Horizon, Host: Ted Simons

July 26, 2006


Host: Michael Grant

Arizona's new human smuggling law


  • Another decision by a Maricopa County Superior Court Judge in Arizona's new human smuggling law. This time four defendants are set free until their trial date. Tonight we talk with an attorney who defended one of the men acquitted in an earlier case and a legislator who says the human smuggling law is being misused.
Guests:
  • Andrew Thomas - Maricopa County Attorney
  • Joe Arpaio - , Sheriff, Maricopa County


View Transcript
Michael Grant:
Tonight on "Horizon," another decision by a Maricopa County Superior Court Judge in Arizona's new human smuggling law. This time four defendants are set free until their trial date. Tonight we talk with an attorney who defended one of the men acquitted in an earlier case and a legislator who says the human smuggling law is being misused. Then, scientists say can we learn more about our planet from an animal's point of view. A researcher at ASU tells us why butterflies can shed light as to how we see the world. That's all next on "Horizon." Good evening, welcome to "Horizon." I'm Michael Grant. Former state lawmaker Barry Wong has been named by Governor Janet Napolitano to replace Marc Spitzer on the Arizona Corporation Commission. Spitzer, a Republican, resigned after he was appointed to the Federal Energy Regulatory Commission. Wong, who is also a Republican, will serve the remainder of Spitzer's term, which expires in January. A permanent replacement for Spitzer will be elected in the November election. Last week, Judge Thomas O'Toole of the Maricopa County Superior Court ordered four remaining defendants in the human smuggling conspiracy cases to be set free on their own recognizance. Judge O'Toole made that ruling after he tossed out a couple conspiracy cases because of lack of evidence two weeks ago. There are still several cases of illegal immigrants charged under the human smuggling conspiracy law, but the question some are still asking is "can smuggled immigrants be charged for illegally being in the U.S. under the new law?" Tonight we have two experts who will join us to talk about the issue. But first, Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio joined us last week, and this is what they had to say about their efforts.

Joe Arpaio:
This 249 we've arrested under this new law, and I think the county attorney having the guts to interpret the law legally and that gave me the opportunity to enforce the law and the only law enforcement agency doing that in this state, but if it wasn't for his interpretation we could not be arresting these people. That's one thing. But we have been doing the course of this, since March 2, doing these arrests we have about 25 smugglers-coyotes-that is a good amount of coyotes to arrest.

Michael Grant:
You have court time too. Obviously, you burn resources on these two guys that were not convicted. Putting the law to one side, I mean, is it the best expenditure, prosecutorial resource, to focus on the illegal immigrants instead of trying to focus on the smuggler.

Andrew Thomas:
First, let me first return the compliment the sheriff has to follow the legal opinion we issued, and now the core of it has been upheld by the superior court Judge, Judge O'Toole, so we move forward. As far as the judicial resources issue goes, the reality is the sheriff and I don't write the laws, the criminal laws, of the state of Arizona, we enforce them. The sheriff arrests and jails and we prosecute. So if there is an argument we shouldn't be doing these prosecutions the remedy is to go to the legislature and governor and get the law changed.

Michael Grant:
Okay, let's go back to the case because I am having a hard time understanding this ruling.

Joe Arpaio:
I can answer the other question about resources.

Michael Grant:
About resources?

Joe Arpaio:
You said we are wasting our time.

Michael Grant:
Well, you gave me a long answer.

Joe Arpaio:
Well, the Phoenix police bring in 200,000 misdemeanors, this happens to be a felony. Felonies are serious charges, so nobody should criticize me for prosecuting felonies, this is not a little old misdemeanor.

Andrew Thomas:
And it is defined by that by the legislature and the governor.

Michael Grant:
Some members of the legislature have said in the past that the human smuggling law, which was enacted in August 2005, was developed only to prosecute smugglers or coyotes. Many of them have charged that Arpaio and Thomas are not interpreting the law correctly. Incidentally, a request was submitted to the Arizona court of appeals to determine whether Thomas' policy is unconstitutional. That request was declined, making it possible for Thomas to continue filing conspiracy charges against any undocumented immigrant caught in Maricopa County. Joining us tonight to talk about the human smuggling law and its details is Representative Kyrsten Sinema. And also here is Corwin Townsend. Corwin was one of the attorneys who defended one of the two immigrants recently acquitted. Welcome to you both.

Rep. Kyrsten Sinema:
Good to be here.

Michael Grant:
Let's start with the law and I just happen to have a copy of it handy, if I can read it. It is says for the purpose of this section, smuggling of human being means the transportation or procurement of transportation by a person or an entity that knows or has reason to know that the person basically is here illegally. Kyrsten, why doesn't that allow a person who is being smuggled and who has conspired with someone to do so, paid compensation to do so, to be charged under this statute?

