The Jury: James Ray Caused Emotional Harm

The jury deliberated for the better part of two days over charges of aggravating circumstances. This afternoon found them deadlocked on a number of issues and unwilling to deliberate further. The one thing they all agreed upon: James Ray caused emotional harm to the families of all three decedents. That is to say, guilty on three counts of the aggravating factor of emotional harm.

They also agreed that Ray held a unique position of trust in the case of Liz Neuman. So one count of unique position of trust. On the rest of the aggravators, the unique position of trust for Kirby Brown and James Shore, and pecuniary gain, they were hopelessly deadlocked.

Judge Darrow has set a sentencing date of July 25th, 2011. He declined a motion from prosecutor Sheila Polk that Ray be taken into custody immediately. 

A little reminder from Cosmic Connie: July 25th will be the second anniversary of Colleen Conaway's death in a San Diego mall; or as she was known on that day, Jane Doe. How darkly fitting. 

A very special thanks to April Santiago of Dateline and Rachel Stockman of NBC Channel 12 in Arizona, for tweeting the news live from the courtroom. And my heartfelt thanks also to the rest of my James Ray trial peeps for being an excellent grapevine of information, even during the near media blackout on this trial.

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James Ray Sweat Lodge Trial: Aggravating Tom Kelly

Right up to the bitter end, James Ray's defense team is sticking with that arrogance and condescension thing that has served them so well throughout this trial. As the jury went off to deliberate over aggravating circumstances Tom Kelly took them to task in his closing argument for reaching the wrong verdict.

"I have difficulty finding there was any criminal act," he said, "so that makes it difficult ... to stand up here and talk about aggravating circumstances."

He presented his client as the hapless victim and implied that the jurors would have to live with what their finding did to him for the rest of their lives. For good measure he sought to intimidate them with the press scrutiny they would face for their decisions, telling them that the media would "assault" them as they left the court.

I think this was a miscalculation. He's insulted jurors who still have some decision making power over Ray's fate and who have already decided that he has some culpability. A lack of contrition is unappealing in a convicted criminal and, for now, Tom Kelly is the only voice James Ray has in that courtroom. If he comes off as arrogant, unapologetic, and unconcerned about the loss of life, so does Ray. If he comes off as disrespecting the jury, so does Ray.

He also reminded jurors that they must not be swayed by sympathy or prejudice... except for the sympathy they should have for poor James Ray, presumably.

"Mr. Ray had nothing to gain from the deaths of the sweat lodge participants," the defense said. "To the contrary, he had everything to lose and in fact did lose everything as the aftermath of the sweat lodge incident has shown."

He scoffed at the idea of pecuniary gain, insisting that the money went not to James Ray but to JRI and Angel Valley. I don't think the jury bought the idea that Ray's tiny company with a handful of paid employees was a totally separate entity during the trial. And, of course, they weren't allowed to know that Ray always required kickbacks from the hotels where he held his events.

Basically, Kelly replayed the defense's trial strategy resurrecting the organophosphate theory and reminding the jury of our freedoms.

"This is a nation of risk-takers; it's what makes us great," he said, adding that "the implications are beyond comprehension" if a leader or guide who presides over an event that leads to a fatal accident can be imprisoned for a crime.

Kelly also kept with the primary defense strategy: frequent objections and exclusion of evidence. Early in Sheila Polk's closing, he objected to her rendering of the facts. Judge Darrow reminded the jury that what attorneys say isn't evidence and they moved on.

When Polk played a recording from Ray's speech to participants, Kelly objected again, insisting that the recording was not in evidence. Judge Darrow looked at the minutes from March 2nd when the recording was admitted into evidence without objection.

"Follow the money," Polk told the jury in her closing, as she asked them to consider three aggravating factors: emotional harm to the families, the unique position of trust Ray held, and pecuniary gain.

She reminded the jury of how little information families got from JRI in the aftermath of the tragedy. She told them that Kirby Brown and James Shore were admitted to the hospital as Jane Doe and John Doe. Think about that for minute. Four people have died on James Ray's watch and every one of them spent time listed as "Doe." It's a chilling reminder that those waivers they sign are entirely to protect Ray; not the people who are paying him thousands of dollars to lead them through dangerous activities. Responsible organizations keep that kind of paperwork at the ready to hand to hospitals in the case of emergencies... along with health histories that Ray doesn't even require.

Alyssa Gillespie, Polk told the jury, didn't even know her husband James Shore had died until 30 hours later.

As examples of the unique position of trust Ray held with participants she referred to witnesses like Mike Oleson, Scott Barratt, Dennis Mehravar, and Beverley Bunn who said they all trusted Ray to keep them safe. And she pointed out that they all paid Ray a lot of money, nearly $10,000 a piece, in exchange for promised results.

"The events of the week were like a pyramid with the sweat lodge on top, designed to make the participants believe they got something for their money," she said.

"This case is about money, trust, and greed," Polk told the jury. And she reminded them of the ultimate cost.

"Mr. Ray took their money, their trust, their dreams and the lives of Kirby Brown, Liz Neuman and James Shore," Yavapai County Attorney Sheila Polk said in asking jurors to find that the state has proven the aggravating factors beyond a reasonable doubt.

As of this writing, the jury is still deliberating.

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James Ray Sweat Lodge Trial: Aggravating CNN

Where's Waldo? Where's Megan? And Where's CNN?

Despite their having the James Ray "aggravation stage" on their schedule all weekend and up to 12:16 EDT today, CNN did a runner. Turns out the gouge on Connie Joy's Facebook page -- that they'd pulled their equipment and skipped town last week -- was correct. CNN's own employees who even confirmed via email were wrong. But that sort of total incompetence is par for the course when it comes to CNN's coverage of this trial.

And Megan Fredrickson whose testimony we were hotly anticipating? In the wind. Both she and her husband Josh took a powder. They are nowhere to be found. Through their attorney, the State learned that she was refusing to cooperate. She and her husband are afraid of being indicted. I expect they'll be avoiding the state of Arizona indefinitely.

Throughout the early part of the day, there were legal arguments which kept the jury in a holding pattern outside the courtroom. In an unsurprising move, the defense made another motion for mistrial. I'm starting to think that shouting "mistrial" is just some strange verbal tic that Luis Li can't really control.

Motions had already been flying back and forth with the defense moving to strike four of five aggravating factors proposed by the State. Prosecutors agreed to dismiss two: presence of an accomplice and the heinous, cruel, and depraved nature of the crime. No doubt these things would have been hard to prove without Megan Fredrickson's testimony.

The list of witnesses offered by the State was winnowed down to three; all family members of the deceased. Andrea Puckett is Liz Neuman's daughter. Ginny Brown is Kirby Brown's mother. Alyssa Gillespie is James Shore's widow.

And then the testimony began.

Heartwrenching Testimony During Ray Sentencing Phase: MyFoxPHOENIX.com

Even without the streaming video, and relying on nothing but second-hand recounting via Twitter, I repeatedly found myself moved to sobbing. Most unbearable was the thought of James Shore's children learning of the loss of their father. Alyssa Gillespie described her three children waiting excitedly for the return of their father from his trip. She described Shore as an "amazing father," her partner, and her best friend. And she described the children's horrified grief at learning he would not be coming home.

She continued, "The wailing, the sounds... the sounds that come out of a very small child... there's no way to tell your kids that their dad is dead. I just had to do it, I just had to say their dad is dead."

Her eldest daughter experienced extreme anxiety, night terrors, and would wake up screaming "where's dad?" Her son asked Santa to bring his father back.

Gillespie was not surprised to learn that her husband had saved Sidney Spencer by taking her out of the sweat lodge. "James lived as a hero," she said.

