ASU Law clinic wins argument to unseal documents in high-profile trial


August 26, 2019

The trial of Scott Warren took center stage this summer in the nation’s passionate debate over immigration. Warren, a humanitarian aid worker with the group “No More Deaths,” was facing felony charges — and up to 20 years in prison — for aiding immigrants in the southern Arizona community of Ajo. That assistance included providing water and other basic assistance and, according to the federal authorities, helping them avoid detection. To government prosecutors, he was a felon aiding and abetting in illegal immigration. To his defenders, he was simply a compassionate Samaritan following a moral calling to help those in desperate need.

But despite the national spotlight and intense media scrutiny, little was known about the investigation that had led to Warren being charged in the first place. A journalist with The Intercept had hit a roadblock trying to gain access to sealed court documents, and on June 11, jurors were unable to agree on a verdict and the case ended in a mistrial. For the First Amendment Clinic at the Sandra Day O’Connor College of Law at Arizona State University, it was the perfect case. photo of First Amendment Clinic staff and students First Amendment Clinic staff and students outside of the Evo A. DeConcini U.S. Courthouse in Tucson, Arizona: (from left) Wayne Unger, Stephanie Deskins, Ryan Bailey, Executive Director Gregg Leslie and Orin Bellizio. Download Full Image

Answering the call

The clinic was launched in fall 2018 with the mission of helping to protect and advance freedom of the press and train future lawyers on First Amendment issues. When Executive Director Gregg Leslie received the call for help from a longtime associate at The Intercept, there was no hesitation.

“It was the perfect opportunity for us, so we jumped at the chance,” said Leslie, himself a former journalist.

The case was not only unfolding in Arizona, in federal court in Tucson, but Warren had been a faculty associate in ASU’s School of Geographical Sciences and Urban Planning. Faculty associates are hired on a course-by-course basis.

The work began, with neither the clinic nor The Intercept knowing exactly what they might uncover.

“When we talked about these documents, all we knew is that something was attached to a motion to dismiss, and that it involved conversations, probably, among Border Patrol agents,” Leslie said, adding that when somebody is prosecuted for a crime in federal court, there should be little to no secrecy surrounding the details of the investigation.

“There were allegations that the Border Patrol was trying to go after somebody because he was providing water and other assistance to people who might otherwise die as they were crossing a desert,” Leslie said, underscoring the passion that surrounded the case. “And, of course, the point other people would make is that that crossing into the U.S. without documentation is itself illegal, and that's why the government is going after them. But Scott Warren had this fundamental belief that he could not stand by and watch people die in the desert. So if he was being targeted for that belief, and he was being prosecuted, it was important to know exactly what the Border Patrol did and didn't do leading up to the arrest.”

The trial was approaching when the summer semester began. Ryan Bailey, one of the clinic’s summer students, would soon be playing a key role.

photo of Gregg Leslie and Ryan Bailey

Professor Gregg Leslie (left) and Ryan Bailey (right) during a meeting of the First Amendment Clinic this past summer. 

Students can be provisionally licensed to argue in state court if they’ve taken two semesters of law school. But an extra semester is required for federal cases. Ryan was the only student who fit that criteria.

Other students worked with Bailey on the briefing and all the research that went into it, but if they were granted oral argument on the motion to unseal the documents, he would have to be the one to argue before U.S. District Judge Raner Collins.

Bailey welcomed the challenge.

“I hadn’t taken a First Amendment class, so I was learning and having to apply what I was learning at the same time,” he said. “Thank goodness for Professor Leslie, though. He’s amazing and can always answer any question.”

The argument to unseal

In federal criminal cases, the Brady Rule and the Jencks Act govern most discovery issues. Under the Brady Rule, prosecutors are required to turn over potentially exonerating evidence to the defense at trial. And the Jencks Act covers incriminating evidence, requiring that prosecutors turn over verbatim statements or reports made by witnesses — but that is only required to be turned over after the witnesses have testified.

To speed things up, evidence is often shared in advance, as was the case in the Warren trial. And at the prosecution’s insistence, the two sides entered into a nondisclosure agreement to keep that evidence sealed; otherwise, the prosecution was going to be less forthcoming with disclosures.

