Judge Darrow Hears Arguments
The day started with some very heated argument over what Det. Diskin can testify to. (I missed the beginning of this because CNN was asleep on the job but more on that later.) When In Session began broadcasting the legal arguments, they were discussing the case of Daniel Pfankuch and how it informed the direction of Det. Diskin's investigation. There is much about this situation that is debatable. It happened 6 years ago. There is some conflicting witness testimony and there are seemingly irreconcilable differences in interpretation as to what happened. Both Pfankuch interview transcripts and those of other participants can be found here.
People on the scene at that sweat lodge event described Pfankuch as hullucinating, combative, and ultimately unconscious. His wife had to force him to leave the sweat lodge. He wandered around hitting and kicking people and was generally irrational before passing out. He believes he had a near death experience from which he really didn't wish to return. His wife, Michelle, pounded on his chest and pleaded with him to come back. Another participant named David Duhaime aggressively cooled him by hosing down his head with cold water. Duhaime believes he would have died, otherwise. Duhaime demanded JRI staff members call 911 but they refused to do so without checking with Ray who had gone to take a shower. He became "very animated" and believes he persuaded them to call because but they didn't. Amayra Hamilton did and James Ray screamed and yelled at her for it.
Pfankuch was taken by ambulance to the hospital where he was treated for heat exhaustion and syncope. Daniel Pfankuch, though, believes he was told he had heatstroke and that is what he told Det. Diskin. The hallucinations and combative behavior are also consistent with heatstroke. He was also dehydrated and kept on IV fluids for some hours at the hospital.
Here's where it gets tricky for the prosecution and how James Ray has actually protected himself through his inaction. Because of all the foot dragging and the staff's refusal to call 911, Pfankuch's body temperature had, no doubt, dropped by the time he got to the hospital. The worst of his symptoms had also abated. A doctor can't diagnose based on symptoms he does not see. So the official medical diagnosis is hampered by the lack of promptness in getting Pfankuch to the hospital. The same thing occurred in 2009. And in 2007 and 2008, no one even went to the hospital so there are no medical records to refer to; only eye witness testimony to symptoms. This is also very dicey for Judge Darrow who has repeatedly stated his unwillingness to allow testimony filled with laymen diagnoses that have never been medically corroborated.
Sheila Polk would like to have the testimony admitted and connect the dots between what people observed and the medical definitions of heat related illness. Judge Darrow has given her some latitude in this regard but it's still tenuous and there is only so far he will go out onto that limb. It's understandable. Frustrating but understandable.
Today, though, he came as close as I've ever seen him come to losing his temper. There is another problem that was laid out today that ties back to the PowerPoint presentation and discussion between the prosecutors, the police, and the medical examiners. Apparently, in that presentation, Det. Diskin described Daniel Pfankuch as having suffered heatstroke which could have prejudiced their diagnoses in the cases of Kirby Brown, James Shore, and Liz Neuman, and according to Tom Kelly, this was after the police had the actual medical report with the lesser diagnosis in their possession. Polk argued that if such aspersions were going to made against Det. Diskin, he needed to be offered the chance to testify to the issue directly, which would mean presenting the Daniel Pfankuch to the jury. And that, according to Judged Darrow, is a bridge too far.
The defense would also like to get its limiting instruction on the burden shifting issue. The prosecution has no objection to a limiting instruction but this morning they were still going over precedent and languaging. Luis Li, predictably, got very agitated over the issue, insisting that he and Truc Do were getting suspicious looks from the jury as Sheila Polk ran through her litany of questions about the many opportunities defense attorneys had to raise the question with Det. Diskin but didn't. I think its entirely possible that her phrasing could have created confusion about what the responsibility of the defense is in a case like this but I think Li might do well to consider that he and Do are getting looks because they've damaged their own credibility with their tactics. The other significant event that occurred yesterday was that Li's lying to Amayra Hamilton about nails in logs was laid bare by Diskin's testimony and the presentation of the logs themselves to the jury. Tactics like that look bad. No one likes to be lied to and the witness is not the only person deceived in a case like that; the jurors were also being willfully, and I think, noticeably misled.
