Judge Darrow Discusses Trial Schedule
Time is becoming a key issue for this trial. The State filed a motion to defend its current witness list and poll the jury about extending the trial if necessary. Judge Darrow stated in legal arguments this morning that he can't constrain one or the other of the parties to time limitations. It would have to be both. But it's very obvious which side is wasting the most time. Truc Do and Luis Li have the longest, most laborious, and most confusing cross examinations imaginable. It's obvious their objective is to confuse the State's witnesses until they get a "gotcha" moment. This has never been more nakedly apparently than during Do's cross examination of the unshakable Dr. Dickson, but more on that further down.
Today there was a lot of discussion of the calendar and of whether they could bring this trial in on time. It turns out that the trial is actually scheduled to run until June 21; not that June 10 date that has been much discussed. It had been adjusted to accommodate Luis Li's scheduled break, which runs from this Friday, through next week and the following Tuesday. This creates a conflict, however, with juror 10's request for a two day vacation, which was mentioned in his initial voir dire. Judge Darrow apprised the parties that he needed to address the juror's concerns and find out whether or not he could remain undistracted even if his request remained up in the air for a while. Sheila Polk recommended giving him his time and using those two days for other legal matters. But Judge Darrow was not comfortable committing to anything.
Luis Li's suggestion? Excuse the juror. His motivations seem fairly transparent. There are only two remaining alternates. Winnow them down to nothing and maybe Ray will get his mistrial. For Li to whine about anybody needing breaks or extensions is about the height of hubris, but to hear him tell it, a two day break is unacceptable. His own scheduled break is costing the trial a week and a half. But he was unrepentant, reminding Judge Darrow that he had deferred to the court on that. He had only pressed the issue because he needed to decide about the potential financial outlay.
Darrow: Mr. Li, you advocated quite strongly for that time for yourself. I'm not, I'm not blaming you, but it was not just presented as, you know, make the call, Judge. It was uh --
Li: Your honor I mean, I, I, --
Darrow: You stressed the importance to you --
Li: It is, it is --
Darrow: And, uh, the State respected that. I respected that so --
Li: And I appreciate that your honor, but, but, but, for, I sincerely do appreciate that, but, but, the posture that it came up in is that I was at a decision point where I had to tell my, the board whether I was going or not and that there was a decision about paying or not paying. And I, and I made the record that your honor, it's clearly the court's, and I, listen, I respect --
Darrow: Oh I know it, I know it is and you don't need to say anymore on that. Absolutely, but the judge makes the call on that.
Li: I think we all, just, for whatever it's worth, I think we all thought this case would end sooner.
Is it me or is there some subtext in that last statement about the expectation of a mistrial. I'm starting to think that's been their legal strategy from the outset. I have little doubt that there will be more calls for mistrial because the defense's case is collapsing.
Increasingly, I think the defense is waging a war of attrition -- attrition of jurors, attrition of available time, and in Truc Do's case, attrition of the jury's brain cells.
On the plus side, juror 10 was interviewed by Judge Darrow and he seems comfortable with whatever happens. He said repeatedly that he is "committed" to the trial and that he'd join his family over the weekend if it came to that. So that problem, at least, appears to be solved.
Truc Do Cross Examines Dr. Dickson
Truc Do continued her siege against the steadfast edifice that is Dr. Matthew Dickson. Yesterday's cross was over three hours long. Today brought another two hours of questioning. In all that time, he simply would not concede a meaningful point and watching Do pull out all the stops to try to confuse and discredit him was exhausting to everyone but him.
Judge Darrow had to interrupt Do again today to remind her of the morning recess. He also wearily asked her how much longer she would be. Normally she stops and calls for a recess, sometimes very abruptly, but clearly because she thinks she's going out on top and leaving a favorable impression with the jury. Sometimes what point she thinks she's won is apparent to no one but her. With Dr. Dickson, though, there was no favorable time to break because every time it began to look like maybe she'd gotten him on some small technical point, he turned it around and handed her her ass. He remained cheerful, diplomatic, and non-confrontational, but he repeatedly made her look like a fool. She's clearly crammed on these medical subjects but she's still way out of her depth and it's never been more apparent that she doesn't actually know what she's talking about. She could not confuse this guy. What it comes down to, is that she could not get Dickson to say it could be organophosphates.
