Will Gun-Toting Vigilante Get the Justice He Deserves?
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Cochise County, Ariz. -- Crouching low, Ronald Morales and his 11-year-old daughter moved quietly and quickly, hoping to escape detection. Stealth was vital as they crept around the boulders and scrub brush that clutter the Sonora desert just north of the Mexican border.
It was Oct. 30, 2004. Morales, a 37-year-old Department of Defense employee, was deer hunting with his father, Arturo, and three little girls: his daughter, Vanese, who was then 11, her little sister Angelique, 9, and Emma English, a friend who was also 11. All were Mexican-Americans -- U.S. citizens since birth.
The way Ron Morales tells the story, around 4 p.m. he and his eldest daughter left the rest of the party at his truck to stalk a buck they had spotted.
Vanese had the deer in her crosshairs when the sound of a distant ruckus in the direction of the truck alarmed her father. Morales took the rifle, slung it over his shoulder, and they hurried back.
They arrived to find another truck parked near their own. Next to it, Morales says, an angry white man with a pistol strapped to his side paced back and forth, shouting obscenities. "You're fucking trespassing! You guys need to get the fuck out of here!"
"I have a hunter's permit, I have a map," Morales protested as he walked to his vehicle, set down his rifle, grabbed a Bureau of Land Management map, and tried to reason with the man.
Morales, a Navy veteran, says he addressed him as "sir" and asked his name. The man reached in the cab of his truck, yanked out an AR-15 assault rifle, and gave Morales his answer.
"My fucking name is Roger Barnett! If you don't get off my property, I'm gonna shoot you and shoot you and shoot you!"
Then, Morales says, Barnett chambered a round and pointed his weapon at Morales' chest.
Two years later, Ron Morales and Roger Barnett met again, two men sitting stoically at opposite ends of Judge James Conlogue's stark courtroom in Cochise County, which ends at the Mexican border in southeastern Arizona. Outside, November winds whipped the streets with impunity.
It was to be a momentous confrontation, probably the most dramatic yet seen between anti-immigration hard-liners and those who oppose them. Closely watched by reporters and other observers from near and far, the clash would unfold at ground zero of the increasingly virulent battle over illegal immigration.
More people trudge across this ruggedly beautiful part of Sonoran Desert, which stretches from Mexico north into Arizona, than any other section of the 2,000-mile-long border. It is here that Roger Barnett brought national attention to the immigration situation with his loud and public complaints about illegal migrants who trespass on his sprawling ranch. It is also here that Barnett, a man who boasts of having personally apprehended 12,000 border-crossers, effectively sired the entire citizen's border patrol movement -- a movement once characterized as "vigilante" by President Bush, a Texan intimately familiar with the borderlands.
A rancher since 1996, Barnett's a swaggering, silver-haired, ruddy-faced product of the desert sun whose militant reputation -- like the vigilante movement he inspired -- stretches far beyond Cochise County.
"Humans, the greatest prey on earth," Roger Barnett told a reporter from London's Independent in May of 2000, six months after he was photographed for Time magazine brandishing an M-16 -- and a full 16 months before Chris Simcox would leave his California kindergarten classroom to form the Arizona militia that would eventually become the Minutemen, now the best-known citizen group to carry weapons to the border in an effort to halt illegal immigration.
"A vigilante goes out, rounds up people, holds a trial and executes them. I haven't done that yet," Barnett told USA Today that same year. "But bloodshed could happen."
Failure to prosecute
While there's no hard evidence Barnett has drawn blood, reports of Barnett and his brother Donald holding illegal immigrants at gunpoint, chasing them on ATVs, and using their dogs to intimidate and attack, have trickled into the Cochise County Sheriff's Office for years. Four months before the Morales incident, for instance, a group of immigrants reported that Barnett held them at gunpoint, yanked a woman by her hair and stuck a pistol in her ribs. Another member of the group said the rancher threw him over the front rack of his ATV and sicced a dog on them.