Rep. Kyrsten Sinema:
It is clearly not the intent of what the legislature drafted and passed this legislature for. I was actually a co-sponsor of the original version of this legislation and ended up voting against the bill because of its unyielding wording. The intent, however, throughout the entire process in the senate and the house was very clear, the sponsor of this legislation is Senator Marilyn Jarrett, who has since passed on, but when Senator Jarrett introduced this legislation, it was intended to impact those individuals whose exploit young women specifically for the purposes of sex trafficking. It was also expanded later in the process to include those who traffic for forced labor and, eventually, we agreed unanimously with very, very few dissenters that this legislation was intended to go after individuals who exploit and abuse individuals who are being moved into this country for whatever purpose.

Michael Grant:
But going to the words of the statute, if I am an illegal alien, paying someone to procure my transportation of myself, and I know me to be an illegal alien, under the words of the statute, haven't I committed a violation of this, which it provides as a class 4 felony?


Rep. Kyrsten Sinema:
No, what Mr. Thomas is doing is not prosecuting individuals under the actual statute but for conspiracy which is a different and lesser crime. He can't actually prosecute those individuals under that statute because they do not fit the classification.

Michael Grant:
But Corwin, Judge O'Toole -- let's back up to you and talk about the case dismissed against your client, but Judge O'Toole said on the face of the words of the statute you can pursue this case. I have doubts whether or not perhaps you can prove it, but the legislature might have intended something differently but reading the words it counts as this activity.

Corwin Townsend:
Sure, that is what the Judge ruled. I think he clearly indicated on its face the law was constitutional in that it could, you know, they could go forward with the case. I think what Judge O'Toole ruled was talking about proof, there has to be proof of conspiracy and in my case he ruled that there was no evidence of a conspiracy, even though, technically speaking, the law allows them to go forward with the case.

Michael Grant:
o Kyrsten, wouldn't it be more, as you know, both of you are attorneys, it's a slippery slope, for example, for a legislature to come into court and say, "Listen, I know that statute says yellow but you really fully intended for it to say red, so Judge you ought to enforce it as it said red instead of saying yellow." We normally don't do it that way, why don't we run it past the legislature next session and get the wording changed if there is a consensus it should be?

Rep. Kyrsten Sinema:
That is the best option. The court system throughout the country analyzes bills and laws on their face and if it's unclear from its face then the next step is to go to the legislative intent. Here, Judge O'Toole decided not to go to the legislative intent because he felt he could interpret it from the face of the actual and that means that the burden is back on the legislature statute at this point to clarify what the intent was. If you look at the legislative history, which can inform not only the actions of the legislature but also the actions, I think, of attorneys litigating these cases, it's very clear. When Marilyn Jarod introduced the bill, it was first heard in the senate judiciary committee was a woman from a national public policy think tank who is an expert on sex trafficking for young women and girls and so it's very, very clear that this was the intent of this legislation. And, throughout the process there were four speeches in various committees where we all emphasized that this was intended to go after those who abuse and exploit individuals. In fact, some amendments in the legislation clarify that it had to be around the idea of pecuniary gain, someone had to be making money off it so there was no prosecution of a man, for instance, who got his nephew and niece and brought them across the border.

Michael Grant:
I want to get to the case in just a second but one more question, Corwin. Does it not send a message to those who would be trafficked, as well as those who traffic, that listen, if you conspire to procure your own transportation, you may be in big trouble, don't do it, chilling the activity and that is, in part, what we want to do.

Corwin Townsend:
Well, I think the problem though is this statute really was going after people who smuggle individuals into the United States. But

Michael Grant:
Agreed. But, can't you send two messages, both to the smuggler and the smugglee?

Corwin Townsend:
The other message they are sending is we are upset with the federal immigration laws, therefore, we are going to use the statute in an obscure way to go after the issue we really care about, which is federal immigration. They are upset with the federal immigration law but they are using the statute as a way of getting around that issue and that is where the problem is. That is where the rub is for me, as an attorney, because on its face this law is a criminal law, not about federal immigration. And that's the issue, I think.

Michael Grant: Let me go to the case because a lot of people are struggling, trying to understand what Judge O'Toole did and, basically, he granted a directed verdict in favor of your client, who was one of the two people being transported.

Corwin Townsend: Yes.

Michael Grant: Now, why did Judge O'Toole do that?

Corwin Townsend: Well, Judge O'Toole ruled that essentially that there was no evidence of a crime. That my client -- of a conspiracy. Because, again, he was not charged with the actual crime of, quote, unquote, human smuggling. He was charged with conspiracy to commit human smuggling and the Judge rules essentially there was no corpus, meaning there was no body of a crime, and for that reason he granted a directed verdict in this case which means

Michael Grant:
All right. You've got two people. Actually you had more than that.