Do has tortured out of every medical expert who's testified the concession that they can't rule out organophosphates with certainty. Whether or not she's aware that this is a far cry from an endorsement of the organophosphate theory is unclear. She's gotten the trophy she's wanted and has used that bit of notional brick-brack to club the next doctor on the head. Yesterday was the first time I've seen her stoop so low as to try to extort that concession using juvenile peer pressure tactics, but I can't exactly say I was surprised. As I've said, I'm half convinced she's really a teenager posing as a high-powered attorney. And Dickson made her cross examination look like amateur hour.
Do's most obvious rookie mistake was that by endlessly challenging Dickson's opinions and medical knowledge, she actually gave him numerous opportunities to lecture the jury. He was arguably even more informative during cross examination than he was during his direct testimony. And because Do kept questioning his certainty on the organophosphate question, he was able to instruct the jury on the reasons this could not possibly have been a case of organophosphate poisoning.
How could he be so sure that organophosphates were not the cause of the symptoms experienced by sweat lodge participants? Organophosphates are lethal when they cause people to aspirate their own excessive saliva and drown in it. If that had been happening, the treatment they received from paramedics would have killed them. You don't put someone whose lungs are filling with fluid on his back and cover his face with an oxygen mask. And many of the most seriously ill people were secured on spine boards and given oxygen.
Do raised the issue of Stephen Ray who was described by paramedics as drooling and having pinpoint pupils. But Dickson pointed out that, as detailed in those records, the drool turned out to be vomit and his pupils at another point were described as dilated. He also pointed out that if the paramedics had suspected organophosphates they would have noted it and washed themselves to avoid contact poisoning.
Dickson also observed that Kirby Brown and James Shore were treated with CCR, a new form of CPR that applies sustained pressure to the chest. If they had been poisoned with organophosphates, fluid would have gushed from their lungs. Nothing like that was noted and they were, again, described as being kept on their backs. That would have been totally against the protocol for treating organophosphate poisoning.
In trying to shake Dickson on his contention that organophosphate poisoning is a clinical diagnosis rather than a lab test, she accidentally let him teach the jury on why that is, using the giant easel for his visual aids. He read from a current article on eMedicine which says clearly that it's a clinical diagnosis and described how the available tests work. This gave him a sterling opportunity to show the jury how lucidly he can describe the bodily processes and how to test them.
Dr. Dickson Instructs the Jury
But as Dickson went along in his explanation, Do became irritated. Where in that text did it say that such a test was a "flip of a coin?" Dickson explained that it would never say anything like that in a scholarly source. That was his own characterization of the described testing's effectiveness. Do provided him with a different text and demanded that he read it. She gave him a passage from Goldfrank's Toxicologic Emergencies
. He pointed out that the edition she'd handed him was revised in 2006, whereas his eMedicine article was from 2010. A testy Do just insisted that he start reading.Dickson: "The most reliable and appropriate laboratory test for confirming cholinesterase inhibition by insecticide is a test that measures specific insecticides and active metabolites in biologic tissue."
Do: And then it goes on to say that such testing is rarely obtainable within a few minutes or in hours, correct?
Dickson: Unfortunately, urine -- "Although urine and serum assays for organophosphorous compounds and their metabolites are being investigated such testing is rarely" -- so this is investigational is that what it's saying?
Do: "Rarely attainable."
Dickson: "Such a test is rarely attainable in a few minutes or hours."
Do: Let me stop you there.
Hughes: Objection your honor. Pursuant to 106, I think the next sentence is very important to context for that.
Darrow: You may read the next sentence.
Dickson: "Moreover normal ranges and toxic levels are not established for most compounds."
Do: Go ahead and continue reading.
Dickson: "Another useful research tool" -- so we're talkin' about research tools -- "is the measurement of acetylcholine esterase activity in neuronal tissue but this requires central nervous system or neuronal tissue biopsy" -- so we gotta take a chunk of their brain to get that test, um -- "Even this test is not very helpful unless the baseline activity is noted." -- So what that means is--
Do: Known
Dickson: What?
Do: It says "known."
Dickson: "Known," sorry.
Do: Just read the last paragraph and then we'll talk about it; the last sentence in the paragraph.