Yet Cochise County Attorney Ed Rheinheimer has repeatedly declined to file criminal charges against the wealthy, gun-toting rancher, stating that Barnett is well within his rights to use the threat of deadly force to prevent or terminate a criminal trespass. "We try to avoid getting caught in the middle of political issues," Rheinheimer said. "If Roger Barnett crosses the line and we get a prosecutable case, we won't hesitate to prosecute him." Even if that's true, the local atmosphere is hardly conducive to such a prosecution.
"Cochise County is very conservative, one of the most conservative areas of Arizona," Morales attorney Jesus Romo Vejar told the Intelligence Report. "Barnett has a great number of people who are of like mind here. There are a lot of people who support his ideas and the way he acts."
Still, as the complaints against Barnett have mounted, so has the frustration of civil rights activists and others in Cochise County who see the lack of criminal prosecution as an official endorsement of Barnett's actions. And so Vejar and his clients finally decided to take it upon themselves to seek justice through civil litigation, hoping that a victory could become the first crack in the dam of official reluctance to take on the vigilantes. Last fall, they filed a case against Barnett with the advice and financial assistance of the Southern Poverty Law Center (which publishes the Intelligence Report ), accusing him of assault, false imprisonment and intentional infliction of emotional distress. They sought $200,000 in damages.
Vejar knew full well the odds were against him, even though this time, unlike others, Barnett had threatened U.S. citizens. Vejar had lost another civil case against Barnett in the same courtroom just months before, and in this trial was facing a nearly all-white jury drawn from a county that is 30% Latino.
"It's like trying a case in Mississippi in the '60s," he said with a weary smile.
Here comes the judge
When Judge Conlogue calls for opening arguments, Vejar flips through a small stack of index cards before turning to face the jury. His manner is quiet, simple and methodical. Tall and balding, with bronze skin, warm eyes and a goatee, he looks like a chemistry professor and speaks with a marked accent.
"On Oct. 30, 2004, lives changed drastically for my clients," he explains to the jury as he begins to walk them through the details of what happened when three little girls encountered Roger Barnett "screaming obscenities that no child should hear, his face twitching, wearing a sidearm."
Vejar is less flashy than determined. He closes by simply telling the jurors, "I ask you for justice."
Barnett's attorney John Kelliher, wearing a pinstriped suit and stroking his own goatee, presents his client as a local boy who grew up in Bisbee before becoming a rancher, eventually purchasing and leasing 22,000 acres of ranch land. Throughout the trial, Kelliher will attempt to keep the focus on the issues of trespassing and property rights, rather than Barnett's controversial reputation and willingness to engage in armed confrontations.
"I don't doubt that there were words spoken. There were people holding guns, people trespassing," Kelliher tells the jury. "What I do doubt is whether this man, Roger Barnett, threatened to kill anyone."
Vejar's first witness is Arturo Morales, a nervous grandfather wearing a maroon and white shirt printed with horse silhouettes.
"The only things [words] he used was profanity, threats, that I need to get off his fu -- his fucking ranch. Just looking at his face was enough to scare me."
Barnett nonchalantly chews on his glasses and lets his fingers wander over his constantly twitching face as the old man details his version of events. Arturo testifies that Barnett was "wild" and ordered him to "get the fuck out of here or I'm going to start shooting!"
Kelliher's cross-examination of Arturo is aggressive. "You say it has changed your life, was devastating, and yet you have sought no emotional or psychological help?"
Arturo concedes he has not.
Kelliher also gets Arturo to admit that he was cited for illegally hunting on Barnett's land more than a year before the confrontation in 2004.
The attorney reads from the older man's deposition slowly and haltingly, emphasizing Arturo's grammatical errors.
Kelliher picks apart inconsistencies in Arturo's statements about who was standing exactly where during the encounter, trying to impeach his credibility. Arturo is quickly confused, and Kelliher seems to delight in tripping him up on details.