Corwin Townsend:
Yes.

Michael Grant:
But I guess you have two people, sitting in a truck. I guess it was a pretty big truck.

Corwin Townsend:
It was a van.

Michael Grant:
A big truck, yeah. As I understand it. They introduce some expert evidence, I think they had a customs border patrol agent there or something, gave some evidence

Corwin Townsend:
I wouldn't call him an expert.

Michael Grant:
Well, someone familiar with it. Why don't you fill in what case did they construct circumstantially to try to get

Corwin Townsend: Well, basically, they had a border patrol agent come on and basically say in his experience that people who are being smuggled usually are on this portion of the desert and things of that nature, and I think they found some water bottles and things of that nature in the general area, but there was no way to tie that to this particular case in any event, but he nonetheless he gave some pretty general information, didn't tie anything to our particular case but gave general information on what you find when people are being trekked through the desert to come into the United States illegally.

Michael Grant:
Now, your client and the other defendant I think had made some statements that the state perhaps could have used against them.

Corwin Townsend:
Perhaps.

Michael Grant:
But there was no, there was no, well, corpus, no indication that the actual crime, conspiracy to procure the transportation, had occurred.

Corwin Townsend:
That's correct.

Michael Grant:
So, obviously, the judge didn't find this evidence sufficient, right, they are in an area where this frequently happens and that kind of thing.

Corwin Townsend:
Well, I think also too, the judge was getting to a more foundational issue which is what evidence is there of a conspiracy of human smuggling. Granted perhaps there was some evidence they were here illegally, perhaps, even that is a question, but nonetheless he was really going to the issue we were at trial on, which was whether or not they were guilty of the crime as charged, not whether or not they are here illegally because that is a separate issue. That is a federal immigration issue and not for the court to decide this particular case.

Michael Grant:
Short of coming up with a two page agreement signed by your client, signed by the other guy, stating here is $500, would you please move me from Mexico to Phoenix, incidentally I'm an illegal, training a parabolic microphone on a conversation occurring between three people which essentially the same thing is being discussed, how could that case be I'm sorry to ask a defense attorney.

Corwin Townsend:
Give out, yeah.

Michael Grant:
One thing that I think people understand what you are struggling with a little bit is how you put the case together.

Corwin Townsend:
Well, I think one of the problems you are having, and a lot of people are having, I think this law was not created for this very purpose, so that is one of the reasons why there is such a difficulty in trying to craft a scenario. But having said that, I think the other issue is that perhaps if you had more people involved and produced evidence at trial of an agreement, if you will, there was no evidence, the only people that testified in this particular case was border patrol agents and I think one agent from the Maricopa county's sheriff's office. There were no people to talk about an alleged agreement and things of that nature, so clearly this case had problems with just the fundamental issues such as proof and that is one of the things you need in a criminal case is proof.

Michael Grant:
Kyrsten, almost out of time, we know now these smuggling activities can be very dangerous for the people being smuggled.

Rep. Kyrsten Sinema: Absolutely.

Michael Grant:
I will state the same question I put to Corwin but somewhat differently, wouldn't we be doing them a favor to say you are engaged in a dangerous activity as a smugglee, don't do it. And here's another reason why you shouldn't do it.

Kyrsten Sinema:
Yes, and unfortunately this misapplication of the statute does not achieve that desired goal. And we know, many people in the Arizona Republic just this Sunday with stories of people who think they are buying a plane ticket, basically that is the equivalent of when I buy a plane ticket and fly somewhere, but what is happening instead is they are being trapped and abused and exploited and sometimes held for ransom and sometimes raped, very, very dangerous. This statute doesn't fix that.

Michael Grant:
Alright. Representative Kyrsten Sinema, thank you very much. Corwin Townsend, I appreciate your information.

Corwin Townsend:
Thank you.

Michael Grant:
How certain animals view their world may hold clues to a better view of our world. One ASU scientist is studying how the world looks from a butterfly's point of view.

Announcer:
The poet Robert Frost called them flowers that fly and sing. For many, the butterfly is a symbol of beauty and freedom. Air patterns of color are fascinating to the human eye, but what does a butterfly look like to another butterfly, and when they choose a mate, what exactly do they see in each other? Ron Rutowski is a professor of biology at Arizona State University, specializing in animal vision and behavior. Working with colleagues in other universities and graduate and undergraduate institutes at ASU, he has spent 25 years studying how butterflies see the world.

Ron Rutowski:
This image is a schematic depiction of the structure of the eye of a butterfly. Rather than having, like our eye, a single lens that takes the external world and focuses an image of it on the retina, what butterflies have is a spherical array of individual light detectors each one of which each one gathers light from a slightly different region in space. An eye structured in this way is referred to as a compound eye and it is referred to not only in butterflies but in almost all insects and also in many species of lobsters, crabs, crayfish and other animals that we call arthropods.