Dickson: "Currently, the only practical diagnostic study for verifying cholinesterase inhibitory poisoning is a measurement of cholinesterase activity in readily accessible tissue such as plasma and erythrocytes" -- which are the red blood cells. That's what we were just reading. [All emphases added]
Do's point? She wouldn't want the jury to think that a coin toss represents 50% to the jury and that they might interpret that as an actual statistic. Seriously. So she forced the doctor to read a passage that, apparently unbeknownst to her, confirmed much of what he'd been saying. Even if you take a chunk of brain, unless a baseline is known, the testing is not terribly informative.
Dr. Dickson took the opportunity to expound on how he came to his finding of coin toss and read from eMedicine that the cholinase base levels vary based on population, age, medications, other health conditions, diet, allergies, pregnancy, and genetics. He explained that the only utility of such a test is to monitor the progress of a patient by showing whether their individual cholinase levels increase. As he put it, "There's a lot of things that can mess up this test. So, as your physician, do you want me to hang my hat on the diagnosis based on this test?"
Well. I wouldn't. But I'm not Truc Do.
Do's worst logical failure came when she tried to demonstrate the serious lethality of organophosphates. Unable to accept that organophosphate poisoning is rare, she asked Dickson to address the problem of mass poisoning incidents. He explained that most of these incidents were in third world countries, where there is less regulation of toxic concentrations in products, and in terrorist attacks. (Think sarin.) But Do explained that Dickson's beloved medical literature -- that she openly derided him for depending on -- shows the seriousness of the problem.
Well, in that eMedicine article, Dr. Dickson, didn't it state that in the United States the American Association of Poison Control Centers receive 96,307 calls related to pesticide exposures, many of which involved organophosphate agents in 80 uses of 2 pound?... In that article that I gave you, the Goldfrank article, if you would look at page 1498... "During the five year period of 1998 to 2002, the American Association of Poison Control Centers recorded more than 55,000 exposures to organic phosporous compounds and more than 25,000 exposures to carbonates. The number of fatalities averaged about 8 per year. These insecticides still range as the most lethal insecticides in use in the United States and among the most lethal poisonings," correct?
So that's roughly 40 deaths, in five years, out of tens of thousands of exposures... Will someone please take the shovel away from Ms. Do?
But Do was not going to give up until she scored some victory, however small, over Dr. Dickson. It has never been more clear that Do's objective in cross-examining witnesses isn't to reveal some obscured truth or even to make a meaningful point. She's just trying to score points in a contest of wills with the State's witnesses. If she makes a witness appear wrong on anything, no matter how trivial, she can, to some degree, discredit that witness, and leverage their concessional statements with other witnesses to confuse them. I can't help thinking that her metric might be out of step with the jury. And it is definitely out of step with a general public that is disinclined to trust defense attorneys because of just that kind of trickery... and the whole getting criminals out on technicalities thing.
As Do closed in on the end of five hours of testimony she tried desperately to get the drop on Dr. Dickson.
Do: So looking at the same records, four doctors reached a different conclusion than yours.
Dickson: Well, not in the medical record, they didn't.
Do: I understand but you know now that they testified, right?
Dickson: Well, you told me hypothetically yesterday.
Do: Correct.
Dickson: Okay.
Do: Okay, so no reason to dispute that, right?
Dickson: A hypothetical?!
Do: Right.
Dickson: Okay, no.
Do: Okay, so if this jury has heard from three doctors and will hear from a fourth, and four doctors have said they can't rule out organophosphates and the signs and symptoms are consistent with organophosphates, that would be an opinion very different from what you've offered on the stand, right?
Dickson: Hypothetically yeah, but so we're goin' back to, you're telling me that all these doctors said that all these signs and symptoms are consistent with organophosphate, not consistent with heatstroke. That's completely opposite to they said in the medical record.
. . .
And it's completely opposite to their medical exam findings.
Do: You're saying the doctors testimony in this case to this jury is all wrong compared to the medical record. Is that what you're saying?
Dickson: Yes.
Hughes: Objection. Misstates the doctors' total testimony to the jury.Darrow: Sustained.
So Do finally went so far in stretching the other doctors' testimony that the piece of taffy broke. They continued. And no matter how she tried to twist the facts she could only confuse him enough that he asked for clarifying questions until she became frustrated and confused. And she only provided him with more opportunities to make himself incredibly clear to the jury about the differences between heat illness and organophosphates and how even though some symptoms overlap, there is no mistaking one for the other.