Finally, Arturo Morales is dismissed from the stand and the judge declares a recess. Roger Barnett remains in the courtroom and jovially greets a supporter in the audience. A polarizing figure in this area, Barnett has as many fans in Cochise County as he does critics.
"This isn't a border issue, it's a constitution issue," Barnett, who leases government lands in addition to his own, explains to his friend as they shake hands. "I gotta watch that state property carefully because I'm a caretaker."
Barnett bends over and speaks with another friend who comments on the ethnic makeup of the jury, especially the lone Latino. "Yeah, there were three of 'em yesterday," Barnett says with a grin. "They dumped two."
The jury returns from recess and Vejar calls Ana English, an attractive Latina dressed in dark slacks and a creamy white sweater whose daughter, Emma, was with the Moraleses that day.
"[Roger Barnett] took part of her innocence away, he taught her what evil is, because that is evil, to traumatize a child for the rest of her life," Ana says angrily. "People need to know what he's doing. It's not just illegals anymore, it's little kids and they're U.S. citizens."
Kelliher spends much of his cross-examination attacking Ana's parenting skills. "If you had known Arturo and Ron Morales were going to take your daughter to Roger Barnett's ranch, would you have let her go?" Kelliher asks.
Ana's reply is firm: "I know that Ron and his father would not put my daughter in danger on purpose."
He then asks repeatedly if Ana has hired a counselor for her daughter. She answers each time that she has not, then finally erupts: "If you're trying to say I'm a bad parent because I haven't taken this child to counseling, you're wrong!"
"I'm suggesting," Kelliher says, "that a reasonable parent would have taken their child to counseling."
Kelliher's bullying strategy appears to backfire. Several members of the jury glare at him with open contempt.
Vejar calls Tucson psychiatrist Hector Barillas, who addresses the jury in a gravely voice. Barillas walks the jury through a definition of post-traumatic stress disorder (PTSD), the symptoms required for a diagnosis, and how they manifested in each of the three girls.
It's a lengthy bit of testimony, and as Barillas talks, Kelliher plainly demonstrates his impatience. He fidgets and paces, hops on one foot, scratches his head against the plaster on a wall, and continuously smoothes his mustache.
This frustration spills over into Kelliher's cross-examination of Barillas, whom he criticizes for describing Barnett as a vigilante in his report. He asks Barillas whether such a description is crucial to diagnosing PTSD.
"I don't know if it's crucial but it is consistent with somebody accosting someone with an automatic rifle," Barillas replies.
Vejar next calls Deputy Timothy Williams, a tall, hefty cop whose sunglasses have left tan lines on his face. Vejar asks Williams, who responded to Ron Morales's 911 call, to read aloud the criminal charges he officially recommended that prosecutors bring against Barnett: "Three counts of aggravated assault, a Class 2 felony, two counts of Class 3 aggravated assault, three counts of Class 6 aggravated assault, five misdemeanor disorderly conduct charges, and five misdemeanor counts of threatening and intimidation."
Not a single charge was ever filed.
Before the children take the stand, Roger Barnett and his wife leave the courtroom. Kelliher stresses that they volunteered to do so as a courtesy.
Of the three girls who testify, Emma English, now 13, is the most articulate and polished. The emotional eighth-grader tells the jury that Roger Barnett "started getting really red, his whole body started twitching, 'You better get the fuck off my land, you fucking dirty Mexicans!'"
Barnett backers in the courtroom scoff loudly at the girl's tearful statements.
Later, the testimony of both Morales girls is strikingly similar to Emma's. Vanese and Angelique both cite Barnett's red-faced rage, his twitching, and their fear that he would kill them.
"I don't want Barnett doing this to anyone else," Vanese says solemnly. "I don't want him hurting anyone else."
Renee Morales, a smiley stay-at-home mom with straight black hair, takes the stand and talks about watching Angelique play the video game Big Game Hunter and pretending she was killing Barnett instead of the deer, calling out "Die, Barnett, die!" as she pulled the trigger.