Ginny Brown had characteristically strong words. Brown has been outspoken from the beginning, leaving no one to doubt whom she holds responsible for the loss of her daughter. She recently gave this interview in which she openly called Ray a "loser" for not following his own teachings on taking responsibility. She was equally blunt on the stand.

"I was horrified, horrified," said Virginia Brown, Kirby Brown's mother. "Kirby was a great adventurer, but she was very conscious of safety."

Brown told jurors that she blames Ray for her daughters death. Family members of all the victims say none of Ray's staff came to the hospital to help ID them.

She described her daughter as someone who "played full on since she was born."

"I would often describe Kirby as drunk on life," she said.

She described the unutterable pain of hearing the worst words a mother possibly can from a Trooper at her door. She just started screaming, she said.

Brown also disclosed that she and her family have founded SEEK Safely, an organization dedicated to educating people about some of the dangers of the self-help movement.

Andrea Puckett described her mother Liz Neuman as "full of life" and "strong willed."

Like Brown, she described the failure of James Ray and JRI to apprise her family of her mother's condition. She learned of it, she said, from her mother's Facebook page. When Ray finally contacted her, the day after her mother's death, she hung up on him.

The seven days in the hospital with her mother on life support she said were the most difficult of her life. She was overcome with emotion as she described removing her from life support.

Neuman slipped into a coma after the two-hour ceremony near Sedona. Her organs were failing, she had minor seizures, her body was swollen, she was on dialysis and was hooked up to a lot of machines, Puckett said. The family was told she had almost no chance of surviving, and decided to take her off life support.

"You want to hang on to that hope, but at the same time you have to think about her and what she would want," Puckett said. "The hardest part of being there was having to make that decision."

Puckett's daughter and what would have been Neuman's first granddaughter, 9-month-old Lauren, was born a year to the date that she dropped her mom off at the airport to go to Ray's event. Lauren's middle name, Marie, is the same as Neuman's.

She described her sadness that her mother will not be there for a fourth generation photo with her daughter and granddaughter.

Apart from the loss, what ties the family members of these victims together is how completely they were failed by James Ray. Their testimony showed jurors yet another way that his almost inconceivable  callousness made a bad situation worse. None of them were contacted promptly by JRI. Like Colleen Conaway, Neuman spent time listed as a Jane Doe. Puckett described for the jury how she ultimately had to give a physical description to the hospital so that her mother could be identified.

Defense attorneys had no questions for any of the witnesses; for once showing they know the wisdom of restraint. Not when it came to addressing the jury, however. Kelly reportedly took them to task for rushing to judgment. He let them know that he was disappointed in their verdict and in their taking only five hours to reach it. Team Ray can't seem to go a single day without acting like total dicks.

Meanwhile, CNN left confused trial watchers wondering why they spent the day seeing nothing but empty chairs:

Empty tables:

And empty feeds.

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James Ray: Aggravating Circumstances, Mitigating JETs -- UPDATED

IMPORTANT UPDATE: See below.

Next week the James Ray trial will enter the aggravation phase. I doubt highly that CNN will stream it which is unfortunate. It could prove to be some of the most explosive testimony yet. Why do I say that? Two words: Megan Fredrickson. I was a little thrown when I saw her name on the list. I thought, either she's done quite an about-face or her testimony is being compelled. I'm inclined towards the latter possibility.

As per Lynn LaMaster of eNewAZ, the aggravation phase is a necessary step in determining sentencing. She has been updating this page as new information has come in on the verdict and post-verdict phase.

According to A.R.S. § 13-701 (C), "The minimum or maximum term imposed... may be imposed only if one or more of the circumstances alleged to be in aggravation of the crime are found to be true by the trier of fact beyond a reasonable doubt or are admitted by the defendant..."

The 'trier of fact' in this case is the jury.

Many circumstances are listed in A.R.S. § 13-701, but Yavapai County Attorney Sheila Polk, in a motion filed with the court on February 16, alleges four aggravating circumstances:

1. The presence of an accomplice (A.R.S. § 13-701 (D)( 4)).
2. The especially heinous, cruel or depraved manner in which the offense was committed (A.R.S. § 13-701(D)(5)).
3. Defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value (A.R.S. § 13-701(D)(6)).
4. The victim or, if the victim has died as a result of the conduct of Defendant, the victim's immediate family suffered physical, emotional or financial harm (A.R.S. § 13- 701 (D)(9)).

If the jury finds the aggravating circumstances are true, James Ray could be sentenced to 3.75 years in prison for each count. If the jury does not find any of the above aggravating circumstances to be true, Ray could receive a sentence that only includes probation.

James Arthur Ray: Guilty Verdicts and Responsibility

Bob Proctor, he of Secret fame, is putting his mouth front and center in the wake of James Ray's guilty verdict.

"Anybody had the right to leave there (the sweat lodge), and they didn't. Some did," Proctor said. "It was a tragic thing that happened, but I don't think (Ray) should be the one that's held responsible.

Earlier, when he was interviewed on In Session, Proctor allowed that Ray had law of attracted this for some reason. I guess the most generous reading of Proctor's logic is to say that Ray was spiritually responsible but not materially or legally responsible. He attracted this debacle, maybe because he let himself think some unhappy thoughts. Why, oh why, didn't he put on some happy music and chase the negativity from his mind?

In a 2007 interview with Dan Harris James Ray articulated his views on the issue of personal responsibility. He even put the statement on his website.

In an interview, Ray answered about personal responsibility, “I fully know, for me, that there is no blame. Every single thing is your responsibility … and nothing is your fault. Because every single thing that comes to you is gift … a lesson.”

There is nothing new or original in that statement. It's the boilerplate response to the kinds of hard questions Dan Harris has distinguished himself among journalists for asking about the law of attraction philosophy Ray represents. (If you haven't seen his Primetime: Mind Games show on the sweat lodge tragedy, I highly recommend that you take an hour and do so.)

I heard a lot of the same kinds of statements when I was just a whippersnapper in this new age arena. I heard them because I asked the same kinds of questions. The blame the victim implications of law of attraction beliefs never sat right with me. And the kind of response, articulated in that for instance by Ray, has always sounded like so much parsing to me. It's just playing at semantics.

See if you can follow the logic here. Where's my Secret decoder ring... As per Joe Vitale, there are no victims in the Haiti earthquake. The Haitians are responsible because of their negative thoughts. But as per Bob Proctor, James Ray is not responsible for the deaths of three people even though in exchange for their money and volunteered service, he packed them into an "hellacious hot" tent and urged them to "transcend" their feelings of impending death. The self-described master of the lodge proceeded to dismiss concerns called out by people who thought that Kirby Brown and Liz Neuman were in trouble, and said they'd take care of unconscious people after they were done. Then he ordered more heated rocks and poured more buckets of water. And when the ceremony was over and people were running around trying to save lives by dragging people out, calling 911, and performing CPR, Ray cooled himself under a tree, chatted on a cell phone to someone other than 911, and then went back to his room for shower and a sandwich.

I guess you could say he was not responsible... in the sense that he acted totally irresponsibly.

I also think it's interesting that Proctor doesn't just say that Ray isn't responsible. He implies that someone else should be held responsible. I can only assume from the context that he's referring to James Shore, Kirby Brown, and Liz Neuman. After all, they could have left. Others did. And we're right back to the same blame the victim idiocy I've come to expect from adherents of the The Secret. Every one of us is responsible for our own reality and only our own reality. We don't actually have any impact on other people. We're just in our own little worlds, making our own choices, and living with the consequences.

In this case, the choice made by these three was to take Ray at his word and do what he asked of them; what he reminded everyone they had paid for.

I remember years ago, I belonged to a healing circle and one of the leaders did something inappropriate that hurt and angered someone. I don't even remember what it was. He acknowledged his error but explained that it was part of that other person's learning experience that he had drawn to himself. I found that explanation stunning. What kind of spiritual teaching says, Hey, I did you wrong, but you're creating your reality so you need to take responsibility for the wrong I did to you. You're welcome!

