Judge Darrow Hears Mistrial Motions
I'd be lying if I said I wasn't feeling agitated today. The possibility of losing the CNN feed hangs over all our heads as does the possibility of mistrial. Tom Kelly moved for a mistrial twice today. The first such motion, Judge Darrow dismissed immediately. The second, he took under advisement, but continued with the trial for the day.
Tom Kelly's first mistrial motion started out the day. He argued that during Det. Diskin's redirect yesterday, improper questioning introduced inculpatory material from the Haddow email.
Sheila Polk maintained that her questions were in response to the carbon dioxide question I noted last Friday, in which Kelly said he'd look at the transcript, but never did.
Judge Darrow quickly dispensed with that motion. But later in the day, Kelly argued that the situation created by the Brady violation was "unworkable." I must confess that once again I missed a chunk of this. CNN is less and less concerned with starting the stream on time.
Kelly said that the whole process has been "infected" by the Brady violation. His motion, though, appeared to be at least partly based on erroneous information. He asserted that the defense has been disallowed from using the Haddow report. Judge Darrow disagreed saying that he has never said that they couldn't talk about it but warned that it opened the door to redirect by the State.
Kelly also claimed that Truc Do had heard Dr. Mosley discuss carbon dioxide for the first time during his direct examination today. He argued that the fact that Mosley's consideration of hypercapnia (carbon dioxide poisoning) was not disclosed by the State showed the "purposeful nature of the violation." But when Bill Hughes argued the State's position he read an extensive discussion between Do and Dr. Mosley on the possibility of oxygen deprivation and carbon dioxide poisoning having been factors. In an interview that took place in May of 2010, Do asked Dr. Mosley if he had discussed differential diagnoses with other medical experts in the case.
Mosley: Sort of, in the sense of oxygen deprivation being so, suffocation. And you know this may well have occurred... You drop the oxygen content to where you just say 15%, that can kill you if you stay in that room. CO2 goes up. So if the air, the oxygen content of the air is what is changing substantially or dramatically. Well, I just contradicted myself there. I was just saying that it doesn't have to change much.
Li: A few percent is substantial and important?
Mosley: Yeah.
Li: Okay. So go ahead and finish the thought.
Mosley: It brings in an element of suffocation in the cause of death as opposed to pure hyerpthermia. But I think in consideration of that, I still felt that hyerthermia was the overriding cause of the suffocation element. While it may be present, I have no way to prove it.
Do: Then that oxygen deprivation element was discussed and eliminated by all three?
Mosley: Well. Eliminated? I don't know if I could eliminate it. I still can't eliminate it because I don't, I just felt I couldn't prove it and what I could prove I would, I couldn't prove to, so to speak, with the circumstantial evidence.
I repeat, that was in May 2010 -- a year ago. Hughes was reading from the defense's own transcript. Does the defense have a mental block when it comes carbon dioxide? In his mistrial argument, Li insisted that Det. Diskin tried to obscure it and confuse it with carbon monoxide, when the detective had been perfectly clear. I couldn't help wondering if Kelly had taken it upon himself to speak for Do when he asserted that she'd been blindsided by the hypercapnia issue in today's testimony or if she'd relayed some actual confusion to him. If it's the latter, well, I'm rendered nearly speechless. This is what bothered me about this Brady violation from the get-go. The defense is misstating the record. They have had every element of Haddow email in their possession, in other testimony. They have no one to blame but themselves for their complete ignorance of the possibility of a carbon dioxide co-factor because it was handed to them on a silver platter.
Kelly also argued that the State had improperly sent the Haddow email to experts including Dr. Mosley. Why do I remember this so clearly, when Kelly does not? This was discussed when the Haddow email came to light. Dr. Lyon said he hadn't looked at. Bill Hughes announced in court that he'd just spoken to him and directed him not to read it in light of Judge Darrow's decision that day to stop disseminating it. An interview was set up between Do and Dr. Mosley to discuss the matter. Today Hughes explained that there were two such interviews.
I'm sorry but the only reason the defense has to argue that the process is irredeemably tainted and unworkable is that they're like the Keystone cops. They seem to have no idea what the State has actually sent them and they keep wildly misrepresenting it.
If Judge Darrow allows them their mistrial, it would be rewarding the defense for their own stupidity. They should let it go to verdict and let Ray appeal based on incompetent counsel.
The thought of James Ray walking on a technicality does not sit well with me. But if you really want insight into the human cost, read what Tom McFeeley, the cousin of the late Kirby Brown, had to say on the matter, when the Brady finding first threatened to derail this trial.
Dr. Archiaus Licinius Mosley, Jr.