But as Leslie points out, the First Amendment guarantees the public the right to access the information, and the government must provide a compelling reason to seal such documents. A nondisclosure agreement doesn’t supersede the public’s First Amendment rights. But it’s not uncommon for attorneys, and sometimes judges, to be mistaken on the issue.

“That comes up in a lot of cases in a slightly less formal context where a party will turn over this material to the other party and expect it to be kept confidential, and they incorrectly assume the right to confidentiality” Leslie said, noting that magistrate judges, not Collins, had been involved in the initial decision to seal the documents. “So in that sense, it wasn't that surprising that the prosecution in this case made that argument. But it’s problematic.”

Leslie says every case is different, so there’s no textbook approach for the clinic’s students to follow.

“You have to do research, begin to formulate your arguments, then do more research and build a strategy as you go,” he said. “There is no real lesson plan to follow in a clinical case like this.”

Oral arguments were made before Collins on July 9. Bailey had been in a federal courtroom before, as an extern for U.S. Magistrate Judge Deborah Fine, but never in a situation like this.

“ASU Law is one of the best programs in the country. The professors are very knowledgeable, and you’re surrounded by smart students who challenge you. So you just learn more in that environment. And as far as the First Amendment Clinic, I was able to get a comprehensive experience, with all the research, writing and talking to clients. I never imagined that I’d be arguing something in federal court.”
— Ryan Bailey, third-year ASU Law student

“Normally when you're in federal court, there's a couple of people on defense, a couple people on the plaintiff side, some of the court people, and that's it,” he said. “But for this, it was a pretty full courtroom. I knew my argument backward and forward and I knew the cases, but still, it was a little bit nerve-wracking.”

The prosecution’s argument was simple: The two sides had entered into a nondisclosure agreement, so the documents should remain sealed. Bailey countered that without a compelling reason to keep those documents sealed, the two sides did not have the right to strike an agreement to keep that information from the public.

Bailey thought he was on solid legal ground and that the prosecution had not made much of a counter-argument.

“I was pretty confident,” he said. “You never know how things will go, but I was confident that we were on the right side of the argument.”

Collins made his ruling three days later, on July 12, agreeing with Bailey that the government’s request to maintain the nondisclosure agreement could not be reconciled with the public’s right to know.

It was a big win for the media, as the Arizona Republic, the New York Times, the Washington Post, CNN and the Associated Press had also signed on as clients of the clinic in the pursuit of the sealed documents. And it was a big win for the First Amendment Clinic and Bailey, the third-year law student practicing with a provisional license.

“It was pretty amazing,” Bailey said. “I was smiling ear to ear. I called my parents. I don’t think these opportunities happen very often for law students, especially in federal court.”

The documents were made public on July 19, outlining the more than eight-month investigation that led to Warren’s arrest. The Intercept and other media outlets published detailed accounts of the investigation, allowing the public to see how and why Warren was arrested, and how the federal government allocated its resources.

And that, Leslie says, demonstrates how critical public access is to a free and democratic society.

“We're talking about an incredible power of the law enforcement apparatus, with the courts able to deprive people of their liberty,” he said. “And they're doing it in the name of the people. So if that's happening, it's essential that anything that the government relies on in depriving someone of their liberty be public so that we know exactly how the government is acting in our name.”

And if there is no oversight or accountability, he said, corruption will follow.

“We just know that,” he said. “We know that from how human institutions work. Special interests will be favored or certain interests will be favored over others, and we won’t get to know about it. So you really need constant public oversight, to keep the government accountable. And that's essentially what these cases are about.”

Thankful to be at ASU Law

For Bailey, it was the latest twist in an academic journey that initially took him to Arizona Summit, a downtown Phoenix law school that lost its accreditation with the American Bar Association in July 2018 and closed shortly thereafter. Upon transferring to ASU Law, he was astounded by the contrast.

“It’s beyond comparison,” he said. “Just so many more opportunities. Especially opportunities like this, the First Amendment clinic and the externships. You learn about the law in the classroom, but you need to learn how to apply it as well. And without those kinds of opportunities, you’re really not prepared to be an attorney.”

Leslie said that in addition to giving students like Bailey the knowledge and experience to be successful, the clinic has an expansive mission to protect all elements of the First Amendment.