Such is the crazy, fun-house mirror world of the new age arena, in which everyone is responsible but the teachers, the leaders, the gurus. And we're only really responsible for the experiences we draw to ourselves; not the wrongs we do to other people.

That's the punchline on Proctor's statement and on Ray's behavior. It doesn't even surprise me. I've seen it all before... except for the gruesome, horrible death part.

How much differently might all of this played out if Ray had taken actual, no kidding responsibility for his actions... and inaction? What if he'd made a plea agreement, admitted his guilt in the sweat lodge deaths, apologized, and made some restitution to the families. This whole thing would have gone a lot easier... on him. He wouldn't have blown through his fortune paying legal fees. He wouldn't have attracted as much media attention. He would not have burned so many bridges with former students or made total enemies of the bereaved.

I have said for years that the fatal flaw of The Secret is that it's all about the glorification of the ego. You can have whatever you want. You can be whatever you want. And it's all through the power of your mind... in other words, the power of your ego.

James Ray is a shining example of what happens when the ego runs completely amok. And he's just crashed and burned on his own grandiosity.

"My feelings on it are James Ray was totally bogus. None of his credentials panned out," [Kim] Brinkley said. "We walked into that sweat lodge believing in his training, paid for his knowledge and wisdom, which was all false. Whether or not he goes to jail, somehow, this will force James Ray to take responsibility."

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James Ray Found Guilty in Sweat Lodge Deaths

James Arthur Ray was found guilty on all three counts at the lesser charge of criminally negligent homicide.

Self-help guru James Arthur Ray was found guilty of negligent homicide Wednesday, nearly two years after three people died in a sweltering sweat lodge for one of his exercises.

The Camp Verde, Ariz., jury, which deliberated for barely a day, chose not to convict Ray of the more serious charge of manslaughter, as the prosecution had urged.

He will remain free on bond at least until the jury addresses "aggravating circumstances" next week. It almost goes without saying that Judge Darrow rejected the most recent mistrial motion, which the defense filed earlier today.

I'm still digesting this. I'm sure I will have much more to say at a later date. For now, I'm just savoring the sweet taste of justice.

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James Ray Trial: In the Hands of the Jury

Sheila Polk Delivers Rebuttal

As expected, Sheila Polk's final rebuttal was brilliant. Despite the nearly four hours she had available to her, she took only a couple... and managed to cover more ground than Luis Li did in over six. This is because Polk is a good public speaker, where Li -- and I say this as a former competitive public speaker -- is terrible.

I have much to say about Polk's close but I find that even after two blog posts on the subject, Li's closing argument is still stuck in my craw. I'm actually a little amazed at how much it irritated me. And not just because it was six hours of my life I'll never get back. Upon consideration, I realize that it comes down this: Narcissists really push my buttons. That was one of the most self-indulgent speeches I've ever heard, and I'm including speeches that are intended to be autobiographical.

The Salty Droid put together a great, little video of some of the lowlights. It really underscores the hypocrisy of Li's refrain, "But this isn't about me." Of course it was all about Li and I'm realizing that that has been an observable pattern throughout this trial.

Listening to this, I noticed an aside that I'd previously missed. In his "anecdote" about mountain-climbing, he let slip that he was actually considering putting up a picture of himself climbing Mount McKinley. Truc Do talked him down. She wisely pointed out that to do so would be "cheesy." Gee. Ya think? The man was already drowning in giant, over-sized charts, easels, and the calendar that ate Manhattan, and he wanted to put up a picture of himself climbing a mountain. My guess? It probably would have been actual size.

Who does that? Who, in the midst of a legal argument representing a client who is paying for his counsel, puts up a frigging self-portrait?!!

Wow.

Sadly, his self-indulgence continued today, into Sheila Polk's rebuttal. The objections started ten minutes in. By roughly the half hour mark he was already on the fourth and Polk finally called for a sidebar.

Li Objects to... Something or Other

Objections during closing arguments are rare. Their purpose is to put on the record grounds for appeal and, as we know, this defense team seems to think that nearly everything Sheila Polk says and does creates reversible error.

I think there are really two things at play here and both are irritating. The first is that Li was using objections as part of a continuing attempt to filibuster; to stall for time, throw Polk off her game, and break her momentum. I think he just wanted the jury to be as bored and annoyed by her remarks as they undoubtedly were by his. That is grossly inappropriate during closing arguments.

The second is that Luis Li is absolutely convinced of his own correctness. A clue to that was in his criticism of Michael Hamilton for having his own sense of spiritual truth. As I said before, I find the idea of "objective reality" troubling. But I think he really believes that there is some objective truth... and that he possesses it. It's a strange position for a man who can split a hair as finely as Luis Li. The subtle legal points he makes are not matters of perception or opinion in his world view. They're not debatable. They are matters of fact. Li can take any subtle reading of the law and pronounce it with a self-righteousness usually reserved for holy writ. And when Judge Darrow, himself, disagrees with him, he starts lecturing Judge Darrow.

If Sheila Polk interprets the evidence differently than Li does, she's objectively wrong, it's reversible error, and probably constitutes prosecutorial misconduct. So she was unable to get through her rebuttal without numerous objections and several of sidebars. I don't think there were anymore mistrial motions but, in fairness, I really don't know what was said up at the bench.

Sheila Polk Soldiers On

Even through all that, Polk was brilliant. She again allowed Ray's own words to illustrate his guilt. She interwove segments of his pre-lodge description with the known symptoms of heat related illness, demonstrating the clear correlation. She explained how that circumstantial evidence -- the description of the superheated environment participant were in -- pointed to heatstroke as the cause of illness and death in the sweat lodge.

She then explained that once a person has slipped into unconsciousness, they need to be removed from the heat promptly and cooled or their organs begin to fail.

Polk addressed the issue of the lack of a documented high temperature of 105° that would have convinced the defense's medical expert Dr. Paul that it was heatstroke. She pointed out, again, that in the handful of heatstroke findings in his own career as a medical examiner, he had no documented core temperature. She explained that getting that temperature on the record is not the first priority of doctors dealing with heatstroke patients. Cooling them and saving their lives is. And in the case of the sweat lodge aftermath, people were cooled by hoses, buckets, and the cool air of the October evening.

As she has done throughout her commentary, Polk used the testimony of witnesses to both illustrate and humanize the factual elements of her case.

The defense tried to cast doubt that Liz was hot when she came out of the tent by arguing to you that Dr. Nell Wagoner, the gynecologist from Alaska, had testified that she touched Liz immediately, right after she emerged from the sweat lodge and that she was cold.... It is simply not what the witness, Dr. Wagoner, testified to. She did not testify that she immediately went to Liz and touched her and that she was cold. Here's what Dr. Wagoner testified to. She testified that when this heat event was over she saw four people unconscious in the tent. She told you that she tried to drag a woman out but could not. And she told you that she then assisted in dragging another woman out who was also unconscious and pulled that woman straight out the entrance and left her there.

And, by the way,  remember that Dr. Wagoner testified to her shock at how much hotter the back part of that sweat lodge was as she circled and tried to pull people out. Dr. Wagoner testified that once she was outside, she put the unconscious woman down and turned to the Dream Team members and said there are people unconscious. They can't get out and they need help. Dr. Wagoner described for you how hot and weak she felt, how she laid down in the field about twenty feet from the tent and that someone poured water on her from a container. Dr, Wagoner told you that with the cooler air temperature and that water she, Dr. Wagoner, cooled down quickly and began to feel chilly. Dr. Wagoner testified that at some point she tried to get up and someone told her to stay down and not to get up yet. She told you that somebody else brought her electrolytes to drink. And then Dr. Wagoner told you, then when she was finally ready to get up, someone told her to go to her room.