I missed a good bit of Dr. Mosley's testimony today, thanks, once again, to the good folks at CNN. Moments into his direct examination by Bill Hughes, the feed was abruptly preempted by another feed showing firefighters welcoming President Obama. The fact that there was another, identical feed running at the same time did not escape my notice. There was a bit more juggling over the next ten minutes or so until every feed was of wreath laying ceremonies at 9/11 sites. Now, I'm not disputing the relevance of those ceremonies. I am disputing the relevance of most of that coverage being nothing but people milling about before and after the actual events. Like the footage of Buckingham Palace at night, it went on like that for ages. Most of it had no audio. I noted one stream that did have audio but it was just picking up background chatter of unnamed, unrecognizable citizens. I listened to it for a while to see if any of them mentioned organophosphates. No one did.
After more than an hour of this meaningless coverage CNN brought back the James Ray trial feed and Dr. Mosley's testimony. The caption still referred to Obama laying a wreath, prompting this impertinent blogger to question whether all black men look the same to CNN. I admit that was a bit offsides. I'm sure CNN is just incompetent, not racist.
When we did have Dr. Mosley on the feed, we learned that he was the medical examiner who examined Liz Neuman. He is a forensic pathologist, which he explained pertains to pathology that has relevance in court proceedings. A lot of people think the word "forensic" refers to medical autopsies. I competed in college forensics for enough years to know that it actually refers to public speaking such as one does in a court. In other words, I was on the speech team. That said, I don't think anyone would confuse Dr. Mosley with a public speaker. In looking at the reactions to him on Twitter and in other comments, it's clear many found him dull. I did not. I actually found him compelling. He's very deliberate, methodical, and thoughtful... but I can see why many would more likely say ponderous.
Dr. Mosley explained today that much of forensic pathology is based on circumstantial causes rather than medical evidence. This, if you'll recall, was also discussed in regard to Dr. Lyon. And like Dr. Lyon, Dr. Mosley explained that there is no medical test for hyperthermia (or heatstroke). It's determined by clinical criteria and circumstiantial evidence -- in other words, evidence that a patient has been exposed to heat. For a pathologist examining a dead body, that clinical evidence is not even available. The body would no longer have an elevated temperature and the somewhat deranged mental state associated with heatstroke would be no more.
Bill Hughes, I have to say, conducted a brilliant and detailed direct examination today, asking very good and clarifying questions about some very tricky medical issues.
He really got into the dehydration question, which is one of my favorites. As I've discussed ad nauseum, ad infinitum, on this blog, dehydration is not a necessary cause of heatstroke. Dr. Mosley explained this in unambiguous terms, explaining that "heat all by itself is directly toxic to tissue without mechanistically acting through dehydration."
In Liz Neuman's case, it was a moot point by the time Dr. Mosley examined her, because she had been on IV fluids, having lived for nine days, instead of dying on the scene.
Dr. Mosley explained that he held off on signing his final report because he wanted to confer with colleagues. He described his own mental process as being like an internal pinball machine and that he enjoys bouncing his thoughts off of other internal pinball machines. He explained that he has to keep an open mind. He expressed much respect for Dr. Lyon as someone to have constructive argument with. And he confirmed Dr. Lyon's assertion that the difference in their diagnostic terms was largely semantics. Dr. Lyon is comfortable determining James Shore's and Kirby Brown's deaths as being due to heatstroke. Dr. Mosley prefers the term hyperthermia because the clinical conditions associated with heatstroke are not observable in the dead.
Dr. Lyon did convince him to change his finding from homicide to accident. Again, the issue is largely semantics. Homicide is defined as death at the hands of another. But he accepted Dr. Lyon's reasoning and changed it to accident.
Dr. Mosley did not have a toxicology report run at the time of his examination of Liz Neuman, but he did explain that the organophosphate test was run at the behest of the State just recently. He did not expect to find evidence of organophosphates because they would have been long gone from the blood, especially because Neuman had not died immediately. He explained that her initial blood draw at the time of admission would have been disposed of seven days later, before she had even died.
I found Dr. Mosley's testimony most interesting when he answered questions about organophosphates. He even created a useful chart on the giant easel. The constituents in his mnenomic are salivation, lacrimation (tearing), urination, defecation, GI hypermotility, emesis (vomiting), miosis (pinpoint pupils)/muscle twitches.
SLUDGEM Organophosphate Mnenomic
Dr. Mosley explained that the question of organophosphates is at least interesting because there were some symptoms that were atypical for hyperthermia or heatstroke. He went through Liz Neuman's records and some records of other participants. Some of the symptoms presented would be consistent with organophosphate poisoning.