“We want to be involved in anything affecting the First Amendment, whether it's this kind of public accountability, through open-records requests, defending libel cases or defending protesters,” he said. “It’s a broad mandate, but it essentially all comes down to the fact that we want people to feel free to exercise their First Amendment rights.”

Bailey said he can’t recommend ASU Law, or the First Amendment Clinic, highly enough.

“ASU Law is one of the best programs in the country,” he said. “The professors are very knowledgeable, and you’re surrounded by smart students who challenge you. So you just learn more in that environment. And as far as the First Amendment Clinic, I was able to get a comprehensive experience, with all the research, writing and talking to clients. I never imagined that I’d be arguing something in federal court.”

Nicole Almond Anderson

Director of Communications, Sandra Day O'Connor College of Law

480-727-6990

An innovative new diagnostic for Lyme disease


August 26, 2019

When researchers examined the mitochondrial DNA of Ötzi, a man entombed in ice some 5,300 years ago, high in the Tyrolean Alps, they made a startling discovery. Secreted within the tangles of the ice man’s genetic code was evidence he’d been infected with a bacterial pathogen, Borrelia burgdorferi. Ötzi is the first known case of Lyme disease.

Today, Lyme disease is a mounting health concern, with estimates of over 300,000 cases in the U.S. annually. The illness, which produces a constellation of symptoms, has been notoriously tricky to diagnose. Adult deer tick, Ixodes scapularis. Ticks infected with the bacterial pathogen B. burgdorferi can transmit the pathogen to humans, resulting in Lyme disease. The illness, which may not be immediately detected, causes fever, headache, muscular issues and fatigue. If untreated, rheumatologic, cardiac and neurological complications can result. Currently, there is no vaccine against the illness. Photo by Scott Bauer (image was released by the Agricultural Research Service, the research agency of the United States Department of Agriculture, with the ID k8002-3) Download Full Image

In new research, Joshua LaBaer, executive director of the Biodesign Institute at Arizona State University, and his colleagues describe an early detection method for pinpointing molecular signatures of the disease with high accuracy.

Effective treatments for infectious disease usually require early identification of the suspected pathogen or a diagnostic signal of its presence in fluids or tissues, known as a biomarker. This goal, however, has proven elusive in the case of Lyme disease. Existing methods for diagnosis are imprecise and often require days or weeks for test results. Currently, there is no vaccine against the disease.

The new technique, which uses a multiplatform approach to isolate candidate biomarkers for B. burgdorferi, may be applicable to a broad range of infectious diseases. The study uncovers six potential biomarkers that may be used in combination to make an accurate and early identification of Lyme disease.

While the research was conducted in an animal model of the disease and will require final validation in humans, the study results suggest the method may offer a powerful new approach to identifying this enigmatic illness, as well as other diagnostically challenging infectious diseases.

“This study represents a growing new paradigm for medical diagnostics,” LaBaer said. “Increasingly, we have realized that the old approach of measuring a single analyte as an indicator for all infected individuals does not work for many pathogens. Ironically, the old approach was partly established with another spirochete, Treponema pallidum (syphilis), where a single antibody was sufficient to identify most cases. But we now see that many pathogens are not so simple because different patients sometimes respond differently and require a multiplatform approach like this to find multiple markers. A single test would miss too many patients.”

In addition to directing the Biodesign Institute, LaBaer is the director of the Biodesign Virginia G. Piper Center for Personalized Diagnostics and ASU's School of Molecular Sciences. He is joined by Biodesign colleagues D. Mitchell Magee and Lusheng Song.

David P. AuCoin of the Department of Microbiology and Immunology, Reno School of Medicine devised and oversaw the study and is the paper’s corresponding author.

The research recently appeared in the journal Frontiers in Cellular and Infection Microbiology.

Lurking in the underbrush

For a variety of reasons, Lyme disease, a potentially serious illness transmitted by blacklegged ticks, has been on an alarming ascent. Warmer winters have allowed ticks to become active earlier in the season and to colonize new regions, while changing patterns of land use have facilitated the reproduction and spread of these insects.