But at that point she looked around and saw people in distress. That's when Dr. Wagoner testified she saw Liz lying there, close to the tent, with no one tending to her. Dr. Wagoner told you Liz was breathing but would not respond. And finally Dr. Wagoner told you that when she touched Liz her skin was cold. Dr. Wagoner told you that Liz had been hosed down and Dr. Wagoner told you that she was with Liz, she thinks for about thirty minutes before the paramedics arrived.

With this recollection of Dr. Wagoner's comments, Polk established a number of things: that Liz Neuman was wetted down, that it was hotter at the back of the tent, that many people -- including Liz Neuman -- were unconscious and not being properly attended to, that people had plenty of time to cool and lower their body temperature even before the paramedics arrived, and that Luis Li was blatantly misrepresenting testimony in his closing argument.

Polk also took aim at Dr. Paul's claim that dehydration is not part of the diagnostic criteria for heatstroke in any of the medical literature that he, himself, provided.

She spent a good deal of time comparing the two paid experts and Dr. Paul and Dr. Dickson and took the opportunity to explain why the State had hired an expert. This was to address Li's assertion that the State didn't need to hire anyone when their own, government employed experts available to testify. They hired Dr. Dickson, she explained, because the wanted someone to look at all the evidence and form an overview, rather than simply presenting different doctors and Medical Examiners to testify to different cases.

She made the point that Dr. Dickson, because he worked in the extremely hot town of Yuma with all it's industrial farming, was uniquely qualified to speak to both heatstroke and organophosphate poisoning, having treated both. Again, Dr. Dickson was the only medical expert who testified in this case who had actually treated organophosphate exposure. Dr. Paul, on the other hand, being from New Mexico, had seen only 10-12 instances of heat related death, and zero cases of organophosphate poisoning.

Polk walked the jury through how toxidromes were considered and eliminated by the treating physicians and why that rendered the background noise recording of the "EMT" irrelevant. It was speculative and preliminary -- exactly the kind of evidence the defense wants to cherry-pick in this case. But doctors go through a series of eliminations to get to final conclusions and one of the things that was eliminated early on was cholinergic poisons like organophosphates. Also eliminated were anti-cholinergics. Those determinations were made based on the clinical data and, therefore, no bloodwork or other testing was required to eliminate them. Carbon monoxide was not ruled out clinically, so blood was tested and came back with normal levels of carbon monoxide. She also pointed out that even if there had been a sign of an organophosphate-like toxidrome, Goldfrank's Toxicologic Emergencies referred to by Do and and by Dr. Paul explains that there is no really good blood test for them.

She also pointed out that the defense's claim that the State had not kept blood samples for testing was flat-out wrong. Those samples were preserved and available to the defense had they chosen to run tests, which they did not.

Dr. Paul, Polk reminded the jury, did not even include the organophosphate theory in his report. It only came up near the beginning of the trial and the State immediately acted to get testing done and when they learned those tests couldn't be counted on, the immediately informed the defense of that as well.

In what was easily my favorite moment in her discussion of Dr. Paul and the organophosphate theory, she invoked Do's "outlier" comments to Dr. Dickson.

This is not fifth grade. This is not medicine by peer pressure.

Having eviscerated the organophosphate, "look-away" defense strategy, Polk returned to the extreme heat as the cause of death. She reminded the jury that they'd heard testimony demonstrating that it was only at James Ray's sweat lodge ceremonies that illness occurred. This was true no matter what structure was used. Other sweat lodges were conducted at Angel Valley in the same structures and there were no reports of illness.

Polk discussed Jennifer Hayley's testimony that she didn't feel her dreams would come true because she hadn't been able to endure those temperatures for the duration of the sweat lodge. And she recalled Beverley Bunn's testimony that she believed Ray, with all his experience, knew better than she how much heat she could endure when he intimidated her out of leaving the sweat lodge.

She described Melinda Martin's horror from the very first round at what was unfolding. Those who had been acculturated to Ray's way of doing things actively discouraged her from showing her distress, telling her to wipe that look off her face. But Martin set about trying to help the people as they left the tent early on, some collapsing from the heat.

She recalled Dennis Mehravar's screams that he was dying and Ray's assurances that he was not. Less than hour later, she pointed out, two people were dead.

She described testimony about someone named who Carlos who nearly staggered into the rock pit but was stopped by other participants. Lou Caci, of course, was not so lucky.

Polk addressed directly a number of Li's false assertions about the prosecution. "I never thought I would find myself having to defend the fact that I'm a working county attorney, so I'm just gonna leave that one alone," she said.

From there she moved to the "secret meeting" and she did a decent job of demystifying the State's position and explaining that the defense had received all of the information from that meeting. There was an objection and another sidebar which muddied the water a bit on that but at least she was able to address it with some degree of frankness.

She reminded the jury that life is not an episode of CSI and that, while Det. Diskin had not talked with Dawn Sy about her lab results, he had talked to her boss. She also reminded them that, far from avoiding Sy's testimony, they'd had her in the hall at one point waiting to testify for the State. 

Polk also called bullshit on the defense's repeated references to cults. She pointed out that prosecutors have never used the word cult. The defense has done so repeatedly, starting with Li's opening argument and finally in his closing. Here's why that's hilarious. The defense successfully blocked cult expert Rick Ross from testifying for the State. Now, Ross's testimony was never intended to be about Ray running a full-blown cult. He was, no doubt, going to discuss the cult-like elements of LGATs. (Large Group Awareness Trainings) He probably would have gotten into issues of abuse of authority and the way people's defenses were broken down through food and sleep deprivation. Even if he had testified, the defense's argument with the idea that participants were "part of a cult" would have been a straw man. As he was not able to testify it ends up looking like a complete fabrication on their part. Explained Polk:

You never heard the State talk about cults. This is not a case about cults. This is a case about a man, James Ray, who marketed himself as a qualified professional who charged $10,000 for a five day event, not including room and board, and then recklessly caused the deaths of the participants who trusted he knew what he was doing. And who reasonably relied on him to keep them safe.

In the course of her rebuttal, Polk reminded the jury of numerous opportunities Ray had to be a responsible professional running an event and how he squandered them all. From early on when Ami Grimes was dragged unconscious from the tent he could have stopped the event to address the impact on people's health. He could have stopped to check when Megan Fredrickson reminded him that he was responsible for the people in the tent. Instead he continued on as someone rolled under the wall of the tent to escape the heat, stopping only to warn people that it was sacriligious. Through all the expressed concerns about people in distress, people passed out, people not breathing, Ray kept going, never stopping to check for himself and determine whether people were actually in peril. He checked neither the people who had left, nor those who were still inside the tent.

Death was not inevitable. And this was not an accident. Mr. Ray had so many opportunities to change the course of his conduct but he did not. And that is why we are here. But for Mr. Ray's conduct the victims would not be dead. 

Polk also addressed Li's outrageous assertion that it was inappropriate for her to have shown the pictures of the three decedents because it was playing to the "sympathy and prejudice" of the jury to talk about the lives that were lost and of their dreams that would never come to pass. In the video above, you can hear him describe his outrage over this even as he proceeds to paint James Ray as the victim in the most dramatic and emotive of terms. "He has a name," said Li, erroneously implying that the prosecutors only referred to him as "the defendant." Yet Li could not bring himself to name Kirby Brown, James Shore, or Liz Neuman. He could only decry the use of their images by prosecutors.