There was also some argument over another exhibit. Polk explained that she wanted to present a chart showing the corporate structure and hierarchy. Seems pretty straightforward, right? But Kelly renewed his objection. This seemed to confuse Judge Darrow. He seemed to be laboring under the misapprehension that Kelly's corporate chart, created on the easel during Melinda Martin's testimony, was actually designed to clarify the corporate structure rather than to obscure it.
Darrow: I mentioned the specific thing you wanted to show was corporate structure, hierarchy, officers and those things... I mentioned in the ruling and I think one of the things that the State had objected to then in their written response had to do why, why all of the articles, and, um, I mean I understand Mr. Kelly spent a lot of time with the, on the easel, and there was discussion about who does what and that kind of information I, and I thought that's what you wanted was to actually get the document in and you'd have foundation for that.
Kelly: Judge. We will stipulate that James Ray was the president of James Ray International if that's its purpose. Again, I never thought that was a disputed fact, but, even a relevant fact but it uh
Polk: Judge. It's not the Articles of Incorporation. It is the -- this is exhibit 809 -- which is the list of corporate officers.
Darrow: Mr. Kelly, you gonna object to that?... Again I don't know that the detective would be the foundation witness for this if there's an issue on foundation.
Polk: Your honor this is a certified public record. It, um, I'm just bringing it in through his testimony but the foundation is through the rules. It's a certified public document.
Darrow: There's the certification and authentication --
Kelly: Judge [inaudible crosstalk] The point of the chart was to point out the lack of any personal knowledge by James Ray. I just don't think this is relevant. But, uh, we respect your ruling. If that's the document, it appears to be rather innocuous so I don't have any objection. [All Emphases Mine]
James Ray International Offices
When Polk resumed her questioning of Det. Diskin it became clear why Kelly would not particularly want JRI corporate structure laid bare, if his goal was to show how detached Ray was from the day to day goings on at JRI. She brought out Kelly's chart and compared it to the actual certified copy listing the officers for JRI.
Polk: Detective, are you able to see who is listed as President for James Ray International?
Diskin: Yes. It's James Ray.
Polk: Are you able to see who is listed as Secretary for James Ray International?
Diskin: Yes. It's James Ray.
Polk: Are you able to see who is listed as Treasurer for James Ray International?
Diskin: Yes. It's James Ray.
Polk: And are you able to see who is listed as Director for James Ray International?
Diskin: Yes. It's James Ray.
Polk: Are you able to see who signed the filing of the corporate officers for James Ray International's Secretary?
Diskin: Yes. Has James Ray's name there.
Next, Polk addressed some of the materials that were discovered during the search executed at the JRI offices in Carlsbad, CA. These were all items pertaining to Kirby Brown, James Shore, and Liz Neuman. Some of them are in dispute and their admission is pending further argument. What was admitted were the release waivers for the Spiritual Warrior event. The bulk of these waivers were found in Megan Fredrickson's backpack, which was sitting by the door to her office. So they had clearly been hurriedly transported from Arizona to the offices. Worse, the backpack did not just contain the JRI waivers but also the Angel Valley waivers. So, in their haste, they actually stole Angel Valley property and took it back to Carlsbad.
Whether or not this pertains to the attempted scrubbing of the Spiritual Warrior records discussed in Megan Fredrickson's police interview, I can't say for certain.
Kelly Does Fancy Math
Kelly started his cross examination with Det. Diskin in a very aggressive and accusatory manner. He questioned his skill as a case agent, given his overlooking of crucial lab findings. He broke out the easel to show chemicals which were found in a sample of the sweat lodge coverings.
Kelly: I wrote up on the, on the board there 2 ethyl 1 hexanol. You ever seen that chemical before?
Diskin: I don't know.
Kelly: I'm uh, handing you what's been marked as evidence item 356. You recognize that can, detective?
Diskin: I do.
Kelly: Do you know that uh, that chemical was determined from the carbon strip in that can?
Diskin: I knew that there were quite a few chemicals determined from the carbon strip in that can.
Kelly: If 2 ethanol 1 hexanol is the inert ingredient for residential insect spray, would that not be important for a case agent to making a determination during his investigation?
. . .
Kelly: And again. Take a look at 2 ethyl 1 hexanol. Are you aware that Miss Sy provided an analysis of exhibit 356 and found trace evidence of 2 ethyl 1 hexanol?
Diskin: I know that there were quite a few chemicals or as she called it volatiles that were detected.