Announcer:
Research has revealed other differences between human eyes and those of insects.

Ron Rutowski:
As this image shows, for a human using both eyes, the dimensions of the visional fields are about 190 in the Horizontal plane. For these butterflies, it is very, very different. Their visual field is huge, almost all the space is seen using one eye or the other.

Announcer:
The acuity or sharpness of a butterfly's vision is much different than the human benchmark of 20/20.

Ron Rutowski:
A butterfly, according to our calculations on this scale, would come out to 21,000, which is well beyond what we describe as legally blind in human terms and means they are very, very, very near-sighted.

Announcer:
Despite their near-sightedness, studies reveal some aspects of butterfly vision are beyond the human capabilities. In particular, butterflies can see well into the spectrum of ultraviolet radiation, revealing things unseen to humans.

Ron Rutowski: Here we see orange sulfur, a butterfly that is common in the alfalfa fields in Phoenix. Males and females are similar, there are some differences, but these are strikingly different when we look at ultraviolet wave lengths that are being reflected off their wings, and in particular males have special scales on the wing surface that selectively reflect ultraviolet light which females lack, and butterflies because of their abilities to see ultraviolet wave lengths, then would see males and females much more different from each other than we would see.

Announcer:
Given the butterfly's near-sightedness and field of vision, he has predicted how the butterflies see and respond to each other.

Ron Rutowski:
It turns out the prediction from our studies of the structure of the eye is that males would not be able to detect females at distances any greater than about 4 to 5 meters. So what we then wanted to do is go out in the field and see if this prediction was true.

Announcer:
For this study, Rutowski's field work occurs in the Valley 30 miles northeast of ASU near Sycamore Creek. The test subject is officially known as the Empress Laylia, which Rutowski calls the hackberry butterfly because much of its life cycle occurs in or near the desert hackberry bush.

Ron Rutowski:
We know the females visit the desert hackberry to lay eggs and it could be that males are perched next to these plants to see females as they come in to lay eggs. And we know after the eggs are laid, the larvae grow and go into the desert hackberry and they go into the crystalis stage and the unmated females will be emerging directly from these plants. What we are seeing here is male butterflies who are engaged in the process of trying to find females with which to mate and what they are doing is occupying and defending perching sights where they are particularly likely to see virgin females. I'm often reminded of the song, "Standing on the Corner Watching All the Girls Go By." What is going to happen is we have this model butterfly on this device that will cause it to fly on a straight path by this male butterfly. It looks like the path is going to be about a meter away from the male, and we will see if the male flies up and responds to the model it as goes by. The model is intended to mimic a female or male that enters the male's territory. So what I'll do is I will pull the trigger on this thing and send the model flying, and we will see what happens. Ready? Set? Go! Fantastic. Ready, set, go. So we can move the flight path of the model or place the flight path of the model at varying distances from the male, and what we can do is keep moving it further and further away until the male does not respond. And that's what we've done, and the result is as long as the model flight path is less than three meters from the male, ten feet, he will respond to it. Beyond that he does not respond to it and our feeling is that what's happening is that he can't even see it. They seem often in the public's eye to live this happy-go-lucky lifestyle, feeding on flowers, flitting about with no real apparent purpose or obvious goal to it, but the interesting thing I think is that as you look at butterflies like in much more detail, their behavior, you find out they are anything but, well, they are very goal directed, but I think it is important to keep in mind that the individual males only live for about ten days. And so this is their shot. And for this particular species, this is the strategy that the males use that has evolved over some 35 million years or so of butterfly evolution. The central issue for us as humans is trying to understand ourselves and our place in the universe. When I'm out in the field looking at butterflies, sometimes I just sort of remind myself of what I'm looking at by saying, "oh, see that little bug there that I'm looking at, that is the product of 50 to 100 million years of evolutionary history here on this earth" and that causes me to think or realize there must be some significant or important lessons to be learned from studying some animal that is a product of that long a time. And, so in that sense, I do think that, you know, these studies of butterflies, as esoteric as they are, have some lessons to teach us about ourselves.


Michael Grant:
If you would like a transcript of tonight's show or would like to learn more about future topics, log onto the website at azpbs.org and click "Horizon." Now, a look at tomorrow's show.

Announcer:
Victims of the largest fraud ever perpetrated on a religious group have some justice. Two former leaders of a southern justice foundation have been convicted. Also, real estate values have stagnated. An examination of the real estate market, Thursday night at 7:00 p.m. on Channel Eight's "Horizon."

Michael Grant:
Thanks for joining us, I'm Michael Grant. Have a great one. Good night.