Mr. Li said it was "wrong" for me to leave up photographs of these three victims, when I did my first closing. We are here because three people died needlessly in Mr. Ray's horrific heat endurance challenge. We are here because Mr. Ray recklessly caused their deaths. And, yes, I am going to remind you of why we are here. These three people, looking to improve their lives trusted that for $10,000 Mr. Ray knew what he was doing. And they trusted that for $10,000, Mr. Ray would keep him safe, keep them safe, in his sweat lodge event. These three people lay in severe distress in Mr. Ray's sweat lodge while others around them tried to do what they could do to help, while others around them called out to Mr. Ray that they needed help and they needed to get out. These three people lay in Mr. Ray's sweat lodge dying while he continued to add more rocks, more water, and more steam. These three people are the reasons we are here. We are here because but for Mr. Ray's conduct these three individuals, Kirby Brown, James Shore, and Liz Neuman would still be alive. 

What's "wrong" in this case is charging $10,000, telling participants you know what you're doing, telling participants to trust you, and to set aside their own self-preservation instincts and then recklessly, incredibly recklessly, holding this ultimate challenge, this heat event, and in spite of information that people are in distress, unconscious, not breathing, need to get out, continuing to act, continuing to create more of that searing heat and more of that searing steam. That's what's wrong with this case. Mr. Ray's conduct, continuing to introduce that lethal heat with three people down and in distress with his knowledge. We are here ladies and gentlemen because Mr. Ray, because of his conduct. We are here because Mr. Ray intentionally used heat to create this altered mental status and was criminally reckless about the consequences. That is what reckless manslaughter is about. And I ask you again to find the defendant Mr. Ray guilty of all three counts. Thank-you.

The Picture Mr. Li Didn't Want the Jury to See

All information on the trial today comes courtesy CNN's live feed. They not only returned unexpectedly for closing arguments but added exciting, new camera angles. All quotes and paraphrased statements that are not linked to a source document are my best attempt to transcribe material from live broadcasts.

Comments on this entry are closed, on this blog. If you wish to comment, please find this and all newer blog entries crossposted on Celestial Reflections.

James Ray Trial: As the Ending Nears the End

When the facts are on your side, argue the facts.
When the law is on your side, argue the law.
And when you have neither, pound the lectern.
And be sure the mic makes a really grating,
cringe-inducing noise when you do.

One of my favorite episodes of Frasier parodied the horrendously purple prose of the bestselling novel Bridges of Madison County. In "Slow Tango in South Seattle" Frasier discovers a chapter of his life has been stolen by a writer in whom he'd once confided over drinks at Cheers. Towards the end of the episode, we see Frasier sitting in his recliner reading the conclusion of the book. "Now, he was leaving, going, vanishing..." Unwilling to read the entire, florid passage, he skips ahead... three full page turns. He continues reading, "And so he was gone." That scene popped into my head on Friday as it slowly and horribly dawned on me that Luis Li might not stop talking for hours and that closing arguments would probably go into a fourth day. This has been a long trial. The ending has been endless.

That closing argument was, in a sense, a fitting conclusion to the defense's case. As they have done throughout, Li buried the jury in a torrent of words. The argument was repetitive, circular, extraneous, tangential, internally contradictory, and delivered with a tone of juvenile petulance. Dear God, that was insufferable. It took me the better part of the weekend to unscramble my thought process. As has so often been the case with both Li and Do's cross-examinations, I was left with a monster headache the next day.

I've realized that this is part and parcel of the siege mentality with which the defense has approached this trial. They have pelted the State's case with rubble for months in an attempt to wear down the prosecutors, the witnesses, the jury... even the judge. That trial by onslaught approach became glaringly apparent to me when I was watching Truc Do's eternal cross-examination of Dr. Dickson. The problem, though, was that she exposed her flank. In the end, she showed the gaping holes in her own argument because she talked too much for too long. The savvy, knowledgeable Dickson debated her points quite ably.

Li made a similar strategic error on Friday. His filibuster backfired. If he'd kept it short enough that Sheila Polk still had time for her rebuttal, she would have been presenting her final remarks to a jury too mentally exhausted to make heads or tails of anything they'd heard that day. Tomorrow she will go before a jury that is rested, refreshed, and capable again of higher brain function.

"You know, everything is not an anecdote. You have to discriminate. You choose things that are funny or mildly amusing or interesting. You're a miracle! Your stories have NONE of that. They're not even amusing ACCIDENTALLY!... It's like going on a date with a Chatty Cathy doll. I expect you to have a little string on your chest, you know, that I pull out and have to snap back. Except I wouldn't pull it out and snap it back. YOU would! Agh! Agh! Agh! Agh! And by the way, you know, when you're telling these little stories? Here's a good idea - have a POINT. It makes it SO much more interesting for the listener!"

~ Steve Martin in Planes, Trains and Automobiles

If the jury fails to convict, it won't be because of the tactical genius of Ray's defense team. But they've done a couple of things well. They've fought successfully to have some of the most damning background material excluded. And they've argued at least reasonably well that the participants had free will -- that they chose to be there and could have chosen to leave. Jury consultant Dr. Dennis Elias explains the central conflict in the interview embedded above.

The decision may boil down to whether the jury believes the participants in the case were acting on their own free will as the defense argued, or were conditioned to ignore they and others were in distress.

“The prosecutor’s position that they were compelled by Mr. Ray will be a hard battle for the defense to overcome,” Elias said. “But the idea of personal responsibility is quite compelling and all the defense needs is to have one person with reasonable doubt.”

For those of us familiar with the groundbreaking research of Dr. Stanley Milgram, it's very easy to understand why so many people in that sweat lodge were submissive to James Ray: self-described "master of the lodge." Put simply, most people defer to those they perceive as authority figures. It's an ugly, hard to face truth about human nature. I know when I saw the documentary "Obedience" as a college kid, I wanted to believe that I would have stopped administering shocks to the "learners" even earlier than the most resistant participants, all of whom did so longer than they were comfortable with. But I have no way of knowing that. I know that the film served as a warning to me and has certainly informed my rebellious nature.

Milgram's findings contradicted the expectations of his Yale colleagues and students, all of whom predicted a very tiny percentage of subjects would administer high voltage shocks. In his first studies, 65% progressed to the full 450-volts, despite their expressed discomfort in doing so. I bring up that point because it so well underscores the disparity between perception and reality. It's so much easier to think that the people who would violate their own instincts and ethics, just because someone in a lab coat tells them to, represent a kind of freakish minority. Similarly, Luis Li considered the witnesses who didn't conform to his ideas of free will "a little odd."

A large body of psychological research says otherwise but we have no way of knowing how familiar the jury is with that data. And the State was not able to present their cult expert Rick Ross.

It seems to me that the more salient points are that the people in that sweat lodge were exhausted, undernourished -- having only just broken a 36 hour fast -- and, most importantly, superheated into varying degrees of delirium. By the time some of them began to realize that Ray's promise that they wouldn't die no matter how they felt might not be true, they lacked the wherewithal to get out. They were slipping into unconsciousness like Linda Andresano or staggering into the heated rocks like Lou Caci.

It's also impossible to freely choose something when you're under-informed -- or misinformed -- about what you're walking into. It's funny. In retrospect, I think that waiver that the defense had made such an issue of throughout the trial is working for the prosecution. As Sheila Polk pointed out to the jury in her closing argument, it gives the lie to Ray's lack of awareness that people cold die. But it was only devised to protect JRI; not the participants. It only says there may be a sweat lodge and it compares it to a sauna. No sauna is that hot or that long. And there is no health questionnaire.

Most importantly, at no point, not in the waiver, nor in Ray's speeches, does he tell people he'll be inducing those "altered states" by inducing heatstroke. I really doubt people would have gone along with that if they'd known.

There's a difference between consent and informed consent.

