James Arthur Ray Sweat Lodge Trial: Day 31

Polk and Mercer Sort through Photos

Sheila Polk finished up strong today in her redirect of Debbie Mercer. She went straight for the weed barrier that Tom Kelly had claimed yesterday to be plastic. Mercer had explained that she thought it was fabric. But Polk set out to completely demystify it. It's a fabric barrier that Mercer described as ripping easily with with common garden tools. It is covered with a layer of course sand. So, no. It's not a candidate for creating any sort of airtight seal with the sweat lodge coverings.

Polk also asked Mercer about questions Kelly had asked her about the structure of the sweat lodge. Things like, did she know what a "heat barrier" was? That's a term from the Haddow email that Kelly tried unsuccessfully to ask/tell Mercer in his backhanded attempt to impeach her sweat lodge construction with testimony from an expert he never intends to put on the stand. Also to establish her culpability in the making of the faulty sweat lodge. Mercer had no idea what heat barrier meant. She did know where the heat came from, though. The rocks, the number of which were determined by the pourer: James Ray.

Then Polk asked her some specific questions on air circulation in the sweat lodge. Of course, this was also a bit over Mercer's head. She did assume, though, that the amount of time that the sweat lodge door was open would impact air circulation. The door was also controlled by Ray. Predictably, Kelly objected, pointing out that Mercer doesn't know anything about air circulation. Funny, because it was Tom Kelly who opened up that line of questioning in his zeal to introduce his highly selective reading of the never going to testify Rick Haddow. It turned out that Mercer didn't know anything about carbon dioxide, either.

Mercer did know a lot about the photos she took in 2008. She confirmed again that the photos were taken at least a half hour after the sweat lodge ended. It could have been as much as forty-five minutes later. And, yes, people were still playing with the hose long after the sweat lodge. They were also still unusually red.

She also insisted again that there was a lot in them that she found alarming. This photo was alarming because there were three people on the ground. The woman in the green shorts was particularly alarming. She'd gone all fetal and she would not respond to questions.

She was also alarming, fetal, unmoving, and unresponsive here.

And here.

This man rubbing the feet of someone who was having "difficulty coming back" was alarming.

It was also alarming from this angle.

Mercer had been alarmed going all the way back to 2007. She had asked Gary Palisch about the vomiting and other bizarre behavior. We don't really know what he said because it's hearsay.

Her distress continued through 2008, when she took the photos, which she said do not capture how really alarming it was in live action. Mercer had simply never seen people put themselves in a situation like that by choice.

She did not think that as a volunteer and the lowest person on the totem pole it was her place to take any other action or call 911. In 2009 she realized, though, that no one else was doing anything even though the situation was dire so she made the calls.

The biggest news, though, regarding prior sweat lodges came when she was asked again about the woman in the green shorts in her 2008 photograph. Something was coming out of her mouth. Something Mercer didn't want to touch. It wasn't vomit. It was a "foamy, mucus kind of stuff."

Yes someone was foaming at the mouth in 2008.

Debbie Mercer was excused subject to recall.

Michael Hamilton

Michael Hamilton took the stand today. He and his wife Amayra own Angel Valley which has been host to Ray's Spiritual Warrior retreats for many years running. We've been hearing about the Hamiltons for weeks, mostly as foils for every alternative theory the defense has parlayed. We've heard that their poisons used to kill rats, ants, and weeds, might have been unleashed in the sweat lodge on that fateful day in 2009. Or that it was poisons in the obviously pressure treated wood that was burned to heat the rocks that year. More recently we've heard that their shoddily built sweat lodge selectively killed Ray's participants. We've also heard that they destroyed evidence by taking down the sweat lodge and burning it, the implication being that they were covering up their own culpability. We've heard other aspersions against their character, like how they're ordained ministers who charge high rates for room and board. And, of course they must be wrongly using their tax exempt status to keep from paying taxes on all that income.

A number of those theories were debunked today.

Much has been made by the defense of the pest poisons that have been noted and photographed, particularly in the pump house. And yet, we've heard several employees testify that there were very strict rules about not using toxins around the property. Today Hamilton spelled out the policy when it comes chemicals and possible toxins. Hamilton explained that their theory of "stewardship" of the property is to use as few chemicals as possible, right down to disallowing strong perfumes. or other fragrances, out of respect for the sensitivities of all of their guests. When problems have arisen they have used as few chemical products as possible, in as targeted a way as possible, to take care of the problem. The two problems that have required chemical solutions have been rats and ants.

When rats destroyed several vehicles, after nesting in them for warmth, Hamilton went to the hardware store. He tried several products, including granules and the much discussed critter biscuits. Hamilton said that he did, indeed, place those products on a plate, "to contain them." So, according to Hamilton the artful plating of the biscuits was not staged, except that it was set up and photographed for the police to give them an idea of how it had been handled. After getting cats in 2007, their need for such tactics was ameliorated.

Artfully Plated Critter Biscuits

Hamilton described being deeply ambivalent about poisoning the rats, having hoped to reach a better agreement with them. He believes that we can communicate with animals and tried that first before telling them to eat the biscuits on the plate. I have little doubt that Hamilton sounded nuts to a lot of people. As someone who has had similar dialogs with members of the animal kingdom, I could completely relate. I hate killing anything and have made numerous agreements with a variety of pests, including wasps and spiders. Usually it goes well. The wasps and I have kept good agreements for years now. I have many stories. Most people have a hard time believing them, which I completely understand. Last year I had to kill a black widow, and her numerous egg sacks with bug spray. It broke my heart but I put my own child first and the black widow was recalcitrant. So I can't scoff at the kooky Mr. Hamilton. I have found ants to be terribly stubborn and disagreeable so I kill them, too. The much discussed Amdro ant poison, though, has only been in use since 2010 at Angel Valley.

Actually, I found much to relate to in Hamilton's approach. I strive for a very nontoxic home. But sometimes you have to bite the bullet and use a product you hate to use. And when you do you use it as cautiously and minimally as possible. I'd also be willing to bet that there are a lot of people on that jury who use toxic chemicals far more liberally than the Hamiltons who would not enjoy the idea that killing pests in their homes would put them on the hook for accidental deaths.

Hamilton's commitment to avoiding herbicides is also quite strong. He affirmed that the strongest thing he's allowed to be used for killing weeds is salt water. He also insists that the vast majority of weeds at Angel Valley have been handled the old-fashioned way. They're pulled.

He also affirmed Debbie Mercer's testimony that the weed barriers were made of water permeable, mesh fabric; not plastic. They were covered with sand. And those fabric weed barriers have been in place for years.

Where Hamilton's testimony most effectively demolished one of the defense's theories was on the wood question. It turns out that Hamilton knows an awful lot about wood. His background is as a contractor, after all, and he spent many years selling log homes. He's had the same commitment to creating non-toxic environments, throughout his career. One of his companies was called Holistic Log Home. Hamilton would only use lumber that had "zero outgassing." So the wood he's used for years, including the discarded lumber he'd instructed Ted Mercer to burn for the sweat lodge fire, was not pressure treated. It was free of any chemical process so that it is not toxic, even when burned. It's all completely natural cedar, that has been cut and grooved for assembly of log buildings. The log he's holding, which is a sample taken by police for their investigation, was part of a shipment of cedar he found unusable because of imperfections and cracking. It was used to build the pumphouses and one cabin, but those that weren't used quickly deteriorated and had be repurposed as firewood. 

Mercer went on to explain that in the structures he's built, including many on the Angel Valley property, have only what pressure treated wood is required by building codes, at the foundation. Any discarded pressure treated lumber is disposed of safely and never burned.

The cedar logs in question were not only burned in the sweat lodge fires. As Ted Mercer has testified,  that wood was used in previous years. It's just that it was usually mixed with tree wood. This was the first year he'd only burned the logs, and in his panic, he'd seized on that as the only difference between 2009 and other years. But, Hamilton testified that the cedar logs have been burned more liberally around Angel Valley for some time, including in the fireplace of the main house on the property. They've been used in a number of fire ceremonies. No one has ever gotten sick after being exposed to any of these fires.

I think the defense's toxic, pressure treated wood theory just went up in smoke.