Butterfly Research


  • scientists say to better understand our own environment we should look into animals' perspectives. The Butterfly is one species biologists believe can help them understand how the environment is 'viewed'. Scientists at Arizona State University have studied butterflies for decades, and believe these types are species have more to offer humans than just carefree beauty.
Guests:
  • Andrew Thomas - Maricopa County Attorney
  • Joe Arpaio - , Sheriff, Maricopa County


View Transcript
Michael Grant:
Tonight on "Horizon," another decision by a Maricopa County Superior Court Judge in Arizona's new human smuggling law. This time four defendants are set free until their trial date. Tonight we talk with an attorney who defended one of the men acquitted in an earlier case and a legislator who says the human smuggling law is being misused. Then, scientists say can we learn more about our planet from an animal's point of view. A researcher at ASU tells us why butterflies can shed light as to how we see the world. That's all next on "Horizon." Good evening, welcome to "Horizon." I'm Michael Grant. Former state lawmaker Barry Wong has been named by Governor Janet Napolitano to replace Marc Spitzer on the Arizona Corporation Commission. Spitzer, a Republican, resigned after he was appointed to the Federal Energy Regulatory Commission. Wong, who is also a Republican, will serve the remainder of Spitzer's term, which expires in January. A permanent replacement for Spitzer will be elected in the November election. Last week, Judge Thomas O'Toole of the Maricopa County Superior Court ordered four remaining defendants in the human smuggling conspiracy cases to be set free on their own recognizance. Judge O'Toole made that ruling after he tossed out a couple conspiracy cases because of lack of evidence two weeks ago. There are still several cases of illegal immigrants charged under the human smuggling conspiracy law, but the question some are still asking is "can smuggled immigrants be charged for illegally being in the U.S. under the new law?" Tonight we have two experts who will join us to talk about the issue. But first, Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio joined us last week, and this is what they had to say about their efforts.

Joe Arpaio:
This 249 we've arrested under this new law, and I think the county attorney having the guts to interpret the law legally and that gave me the opportunity to enforce the law and the only law enforcement agency doing that in this state, but if it wasn't for his interpretation we could not be arresting these people. That's one thing. But we have been doing the course of this, since March 2, doing these arrests we have about 25 smugglers-coyotes-that is a good amount of coyotes to arrest.

Michael Grant:
You have court time too. Obviously, you burn resources on these two guys that were not convicted. Putting the law to one side, I mean, is it the best expenditure, prosecutorial resource, to focus on the illegal immigrants instead of trying to focus on the smuggler.

Andrew Thomas:
First, let me first return the compliment the sheriff has to follow the legal opinion we issued, and now the core of it has been upheld by the superior court Judge, Judge O'Toole, so we move forward. As far as the judicial resources issue goes, the reality is the sheriff and I don't write the laws, the criminal laws, of the state of Arizona, we enforce them. The sheriff arrests and jails and we prosecute. So if there is an argument we shouldn't be doing these prosecutions the remedy is to go to the legislature and governor and get the law changed.

Michael Grant:
Okay, let's go back to the case because I am having a hard time understanding this ruling.

Joe Arpaio:
I can answer the other question about resources.

Michael Grant:
About resources?

Joe Arpaio:
You said we are wasting our time.

Michael Grant:
Well, you gave me a long answer.

Joe Arpaio:
Well, the Phoenix police bring in 200,000 misdemeanors, this happens to be a felony. Felonies are serious charges, so nobody should criticize me for prosecuting felonies, this is not a little old misdemeanor.

Andrew Thomas:
And it is defined by that by the legislature and the governor.

Michael Grant:
Some members of the legislature have said in the past that the human smuggling law, which was enacted in August 2005, was developed only to prosecute smugglers or coyotes. Many of them have charged that Arpaio and Thomas are not interpreting the law correctly. Incidentally, a request was submitted to the Arizona court of appeals to determine whether Thomas' policy is unconstitutional. That request was declined, making it possible for Thomas to continue filing conspiracy charges against any undocumented immigrant caught in Maricopa County. Joining us tonight to talk about the human smuggling law and its details is Representative Kyrsten Sinema. And also here is Corwin Townsend. Corwin was one of the attorneys who defended one of the two immigrants recently acquitted. Welcome to you both.

Rep. Kyrsten Sinema:
Good to be here.

Michael Grant:
Let's start with the law and I just happen to have a copy of it handy, if I can read it. It is says for the purpose of this section, smuggling of human being means the transportation or procurement of transportation by a person or an entity that knows or has reason to know that the person basically is here illegally. Kyrsten, why doesn't that allow a person who is being smuggled and who has conspired with someone to do so, paid compensation to do so, to be charged under this statute?