"My daughter wants somebody dead? But this is a child, and you have to put yourself in a child's mindset. If he's not here, she's safe, and until that happens she's not safe."
Renee then turns away from the jury and fixes her gaze squarely on Roger Barnett, addressing him directly. The courtroom goes silent.
"I'm not asking this to hurt you or punish you," she tells him. "We're asking you to take responsibility for what you did. What did those children do to you, Mr. Barnett?"
When the trial shifts into the defense phase, Kelliher continues to counter high-pitched emotions with cold facts. He's pitting property rights against civil rights, which he hopes will go over well in a conservative county where many view Barnett as a hero.
Kelliher begins the defense's case with a videotaped deposition from an Arizona Game and Fish regional supervisor, who testifies that it's illegal to cross private property to gain access to state land.
He brings in a surveyor who uses maps to show that for the Morales party to access the site of the confrontation, they had to cross private land owned by Roger Barnett, which Ron Morales admits he did.
Then Kelliher calls Donald Barnett, Roger's younger, more dapper brother. Donald, a former sheriff's deputy who resigned after beating a prisoner, paints the Moraleses as sneaky and threatening. He testifies that when he first spotted Ron and Vanese in the brush, "What caught my attention is that they were running in a crouched position, running to hide behind a bush."
Donald then describes a previous encounter on the ranch with Arturo: "They had killed and were cleaning some deer. I asked who they were and they said none of my business. He became very angry and lunged at me with a hunting knife."
"Objection!" Romo Vejar says angrily.
"Sustained," replies the judge, who then orders the jury to disregard the unsubstantiated comment about the knife.
Roger Barnett, also a former sheriff's deputy, follows his brother to the stand. He looks at ease. Barnett, who lives in Sierra Vista, testifies that he goes "sightseeing" at his nearby ranch every weekend with his wife, his brother, and their dogs.
Barnett says that when he confronted Arturo Morales, he told the old man to start honking his horn to draw in the others that Donald had spotted in the brush. When Ron Morales and his elder daughter returned, Barnett testifies, Morales was carrying a rifle and arguing over their location, insisting that Barnett look at a map.
"I told him, 'Just get the fuck out.' There needed to be a shock factor," Barnett says.
At that point, according to Barnett, Ron Morales turned and looked at him. "And that didn't look right. I go, 'Looks like we might get shot here.' I felt threatened."
The rule of law
Barnett tells the jury he was also concerned that Arturo Morales might sneak around the corner of the truck with a gun. Fearing for his own safety, Barnett says, he grabbed his AR-15 out of the cab of his truck and chambered a round. After that, he says, Ron Morales "didn't jawbone no more. He told his people to get in the truck."
Kelliher asks his client if he used any racial slurs during the encounter. "That's a flat-out lie," Barnett says.
Kelliher asks if he is a white supremacist.
"No," Barnett says.
"Do you have a dislike for any particular race?" Kelliher persists. "No," he answers again.
"Do you like people trespassing on your property?"
Finally, Barnett tries one last time to assert that he was afraid for his life and property. "I was seeing the way he [Ron Morales] looked, and when he turned around I thought, 'Boy, this is it. We're gonna get shot.'"
Barbara Barnett is the last defense witness. An elegant woman in her late 50s who favors tunics in bold patterns, Roger Barnett's wife says she was much too frightened by Ron Morales to even get out of the truck that day. "I was so afraid to say anything," she says. "I thought this crazy man is going to kill us right in front of these little girls and he just doesn't care!"
During closing arguments, Vejar quickly recaps his case, stressing the image of Barnett pointing a combat rifle at children, and the symbolic importance of a verdict against him.
"John Adams said a free people should be governed by law, not the whim of man," he tells the jury. "Roger Barnett is dependent on a system that consistently favors him, not because he's right, but because he's Roger Barnett."