One of the most interesting things about these final days of trial has been the perspective offered by the new camera angles. Trial watchers have finally gotten a good look at what appears to be a heavily sedated James Ray. The once dynamic, charismatic public speaker and television personality is almost completely bereft of expression... or natural movement. He looks like he's auditioning for the role of the Hymie the robot in a remake of Get Smart. It's just so bizarre. What kept popping into my head was a video the Salty Droid did a year or so ago juxtaposing Ray's antics with the Dresden Dolls's "Coin Operated Boy."

So tomorrow should at last bring the end of the end of this case. Sheila Polk will present her rebuttal to Luis Li's stream of consciousness rant. She will undoubtedly be brilliant. And then it will finally go to the jury... That's assuming defense attorney's don't start screaming about reversible error and making more mistrial motions. I wouldn't discount that possibility. Here's hoping CNN let's us see it, whatever happens.

Comments on this entry are closed, on this blog. If you wish to comment, please find this and all newer blog entries crossposted on Celestial Reflections.

James Ray Trial: Endless Closings

Luis Li Nears End of Closing Argument

Well. That was horrible.

That was not a closing argument. That was a Li endurance challenge. And it definitely put me in some sort of altered state. At some points, I found myself rocking in my chair and telling myself, he'll be done soon, he'll be done soon, he'll be done soon...

And then I'd hear him say, "And we're STILL not done." That was Luis Li's darkly fitting catchphrase for his closing argument. "And we're STILL not done." And he said it over, and over, and over… and over.

Everything good I said yesterday about a new, improved, less boring Luis Li? I take it back. I take it all back.

That. Was. Horrible.

Li, who originally said his closing argument would take about four hours and later said five, clocked in at over six hours. He spoke for just under three hours yesterday. During a break late today Judge Darrow informed him that he'd been speaking for another three hours today and asked him how much longer he thought he'd be. He only needed about another six minutes he informed the judge.

Sheila Polk, who had spent the day listening and taking notes, informed the judge that she did not intend to present her rebuttal today. Because of the equal time rule agreed to for closing arguments, Polk had already accrued approximately three and a half hours and she might need all of it. Mr. Li should take his time finishing, she said. In deference to a juror who'd requested a shorter day, she said she'd prefer to wait until next Tuesday. From a strategic standpoint, that is the smartest thing she could have done. Jurors will have a three day weekend to let Li's closing argument fade from memory like a bad dream. And prosecutors will have the weekend to parse Li's words and craft a fitting rebuttal. There is certainly plenty to rebut and much to clarify.

Luis Li Points Out to Jury Just How Long He's Been Talking

The medical information will have to be broken down again. He worked long and hard to make that as confusing as possible. The key issues are still the relevance of body temperature, dehydration, and, of course, organophosphates. These are the core arguments of the defense's case and he really dug in his heels.

Li also went off about the "EMT" recording again. Apparently it was Dawn Gordon -- whose testimony was not streamed by CNN Live -- who claimed to have known that it was an EMT. None of that changes the fact that it was background noise in a recorded interview and was not noted by either the police or the prosecutors. Why would it have been? But I made my feelings on that abundantly clear yesterday. I do think prosecutors are going to have to address the issue of that recording head on and clarify its total irrelevance.

The other real sticky wicket is the issue of the medical examiners meeting that caused the first Brady violation before the trial started. Li made several references to it and to Truc Do's questioning of Dr. Lyon on it. Li tied it into his anti-government theme. This was the State having a "secret meeting" and not about something valid like, say, "terrorism" or any other genuine national security concern. I know the prosecutors got dinged on that and I'm sure the details aren't flattering but I'm equally sure that the way the defense has presented it, spinning bits and pieces for dramatic effect, makes it sound far worse than it was.

Another piece of total disinformation I noted was his repeated references to criminalist Dawn Sy. Why oh why didn't the State see the relevance of the 2 ethyl 1 hexanol?!! Ignoring this totally meaningless finding, as per Li, was like an episode of CSI in which the police never came into the lab. Don't you just hate when life isn't like a television crime drama? I do. Like I hate the way Luis Li is nothing like the sharp-witted and succinct attorneys on Law & Order.

It was Tom Kelly, Li informs us, who figured out the relevance of 2EH. Well Tom Kelly does have a chemistry background. He also took that information and presented one of the most deliberately misleading and disingenuous arguments I heard in the course of this trial. (Or disingenuine if you're Tom Kelly.)

Worse, Li implied repeatedly that it was odd that the defense had to present Ms. Sy as a witness. Was this really about her vacation in Hawaii? Is that why it wasn't the prosecution who presented this state employee? And meanwhile the jury has "sacrificed" to be there for months and do their "duty." Strangely, Li didn't bring up his own trip; the one that forced a nearly two week break in the trial schedule.

Li also didn't mention that, not only was Dawn Sy on the prosecution's witness list, she was in the hall waiting to testify in that capacity and was bumped by another witness's testimony that ran long; no doubt because of one of the defense's endless cross-examinations. Apparently Mr. Li has no recollection of this fact which was aired out thoroughly during Bill Hughes's cross-examination when Dawn Sy came to testify as the first of two, count 'em two, defense witnesses.

Li also set out to dispel the idea that Ray had not taken appropriate precautions to protect the health and safety of participants. The lack of reasonable preparation is something I addressed at length yesterday. But today Li took great pains to clarify that Ray had, in fact, been well prepared. He took a rather extraordinary amount of time to present all of five items:

• Hydrate, hydrate, hydrate
• Buckets and hoses
• Recovery station with fluids, electrolytes, and fruit
• CPR training for Melinda Martin
• Ray's pre-lodge speech

He also tried to give Ray credit for the nurse but, of course, we know that she wasn't hired as a Dream Team volunteer for that reason. It was a fluke.

In fairness, Li did not mention the first aid kit which, while insufficient, would certainly qualify as a suitable precaution. Other than that, the CPR training of Melinda Mullin was the only really legitimate preparation. Telling people to hydrate was certainly a good idea but it was severely undercut by the fact that he did not tell people about the "heat endurance challenge" they'd be facing that made it so necessary. Many witnesses have testified that they would have been more diligent about hydrating had they known. It's also pretty well negated by the fact that he put people on a total fast -- no food or water -- in the desert during the 36 hour vision quest the day before the event.

The buckets and hoses and the items at the recovery station were supplied by Angel Valley and witnesses have testified that it was their staff that came up with those ideas after witnessing the distress of participants in previous years.

And finally, the speech. What to say. The speech was the opposite of good preparation. In it he told people to ignore their feelings of impending death. He assured them that they would not die. He told them to "transcend" their body's warnings and discomfort so that they could have the transformational experience they were paying for. Li's attempt to cast Ray's grudging acknowledgment of all those non-samurais who couldn't cut it, that they could leave only between rounds, as responsible preparation was just embarrassing.

Li went to great lengths to say that what happened could not have been properly prepared for because it could not have been foreseen. He showed photos of all the people from the 2008 event to prove that nothing like this had ever happened before. But, as I've said on numerous occasions, what gives the lie to that entire argument is that neither Ray nor his staff members registered the signs of increasing distress as that day unfolded. They acted as if there was nothing new or unexpected about it. Even at the very end when the full horror was brought out into the light of day and chaos ensued, Ray remained unconcerned, saying that one delirious participant was just having an out of body experience. No big deal. After all, he'd announced before the sweat lodge that people not knowing where they were was due to the altered state experience they were striving for.

Li went on at length and repeatedly about how Ray could not have known because "no one knew." But, in fact, many people did know something was wrong and that people were in trouble. Many of them called out to Ray, the master of the lodge, for help and guidance. And he told them to ignore the problems. He told them to leave unconscious people where they were. He told them to wait to the end. He told them that people with labored breathing and disorientation were fine.