Kelly: Were you aware that 2 ethyl 1 hexanol possible use is as an inert ingredient for residential insect spray?
Diskin: No.
This is the kind of questioning that could truly make me hate defense attorneys. It's the worst kind of lawyering when people use deliberately misleading phrasing like that to confuse a jury. It would be hard not to take Kelly's implication that this was evidence that there was insect spray in the tarps. But let's break it down... Now where's my giant easel...
Here are some of the key, weasel words, the meaning of which directly contradict Kelly's tone and implied meaning:
- trace evidence -- very, very small amount of the chemical in question
- inert ingredient -- not one of the active ingredients that would actually serve the purpose of killing bugs
- residential -- something commonly used and available in any hardware store
- 2 ethyl 1 hexanol -- a common chemical constituent found in numerous household products including packaged foods
Moments later, Kelly claimed that Diskin said he'd ruled carbon dioxide as well as carbon monoxide. Diskin corrected him and said that, no, he did not rule out carbon dioxide. "You didn't say that? We can review your transcript." Which he made no move to do. But I have reviewed the transcript and put the relevant portion here. This is the interview in which Diskin clearly stated that carbon dioxide was being considered as a contributing cause of death, but which the defense attorneys apparently still fail to grasp.
So basic chemistry may not be the defense team's long suit but Kelly did demonstrate some impressive math skills. He calculated the square footage of the sweat lodge and pointed out that Diskin only took 1% of the overall structure for samples. He may not really understand how sampling works either because that's quite sufficient to the purpose.
Kelly then restated all of Diskins impressive credentials in investigating crimes against children... for some reason...
Then he began to wax philosophic about the dangers of wrongful accusation. "And, uh, that's happened," said Kelly.
"Not in this case," replied Det. Diskin.
Then Kelly started monologuing about Richard Jewell. Polk objected. Darrow sustained the objection. Kelly said, "Can I finish?" and just continued to talk about how Jewell's life was ruined. Objection. Sustained. Bizarre. Kelly likes to chat with rugged, male witnesses, like Scott Barratt, the cowboy, and he doesn't like to be interrupted by annoying judges and their rules.
In one of the uglier episodes today, Kelly used Diskin's questioning to attempt to invalidate Fawn Foster. He showed photos, completely out of context, that he asserted showed she left the scene of the sweat lodge instead of sitting on the log the entire time. Polk objected, pointing out that it misstated the prior testimony. Diskin's memory of her testimony was also different. My memory of her testimony is different. But this distortion of the evidence was not enough. He went after her as a person. He mocked her characterization by Amayra Hamilton as someone who was good at communicating with animals. You know, not only is it fairly indecent to mock a witness, in front of the jury, and behind her back, but he also managed to insult many people of many faiths who respect the dignity and sentience of all life. Buddhists, indigenous peoples, me...
It was an ugly sequence and another creepy, little peek into Kelly's male bonding rituals. Diskin actually disarmed Kelly, I think. He didn't get flustered at all by the accusatory Kelly and as the questioning progressed, Kelly got more than a little chummy... and gossipy... and just weird.
If you really want to see my husband get wrapped around the axle about something, remind him of the days following the near simultaneous deaths of Lady Di and Mother Theresa. He still gets angry over how we were subjected to endless royal drama and near silence about a woman who spent her life attending to impoverished, orphaned, and desperately ill people in India. I was reminded of that today while trying to watch the James Ray trial coverage on CNN's live feed. The attorneys were well into their legal arguments this morning before coverage started. After the lunch break, trial coverage was preempted for the rest of the day by empty feeds, weather, and two continuous feeds of the royal wedding. One of those ran endless replays of the wedding, so it wasn't even live. The other was -- and I'm not kidding -- the silent darkness outside Buckingham Palace at night. The palace, at night, in the dark, with no sound.
To CNN a lineup like the following was more important than a trial involving the deaths of three people.
LIVE: The Royal Wedding replay
LIVE: Outside Buckingham Palace
LIVE: Alabama Storm Coverage
LIVE: U.S. weather outlook
Anyone who finds CNN's priorities as disturbing as I do can relay their comments to CNN here.
All information on the trial comes from news articles with provided links or live courtroom footage on TruTV's "In Session" or CNN's live feed. All quotes and paraphrased statements that are not linked to a source document are my best attempt to transcribe material from live broadcasts.
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