Allegations of “improper communication” between federal judges and prosecutors in Tucson are disrupting criminal cases filed against humanitarian-aid workers.
In response to an allegation from defense lawyers, Magistrate Judge Bruce G. Macdonald backed out of three cases he was overseeing, according to orders filed Dec. 19 in U.S. District Court in Tucson.
Macdonald denied the allegation, but did not explain the basis for it in his order. He reassigned the cases to Magistrate Judge Bernardo P. Velasco.
But Velasco faces claims of improper communication, as well. Defense lawyers accused Velasco of allowing a “secret presentation” of evidence by prosecutors, according to documents filed in a separate prosecution of an aid worker.
In the cases Macdonald oversaw, nine volunteers with Tucson-based No More Deaths face misdemeanor charges of trespassing; abandoning property, such as food and water left for border crossers; and operating a vehicle on the Cabeza Prieta National Widlife Refuge.
“Defense counsel has raised a concern about the Court’s involvement in this case,” Macdonald wrote.
He assured the parties involved that he “has not had any improper communication or contact whatsoever with anyone about this case or any other case.”
Macdonald wrote he was “disappointed the attorneys would question the integrity of this Court,” but to “avoid any appearance of impropriety” he reassigned the cases to Velasco.
Velasco is overseeing the initial stages of the felony human-smuggling prosecution of Scott Warren, a No More Deaths volunteer who was arrested at an aid station in Ajo and accused of harboring two men who illegally crossed the U.S.-Mexico border.
Warren’s pro bono defense lawyers, Amy Knight and Gregory Kuykendall, filed a series of motions this month raising questions about the disclosure of texts and emails sent to two Border Patrol agents the day Warren was arrested in January.
Warren’s lawyers said the texts and emails are key to their argument that Warren’s arrest was retaliation for videos released by No More Deaths hours earlier. The videos showed agents destroying water jugs left for border crossers and were viewed online by hundreds of thousands of people.
The water jugs were placed in remote areas of Southern Arizona where aid workers, Border Patrol agents and others have recovered nearly 120 sets of human remains so far this year, Pima County Medical Examiner records show.
In a Nov. 7 order, Velasco said the “prosecution climate” for border-related crimes in Tucson’s federal court had grown “very aggressive” under the Trump administration. He said the question of retaliation raised by Warren’s lawyers “should be explored.”
Velasco ordered prosecutors to “disclose any emails or texts sent to the two agents surveilling The Barn from 8:00 a.m. until these two agents went off duty on January 17, 2018.” The Barn is the nickname for the aid station in Ajo where Warren was arrested.
While Warren’s lawyers waited for the prosecutors to disclose those texts and emails, prosecutors exchanged letters with Velasco about which texts and emails to disclose, court records show.
Warren’s lawyers objected to not being included in that correspondence. They said Velasco’s order was to disclose the texts and emails to all parties involved, rather than submit them to Velasco for review. Any questions about Velasco’s order should be argued in open court, they wrote in a Dec. 6 motion.
They asked Velasco to order prosecutors to comply with the Nov. 7 order and disclose all of the texts and emails.
In a Dec. 12 order, Velasco denied their requests and said the suggestion that Warren was being denied relevant evidence was “unfounded.”
Velasco said prosecutors provided more materials to the court than the court had requested. He reviewed it and “found nothing helpful to the Defense’s case or theories of the case.”
Warren’s lawyers noted Velasco’s finding, but said in a Dec. 19 motion that “was not his assessment to make. The Magistrate is not well situated to know what the defense may or may not be able to use.”
Velasco included copies of the correspondence with prosecutors in his Dec. 12 order.
Federal prosecutors Anna Wright and Nathaniel Walters sent Velasco a letter dated Dec. 3 saying they had supplied Velasco with the texts and emails for review. They said some of the texts and emails “do not fall within the government’s disclosure obligations” and asked for Velasco’s permission to not disclose them.
Velasco wrote in a Dec. 4 letter to the prosecutors: “I have reviewed your disclosure packet and confirm your proposed disclosures as being in compliance with my previous Order.”
With regard to the letters, Velasco “only disclosed those communications to the defense upon their strenuous objection — at which point he had already made a decision based on a secret presentation made without the knowledge of, let alone any input from, the defense,” Warren’s lawyers wrote.
“Given this course of events, it is not appropriate for this Magistrate Judge to continue to decide pretrial matters in this case,” they wrote.
“Having permitted improper influence by the Government, he can no longer issue rulings in this case with the appearance of the strict impartiality demanded of our judicial system,” they wrote in their Dec. 19 motion.
The same day, District Court Judge Raner C. Collins ordered a Jan. 14 hearing for arguments related to the disclosure of the agents’ emails and texts. The previously scheduled trial start date of Jan. 8 was vacated on Dec. 21.
Cosme Lopez, a spokesman for the U.S. Attorney’s Office in Arizona, declined to comment, as did Knight and Kuykendall. One of the lead defense lawyers in the trespassing cases did not respond to a request for comment.