One of the more sickening elements of Li's presentation was his constant jabs and outright ridicule of those witnesses who did not conform to the defense's theory. He was openly disparaging of people, not just because of what he implied was false testimony, but for who and what they were. He got very personal and very nasty in his criticism. He singled out Beverley Bunn repeatedly and in the strangest wrinkle disparaged her repeatedly for being a dentist. Mr. Li's personal brand of elitism expresses itself in some of the oddest ways. Just weird.

But he trained the big guns on the Hamiltons and Fawn Foster. And as the defense has done before, he mocked them openly for their spiritual beliefs. This fierce defender of the First Amendment of the US Constitution used their spiritual beliefs to undermine their credibility in a court of law. And he did so over and over again. As I've said before, their belief that insects and rodents are sentient creatures who can be communicated with is not unique. It's common, in particular, among indigenous peoples.

The hypocrisy of his open mockery of these people, after his impassioned defense of James Ray's right to quote Revelation and call himself God, is outrageous. I guess Mr. Li's principled stance on the personal liberty we enjoy as Americans has its limits.

We got the good folks at Angel Valley. That's how we know. And that's a guy comes in and says, my first line of defense is to talk to the uh, the ants. Well, one of the folks back there told me there's a cricket, there's another cricket, okay, um. Uh, I don't think any of us can convince that cricket through the power of our thoughts, words, or, whatever to get out of here. You gotta get him in a cup. Put him in and let him go, or kill him, or whatever.

So, what you gotta believe, ladies and gentlemen, beyond a reasonable doubt, is this man who comes in and says all that stuff to you. He says rats eat all the poison like that. [snaps fingers] You know? Oh and I talk to the critters and I tell 'em to get outta here. And that's why that's the only time, the only one time, ever that they've used ant poison, 'cause they know.

And remember he has this great phrase: Uh, well that's my truth. You know, that's my truth. You don't get your own truth. I mean nobody gets their own truth. I mean Abraham Lincoln said, "You're entitled to your opinions -- your own set of opinions -- but you're not entitled to your own set of facts." That's not how it works. You don't get your own truth. You get the truth.

Now I could go on at length about the many problems with notions of objective, ultimate truth; particularly as it pertains to religion. Here's a hint: One result is state sponsored religion as opposed to freedom of. But the part that really had me reeling was Li's Abraham Lincoln "quote." I have never heard that aphorism attributed to Lincoln. So I did a little googling to check my own sanity. I couldn't find a source that quoted Lincoln as having said it.  Now he may have said it at some point because it is a common aphorism. It is most commonly attributed, not to Lincoln, but to the late senator from New York Daniel Patrick Moynihan. He happens to have used the phrase on the record, so some give him credit.

Try to wrap your head around the layers of irony, here. Libertarian firebrand and rabid defender of the Constitution Luis Li is openly mocking a man for daring to have is own sense of spiritual truth, so he presents a quotation about the importance of being factual and totally misstates the facts about that very quotation.

That is Luis Li in a nutshell.

All information on the trial today comes courtesy CNN's live feed. They not only returned unexpectedly for closing arguments but added exciting, new camera angles. All quotes and paraphrased statements that are not linked to a source document are my best attempt to transcribe material from live broadcasts.

Comments on this entry are closed, on this blog. If you wish to comment, please find this and all newer blog entries crossposted on Celestial Reflections.

James Ray Trial: Closing Arguments Continue

Luis Li Makes Closing Argument for the Defense

When Mr. Li announced early today that he'd probably need five hours, rather than four, I thought, dear God, there just isn't enough coffee in the world to get me through that. Turns out I didn't need a single cup. Luis Li was producing enough adrenalin today for ten people. Twenty minutes in I wished someone had switched him to decaf. He was in rare form. This was not the dull, phoning it in Luis Li we saw in the opening argument. Nor was it the meandering, tangential, philosophical Li. This Luis Li was a fire-breathing defender of the US Constitution.

Li took the podium in a swirl of angry intensity and immediately unleashed a tirade.

Good morning ladies and gentlemen. I gotta tell ya. As I sat through this trial; as I sat through yesterday's argument; and as I sat through today's argument, I got pretty fired up. As the State repeatedly accused us, Mr. Kelly, myself, Ms. Do, of uh, misleading you, of feeding you baloney, of misrepresenting the facts during the trial, I had a reaction. And I wrote a lot of it down; page after page. Ms. Polk said that I misrepresented the record. Well that's not actually what happened. I wrote down what I thought. I got pages of this stuff.

But you know what I realized? And you know what I know. Is it's not about me. It's not about me. It's not about Mr. Kelly. It's not about Ms. Do. It's not about what Ms. Polk thinks; she thinks the evidence shows. It's not about whether she thinks we're misrepresenting something, we're feeding you baloney. This is about you; each and every one of you. Beginning of this case, you'll probably remember this, I told you that our Constitution and our system is a promise that our founders made to all of us and that promise was that this would be a nation of laws and that those laws would do what? They would limit the government.

He was off an running in a wide-ranging, libertarian rant. In disconnected, sidewards references, he threw out big chunks of red meat. He took on the nanny state that could take away your children, take you off your respirator, make you wear a motorcycle helmet, or dare to suggest that you don't have every right to bake yourself to death in a sweat lodge if you so choose.

Credit where credit is due: It was brilliant. I have said from the beginning of this trial that the biggest hurdle for the State, and, thus, the strongest angle for the defense, is the free will argument. And Li has finally gotten it about right. He was lucid. He was comprehensible. He was like a different guy entirely. Of course he also took wild liberties with the facts, was grossly misleading, and could not resist at least a little of his trademark self indulgence. The man loves to tell stories about himself.

Buy at Allposters.com

To illustrate his point about the rights we as Americans have to take on high risk activities, he shared a little anecdote about his own mountain-climbing experience. He'd been warned about the discomfort of being at such high altitude; the cold, the nausea, the "walking on a knife's edge," the fear. He took on those risks willingly as a free man. We all have the right to take on such risks in this country and take responsibility for those risks by signing waivers, explained Li.

I, for one, find it hard to believe that when Li went on his mountaineering adventure the waiver he signed was as perfunctory as the one JRI made participants sign for Spiritual Warrior. I find it hard to believe that he wasn't required to fill out a health questionnaire; likely with a doctor's signature. (Like my daughter had to provide to go to camp.) I have mentioned previously that my very active husband has signed many a waiver. The most complicated waiver and health history he's filled out to date was for Outward Bound. That, funnily enough, was for a mountaineering course.

My husband points out that if someone in his party had gone down with hypoxia, everything would have come to a halt. Their team guides from Outward Bound would never in a million years have said anything like, "Leave him. Let him have his own experience. We'll pick him up on the way down. We gotta keep movin.'"

As it happens, the second night of my husband's course, one member of his group went missing. She'd gone off to relieve herself in the woods and had taken a wrong turn. And everything stopped. Every member of the group went to search for her. It was understood that had she not been found, search and rescue would have been called in and their mountaineering experience would have been postponed or canceled.

I should be clear about this point so there's no confusion. While Outward Bound is primarily for teens, this was a program they offered for adults. It was actually only available to combat veterans who had served in Afghanistan or Iraq. So these were also "grown-ups" choosing to take risks of their own free will.

No responsible organization has people sign a waiver and then says, well, you're on your own if you get hurt. They have precautions in place proportionate to the risks involved. For instance, one of the two Outward Bound guides who led my husband's mountaineering trip was a certified Wilderness EMT.

A couple of weeks ago I noticed on the news that a lot of people had gotten sick at a marathon in DC. We were in the midst of a heat wave and there were numerous cases of heat related illness. You know what else I noticed? That marathon planners had medical personnel in place and those who got sick were treated immediately. Marathons routinely have health stations along the route to treat the kinds of illness and injury that typically occur in marathons.

