths volunteer who faces a second trial next week on two counts of harboring illegal immigrants, argued that a proposed prohibition on speaking about President Donald Trump or administration policies in court would violate his constitutional rights.

Late last week, prosecutors told the judge that discussions of the president or his administration in the courtroom would be "unfairly prejudicial."

In a motion filed Friday, defense attorney Amy Knight called the motion "highly unusual, and argued that federal rules of evidence "do not inhibit," discussion of the government or the president, "which is seeking to convict and punish" a defendant. 

"Nothing in the rules of evidence restricts, or even could constitutionally restrict, the defense’s ability to characterize its case for the jury, and the order the government seeks would violate Dr. Warren’s rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution," Knight wrote. 

On Thursday, federal prosecutors filed a motion asking U.S. District Judge Raner Collins to block Warren from talking about the president or his administration during the trial, claiming that allowing him to do so would be "unfairly prejudicial."

"The United States of America, by and through its undersigned attorneys, files its motion in limine to prevent the defense from mentioning the President, his administration, or his administration’s policies. Any reference to the President or his administration would be irrelevant and unfairly prejudicial," wrote assistant U.S. Attorneys Nathaniel Walters and Anna Wright.

Warren's federal criminal trial will be his second felony prosecution in the same case.

Warren, a 36-year-old geography professor, faced trial in May on three felony charges, including one count of criminal conspiracy to transport and harbor illegal aliens, and two counts of harboring, stemming from his January 2018 arrest by U.S. Border Patrol agents in Ajo, Ariz., at the "Barn," a small rustic building in the outskirts of Ajo used as a staging ground for humanitarian groups in the area. 

On the afternoon of Jan. 17, 2018, two Border Patrol agents— John Marquez and Brendan Burns—said they set up an observation post about 200-300 yards from the Barn, just across from a rural road on a patch of federally owned land, and after observing the barn for more than 90 minutes, Warren came out with two men, later identified as Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday. 

In early June, after days of deliberation, a jury refused to convict Warren, but did not find him not guilty. The judge declared a mistrial because of the hung jury.

Undaunted by the jury's non-decision, federal prosecutors announced in July that they would seek a new trial, but dropped the conspiracy charge against Warren. They also announced a possible plea deal for Warren, which he did not accept by the prosecution's deadline.

As the case has moved toward a second trial, federal prosecutors and Warren's defense team have issued a flurry of motions and counter-motions that will set the stage for the new court proceeding that begins on Nov. 12 at 9:30 a.m. 

This includes, among other moves, the addition of a third assistant U.S. Attorney to the prosecutor's table with the addition of Glenn McCormick. 

As Knight noted, Trump was mentioned during the first trial only because the government brought up an article, published in the Washington Post. 

During Warren's cross-examination, Walters brought out sections of an op-ed that Warren had written for the Washington Post. The article titled, "I gave water to migrants crossing the Arizona desert. They charged me with a felony," was published just before the trial began, and Walters attempted to  use the article to argue that Warren had either misstated or underplayed details of his arrest. However, Warren's defense lawyer Greg Kuykendall asked the court if the entire article could be submitted into the record, and after a sidebar Collins agreed. 

This led to a remarkable moment during the trial, when Warren was allowed to read his entire op-ed into the record, criticizing the Trump administration directly and telling the jury about the stakes of his case. 

Kuykendall began to read the first sections of the piece, but Walters objected. So, Kuykendall handed the document to Warren, and the professor began to read the next section. Exasperated, Walters objected, asking, "Is there a question about this?" 

Collins squashed Walters' objection and allowed Warren to read his own words to the jury, including one section where he wrote that Trump administration policies "seek to impose hardship and cruelty. For this strategy to work, it must also stamp out kindness," Warren said. He also read a section where he wrote that his case in particular, "may set a dangerous precedent, as the government expands its definitions of 'transportation' and 'harboring.'" 

Knight wrote that the "government cannot legitimately claim that certain views about the case are relevant only when the government seeks to elicit them, but irrelevant when those views favor the defense," and argued that the motion should be denied. 

'Obligation' to report

Prosecutors and Warren's defense also continued to tussle over proposed jury instructions. On Thursday, Knight asked that Collins read instructions to the jury telling them that under the law there is no obligation to "report known or suspected crimes." 

"This instruction is essential at the beginning of the case when the jury is also being instructed on the particular crimes charged," Knight wrote, arguing that potential jurors may "mistakenly believe an obligation to report exists and understanding from the outset that in fact no obligation exists will greatly assist the jurors in evaluating the evidence." 

Much of the case against Warren hangs on the asseration that not only did he know or act in reckless disregard for the fact that  Perez-Villanueva and Sacaria-Goday were not lawfully in the United States, but that he harbored, concealed, or shielded from detection the two men with the intent to violate the law. 

Prosecutors agreed, but moved to modify the instructions, and requested that the jury be told about the lack of an obligation to report at the end of the trial as part of final instructions. 

In their motion, they asked that Collins tell the jury that the law "does not impose a general affirmative obligation on citizens to report suspected or known violations of law to authorities." 

"However, you may consider such evidence along with all other evidence in determining whether the government has proven the elements of the offense beyond a reasonable doubt," wrote Wright and Walters. 

Knight disputed this in a filing Friday, arguing that the changes were "wholly inappropriate." 

"The government has asked this Court to change the legally correct and appropriate instruction it gave the jury in the first trial on the law regarding the absence of any obligation to report known or suspected violations of the law." 

"The additional material the government now proposes—an advisement that the jury can consider a defendant’s entirely lawful choice not to summon authorities in determining whether the government has proved the elements of harboring (i.e., intent to violate the law)—is wholly inappropriate, misstates the law, and if given would constitute an impermissible comment by this Court on the evidence," Knight wrote. 

"The government never before objected to the instruction used in the first trial and has no basis for doing so now," she wrote.