Natural, Non-toxic Cedar Logs

Hamilton also explained some of the stickier financial matters. They formed the LLC in 2008 because "it just felt" like the thing to do at that time. They set it up as a for profit business within their non-profit ministry. They were audited later that year and it was recommended that they do so. They already had. I would not be surprised if this is an area that Truch Do follows up on in her cross-examination.

The other sticky wicket is their bankruptcy and their lawsuit against James Ray. Hamilton explained that they were in Chapter 11 before the deadly sweat lodge but they were well on their way to solvency. Having people cooked to death on their property was a significant setback on their road to financial recovery. So, with heavy heart, they filed suit to try to recoup some of their losses.

Things started to get ugly when Hamilton was asked to explain the history of sweat lodge structures at Angel Valley and how they came to have what many of us consider to be monstrosity. The request for the giant, sprawling, low to the ground sweat lodge was the result of cumulative requests from James Ray. There were many objections from Do regarding Hamilton's testimony on this matter.

James Ray wanted a bigger lodge to accommodate groups of up to seventy-five people. Hamilton believes this request came in 2006. It came via Megan Fredrickson. Hamilton did not want to build such a big sweat lodge and didn't have the first idea how it could be accomplished. He asked if Ray would please consider holding two sweat lodges. The response from Ray, via Fredrickson, was a flat no. He later met a Native American man, whose name he can't recall, who offered to build the larger structure.

Ray was still unhappy and he complained again in 2007. The lodge was not getting hot enough. What Hamilton testified to is something that those of us who've read Megan Fredrickson's police interview already know. Ray wanted the structure lower to offset that pesky heat rising problem. Ultimately Gary Palisch hired the previously discussed David Singing Bear. Hamilton testified that he had nothing to do with the building of that sweat lodge and never met Singing Bear, himself.

But that, in a nutshell is how the low, deformed structure, in which three people were killed, came to be. It's the result of Angel Valley meeting demands from James Arthur Ray.

Hamilton also clarified, for the record, the niggly questions about the legality of the sweat lodge structure. The sweat lodge did not have a permit. Other structures on the property were surveyed by inspectors and permitted. The sweat lodge structure was in plain sight and many inspectors saw it. None of them ever told him he needed to have it permitted.

Their fire pits were also inspected and did not require a permit and the Hamilton's have always checked to see if permits were needed for fires on the property.

In short the Hamiltons were and are in compliance with any and all necessary permitting.

Hamilton's direct testimony ended amidst a hail of objections and sidebars. In fact, yet another mistrial request was made by Luis Li. The biggest issue came about when Polk asked Hamilton about how he came to be aware of the problem at the 2009 sweat lodge. He testified that Amayra called him and said, "He did it again." Do objected and the comment was stricken.

Hamilton did not go to the actual sight until he heard the helicopters and he grokked how really serious it was. He broke down describing the scene he discovered. Seeing that people were being attended to he moved on to the gate to prevent "lookie-loos" from coming onto the property, until a police officer took over guarding the gate.

Hamilton went afoul of the defense again when he began to describe his movements throughout the evening. Hamilton had continued to circle the property and see what was needed. He choked up again as he described consoling Fawn Foster who said, "It never should have happened." The statement was stricken as hearsay.

Another objection came when Polk asked Hamilton where he'd seen Ray that night; in the gift shop. That objection was overruled but another bench conference commenced soon after. For some reason Do didn't like Hamilton explaining what the gift shop was. (???)

Hamilton continued to weep as Polk resumed her questions. He described taking down the sweat lodge, which he said, emotionally, he wanted to do with a chain saw. But he understood the healing purpose of doing it as they did. And, yes, it was only after the police had released the scene.

It was remembering Liz Neuman, who had been at Angel Valley many times, that caused Hamilton to completely fall apart. He was still weeping after his testimony, as yet another sidebar was called.

To me she was a very loving, caring, [pause] very centered, very grounded, fun-loving person. [pause] One that was always friendly. [long pause] And always wanting to take care of others.

After Hamilton was dismissed for the recess, Judge Darrow pointedly reminded the jury that any sustained objection, whether the information is formally stricken or not, should be viewed as stricken. They cannot give that information "any weight" at all.

After the jury was dismissed, it became clear that he was referring to Amayra Hamilton's "He did it again," statement, which had been ruled as hearsay. Judge Darrow also formally turned down Luis Li's mistrial motion, believing that the jury instruction to not consider it to be plenty.

Judge Darrow promised a ruling tomorrow on prior sweat lodge testimony.

Yesterday, I reported that Kelly had reminded Mercer that she was not qualified to determine whether his favorite cowboy or anyone else had free will. Well, Patrick Wanis, PhD is a little more credentialed... at least it says so on the TV box. He's a human behavior specialist (whatever that is.) He also has background in hypnotherapy and NLP; some of James Ray's favorite tools. He doesn't think the James Ray's sweat lodge participants had free will, either. In this recent In Session interview he even compared Ray to Charles Manson.

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.

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 Arthur Ray Sweat Lodge Trial: Day 30

There were all sorts of mad doings in the courtroom today as trial resumed from its extended break. But first some extraneous In Session material you may have missed. And what could more extraneous than an interview with Bob Proctor.

Bob Proctor is standing by his man James Ray. Although he does think that Ray law of attracted this mess to himself. He's not really sure how or why but, you know, the law of attraction works every time. Proctor was interviewed on In Session last Thursday. Fairly useless but for this one deliciously laughable tidbit. Asked about the myriad of academics and professionals who think Proctor's beliefs about the law of attraction are crazy, he said, "Well they obviously don't know what they're talking about." It made me chuckle only because I distinctly remember Bob Proctor admitting in The Secret that he doesn't know what he's talking about. The relevant bit of sheer nonsense can be found at about 13:00 on the counter in the above video.

Now if you don't understand it doesn't mean you should reject it. You don't understand electricity, probably. First of all, no one even knows what electricity is. And yet, you enjoy the benefits of it. Do you know how it works? I don't know how it works. But I do know this. That you can cook a man's dinner with electricity and you can also cook the man.

That's Bob Proctor on the inconceivable mystery that is electricity. No one understands electricity and yet it works. No one understands the law of attraction either so it must work, too. If only the law of attraction, as defined in The Secret, were as reliable as a light switch in my house. Of course the reason that electricity works fairly reliably in our lives is that a whole lot of people do, in fact, know what it is and how it works. They have all kinds of fancy titles like physicist, electrical engineer, and electrician. By the magic of my electric powered computer and the deeply mysterious Google, I can quickly come up with an answer for the befuddled Mr. Proctor. Here's just one example. But again, Bob Proctor is part of the brain trust that explains the law of attraction as working just like a magnet with positive thoughts attracting positive experiences and negative thoughts attracting negative experiences. See how simple? Positive attracts positive and negative attracts negative. This, of course, is the exact opposite of how magnets work.

Listening to that Bob Proctor segment in The Secret again made me think of another student of the universal mysteries. Bill O'Reilly got a lot of attention recently for his unassailable logic in proving that God exists.

Sun comes up. The sun goes down. The tide comes in. The tide goes out. It always happens. Never a miscommunication.

Stephen Colbert paraphrased O'Reilly's unassailable logic here,  saying "There must be a God because I don't know how things work." For those who might still be confused he broke it down a little more in the following segment.

I'm being a little hard on Bob Proctor and not for the first time. In my original post on The Secret, I singled out Mr. Proctor for particular ire. I found his insistence that the key to bringing good things into your life is to go into willful denial insulting, ineffectual, and potentially dangerous. My view has not changed... Moving on.

Judge Darrow Listens to Arguments

If I ever had a doubt that last week's mistrial motion was a Hail Mary pass, it evaporated when I read the defense's prosecutorial misconduct memorandum. Basically, they're accusing the prosecution of lawyering. So they were already scraping the bottom of the barrel to try to come up with reason for a mistrial when they noticed the Haddow email. They got their their Brady violation ruling but they did not get their mistrial. Now what?