As they went through the list, there were some things, but not all, ticked off on the list. Salivation (frothy sputum) came from eyewitness accounts but isn't in the medical reports. Defecation occurred but that is a very nonspecific symptom because everybody does it routinely and involuntary defecation would be consistent with coma. Liz Neuman was in a deep one. Emesis or vomiting was reported but that is also nonspecific and is consistent with hyperthermia. Miosis or pinpoint pupils were reported and not explained by hyperthermia. As I've noted before that is the bizarre outlier in terms of symptoms in a number of participants.
Dr. Mosley, though, did suggest another possible explanation for miosis. He said there are multiple causes but of interest in this case: hypercapnia. As noted above, this revelation may trigger a mistrial. The likelihood that participants were affected by elevated carbon dioxide levels is fairly high.
There is also a possibility that miosis could have been caused by brain damage, which Liz Neuman had.
Salivation, or the frothy sputum described, is also nonspecific. In the case of organophosphate poisoning, the autonomic nervous system switches on and just begins to run unchecked. There is a loss of conscious control of salivation. So there would be a lot of salivation. It's interesting, then, that it was nowhere mentioned in the paramedic's report. Bill Hughes gave him the entire report from Guardian Air to review and he did not find any reference to salivation or frothy sputum. The paramedic in question, Joel Swedberg, saw no excessive salivation and did not suspect pesticide poisoning.
Like every medical professional who's testified so far, Dr. Mosley has never seen a case of organophosphate poisoning.
Dr. Mosley also addressed the question of rat poisoning. He said typical rat poisons would cause internal bleeding and excessive bruising. The CPR Liz Neuman received would have caused severe and noticeable bruising. It did not.
Truc Do Cross Examines Dr. Mosley
Truc Do quickly cut Dr. Mosley's qualifications down to size. He is not a treating physician. We also learned that he not board certified. He passed his board for forensic pathology but not for anatomic pathology because he's not so good at reading pap smears and similar tests.
Do suggested that it's because he's not a treating physician that he's never seen organophosphate poisoning. She still doesn't seem to grok that what she's implying is that there aren't a lot of deaths due to organophosphates; hence, those cases don't make it to the morgue.
Do also established that she has had many conversations with Dr. Mosley. In one of them he'd mentioned (or pinballed?) the idea of doing a sweat lodge to gain insight into this case. He didn't do it. Not mentioned is how little insight he would gain into a James Ray heat gauntlet by doing a normal -- or weenie-ass -- sweat lodge.
Predictably, she went after the circumstantial nature of his diagnosis. This brought a truly comical exchange in which she asked him about a number that they discussed previously: 99.872%. He described it as one of his "favorite numbers." He said he "facetiously" concocted that number to express to the attorneys something that really can't be quantified numerically. Do then explained that the number would be 100% based on witness testimony and 100% based on police investigation. (Doesn't that bring us to 200%? I think I'm missing something.) At any rate, Dr. Mosley said her math was fine but that the whole idea of assigning a number is "ridiculous."
Dr. Mosley allows that his conclusions have changed somewhat due to more information that has become available since February of 2010, when he reported his findings. Do asked if he now doubted his diagnosis of hyperthermia. He said no, but that he now considered there to be other factors. As stated above there are some symptoms that are not consistent with hyperthermia alone.
He agreed with Do's assertion that Liz Neuman's death was consistent with a toxicity. He also agreed that he "cannot exclude organophosphates." Do also pointed out that Dr. Cutshall and Dr. Lyon likewise could not exclude organophosphates and that this makes their testimony consistent.
What caused Dr. Mosley to reconsider the possibility was the "organophosphate theory that was floated." He agreed that it probably came from Dr. Ian Paul.
Dr. Mosley reviewed Dr. Paul's report. He did not agree with Do that Dr. Paul found that the medical findings in this case are inconsistent with heatstroke. He clarified that Dr. Paul found some of the findings are inconsistent with heatstroke. That's actually a bigger difference than I think Do realizes.
Dr. Paul, they both agreed, believed that this is a case of toxicity and that his prime candidate is organophosphates.
Do asked Dr. Mosley if when he initially received Dr. Paul's report, he thought he was wrong. Dr. Mosley's answer? I do believe he's wrong. Do didn't like that answer.
He allowed that in a discussion with Do on April 19th, he thought Dr. Paul could be right.
Initially, Dr. Mosley had emailed the State and said that Dr. Paul's theory could be "dismantled." He did walk that back but he disputed Do's assertion that he took it back in its entirety. Today he emphasized that there were a number of participants whose symptoms were not consistent with organophosphate poisoning.
I get the sense that Do thought Dr. Mosley was going to be a more agreeable witness than he has turned out to be. He appears to have reconsidered his reconsideration. So tomorrow's testimony should be interesting. That is, if I can get through even another hour of Do's odd mix of belligerence and valley girl uptalking.
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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