In the northeastern, mid-Atlantic and north-central United States, Lyme disease is spread by the blacklegged tick or deer tick, Ixodes scapularis, whereas the Western blacklegged tick, Ixodes pacificus, spreads the disease on the Pacific Coast.

Depending on their species and stage of development, blacklegged ticks can feed on birds, reptiles or amphibians but acquire the bacterial pathogen responsible for Lyme from mammals, when ticks feed on the blood of infected hosts. 

Late spring and summer present the highest risk for transmission of Lyme disease. During these months, young ticks in their nymphal stage are active and in search of blood, which is essential to their growth and survival.

Ticks in the nymphal stage are tiny — about the size of a poppyseed — and are often difficult to detect. Unlike many other insects, ticks are not capable of flying or jumping. Instead, they rest patiently on the tips of grasses and shrubs in a position known as “questing”, attaching their lower legs to leaves or grass while keeping their upper legs outstretched in search of a suitable host. When the host passes, the waiting tick climbs aboard and begins feeding on the host’s blood. 

The saliva of ticks is a complex cocktail of ingredients, including analgesics that help prevent detection of the bite as well as chemicals inducing vasoconstriction, anticoagulants, anti-inflammatory histamines and immune-modulating agents. 

Tracking infection

In humans, a bull's-eye-shaped rash known as erythema migrans often follows infection with the bacterium and appears at the site of the tick bite. In some cases, however, no rash occurs. Following infection, a variety of symptoms may ensue, including fever, headache, muscular issues and fatigue.

Generally, Lyme disease can be successfully treated with a course of antibiotics lasting several weeks, provided the disease is detected early enough. This is where the challenge arises. Often, a diagnosis of Lyme only occurs well after symptoms appear, and the peculiar variety of Lyme indicators results in frequent misdiagnosis. If left untreated, the effects of Lyme disease can become long-lasting and severe and may include rheumatologic, cardiac and neurological complications.

Unlike many other pathogens, the bacterial spirochete responsible for Lyme disease cannot easily be grown in the lab, making proper diagnosis dependent on clinical assessment, rather than on laboratory culturing of bacteria.

Presently, there is no consistently reliable signature of infection or biomarker for Lyme disease. Instead, existing assays test for the immune system’s production of antibodies to the bacteria, a time-consuming and inexact method requiring specialized laboratory analysis and several weeks for proper identification.

Detection of Lyme disease based on patient immune response has several drawbacks:

  • The time required to produce an antibody response following infection can delay treatment by several weeks.
  • Not all infected patients register as positive in such tests, requiring further testing for confirmation.
  • Finally, such tests may not distinguish between new infections and those previously treated.

Such delays and inaccuracies are a serious drawback for Lyme detection as they can allow for dissemination of the disease throughout the body, resulting in potentially dangerous consequences. Further, existing analyses that can easily miss cases of Lyme disease when antibody production is below detectable limits or produce false positives in uninfected cases.  

The new study attempts to establish reliable biomarkers for Lyme disease with a multiplatform approach. Methods of both direct and indirect detection were used, including mass spectrometry analysis and protein microarrays, which can capture the binding of specific disease antigens present in blood.

The use of multiple platforms enabled the discovery of six candidate biomarkers for Lyme disease in overlapping samples and tests. Direct detection of proteins is made using mass spectroscopy (MS). The indirect diagnostic method ferrets out microbial antigens to B. burgdorferi in blood or, potentially, in urine, using a step known as immunoprecipitation. This technique of biomarker enrichment allows researchers to pinpoint proteins circulating during infection below the levels detectable by MS — a crucial advantage particularly during the disease’s earliest phases.

Further validation will be needed before the new technique can find its way into clinical use, but a successful biomarker test for Lyme disease would be an impressive feat and may open a new path for diagnosing a broad range of infectious diseases that are resistant to detection by conventional means. Indeed, the multiplatform technique outlined in the new study is currently being used to explore antigenic biomarkers for a pair of diagnostically challenging infectious pathogens, Francisella tularensis and Burkholderia pseudomallei.

This work was funded by a small business grant (STTR) from NIAID at the National Institutes of Health (1 R41 AI114049-01, DA). The project described was supported by a grant from the National Institute of General Medical Sciences (GM103440).

Richard Harth

Science writer, Biodesign Institute at ASU

480-727-0378