I said last week that I think the Haddow email is a red herring and that now the defense is stuck with it. Well, after listening to a lot of legal argument today, I have to say they're really trying to have it both ways. They're determined not to let it stick but it's become a more multi-purpose red herring. For as long as they can spin this without becoming accountable to the actual information in it, they will parlay this thing and the Brady violation in every conceivable way. It's a new rhetorical wedge to get all the prior sweat lodges thrown out. It's a way to pummel the prosecution. (And where is their special jury instruction, dammit?! They're supposed to get a special instruction. -- Three more days of this I swear Luis Li is gonna threaten to hold his breath until Judge Darrow approves one.) It's justification for whatever the defense wants to do. It's impeachment material to beat up the Hamiltons... and anyone associated with the Hamiltons. It's also a floor wax and a dessert topping.

The one thing it's not, apparently, is testimony they ever want entered into the record. I don't think Mr. Haddow turned out to be their cup of tea... or even their cup of CO₂.

In his rather disastrous cross-examination of Debbie Mercer -- more on that later -- Kelly tried to use the Haddow report to impeach her testimony and suggest that responsibility for the tragedy fell squarely on her and husband's shoulders? I mean, they built the sweat lodge, right? (Well no, not exactly.) And a report from an environmental expert said the problem was the shoddy, off-center sweat lodge.

Needless to say Sheila Polk objected and there was some interesting back and forth during the break.

It actually got a little weird with Kelly claiming that he thought the defense couldn't call Mr. Haddow. This is very strange, indeed, considering that before their requested continuance, Kelly was saying that he intended to interview Haddow face to face to see if he had the "presence" to appear as a witness for the defense.

Kelly: I can tell you we do not intend to call Mr. Haddow. He was not disclosed timely as a witness in this case. We understand your court order. He can't testify. But I'm still entitled to ask the question.

Darrow: Well, I didn't say he could not testify if the defense chose to call him. I mean you didn't --

Kelly: Well Judge when, I understood a clear order from the court a couple of weeks ago that the time for investigation has ended. And uh, if we're provided the option of calling him, I appreciate that, but as we stand here today I don't want to mislead the court. We had the chance to interview him but we don't intend to call him.

Darrow: Okay. Well I want it clear that this was an unusual circumstance and that if, we continued the trial, and if you want to call an expert you were and are given that opportunity. But with regard to the objection, uh, I-I've said this before. I, don't believe it is appropriate to call a witness without knowledge in order to make statements to that witness and essentially get them before the jury. There can be questions about knowledge of a report but if the person doesn't know there's a report then, uh, and doesn't have knowledge of it just bringing in the evidence in that fashion through a witness without knowledge, it's not something I've really seen, uh, uh, to any large extent. Ms. Polk?

Polk: Well, your honor in particular because it's hearsay in the fashion that Mr. Kelly asks that question. The only way he can prove it  is by bringing in Mr. Haddow. He has to have a good faith basis that he can prove up the information that he's trying to give the jury. He can only prove up that information by calling Mr. Haddow. It is improper to be asking this witness a question without the good faith basis that he will offer up, that he will prove up the information to the jury...

Darrow clarified that not all evidence has to be admissible to establish a good faith basis but he is in accord with Polk that it is inappropriate to question witnesses about a report they know nothing about. Kelly's response to having his Haddow cudgel taken away? To just refuse to give it up.

Kelly: What's improper in this case is the clear Brady violation you found. And we're trying to deal with it mid-trial. We request a jury instruction; some remedy that allows my client a fair trial. What I would ask permission to do is ask this question to the witness regarding the construction of the sweat lodge. And yes I will be relying on the opinions of Mr. Haddow in asking those questions and she's free to answer however she chooses.

Darrow: But there just, there cannot be assertions that this is a fact; there's really an expert out here that says this and don't you know that this expert says. You can ask about aspects of construction. That's absolutely a legitimate topic. Aspects of construction and whether this or that might be important or not. But basically, uh, certifying that this, this expert has, has made specific criticism and just, just asserting that in that fashion, again with th, the, particularly with a witness who has, may not have any knowledge of that, but I don't know that, um, that question's been asked. Ms. Polk?

Polk: Your honor, just by way of example, Mr. Kelly asked a question about the off-center pit. What Mr. Haddow would testify to if he took the stand in this trial is that the off-center pit created, that the heat coming from this pit creates a heat barrier. His testimony is that people who are closest to that heat barrier suffer more than those who are further away. Which, again, is kind of obvious. He would testify if that pit had been center, instead of toward the back, the heat barrier would be even greater and more people would have been subject to greater heat. So to mischaracterize that off-center pit as somehow a deficiency in the sweat lodge that created; that caused people to die that otherwise would not have died is a complete mischaracterization of what Mr. Haddow would say. If the pit had been center, he will testify there would have been even a greater heat barrier created by that pit and the rocks.

So, in sum, Kelly wants all the tools at his disposal to get Ray a "fair trial" in light of the Brady violation. They are trying to "deal with it" anyway they can -- except calling the witness who provided the exculpatory, "Brady material." Why? Because it's not exculpatory and would, if Polk's reading of Haddow is accurate, prove that if the sweat lodge had been built properly more people might have died.

I tend to think Polk's read is accurate because after demanding a continuance to suss out what this witness -- that the prosecution was supposedly hiding -- had to say, they can't get away from him fast enough. Well, not as anything other than fig leaf cover.

This is yet another case of the defense trying to sneak partial information through the back door and never admit it as actual evidence because the totality of that evidence makes James Ray look bad. And this was evidence they made quite a stink about getting their hands on.

They also want to have all the prior sweat lodge evidence thrown out because Haddow, whom they don't want to testify, proves that it's all irrelevant. The problem is the lodge itself, silly rabbit, and it was only built in 2008.

But Sheila Polk pulled a rather clever maneuver, pointing out that the more the defense argues that it was not the excessive heat or James Ray's conduct that was the cause, the more important it is that the prosecution be given every opportunity to prove that Ray's heat endurance challenge was the cause. That would mean including the problems at his prior sweat lodges and the lack problem at other Angel Valley sweats. The final outcome on that is still pending, but there continued to be questions of Debbie Mercer today on 2007 and 2008. Kelly objected repeatedly, and his objections were overruled... repeatedly.

Another interesting tidbit that came out during arguments had to do with the ongoing questions about the Hamiltons, their ministry, and their tax exempt status. It turns that they have both a tax exempt ministry and an LLC and that they have been filing tax returns. Li is still not ready to let the matter drop but we shall see.

Debbie Mercer

I didn't think I could be anymore horrified by Ray's post-sweat lodge behavior, after hearing Debbie Mercer's testimony the week before last. Mercer had explained that after telling Ray that three people weren't breathing and they needed to find a cell phone to call 911, he shrugged his shoulders.

Well. I was wrong. It gets worse. Today Mercer testified that when she returned from calling 911 at her house she saw Ray talking on a cell phone. There is, of course, no record of Ray calling 911. The only calls came from Mercer and Amayra Hamilton. So who was Ray talking to and what prevented him from using that cell phone to call 911?

Mercer also fleshed out some of her prior testimony about things she observed during the sweat lodge.

What did Ray do with all those buckets of water besides dumping at least six of them straight onto the rocks? He splashed himself with water from them. He also had drinking water with him. No one else got to drink water or use a makeshift birdbath.

Mercer also testified that the very large woman, clearly Linda Andresano, who was dragged from the sweat lodge was taken away in a golf cart after being unconscious and still not appearing to even  know her own name. As we already know from Andresano's testimony she was indeed taken to her room, undressed and redressed by other people and only really became aware of things when she was trying to wake herself up in her room. She, thankfully, sought medical attention herself.

Mercer helped people onto the helicopters and into ambulances. She disclosed today that she had to put Lou Caci back into an ambulance because she saw he'd gotten out and started wandering around. She had to hold his hand and talk to him like she would to a child. He explained that he couldn't go to the hospital because he wasn't wearing underwear. So the other big news for the day: Lou Caci goes commando... or thinks he does when he's delirious. It's not really clear.

She also remembers someone she thinks was Liz Neuman had become combative. When Mercer tried to calm her she was very sweet to her, comparing her to an angel and describing her wings. It probably wasn't Neuman but whoever it was was right. Debbie Mercer was an angel on that day.