Dickson: The thing we have to look at you've got overlapping symptoms that are in tons of things. Um, and so we need to look down at the big picture. What can you look at clinically that's gonna say this is organophosphate, this is something else, like heat illness. Um, and these guys did a great job. They even called the toxicologist. The toxicologist went with, well, doesn't sound like organophosphates, 'cause they're not --
Do: I'm sorry. Let me stop you there... Where in the evidence do you see somebody calling a toxicologist who said not consistent with organophosphates?
Dickson: Well, they said, actually, they said well, it still could be carbon monoxide poisoning.
Do: Dr. Dickson, you just told the jury... You just told the jury that you looked in the records and you saw that they were thoughtful and did a great job and they also called the toxicologist who said not consistent with organophosphates. Show me where in the evidence that appears.
Dickson: No, well if I said that, what they went with was the differential diagnosis. They looked at anticholinergic. The looked at toxidromes. And they called, this is what I would do, is call the specialist. I'd look in the book and say, what do you think. We've got these constellation of symptoms and we're tryin' to put 'em into a box. What could it be?
Do: So when you just told the jury, less than a minute ago, that you looked at the records and you saw evidence that they called the toxicologist who said not organophosphates that was wrong. Correct?
Dickson: Well, they said, consider carbon monoxide and so they --
Do: Please answer my question... and then we can go to lunch.
Dickson: Okay... That was "wrong." (sarcastically) I misspoke.
Do: It was wrong. Right?
Dickson: I misspoke.
Do: It was wrong. It's not anywhere in the evidence. Is that right?
Dickson: Do you want me to read it to you?
Do: Dr. Dickson if you believe it's in the evidence where somebody called a toxicologist who said it's not organophosphates --
Dickson: That's not, that's not in the evidence. It says they called and they said well, probably, it sounds like carbon monoxide poisoning.
Do, gleeful that she caught the doctor in a misstatement seemed completely incapable of grasping his point, which was really fairly simple. To get to carbon monoxide they would have already excluded a number of things, including organophosphates.
Do: Okay, now that we've corrected that piece of testimony that was wrong, my question to you is this, okay, you've reviewed hypothetically everything that Dr. Mosley, Dr. Lyon, had at the time they reached their autopsy conclusions, right?.... They say that they cannot rule out organophosphates conclusively and that there are signs and symptoms consistent with organophosphates. When you say somebody is Monday quarterbacking isn't it you that's Monday quarterbacking?
Of course, what he'd actually said was Monday morning quarterbacking and his entire point was that he was in a position to do that, whereas ER doctors had to act in the moment and act on the best information they had.
Do continued to beat him with how at odds he was with the other medical experts.
Do: So can you concede the possibility that one doctor against four, that one doctor is wrong?
Dickson: I still don't see how it's one versus four.
Do: Hypothetically.
Dickson: Hypothetically. Hypothetically what?
Do: Hypothetically, you're the only one with this conclusion that is different from Dr. Cutshall, Lyon, and Mosley.
Dickson: Hypothetically, pigs can fly but I'm not gonna concede that.
. . .
Do: Final question, doctor, isn't it possible since you're Monday quarterbacking, don't have the personal hands on experience in the case investigation, that you're the one who's wrong.
Dickson: Again, I don't think we're on different pages. All their evidence that I have here says we're on the same page.
Do: So it's possible that you're wrong.
Dickson: I'm not saying it's possible I'm wrong.
Do: Okay, so we're back to you being the outlier. Right?
Dickson: No, I don't see that.
Do: You don't see that up on that easel.
Dickson: Are we gonna do this all day long?
Do: No.
Dickson: [Laughs]
Do: Right? Looking at the easel, you are the outlier.
Dickson: I, I disagree with ya.
Do: Alright thank you, doctor.
If you find that dialog painful to read, consider what it was like to transcribe it. Oy. And there is no capturing the snottiness of her tone on words like wrong and outlier. But she got nothing except for an admission that he misspoke by inferring a piece of information, rather than having an exact quote to refer to. So, perhaps, a juror who is as confused as she -- or hopelessly confused by her -- will find reasonable doubt.