Rep. Kyrsten Sinema:
It is clearly not the intent of what the legislature drafted and passed this legislature for. I was actually a co-sponsor of the original version of this legislation and ended up voting against the bill because of its unyielding wording. The intent, however, throughout the entire process in the senate and the house was very clear, the sponsor of this legislation is Senator Marilyn Jarrett, who has since passed on, but when Senator Jarrett introduced this legislation, it was intended to impact those individuals whose exploit young women specifically for the purposes of sex trafficking. It was also expanded later in the process to include those who traffic for forced labor and, eventually, we agreed unanimously with very, very few dissenters that this legislation was intended to go after individuals who exploit and abuse individuals who are being moved into this country for whatever purpose.

Michael Grant:
But going to the words of the statute, if I am an illegal alien, paying someone to procure my transportation of myself, and I know me to be an illegal alien, under the words of the statute, haven't I committed a violation of this, which it provides as a class 4 felony?


Rep. Kyrsten Sinema:
No, what Mr. Thomas is doing is not prosecuting individuals under the actual statute but for conspiracy which is a different and lesser crime. He can't actually prosecute those individuals under that statute because they do not fit the classification.

Michael Grant:
But Corwin, Judge O'Toole -- let's back up to you and talk about the case dismissed against your client, but Judge O'Toole said on the face of the words of the statute you can pursue this case. I have doubts whether or not perhaps you can prove it, but the legislature might have intended something differently but reading the words it counts as this activity.

Corwin Townsend:
Sure, that is what the Judge ruled. I think he clearly indicated on its face the law was constitutional in that it could, you know, they could go forward with the case. I think what Judge O'Toole ruled was talking about proof, there has to be proof of conspiracy and in my case he ruled that there was no evidence of a conspiracy, even though, technically speaking, the law allows them to go forward with the case.

Michael Grant:
o Kyrsten, wouldn't it be more, as you know, both of you are attorneys, it's a slippery slope, for example, for a legislature to come into court and say, "Listen, I know that statute says yellow but you really fully intended for it to say red, so Judge you ought to enforce it as it said red instead of saying yellow." We normally don't do it that way, why don't we run it past the legislature next session and get the wording changed if there is a consensus it should be?

Rep. Kyrsten Sinema:
That is the best option. The court system throughout the country analyzes bills and laws on their face and if it's unclear from its face then the next step is to go to the legislative intent. Here, Judge O'Toole decided not to go to the legislative intent because he felt he could interpret it from the face of the actual and that means that the burden is back on the legislature statute at this point to clarify what the intent was. If you look at the legislative history, which can inform not only the actions of the legislature but also the actions, I think, of attorneys litigating these cases, it's very clear. When Marilyn Jarod introduced the bill, it was first heard in the senate judiciary committee was a woman from a national public policy think tank who is an expert on sex trafficking for young women and girls and so it's very, very clear that this was the intent of this legislation. And, throughout the process there were four speeches in various committees where we all emphasized that this was intended to go after those who abuse and exploit individuals. In fact, some amendments in the legislation clarify that it had to be around the idea of pecuniary gain, someone had to be making money off it so there was no prosecution of a man, for instance, who got his nephew and niece and brought them across the border.

Michael Grant:
I want to get to the case in just a second but one more question, Corwin. Does it not send a message to those who would be trafficked, as well as those who traffic, that listen, if you conspire to procure your own transportation, you may be in big trouble, don't do it, chilling the activity and that is, in part, what we want to do.

Corwin Townsend:
Well, I think the problem though is this statute really was going after people who smuggle individuals into the United States. But

Michael Grant:
Agreed. But, can't you send two messages, both to the smuggler and the smugglee?

Corwin Townsend:
The other message they are sending is we are upset with the federal immigration laws, therefore, we are going to use the statute in an obscure way to go after the issue we really care about, which is federal immigration. They are upset with the federal immigration law but they are using the statute as a way of getting around that issue and that is where the problem is. That is where the rub is for me, as an attorney, because on its face this law is a criminal law, not about federal immigration. And that's the issue, I think.

Michael Grant: Let me go to the case because a lot of people are struggling, trying to understand what Judge O'Toole did and, basically, he granted a directed verdict in favor of your client, who was one of the two people being transported.

Corwin Townsend: Yes.

Michael Grant: Now, why did Judge O'Toole do that?

Corwin Townsend: Well, Judge O'Toole ruled that essentially that there was no evidence of a crime. That my client -- of a conspiracy. Because, again, he was not charged with the actual crime of, quote, unquote, human smuggling. He was charged with conspiracy to commit human smuggling and the Judge rules essentially there was no corpus, meaning there was no body of a crime, and for that reason he granted a directed verdict in this case which means

Michael Grant:
All right. You've got two people. Actually you had more than that.