Polk also asked Mercer to clarify her own post-sweat lodge health issues. Of course, much has been made of that fact that she wasn't in the sweat lodge, was near that fire with wood that may or may not have been treated, and that she needed medical assistance. But it's clear from listening to her testimony that she was suffering from exhaustion, the after effects of an adrenaline dump, and low blood sugar. She hadn't felt ill until after she'd left the area and gone home. The medical visit was a precaution, urged by her husband.

Towards the end of her testimony, Mercer listed a number of the "encouraging" phrases used by James Ray that were new in 2009: "You're more than that," "You're not your body," "To be reborn you have to die," "Play full on," "Worry about yourself and your journey," "You need to leave your body to live."

So there was a lot more emphasis on death in 2009 than in prior years. Strange considering that this event was right after the Harmonic Wealth seminar in which Colleen Conaway died.

Kelly Crosses Debbie Mercer

I knew when I saw that Kelly would be cross-examining Debbie Mercer that he would be way too aggressive towards a sweet woman who the jury probably considers somewhat heroic. Kelly did not disappoint. He got really nasty.

He started off by introducing a new tack. The reason we are now to believe that Ray's sweat lodge was hotter, wetter, and longer, than a traditional, Native American, "spiritual" sweat lodge was because it was a corporate event. Kelly tried to explain the difference.

Kelly: Were you aware that they were designed to help people overcome personal issues?

Mercer: Isn't that what a spiritual, uh, is...

Mercer's out of turn, not yes or no answer, was stricken, but that exchange really sums up how most of today's cross-examination went. Mercer was at turns baffled, sincere, and stridently opposed to letting Kelly cram his narrative down her throat.

Kelly also tried to turn her "crazy Americans" quote into a thematic hook, explaining that crazy Americans do all kinds of things, from climbing mountains, to running marathons, to driving fast cars and motorcycles. Because I'm sure no one in any other country does any of those things.

So, Americans are type T personalities, who wanted James Ray to test them in a heat endurance challenge. Scott Barret did. And he's a cowboy. (Seriously. Kelly invoked his favorite cowboy, man crush again.)

Scott Barrett used his free will, while pursuing his crazy American dream. They all did.

Debbie Mercer was not so sure that they all had the free will to leave; only "to a point," she said. So, after asking her for an opinion as to whether or not they did, not liking that opinion, Kelly went on the attack.

Kelly: Are you telling us that Scott Barrett, a general contractor, military pilot, cowboy, is not capable of exercising free will because of some hocus pocus from James Ray? Is that your testimony?

Mercer: No.

Kelly: Are you saying that his words, mere words, "You can beat this," "You can overcome it," somehow interfered with the free will of these people?

Mercer: Yes.

Kelly: And, of course, you're not a psychiatrist...

It's so funny the way witnesses are qualified to give answers the defense likes but wildly unqualified when they do not.

Later on Kelly tried the same sort of tactic, going over Mercer's 2008 photographs with her to point out that people were really having a great time after the sweat lodge, splashing around in the mud. (He also asked her to point out the vomit in photos of wet, muddy ground, which was... weird. And impossible.) When Mercer said someone didn't look particularly happy, like if they were all curled up on the ground, Kelly pointed out that she hadn't interviewed them and could not possibly know whether or not they were happy. Then moments later he would point out a smiling face and ask her to agree that the person was happy. It went on like that for a while before Mercer totally lost patience.

Kelly: That lady looks pretty happy, correct?

Mercer: The one standing up!

Kelly: Okay, well you don't know about the one laying down do you?

Mercer: I don't think that's fair you can ask me what this one feels like and not say, and ask my assumption of this one, and not my assumption of this one. Why can I make an assum, why do you want my assumption of this one.

At that point Judge Darrow had to step in again because Kelly had completely lost control of the process. Mercer ran rings around him throughout his, endless, repetitive, hours long cross examination.

In another deeply strange twist, Kelly set out to prove, a) that vegetarian cuisine was Angel Valley's policy, and b) that there is nothing mind altering about vegetarian cuisine. It turns out that the vegetarian menu at Angel Valley is optional so it was James Ray's choice. And as anyone who can remember back to the early days of this trial would point out, it was Ray himself who said that a vegetarian diet is mind altering. He said he wanted people ungrounded and off-balance.

You know, one of the reasons you may have noticed already we have a vegetarian cuisine here. You know, I'm not a vegetarian. I don't advocate it. Particularly when you're doing a lot of energy work, you know, it's, it's, and and you need to be grounded. You look at people who, who are vegetarians and by and large they're not very grounded. Why? Because they just don't have enough protein within them. However, I don't want you grounded here. I want you off-balance. That [inaudible] bogus anyway. I want you off a little bit. I want you, I want you out of you're traditional patterns. Because, because to the degree you're not grounded, then, and that's why we have vegetarian cuisine here. So like or not like it, huh, you're out here and the electric fences are on. [much laughter] And they ain't turned off for five days, now, so. But there's a reason for everything that we're doin' here. I want, I want you to get out of your traditional ways of behaving. Because in that way I can push your threshold. You can push your threshold. I can help you facilitate that. And you open up to greater opportunities.

Kelly also introduced the idea that Mercer had learned how to build a sweat lodge on the internet; something we've heard from the defense before, in arguments before Judge Darrow. It turns out that's pretty wrong. In fact, all Mercer had done was try to verify by internet research if Gary Palisch's email on how to put the blankets on was on was accurate. It was, according to her research. And it was only the blankets; not the structure itself.

All in all, Kelly's attempts to nail Mercer on sweat lodge construction questions, hot off his face to face interview with Mr. Haddow, was a bust. The Mercers didn't build it. They only assisted people hired by the Hamiltons. The weed barrier under the sweat lodge that Kelly tried to prove created a plastic, nearly airtight seal with the tarps on the sweat lodge, was actually fabric, according to Mercer. Besides which it was covered with dirt, so it wouldn't have formed a seal with anything.

Kelly was, once again, operating from bad facts, and the conversation went round and round, with Mercer repeatedly clarifying that he had it wrong.

But no single moment was as outrageous as when Kelly insisted that Mercer's choice of the word "gauntlet" to describe Ray's heat endurance challenge evoked a Native American term. How could she compare Ray's "gauntlet" to the more "loving," Native American sweat lodges -- she hadn't -- when running the gauntlet was a Native American tradition? Wow.

The gauntlet of ‘run the gauntlet’ has no etymological connection with gauntlet ‘glove’ (15^th c.). The latter was borrowed from Old French gantelet, a diminutive form of gant ‘glove’. This was originally a Germanic loanword, with surviving relatives in Swedish and Danish vante ‘glove’. As for ‘running the gauntlet’, it was to begin with ‘running the gantlope’, in which gantlope signified ‘two lines of people armed with sticks, who attacked someone forced to run between them’. This was borrowed in the 17th century from Swedish gatlopp, a descendant of Old Swedish gatulop ‘passageway’; this was a compound noun formed from gata ‘way’ (related to English gate, gait) and lop ‘course’ (related to English leap and lope). Under the influence of gauntlet ‘glove’, English changed gatlopp to gantlope, and thence to gantlet (now restricted in use to an ‘overlapping section of railway track’) and gauntlet (as in ‘run the gauntlet’).

So in addition to wildly misstating a number of the elements in the building of the sweat lodge, Kelly threw in the murder of historical facts at no extra charge.

Kelly was determined to impugn the Mercers as responsible for the sweat lodge structure and the fiasco that followed. He played a recording of Det. Diskin's interview with the Mercers in which he said that they should retain an attorney because, even though he didn't think they were criminally liable, they should protect themselves from civil litigation. Polk was not happy with the truncated testimony and Darrow promised to allow her to complete the record on redirect. She did, with hilarious results.

Dramatic Reading of Diskin Transcript

True to her word, Sheila Polk attempted to flesh out the Diskin transcript with a more complete reading of the record. Kelly, of course, had to raise an objection; the most bizarre objection yet. It was not enough that Polk read it. Mercer would need to read her own lines back in court. Darrow thought it was no matter as long as it was clear who was being quoted but Polk was game. As their line reading progressed, it became apparent why Polk wanted the whole thing read:

Det. Diskin (as read by Sheila Polk): The problem is, you know, he's got limited defenses for why he allowed this to happen. And one of them is he's gonna point the finger at you guys and say, you know, that you guys didn't build it right or he thought that you guys were going to vent it better or something like that.