Personally, I think she came across so badly and as so remarkably childish and petty in this cross that she may have really turned off anyone in the jury who wasn't already hopelessly turned off by her. But there's no accounting for taste. They might think she's brilliant. There are plenty of people who do based on her record as a prosecutor. All I can think is, how the mighty have fallen.
Bill Hughes Redirects Dr. Dickson
Bill Hughes did a fine redirect but there was little in it that Dr. Dickson wasn't able to make abundantly clear during the cross examination. Notably, he did provide Dr. Dickson with an opportunity to explain how he deduced that organophosphates had been ruled out by the toxicologist. He explained that the procedure was to go over the symptoms with a toxicologist and rule out everything that did not fit, like cholingergics and anticholignergics. Those things that were ruled out would not generally be included in the report; only the differential diagnosis that resulted from that conversation. In this case, that was carbon monoxide.
Hughes also gave Dickson the opportunity to explain that eMedicine has a different portal for doctors than for the general public and that he used the doctor portal as do doctors all over the country -- including the defense expert Dr. Paul.
The jury question for Dr. Dickson was excellent and bodes ill for James Ray.
From a physician's perspective, what survival advice would you give a patient of yours to help prepare her for a forthcoming event in which she will be exposed to an enclosed, extreme heat environment for over two hours?
Dr. Dickson recommended taking time to acclimate to high heat; preferably a couple of weeks. He also recommended keeping well hydrated -- continuously. That would alleviate some of the symptoms. Mostly, he would recommend education on the signs and symptoms of heat related illness, such as nausea and cramping, so that they knew to get out before the mental changes of heatstroke impaired their ability to make life-saving choices. He would tell them to get out and cool off when they started to experience any of the early symptoms.
Bill Hughes followed up by asking if he would advise against fasting the day before and Dr. Dickson said that he would most definitely advise against that. He also recommended getting plenty of sleep.
A very tired looking Truc Do attempted to salvage something by asking if "hydrate, hydrate, hydrate" would be good advice and if providing water, electrolyte beverages and fruit would help. She also pointed out that Liz Neuman did not fast the day before. (From which we're supposed to deduce what? That fasting beforehand was actually a good idea?)
Dr. Dickson was excused subject to recall.
Sgt. Frank Barbaro
In the final hour today, the State introduced new witness Sgt. Frank Barbaro. He oversaw the crime scene the night of the sweat lodge disaster, until it was taken over by a Lt. Parkinson. Sgt. Barbaro has an impressive background, including SWAT experience and the narcotics canine unit. For all that, he seems like a very jovial, mellow, and likable fellow.
Attentive jurors would notice that he corroborated Melinda Martin's "exaggerated" testimony by mentioning that, like those first responders she'd mentioned, Sgt. Barbaro had wondered if it was some weird cult thing or mass suicide.
There was really only one really major revelation in his brief, direct testimony. He explained what information James Ray had given him when he was brought back to the scene by deputies. Asked how many people had been in the sweat lodge ceremony, he'd said around 40. Asked where he lived, he said Las Vegas. (He owned a home there but his primary residence and business offices were and are in California.) And when he was asked who had run the sweat lodge, he said Ted, meaning poor, hapless Ted Mercer.
With those few simple details, that prosecutor Sheila Polk elicited from Sgt. Barbaro, we now know that Ray was conscious of his own culpability. He knew there was something wrong with the way he ran his sweat lodge and with the number of people he crammed into it. It means the State has now established mens rea.
When police tried to question him a little later, he declined to answer under the advice of his counsel.
There were other stunning elements to Barbaro's observations that night, but the jury didn't hear them because they were too prejudicial and couldn't be directly tied to Ray. Among them, he almost arrested a Dream Team member for obstruction because she was trying to send witnesses back to the rooms and interfering with police questioning. Also, someone believed to be Josh Fredrickson followed him around and also tried to interfere with questioning. Much of this can be found in his official interview which can be found here.
Luis Li began his cross but I'll be darned if I know what to make of it. He spent a lot of time and energy on Sgt. Barbaro's imperfect recollection of where he'd seen CPR taking place, to what point I can't imagine. There were a lot of other logistical questions and I believe I heard something about organophosphates, God help me, but I'll wait until Li gets farther along to draw any real conclusions.
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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