This is the central problem with Li's argument. You can't, on the one hand, say James Ray was running a high risk activity for people who willingly chose to push themselves to the limit and, on the other hand, scoff at any suggestion that he had a responsibility to have medical assistance available in case of injuries. Injuries are inevitable in high risk activities. To not be prepared for that is inconceivably reckless.

Let's face it. If James Ray had been running that mountaineering class, he would probably have told them all to jump off a cliff so they could turn into birds and fly like Castaneda's fictitious shaman don Juan. You can almost hear him saying, "You're all shamans now," as they crash to the ground. But he would have had them sign waivers first. They definitely would have signed the waivers.

In another nod to the Constitution, Li, if somewhat obliquely, addressed Ray's freedom of religion. This was something that was discussed at length yesterday in legal arguments. The defense is very concerned that Ray's unorthodox beliefs might cause prejudice. This is not an argument I'm unsympathetic to. I, for one, have been appalled at the way the defense has mocked the spiritual beliefs of the Hamiltons and Fawn Foster. I also hold unorthodox religious beliefs and I am a firm believer in the Jeffersonian wall. Even so, I thought the arguments made by Tom Kelly and Luis Li were a stretch. According to Kelly, for instance, the fact that Ray believes a vegetarian diet can cause ungroundedness constitutes a spiritual belief and should not be trotted out in front of the jury. Judge Darrow clarified that he allowed much of this material in as context. The context in this case would be, I think, that Ray provided a vegetarian only diet in an attempt to deliberately throw people off balance.

Luis Li was disturbed that Ray's "prayer" about being the Alpha and the Omega was testified to by the State's witnesses. Ray's allusion to the book of Revelation pertains to his religious views and should be out of bounds, according to Li.

Today in is his closing argument, he addressed Ray's statement and pointed out to the jury that some people quote the Bible when they "say prayers." That's just something "folks do." The point is, said Li, that not a single person there thought Ray was God. What I thought was funny about this was that Li truncated the quote, leaving out the last phrase. What Ray actually said was, "I am the Alpha and the Omega. I am God." So perhaps one person there did think Ray was God. Ray. This actually raises an interesting question. Is a god complex a Constitutionally protected religious belief? I honestly don't have an answer for that but it's something to contemplate.

The stickiest part of Li's Constitutional rant came at the beginning of his remarks. His outrage at governmental overreach was aimed very directly at State prosecutors. Sheila Polk didn't just insult Luis Li and hurt his feelings. He's over that. His anger is at the position the State had put the defense team into. Li took his "burden shifting" argument directly to the jury.

That's why the judge yesterday, and this morning, had to instruct you, again, as to what the burdens of proof are. Again. And it's not the first time. In fact, the judge had to instruct you as the judge has instructed you before in the middle of a cross exa, uh, uh, examination of Det. Diskin where they were asking questions about, why didn't you know about the organophosphates?... And you the court had to give that instruction again this morning. Why is that? Why is that?

I was a little stunned at this argument. It didn't seem appropriate to me. It didn't seem appropriate to Judge Darrow either, as it happens. It was hashed out in very heated legal arguments in which Ms. Polk argued that Li had improperly arrogated to the defense's argument "the weight of the court." Li, for his part, was insistent that the State had improperly shifted the burden, was in violation of the Constitution, and that the defense had every right put that issue in front of the jury. Judge Darrow clarified that he had agreed to the limiting instruction as a remedy for comments by Ms. Polk that got right up to the line and may have crossed it but that he did not see a Constitutional violation. He reminded Li that he had denied his mistrial motion.

The statements Li found to be "burden shifting" and a Constitutional violation were simply this: In having to address the Willits instruction, Polk found it necessary to explain that they did not learn of the issue of organophosphates until right before the trial from the defense. To Li, this means the State is implying that it was the defendant's responsibility to provide them with that information. Polk feels that she was simply pointing out the sequence of events and explaining why it hadn't occurred to the State to test for organophospates until the defense brought the issue to the State's attention. Judge Darrow felt it got close enough to the line that it required a limiting instruction.

The upshot? Judge Darrow had to deliver another limiting instruction to address Li's improper usurpation of the court's authority. Sadly, I did not hear it and cannot provide the text as CNN, once again, failed to start the stream after a number of breaks and also, repeatedly, forgot to turn the sound on. So, once again, I missed chunks of the proceedings. I only know the instruction was in fact read because of a mention in this article.

The prosecution and the defense accused each other of misstating the facts and the law in their contentious closing arguments, causing Yavapai Superior Court Judge Warren Darrow twice Thursday to issue special instructions to the jury to correct what he considered improper statements by each side.

And this one:

"There is something profoundly wrong with this case," he said, referring to the defense's repeated accusations that Polk has pushed the boundaries of legal ethics throughout the proceedings. "That's why the judge had to instruct you again what the burdens of proof are."

As has been the trial's pattern, Li's comment drew a fierce objection from Polk and resulted in yet another jury instruction from Judge Warren Darrow, who told the jurors that his instructions did not indicate that he favored either side or either argument.

Luis Li Breaks Out Ridiculous, Oversized Chart

But while we're on the subject of what the State knew and when about organophosphates, I continue to be amazed at the way the bit of background noise referring this mysterious poison has taken on a life of its own. Li played it yet again for the jury. Again, this is a completely unverified piece of evidence. The speaker has never been identified and cannot be cross examined. His words have been used by the defense to demonstrate the possibility of organophosphate poisoning, to undermine medical testimony of actual doctors and Medical Examiners, and convince them in court that they had not received important information on which to base their conclusions. And today it was used in open court to demonstrate that the State was negligent and ignored key evidence in their possession. For the love of God, it was background noise.

Something occurred to me today, though, as I listened to Li's pontification on the importance of the unidentified EMT and his insistence that had the State simply listened to that recording, they could have given that information to the hospital and gotten the necessary bloodwork done. What occurred to me was this: Why didn't the "EMT" pass that vital concern along to the hospital. Wouldn't that be part of his job?

And if organophosphate poisoning was such an obvious concern, why didn't more EMTs and paramedics note the symptoms and pass that along to the hospitals when they brought these patients in? Why wasn't it in their reports? For that matter, why weren't the symptoms apparent to the doctors if they occurred to that person who may or may not have been an EMT?

As discussed, the symptoms of cholinergic poisoning were noted and ultimately dismissed because it was such a mixed bag and there were more symptoms of anti-cholinergics than cholinergics. As testament to that, Li mentioned something today that just struck me funny. He referenced a note on Stephen Ray's medical chart about a possible "anti-cholinergic toxidrome."

"What does that tell you?" Li asked the jury.

I know what it tells me. It tells me that Ray's doctor was not seeing symptoms of organophosphates.

Li's discussion of the medical testimony was all about that wrong-headed and confusing. Mostly he extolled the virtues of Dr. Paul and berated the worthiness of Dr. Dickson's testimony. After a while, I thought a caged death match between the two doctors would have been more instructive and illuminating than Li's version of facts. Instead, we'll have another two hours of Li tomorrow.

Sheila Polk Completes Her Closing Argument

Sheila Polk completed her closing argument today. I found it extremely powerful. As she had done in her Rule 20 argument, she wove the statements of various witnesses into a clear narrative of the events leading up to the deaths of James Shore, Kirby Brown, and Liz Neuman. It was extremely moving and I don't think there's a way to do it justice. Twinkiewrangler has posted a transcript of her entire closing argument here, so you can read her words. I do hope, though, that someone will post video of her remarks because they really need to heard aloud to be fully appreciated.

I look forward also to hearing her final rebuttal and I assume that after that this will go to the jury sometime tomorrow.


Update: Ah. Here we go. The Salty Droid has created a video of highlights from both days of Sheila Polk's two and a half hour closing argument.

All information on the trial today comes courtesy CNN's live feed. They not only returned unexpectedly for closing arguments but added exciting, new camera angles. 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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