Fairly prescient, that Det. Diskin.

Click for Full Sized Image

There's been a little movement on the James Ray plagiarism scandal I reported over the weekend. Lynne LaMaster tweeted that they have finally given her credit, but posted the wrong link and continue to post the entire article instead of an excerpt. As you can see in the comment thread above, "admin" is claiming total ignorance of their error. You'd have thought LaMaster's comment on their blog pointing out that they were plagiarizing her article and directing them to remove her work might have tipped them off. That was the comment they removed.

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.

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: Sweatlodges and Plagiarism

Last night Jeanne0o0 posted something on Twitter about yet more material being posted on James Ray's site that really doesn't flatter him. Loathe as I am to give him more traffic, I peeked. I was about three paragraphs in to this blog post before I said to myself, not only isn't this flattering, there's no way it was penned by James Ray or any of his help meets. It's way too well-written. So I googled some of the text and discovered that it came from Prescott eNews. I've cited this publication many times in blog posts following the James Ray debacle. The reportage is always excellent and this article is no exception. So, in that sense, I guess it's no surprise that he stole it. Let's face it. Misappropriating other people's intellectual property is what he does. Just ask Stan Grof inventor of Holotropic Breathwork or Lance Giroux of the Samurai Game^®.

Not only was there no link or any other attribution to the original, the article was not excerpted. It was republished in full, which you cannot do without permission. I couldn't find an email address for Lynne LaMaster of Prescott eNews on the site but I found her on Twitter and shot her a tweet to see if she knew her article was now on Ray's blog and if she'd given permission. She had not.

This morning she tweeted that she had posted a comment on both her site and James Ray's blog calling for removal of the plagiarized material. But when I looked at James Ray's blog, I found that Lynn LaMaster's comment had been removed. Her article had not. JaneLWilcox confirmed that the comment had appeared there earlier this morning.

Here is LaMaster's comment as it appears on her site:

Here is the emptiness left by the removed comment on Ray's blog:

The only question now is how many Cheneys this gets on the Cook's Source mendacity scale. If you're not familiar with Wil Wheaton's brilliant proposal regarding the Cook's Source scandal, see here. In that case it was the publisher of a small, local food magazine who lifted an internet article and then insisted that anything on the internet was public domain. Maybe that's what James Ray and/or his staff think. Because as of this writing Lynne LaMaster's article is still posted on James Ray's blog without attribution and without her comment alerting them to her knowledge of their plagiarism.

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 Arthur Ray Sweat Lodge Trial: Day 29

The folks at In Session seem confused. They were all stunned, they announced this morning, that Judge Darrow didn't give the defense its mistrial. As the day progressed, they became noticeably perplexed that the thrashing prosecutors had coming to them didn't come. There was much discussion, before Judge Darrow took the bench this morning, of the kind of instruction the jury would hear about the suppressed information and how humiliating it might be. But it was well into proceedings before the subject of an instruction came up and with the understanding that it was something to be taken up at a later time.

From the very beginning of this trial, the bias of the In Session panel has been apparent. I believe the word I used to describe Sunny Hostin at that time, as I listened to her breathless description of James Ray's appeal, was "starfucker." My initial assessment holds. And Beth Karas disturbs me more and more. She continues to misrepresent the state's response to the mistrial motion and to completely disregard their position. Now, I fully acknowledge that the defense team's mistrial motion is a slick piece of rhetoric. I'm sad to see that people who are both attorneys and reporters fell for it so completely, while absolutely refusing to read the prosecution's side of the story similarly at face value. Their partiality is blatantly apparent. It's a sad reminder of how far journalistic standards have fallen; something this former journalism student finds tragic.

But LaVaughn, you say, your bias is also screamingly obvious. True. But I'm not a reporter. I don't represent a news network. I'm a blogger. Bloggers, for the most part, are self-appointed op-ed writers and advocacy journalists. I don't purport to be writing anything but my opinions and observations. Reporters for a news organization have a higher duty to provide a balanced perspective. And the folks at In Session have utterly failed.

Judge Darrow, while finding that the prosecution failed to disclose material evidence, states no opinion as to whether it was "inadvertent or not." It would be nice if the talking heads at In Session were as fair as Judge Darrow. But they are most definitely not. I'd say that fairness doesn't make for good television but I'm definitely preferring the Judge Darrow show on CNN's live feed to In Session's shameless pandering.

I have thin tolerance for inflammatory rhetoric and wild distortion, which is why I have taken such a scunner to the defense team. I didn't start out disliking them. I disliked their client because I was already well acquainted with his track record. I considered them to be just people doing a job which, believe it or not, I respect. I believe in our system of jurisprudence. I believe that every defendant deserves a fair trial and that the law, itself, needs to be protected -- even if that means that some guilty people go free. I had no illusions going into this trial that James Ray's moral culpability would necessarily translate into legal guilt. But every day that I watch the machinations of a defense team that bends the truth to breaking, I'm a little less optimistic that this will even be decided fairly, as a matter of law.

Judge Darrow Ponders

There were few sparks on this day following a mistrial motion and its denial. It was back to business as usual. Judge Darrow started the day hearing a laundry list of issues, starting with some of the prosecution's concerns about what questions would and would not be in bounds as the upcoming witnesses testify. What this comes down to, in essence, is just how much the defense can beat up the Hamiltons and whether or not they can go after them indirectly when other people testify.

After about a half hour of this pushing and pulling, Tom Kelly mentioned off-handedly that the defense would be requesting a continuance. Judge Darrow was caught so off guard, it took him a couple of minutes to even address it, at which point he expressed his confusion that it wasn't the first thing on the agenda. Mind you, this was minutes before the jury was due to assemble and Debbie Mercer was, no doubt, waiting to testify. Debbie Mercer, whom Tom Kelly casually mentioned he could not properly cross examined before the defense had an opportunity to meet with Rick Haddow. A "brief telephonic" interview wouldn't cut it. The defense would need time to interview him, determine whether he was telegenic enough to testify, and meet with Det. Diskin; all before cross examining Debbie Mercer who was scheduled to appear today. The way this whole discussion evolved was nothing short of bizarre. It was all sort of backwards and indirect. Just... strange.

Ultimately, Judge Darrow agreed to the continuance to allow the defense sufficient time to adjust its approach to questioning the upcoming witnesses, in light of its newly acquired Haddow email. It's not as long as Tom Kelly's requested week and a half. The trial will resume, instead, next Wednesday. So, the big news today is that the courtroom will be dark again. (Wee, more snow days!) But I've buried the lede, just as Tom Kelly buried his request for a continuence in a pile of extraneous verbiage. I just wanted to give readers the strangely diffused feel of the proceedings today. You're welcome.

Judge Darrow also examined the disclosure material to determine just when the defense actually got the Haddow email. The defense received a CD with that and other disclosed material on April 5th and notice that it was coming in an itemized list on April 4th. Yet the defense team didn't look it over and realize "its import" for several days. Judge Darrow seemed quite annoyed that they did not address the issue over a week ago when they received it but said, "I'm not saying anything. I've already granted the request for a continuence for today and what amount to two other trial days." 

So, back to the Hamiltons: Sheila Polk referenced the bizarre questions about the Hamiltons' ministry and tax exempt status to Ted Mercer who unsurprisingly had no idea about any of it. Judge Darrow ruled quite sensibly that questions about the Hamiltons' bankruptcy and the like were better directed to the Hamiltons rather than to people who have no basis of knowledge. Outside of a court of law, we would call what the defense has been trying to do gossip. In the parlance of the Arizona court it's rule 403.

But the defense's attempts to bring highly prejudicial questions into the mix continued. Couldn't they, for instance, ask the Mercers about their opinions that the Hamiltons "have a reputation of using and abusing people?" Kelly would only be asking about that to make clear why they quit working at Angel Valley. (Judge Darrow found that it wouldn't be admissible.)