Kelliher's closing is more relaxed. He explains to the jury that "this is about access," a point he has reiterated throughout the trial. "A landowner has a right to use reasonable force to eject trespassers." He points out Morales admitted to crossing Barnett's land, and he questions the sincerity of the children's testimony, which wavered in some respects from their original written statements. The girls had no reason to fabricate or embellish their original witness statements, Kelliher points out, "but they do now, when they've got their parents talking to them for the past two years."
"Somebody wants to make this an immigration issue," he concludes. "I sure don't."
With 15 counts to weigh, the jury begins deliberations. Ed English and Ron Morales head down to a cafÃ© to wait. Roger Barnett and his wife remain in the courtroom. Camera crews hover outside.
When the jury files back into the courtroom after just three hours of deliberation, the plaintiffs are stiff in their chairs. An ashen Ron Morales seems to stop breathing entirely as the jury foreman rises to read the verdicts, one by one.
The jury finds for the plaintiffs on 14 of 15 counts, and orders Barnett to pay the Morales and English families nearly $99,000.
Kelliher and his clients leave the courthouse swiftly, refusing to comment. He also declined to reply to a later letter from the Intelligence Report requesting an interview.
Ron Morales appears stunned, pacing back and forth to one side of the courthouse door and whispering, "Thank God, thank God, thank God." Romo Vejar expresses his satisfaction to reporters and television cameras, calling the verdict a "landmark decision," and calling on County Attorney Rheinheimer to reconsider filing criminal charges against Barnett.
A few days later Rheinheimer tells the Bisbee Herald-Review, "It's obvious that the civil jury saw something, and so we're going to take a good look at the jury's findings."
Three months later, Rheinheimer still has not filed a single criminal charge against Roger Barnett.
The heat goes on
The civil verdict was hailed by civil and immigrant rights organizations around the United States and reported in newspapers from coast to coast. Without question, it represented a gleam of hope to those in Arizona, in particular, who feel vigilantes and vigilantism have been allowed to run roughshod over the rule of law and basic humanity. But, at the end of the day, it was only a civil verdict.
Local support for Barnett galvanized in the trial's aftermath and seemed to grow even stronger with passing weeks. "I think most of the people of Cochise County support Roger Barnett in principle, as far as rightfully protecting his family and property from the invasion of illegal immigrants," read one of many pro-Barnett comments published in the Bisbee Herald-Review after the trial. "My personal thanks to the Barnetts and Mr. Kelliher for standing up for us all."
At the same time, prosecutors like Andrew Thomas in Maricopa County, where Phoenix is located, continue to decline similar prosecutions -- and are even now charging illegal immigrants with conspiracy, a novel legal construction, for conspiring to smuggle themselves. The first months of 2007 were marked by several murders of border crossers, and although authorities continue to attribute such deaths to human- and drug-smuggling disputes, suspicions are mounting that some immigrant-bashers may actually be murdering people.
Meanwhile, the Roger Barnett story goes on.
Last Dec. 30, five weeks after the verdict, Barnett got into a heated confrontation with paramedics attempting to administer medical aid to an injured Mexican who Border Patrol agents had just arrested on Barnett's land.
The man, who was carrying a backpack full of marijuana, told sheriff's deputies that Barnett had set three dogs on him and that he ran, fell, and injured his knee. He also said he was diabetic and hadn't eaten in three days.
The EMTs had just put him in the back of the ambulance when Barnett flagged them down and demanded they let him inside to look at the man's shoes to see if he was the same person Barnett had been tracking earlier in the day. When the paramedics refused, Barnett, who was armed with a pistol, became abusive, according a criminal complaint EMT Robert Vega filed with the Cochise County Sheriff's Department.
According to the deputy assigned to the case, Barnett stated the EMTs were "fuckin' lying" and claimed that the encounter, as they described it, "never happened." He also refused to give his own account of what happened.
Two months later, Cochise County Attorney Ed Rheinheimer, citing a lack of evidence, officially declined to press charges.