Corwin Townsend:
Yes.

Michael Grant:
But I guess you have two people, sitting in a truck. I guess it was a pretty big truck.

Corwin Townsend:
It was a van.

Michael Grant:
A big truck, yeah. As I understand it. They introduce some expert evidence, I think they had a customs border patrol agent there or something, gave some evidence

Corwin Townsend:
I wouldn't call him an expert.

Michael Grant:
Well, someone familiar with it. Why don't you fill in what case did they construct circumstantially to try to get

Corwin Townsend: Well, basically, they had a border patrol agent come on and basically say in his experience that people who are being smuggled usually are on this portion of the desert and things of that nature, and I think they found some water bottles and things of that nature in the general area, but there was no way to tie that to this particular case in any event, but he nonetheless he gave some pretty general information, didn't tie anything to our particular case but gave general information on what you find when people are being trekked through the desert to come into the United States illegally.

Michael Grant:
Now, your client and the other defendant I think had made some statements that the state perhaps could have used against them.

Corwin Townsend:
Perhaps.

Michael Grant:
But there was no, there was no, well, corpus, no indication that the actual crime, conspiracy to procure the transportation, had occurred.

Corwin Townsend:
That's correct.

Michael Grant:
So, obviously, the judge didn't find this evidence sufficient, right, they are in an area where this frequently happens and that kind of thing.

Corwin Townsend:
Well, I think also too, the judge was getting to a more foundational issue which is what evidence is there of a conspiracy of human smuggling. Granted perhaps there was some evidence they were here illegally, perhaps, even that is a question, but nonetheless he was really going to the issue we were at trial on, which was whether or not they were guilty of the crime as charged, not whether or not they are here illegally because that is a separate issue. That is a federal immigration issue and not for the court to decide this particular case.

Michael Grant:
Short of coming up with a two page agreement signed by your client, signed by the other guy, stating here is $500, would you please move me from Mexico to Phoenix, incidentally I'm an illegal, training a parabolic microphone on a conversation occurring between three people which essentially the same thing is being discussed, how could that case be I'm sorry to ask a defense attorney.

Corwin Townsend:
Give out, yeah.

Michael Grant:
One thing that I think people understand what you are struggling with a little bit is how you put the case together.

Corwin Townsend:
Well, I think one of the problems you are having, and a lot of people are having, I think this law was not created for this very purpose, so that is one of the reasons why there is such a difficulty in trying to craft a scenario. But having said that, I think the other issue is that perhaps if you had more people involved and produced evidence at trial of an agreement, if you will, there was no evidence, the only people that testified in this particular case was border patrol agents and I think one agent from the Maricopa county's sheriff's office. There were no people to talk about an alleged agreement and things of that nature, so clearly this case had problems with just the fundamental issues such as proof and that is one of the things you need in a criminal case is proof.

Michael Grant:
Kyrsten, almost out of time, we know now these smuggling activities can be very dangerous for the people being smuggled.

Rep. Kyrsten Sinema: Absolutely.

Michael Grant:
I will state the same question I put to Corwin but somewhat differently, wouldn't we be doing them a favor to say you are engaged in a dangerous activity as a smugglee, don't do it. And here's another reason why you shouldn't do it.

Kyrsten Sinema:
Yes, and unfortunately this misapplication of the statute does not achieve that desired goal. And we know, many people in the Arizona Republic just this Sunday with stories of people who think they are buying a plane ticket, basically that is the equivalent of when I buy a plane ticket and fly somewhere, but what is happening instead is they are being trapped and abused and exploited and sometimes held for ransom and sometimes raped, very, very dangerous. This statute doesn't fix that.

Michael Grant:
Alright. Representative Kyrsten Sinema, thank you very much. Corwin Townsend, I appreciate your information.

Corwin Townsend:
Thank you.

Michael Grant:
How certain animals view their world may hold clues to a better view of our world. One ASU scientist is studying how the world looks from a butterfly's point of view.

Announcer:
The poet Robert Frost called them flowers that fly and sing. For many, the butterfly is a symbol of beauty and freedom. Air patterns of color are fascinating to the human eye, but what does a butterfly look like to another butterfly, and when they choose a mate, what exactly do they see in each other? Ron Rutowski is a professor of biology at Arizona State University, specializing in animal vision and behavior. Working with colleagues in other universities and graduate and undergraduate institutes at ASU, he has spent 25 years studying how butterflies see the world.

Ron Rutowski:
This image is a schematic depiction of the structure of the eye of a butterfly. Rather than having, like our eye, a single lens that takes the external world and focuses an image of it on the retina, what butterflies have is a spherical array of individual light detectors each one of which each one gathers light from a slightly different region in space. An eye structured in this way is referred to as a compound eye and it is referred to not only in butterflies but in almost all insects and also in many species of lobsters, crabs, crayfish and other animals that we call arthropods.