The defense would also like to pursue the issue of the Hamiltons' tax exempt ministry and the fact that they are charging for their lodging and services. Polk objected for two reasons; dragging their religion into the courtroom and the fact that it misrepresents what they are doing as illegal. Luis Li strenuously disagreed, insisting that at the rates they charge they must be making a profit, which is purely assumption on his part. Li also insisted that non-profits can't make a profit because they wouldn't be non-profits anymore. That's not entirely true. Non-profits have to generate revenue to meet their own costs. Judge Darrow ruled that he doesn't want to open up side-trials. Without proof he will not allow that kind of character issue to be raised.

The issue of whether or not a permit was issued for the sweat lodge structure reared its ugly head once again. It's an obvious attempt to impugn the Hamiltons for doing something illegal when it's completely unclear that it is, in fact, illegal. As Sheila Polk explained the law on whether or not such a structure requires a permit is murky at best. There is no permit for the structure. Neither have the Hamiltons ever been cited with a violation over something that has been repeatedly seen by inspectors.

The defense did make the valid point, however, that they now wish to raise the issue of the structural viability of the sweat lodge, in light of the Haddow email. Although as Polk pointed out, "There is no building code on how to build a sweat lodge." Gee. Ya think?!

All of this will also raise the larger question of how much input Ray actually had in the design of the current structure and how much of it had to do with his repeated insistence that it be hotter.

Ultimately Judge Darrow ruled that some discussion of the construction and its legalities was germane in terms of the issue of causation. However, again, the questions will need to be directed to people who actually know, as opposed to, you know, more gossip.

Luis Li Argues for Defense Motion

Luis Li would also like to put to rest, once and for all, the notion that only Native Americans can run a sweat lodge -- an issue that no one in this trial has raised ever. But, insists Li, the Hamiltons don't have the "good housekeeping seal of approval" from the Native American community. Noted.

The defense would also like to exclude all reference to Daniel Pfankuch, or as they refer to him, Daniel P. Ironically, Li argues that it's not relevant, in light of their newly proclaimed focus on the structure, itself. Daniel Pfankuch wasn't in the new structure. It was a completely different structure. To which I would say, precisely. A James Ray sweat lodge is unsafe in any structure.

What Mr. Li would like to ignore is that it is the defense who is focused on the structure as causative. The state is still focusing on the ridiculous levels of heat.

This is how Luis Li describes Daniel Pfankuch before he went to the hospital to have -- as Li, like Kelly, describes it -- a "shower."

He was having this experience and he didn't want to come back. And it was joyful and blissful, all of these sorts of things. There are a lot of people who do these kinds of things; who meditate and have these experiences where they feel joyful and in a, in a different place. And that is what they're after. 

Every time I hear this kind of thing, whether it's from James Ray, his attorneys, or his myriad of other defenders, it offends my ears. It offends me first and foremost because altered states of consciousness -- genuine altered states of consciousness -- are something I practice. I do it legally and safely with shamanic drumming. I do it through legitimate forms of theta inducing meditation. I don't raise my body temperature to the point where I could die. And no one who is actually practicing shamanic techniques that come through a legitimate wisdom tradition would do anything that crazy. There are very straightforward ways to achieve altered states of consciousness without risking anyone's health and safety. Luis Li confuses bliss with the euphoria of heat related illness.

Daniel Pfankuch was disoriented, combative, and had to be taken to the hospital. He received IV fluids for hours. He was given discharge instructions by the hospital for heat exhaustion. I would endorse people to read what the man himself has to say about the experience. Connie Joy has pdfs of the Pfankuch and other police interviews on her site here.

The defense would also like 2005 to go away because the other issue that comes up is that James Ray went so ballistic over Amayra Hamilton's calling 911 that his employees and Dream Team members are still terrified to call 911. As Sheila Polk pointed out, the defense opened the door with its questioning of Melinda Martin. It also became glaringly apparent when Debbie Mercer testified that the nurse on the Dream Team didn't want to call 911 without asking Megan Fredrickson for permission, even though Kirby Brown and James Shore weren't breathing.

Luis Li would also like to strike all references to the legal questions about the Holotropic Breathwork and the Samurai Game. He now argues that other than in the waiver, the term Holotropic Breathwork really isn't used. This is a) untrue, and b) hilarious coming from a defense team that has waved the waiver under everyone's nose for weeks. He also now argues that the idea that just because people dress up and pretend to be Samurais and call it the Samurai Game doesn't mean that it's the trademarked entity known as the Samurai Game^®.  Except that, as Polk pointed out, it's the defense that has repeatedly said that this is the same game that's played at AT&T, the military, and so on, going all the way back to Li's opening argument.

I suspect that Ray is actually in a bit of hot water over his misappropriation of proprietary material -- let alone the fact that his lack of training and certification has arguably caused him to use these techniques recklessly and dangerously. This excellent article explains how Ray has abused a number of traditions and modalities, including Holotropic Breathwork and the Samurai Game.

The sweat-lodge ceremony was the culmination of five days of retreat activities linked by a common thread: Ray's lack of training or authorization to teach them.

He guided participants in Holotropic Breathing, an accelerated breathing technique intended to help people reach altered states of consciousness without drugs. The trademarked technique was invented by psychiatrist Stanislav Grof, founder of Grof Transpersonal Training. According to Grof's attorney, Ray never trained with or even met Grof. "You are not, nor have you ever been, certified to conduct holotropic breathwork," attorney Jack Silver wrote in a March 7, 2011, letter to Ray. The organization says it takes two years of training to become a certified practitioner.

Ray also led participants in a leadership exercise called the Samurai Game, in which he played "God" and could declare participants dead, requiring them to lay for hours without moving or speaking. This team-building exercise is trademarked too.

"To put this on, you have to be trained, certified, sign a contract and pay royalties - and that did not happen in this case," says Lance Giroux, managing director of Allied Ronin Leadership Training and Consulting, which holds exclusive rights to train and certify facilitators.

There were too many items on today's laundry list to address here. And too many endless, convoluted diatribes by Luis Li for my tired brain to process. I will say this for the defense's move for a continuance. It will allow me a little time to unscramble my thought process after weeks of listening to Li and Do's legal wordscapes.

Speaking of Luis Li running his suck, here he is holding forth at a press gaggle immediately after yesterday's dramatic proceedings. As I said the other day when I noted that Tom Kelly had given a statement to the press, aren't they supposed to be under a gag order?

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.

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 Arthur Ray Sweat Lodge Trial: Day 28

Truc Do and Tom Kelly Listen to Bill Hughes

Today was something of an emotional roller coaster ride. I started my viewing this morning with In Session. Big mistake. Their pregame show was all about the likelihood of a mistrial and the prosecution's weak response. They somehow managed to completely ignore everything about the cumulative nature of Haddow's findings and the plethora of information already in evidence attesting to those same issues. Beth Karas touched on this briefly but claimed that the response only cited information from civil suits. Oy. It's the email in question from Rick Haddow that stemmed from a civil suit. Many of the prosecution's citations pertained to state witness testimony. Far be it from the In Session talking heads to let facts get in the way of a good story.

Oral arguments were presented by Luis Li and Bill Hughes for and against a mistrial due to the alleged Brady violation. Luis Li blithered for close to an hour, repeating the central claims of their motion and then... some... other... um... I'll get back to that. Bill Hughes responded with a terse, under ten minute reading of the central points of the prosecution's response. Then came a full body blow from Judge Darrow. He sided with the defense, saying grimly that no other matters could be heard today. He did find there was a Brady violation and he would take some time to determine a remedy.

The talking heads on In Session were quick to assume that it would be a mistrial because Judge Darrow made it known that he would not return to the bench this afternoon. Instead he would post a written response.

Also quick to crow about the finding was... James Ray.

James Ray Dances on Graves

So, okay, I don't know for a fact that it was himself who tweeted. He probably has people for that. But by all appearances, this is yet another response from Ray that is totally bereft of empathy. It's right up there with shrugging his shoulders when he learned that three people weren't breathing. Woohoo!! Three people died and I might get off on a technicality! It just screams sociopath.

Later this afternoon, however, we learned that Judge Darrow had rejected the defense's motion for a mistrial. His advisory ruling is here, with a written explanation promised to follow.