Announcer:
Research has revealed other differences between human eyes and those of insects.

Ron Rutowski:
As this image shows, for a human using both eyes, the dimensions of the visional fields are about 190 in the Horizontal plane. For these butterflies, it is very, very different. Their visual field is huge, almost all the space is seen using one eye or the other.

Announcer:
The acuity or sharpness of a butterfly's vision is much different than the human benchmark of 20/20.

Ron Rutowski:
A butterfly, according to our calculations on this scale, would come out to 21,000, which is well beyond what we describe as legally blind in human terms and means they are very, very, very near-sighted.

Announcer:
Despite their near-sightedness, studies reveal some aspects of butterfly vision are beyond the human capabilities. In particular, butterflies can see well into the spectrum of ultraviolet radiation, revealing things unseen to humans.

Ron Rutowski: Here we see orange sulfur, a butterfly that is common in the alfalfa fields in Phoenix. Males and females are similar, there are some differences, but these are strikingly different when we look at ultraviolet wave lengths that are being reflected off their wings, and in particular males have special scales on the wing surface that selectively reflect ultraviolet light which females lack, and butterflies because of their abilities to see ultraviolet wave lengths, then would see males and females much more different from each other than we would see.

Announcer:
Given the butterfly's near-sightedness and field of vision, he has predicted how the butterflies see and respond to each other.

Ron Rutowski:
It turns out the prediction from our studies of the structure of the eye is that males would not be able to detect females at distances any greater than about 4 to 5 meters. So what we then wanted to do is go out in the field and see if this prediction was true.

Announcer:
For this study, Rutowski's field work occurs in the Valley 30 miles northeast of ASU near Sycamore Creek. The test subject is officially known as the Empress Laylia, which Rutowski calls the hackberry butterfly because much of its life cycle occurs in or near the desert hackberry bush.

Ron Rutowski:
We know the females visit the desert hackberry to lay eggs and it could be that males are perched next to these plants to see females as they come in to lay eggs. And we know after the eggs are laid, the larvae grow and go into the desert hackberry and they go into the crystalis stage and the unmated females will be emerging directly from these plants. What we are seeing here is male butterflies who are engaged in the process of trying to find females with which to mate and what they are doing is occupying and defending perching sights where they are particularly likely to see virgin females. I'm often reminded of the song, "Standing on the Corner Watching All the Girls Go By." What is going to happen is we have this model butterfly on this device that will cause it to fly on a straight path by this male butterfly. It looks like the path is going to be about a meter away from the male, and we will see if the male flies up and responds to the model it as goes by. The model is intended to mimic a female or male that enters the male's territory. So what I'll do is I will pull the trigger on this thing and send the model flying, and we will see what happens. Ready? Set? Go! Fantastic. Ready, set, go. So we can move the flight path of the model or place the flight path of the model at varying distances from the male, and what we can do is keep moving it further and further away until the male does not respond. And that's what we've done, and the result is as long as the model flight path is less than three meters from the male, ten feet, he will respond to it. Beyond that he does not respond to it and our feeling is that what's happening is that he can't even see it. They seem often in the public's eye to live this happy-go-lucky lifestyle, feeding on flowers, flitting about with no real apparent purpose or obvious goal to it, but the interesting thing I think is that as you look at butterflies like in much more detail, their behavior, you find out they are anything but, well, they are very goal directed, but I think it is important to keep in mind that the individual males only live for about ten days. And so this is their shot. And for this particular species, this is the strategy that the males use that has evolved over some 35 million years or so of butterfly evolution. The central issue for us as humans is trying to understand ourselves and our place in the universe. When I'm out in the field looking at butterflies, sometimes I just sort of remind myself of what I'm looking at by saying, "oh, see that little bug there that I'm looking at, that is the product of 50 to 100 million years of evolutionary history here on this earth" and that causes me to think or realize there must be some significant or important lessons to be learned from studying some animal that is a product of that long a time. And, so in that sense, I do think that, you know, these studies of butterflies, as esoteric as they are, have some lessons to teach us about ourselves.


Michael Grant:
If you would like a transcript of tonight's show or would like to learn more about future topics, log onto the website at azpbs.org and click "Horizon." Now, a look at tomorrow's show.

Announcer:
Victims of the largest fraud ever perpetrated on a religious group have some justice. Two former leaders of a southern justice foundation have been convicted. Also, real estate values have stagnated. An examination of the real estate market, Thursday night at 7:00 p.m. on Channel Eight's "Horizon."

Michael Grant:
Thanks for joining us, I'm Michael Grant. Have a great one. Good night.

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