I'm hoping that Judge Darrow ruled that there was a Brady violation out of an abundance of caution and concern over reversible error.

Why do I say that? Because the prosecution's claim that this email would have changed the way they've tried this case just doesn't hold water. None of the information in the email was new. Every element has been available to the defense since well before the trial began. The defense is essentially arguing that they're too stupid to put together this alternate theory without the prosecution providing them with bullet points.

Luis Li Argues for Mistrial

What I find amazing about Li's argument, aside from the fact that it was successful, is the mind-numbing illogic of it. Li would have us believe that the defense couldn't make sense of the difference between carbon monoxide and carbon dioxide when it was laid out clearly by Det. Diskin. Yet he enumerates the multitude of things the defense parsed from inexpert testimony that has never been specifically underscored by the prosecutors.

We heard a lead about organophosphates. We followed it. We heard a lead about rat poison. We followed it. We heard a lead about wood. We followed that. So we followed every lead that has been shown to us by the state's evidence. And had we been shown this particular evidence about the environmental evidence we would have followed that, too.

The organophosphate argument traces back to a statement heard as background noise from an unidentified party who may or may not have been an EMT. The rat poison was an inference from Ted Mercer who has never been certain that that's what it was. The wood question also was put forward by a confused Ted Mercer right after the event. So if they could extract those leads from disparate comments by non-experts, why couldn't they research the relevance of carbon dioxide? Was it because of some obscurantism on the part of the state? Or the lack of reference to carbon dioxide as a possible cause?

It would appear not. Here is a partial transcript of a discussion between defense attorneys Luis Li and Truc Do and Det. Diskin. It took place on June 16, 2010.

Do: So during the course of your investigation, did you consider any other possibilities as to cause?

Diskin: Yes

Do: What other possibilities that you considered?

Diskin: Carbon dioxide poisoning.

Do: Okay.

Li: Carbon dioxide or monoxide?

Diskin: Carbon dioxide. Carbon monoxide was ruled out.

Li: Okay.

Do: Right. What else?

Diskin: Lack of oxygen, which apparently is different than carbon dioxide.

Do: Okay

Diskin: Poisoning. I don't know why.

Do: What else if any?

Diskin: Then of course the heat, you know, the hyperthermia. And then any type of toxin.

Do: Did you at any point in your investigation learn of anything that suggested the possibility of other causes than heat?

Diskin: No. Other than in addition to the heat there was some discussion that the lack of oxygen and carbon dioxide in addition to the heat may have been a factor.

Do: Okay. So with that explanation, is it still your answer that you did not learn anything in your investigation that indicated another possible cause other than heat?

Diskin: Another sole cause other than heat.

Do: Okay. Why are you qualifying that with sole, is there something else?

Diskin: Because, no, because carbon dioxide poisoning and hyperthermia could both have contributed.

Do: Got it. So other than those two, heat and carbon dioxide, did you learn of anything else to suggest other possible causes?

Diskin: No.

According to Li, this was Det. Diskin's "artful" attempt to obscure the carbon dioxide issue and allow defense attorneys to remain ignorant about the difference between carbon dioxide and carbon monoxide.

We asked the detective, tell us everything you looked at. To tell us what, what could have caused these deaths. And he said carbon monoxide. And then he said carbon dioxide. And I'll be frank with the court. At when we heard that the detective, with all due respect to the detective, just got it wrong, and was, uh, mixing up carbon dioxide and carbon monoxide. So we asked for clarification, "You mean carbon dioxide or carbon monoxide?" And he said carbon dioxide. He knew what he was talking about. Okay, but, but, and he knew what he was talking about because less than a month and a half earlier he had received that email from Dr., uh, from Mr. Haddow, in which Mr. Haddow says carbon dioxide is a possible cause and I don't know whether or not the detective, Det. Diskin, had a subsequent conversation close to that interview in which further information about carbon dioxide was shared. But what, what the detective did not say -- what the detective knew and did not say and what the state's attorneys watched happen and remained silent was what the detective did not say, "Hey. I consulted with an environmental expert who says, we don't know if we're gonna use him or not but we consulted with an environmental expert who said carbon dioxide is a possible cause of death here."

It goes on like that, filled with stammering and sputtering, and accusations of "artful" avoidance.

So, first of all, Det. Diskin did not say anything about carbon monoxide until Li asked him which he meant. This is obvious in the transcript.

Secondly, Li has no way of knowing why Det. Diskin "knew what he was talking about" or that it was because of Haddow's email. It's likely he knew the difference between carbon dioxide and carbon monoxide and the fact that carbon dioxide is toxic because he has a high school education.

Finally, Mr. Haddow did not say that carbon dioxide was a possible cause of death. He said that "Liz's health was worsened by the length and exposure to both heat and carbon dioxide." Haddow specifically blamed the extreme heat and humidity for her death.

The lodge maintained hazardous levels of indoor air temperature worsened by saturated air from the application of water onto the heated rock pit. The high relative humidity allowed the stored energy from the rock pit to enter Liz's lungs heating her core. This high relative humidity and temperature created an environmental condition that would not allow Liz's body the ability to self regulate her internal temperature leading to hyperthermia and organ failure.

Luis Li. So little time. So much to distort.

Det. Diskin handed them the carbon dioxide theory. He all but gift wrapped it and tied it with a bow. I just don't see how the fact that they did not understand his very clear English is the prosecution's fault.

The carbon dioxide possibility is also referred to by Dr. Mosley, the medical examiner in Liz Neuman's case, who has yet to testify. But Li discounted it because Mosley had also ruled it out. Funny. The defense has had no trouble trotting out preliminary diagnoses and notations from doctors that were not part of their final conclusions before. It's one of Truc Do's primary tactics.

In fact the possibility of carbon dioxide poisoning has come up repeatedly in medical reports. Certainly more often than organophospates.

Similarly, the offset rock pit and the impermeable membrane appear in evidence other than Mr. Haddow's email. It's just that according to Li, it wasn't good enough. In his argument he ridicules the state's sweat lodge expert Douglas Sundling because he's just a "blogger" who claims to know something about sweat lodges. I don't know what degrees Mr. Li expects to appear in the CV of a sweat lodge expert but, again, he's taking Ted Mercer's word that the wood he was directed to burn was a possible cause. So he's being very selective about when he needs his leads to be heavily credentialed. The information about that off center rock pit was originally cited in testimony from sweat lodge participants Randy Potter and Julie Minn. So, not experts, but they were there. And the off-center rock pit appears in the prosecution's diagrams.

So, if all this material has been hidden, it's been hidden plain sight.

James Earl Ray

In the world of Jungian synchronicity and Freudian slips, this is kind of funny. It's occurred to me before as an amusing fact that James Arthur Ray is only one middle name removed from James Earl Ray, career criminal and assassin of Dr. Martin Luther King, Jr. Last night my husband inadvertently referred to James Arthur Ray as James Earl Ray. And we laughed. In an In Session interview this morning, journalist Nathan Thornburgh repeatedly referred to him as James Earl Ray as well. Interviewer Christi Paul didn't even seem to notice and did not correct him. The workings of the subconscious mind are compelling, as are the stirrings of the collective unconscious.

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.

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 Arthur Ray Sweat Lodge Trial: Day 27

Buy at Allposters.com

I had a feeling yesterday morning that today was going to be another "snow day." And it was... sort of. And not in a good way. Court was canceled today to allow prosecutors an opportunity to prepare a response to a mistrial motion from the defense. This is their second attempt at a mistrial in under a week. What else happened in that time? Hmmm... Oh right. Judge Darrow ruled that he would allow in more testimony regarding prior sweat lodges. The outraged defense team warned at that time that they were planning mistrial motions and prosecutorial misconduct charges. So this isn't a huge surprise.

I'm guessing that this motion pertains to the prosecutorial misconduct to which they alluded last week. According to this motion, prosecutors withheld exculpatory evidence from the defense, thus violating Brady. Specifically, they failed to turn over an email containing a preliminary report from an expert named Richard Haddow of the Haddow Environmental Research Organization until last week. The email contained a number of bullet points listing factors contributing to the cause of death in Liz Neuman's case and refers to the two other deaths and illness of others in the same general area of the sweat lodge. Haddow claims that because the rock pit is slightly off center in the sweat lodge and because the sweat lodge is covered with non-breathable materials the moisture and carbon dioxide in that section of the sweat lodge would have been severe.

Says the defense, because they did not have this information before the beginning of the trial, their entire strategy has been impaired. This information would have altered their opening argument and their cross examination of witnesses would have been different. Their contention is that this was a deliberate attempt on the state's part to withhold information damaging to the prosecution.

The general view of the In Session panel, today, is that this is a serious charge from the defense that could very well result in a mistrial with prejudice; meaning there would be no retrial. They do love the drama on In Session. And I'm not always sure they're watching the same trial I am.

I agree that if the defense's argument, as stated in its motion, were true, the prosecution would be very wrong, indeed. I read over the motion last night. It all sounds very damning. Unlike the In Session panel, however, I decided to wait for the response from the prosecution before making any assessment at all. One thing I've learned, after weeks of watching this trial, is that things are almost never the way the defense says they are. Having now downloaded the recently posted response from the prosecution, I find that this pattern seems to be holding. 

The prosecution does concede that they inadvertently failed to forward the email in question until recently. However, the information in the email was redundant. All the elements outlined in the email were already in evidence: the off-center rock pit, the non-breathable covering material, the construction being under Angel Valley's purview, and the buildup of CO² in that section of the sweat lodge. They include, in their 122 page response numerous citations of those elements.

The prosecution also disagrees with both the characterization of Mr. Haddow's email as "an expert witness report" and the contention that it was in any way exculpatory. Rather, they found it to be incriminating which is why they had considered including him as a prosecution witness. They only became aware of Mr. Haddow and his preliminary findings because he had been retained by the Neuman family as part of their civil case against James Ray. That would explain something I found confusing when I first read it. It refers almost entirely to Liz Neuman, with the other deaths and illnesses appearing only tangentially.

When the prosecution considered retaining Mr. Haddow as a prosecution witness, they disclosed his name and contact information to the defense. They later decided that his testimony would have been cumulative, having been well covered by other experts whose findings they had already turned over to the defense. Further, they had misgivings about Mr. Haddow's credentials.

The defense's motion certainly makes it sound like the state retained an expert, decided his findings were exculpatory, buried the findings, and dumped the expert when the defense pushed for full disclosure. That is certainly the ball the folks at In Session have been running with all day. And, once again, the prosecution paints a different picture entirely. An attorney for a decedent's family retained an expert. The prosecution became aware of him and determined his findings to be incriminating and considered including him as a witness for the state. They ultimately decided the information was redundant, a.k.a. cumulative, and removed him from the overlong witness list. They forwarded the email when they deduced just what it was the defense was asking for.

In the response, Bill Hughes also addressed the legal argument for mistrial as a remedy for the Brady violation. He argues that even if the court were to find that the information was exculpatory, it's not a Brady violation because it was disclosed, if in a less than timely manner. And, of course, there was nothing new in it. But even if it were a Brady violation, it would be at the court's discretion to impose sanctions, rather than imperil the Constitutional rights of the victims in this case. The defense has plenty of time to cross examine witnesses on the issue of the building of the sweat lodge because the Hamiltons and Gary Palisch have yet to appear. Debra Mercer has yet to be cross examined. They are also welcome to call Mr. Haddow as a defense witness, should they choose to do so.

I haven't read the entire 122 pages of the prosecution's response with all the attachments but that covers the meat of it and I think it's pretty strong. Tomorrow Judge Darrow will hear arguments and make some ruling, so we shall see.

Also filed late today was a request from the prosecution for the court to compel the defendant to turn over previously requested documents pertaining to all the lawsuits pending against James Ray. Included in that, apparently, is all the information regarding Mr. Haddow, as he was hired by the Neumans. Implied in there, I think, is that the defendant had Mr. Haddow's findings all along because they are part of that civil case.

The Verde Independent has a pretty good write-up on the mistrial motion. Of note, Tom Kelly gave a statement to the press, which is kind of interesting considering that the parties are under a gag order.

Parties in the case are under a gag order prohibiting them from discussing the case with the media. Defense attorney Tom Kelly, though, had this to say: "Our position is set forth in the motion for a mistrial and I'm anxious to see the state's response."

Polk did not respond to a phone call asking for comment.

I don't know that it would be enough of a comment to constitute a breach, but Kelly really seems to enjoy sidling right up to the line, doesn't he?

James Ray Shrugged

Amidst all the go-defense-team-go cheering from the talking heads on In Session today, there were also some devastating reminders of just why it's so important that this case go forward. They played more of Debbie Mercer's disturbing testimony including something I just couldn't do justice to without the visuals. I wasn't able to get a screen capture of this moment from CNN's feed on Friday. Mercer testified to the "motion" she got as her response from James Ray when she told him that three people weren't breathing and she needed to find a phone to call an ambulance. His response was to shrug his shoulders, as the stunned Mercer demonstrated.

Mercer: I looked for Megan and I didn't see her right off so I ran over to where James Ray was sitting. And I told him, went up to him, and said there's three people not breathing. We need to call an ambulance. I need a phone. Um, where's Megan? You know, mid-panic, we need a phone to call an ambulance.

Polk: And did Mr. Ray respond?

Mercer: Yes he did.

Polk: And what did he say?

Mercer: He said, he didn't. [pause] He responded with a ex, a motion, not a word.

So, informed that three people were not breathing, and as people who paid him thousands of dollars were scrambling to save lives, on what Mercer and others have described as looking like a battlefield, James Ray sat in a chair, in the shade, and shrugged his shoulders when told that they needed to call 911.

Is it any surprise that the defense is getting a little desperate at this point?

Also of note, was an interview with Dr. Michael Brannon, a forensic psychologist, who explained why people would have stayed in the sweat lodge on that fateful day. He touched on the Milgram experiment, which I brought up early in the trial to explain the human inclination to be obedient to perceived authority figures. Brannon explained that the same ingredients of an authority figure, other people accepting as okay the requested behavior, and a closed environment, removed from people who might question it. (The painful lesson of Milgram's study: human beings are docile.)

They showed that most painful of testimony from Linda Andresano who wept at her own failure to leave when she realized she was slipping into unconsciousness and decided it was "a good day to die." There has been a lot of such confused testimony from witnesses. Like Dennis Mehravar who could not explain why he would not have saved an incredulous Luis Li even if he'd known he was dying because he was afraid of making James Ray angry. You can see that inner struggle playing out across their faces. They just don't understand why they felt so powerless to act when their lives and the lives of others were in jeopardy. They're still tortured by it. And when pressed by the defense about their own failure to act -- as Lou Caci and Beverley Bunn were -- they break down in tears.

Christi Paul made what I thought was a rather astute observation. Referring to something she learned from the Center for Missing and Exploited Children, she pointed out that "human beings are the only species that will talk ourselves out of an instinct." This is central to Gavin de Becker's work in teaching people about how to recognize the predictors of violent behavior and how to protect themselves. Says de Becker, the reptilian brain has served us throughout our evolution, but we second-guess that fight or flight instinct. It can get us killed.

Brannon addressed this from another angle raising another core principle in mind control research; cognitive dissonance. In Releasing the Bonds, cult survivor and special Steven Hassan explains:

In 1950, psychologist Leon Festinger summarized the basic principle of his cognitive dissonance theory: "If you change a person's behavior, his thoughts and feelings will change to minimize the dissonance." As Festinger described, "dissonance" is the psychological tension that arises when a person's behavior conflicts with his beliefs. Like hunger, this tension is an uncomfortable state that drives people to take measures to reduce it. People prefer that their behavior, thoughts, and emotions be mutually consistent, and can tolerate only a certain amount of discrepancy between these three components of their identities. Psychological research has shown that if any of the three components changes, the other two will shift to reduce the cognitive dissonance.

Chief among the behaviors to be reconciled by the people at a James Ray seminar is having made huge financial outlay. As Brannon explained, they'd paid a lot of money and invested a lot emotionally in an outcome promised by a charismatic, spiritual leader. That they suppressed their misgivings and brought themselves into alignment with all the elements of Ray's program isn't really surprising at all.

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.

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.