The day started with more legal wrangling, with Tom Kelly looking like the cat who'd swallowed the canary through most of it. He got little to no resistance to his request to use the prior acts of today's witness for impeachment purposes. Judge Darrow excluded an old DUI and one other, but he was left with a couple of felony convictions he could work with. He looked cheerful and even engaged in a little friendly banter with Bill Hughes.
Prosecutor Sheila Polk quickly seized the high ground, however, by starting her direct examination laying out the witness's convictions for false reporting to police and drug paraphernalia. And witness, Fawn Foster, completely seized the day by being forthright, honest, and humble about her own history. Going to prison was the "biggest blessing that ever happened," she said. She had left prison with "a new attitude, a new set of teeth, and just a whole new life." She owes her sobriety to the criminal justice system and she's been clean and sober since 2006.
It's hard to impeach someone who is as open as Fawn Foster. And there is just no artifice to this woman.
Foster is an employee of Angel Valley Ranch and brims with affection and gratitude for her opportunity to clean toilets, kill weeds, and work in the kitchen. In 2008, her stepson was working there as a chef and called her in when they were short-staffed. She has been there ever since.
When Angel Valley hosted James Ray's Spiritual Warrior retreat of 2009, one of Foster's responsibilities was putting together the comfort station outside the sweat lodge with chopped watermelon, oranges, electrolyte beverages, and lemon water. After she had set up the table, she decided to stay put and observe. "Because my gut told me to," she explained.
When participants burned their recapitulation journals, she tamped out the windblown bits of burning paper. When people staggered out of the sweltering lodge, she helped them cool down with fruit and water from the hose.
She had concerns early on when she witnessed a woman in a white bathing suit who had left after the second round clearly at odds with the idea of going back into the sweat lodge. She had approached the door but couldn't make herself go through it. She'd approach and back up and approach and back up. She heard people inside the lodge "encouraging" her by telling her that she was "more than her body." Then she saw two members of the Dream Team try to push her in. At that point, the fire keeper's wife, Debbie Mercer intervened and told the Dream Team members that they just couldn't do that. The woman left the area and never came back.
She was also present when Lou Caci fell into the hot rocks and crawled out of the tent, his arm covered with giant blisters. She took a golf cart back to the kitchen and got a bucket filled with ice and water for him to bath his arm in. Caci appeared to be in shock. "He wasn't coherent. He couldn't tell me who he was." But he kept insisted he was "fine."
Caci later thanked her for telling him to go back in. She hadn't.
Foster, who has done many sweats in the past had quickly become skeptical of the way this was being run and her skepticism grew as it evolved. At one point she saw 18 heated rocks moved in through the door at once. This seemed like an "astronomical amount" to her. She assumed that this was Ray's decision because he was the leader of the sweat and that's how it's done.
She found it strange that people were encouraged not leave and to come back in if they had. She heard Ray and many echoing voices telling people they were "more than their bodies."
She also witnessed the Dennis Mehravar incident and was very concerned that a man was screaming about how he was going to die. And she heard James Ray from inside the structure saying, "You're not gonna die. You're gonna be okay."
"Did there come a time when you became concerned?" Polk asked.
"Many times," Foster replied. Her concern only grew as things escalated.
At one point she heard from inside the sweat lodge, "There's three people down back here."
She heard Ray reply, "Are they breathing?" She did not hear the reply but Ray said to leave them where they were. She assumed they must have been alright because she couldn't fathom that the leader of the sweat would not have taken action if there was a serious problem.
Through the last round she heard more of Ray telling them that they would be alright. They weren't their bodies and "they would be shamans at this point."
But when the flap opened for the final time it quickly became apparent that they weren't alright. Ray was one of the first people out and he put his arms in the air and asked to be hosed down. Other people didn't. They were all collapsing to the ground.
Then she heard her friend Debbie Mercer shouting that there were still three people inside and asking to open up the back of the lodge. Ray protested saying it would be "sacreligious," but he relented.
Ray, still calm, cool and collected was praising Dennis Mehravar for finishing out the sweat lodge. But all around her people were collapsed on the ground in varying states of distress. Foster is one of those who describes people foaming at the mouth. Some were screaming. Some weren't moving. And James Shore was completely blue while Kirby Brown's lips were blue.
She pulled blankets off the structure to wrap people in and tried to lend aid and comfort.
As she heard the sirens of ambulances approaching, she heard James Ray tell everyone who could walk to return to their rooms and clear the area. She didn't see anyone leave, though. Many of them probably couldn't.
Fawn Foster still becomes emotional when she talks about the aftermath of the sweat lodge. She was "devastated" and "in total disbelief." She described holding an emotionally shaken Sarah Mercer -- the fire keeper's daughter -- through the night; both of them shaken to their core.
She continued to choke back tears as she described the dismantling of the sweat lodge structure.
It is my belief that when a law has been desecrated that it needs to come down in a sacred way. It should never be used again.
Foster describes herself as one quarter Cherokee and one quarter Sioux. Her heritage, she says, matters to her and this is part of why she believed the lodge must be disassembled as it had been assembled -- piece by piece and by hand.
Here she is referring to the ceremonial destruction of the sweat lodge that has become a bone of contention for the defense. It is their belief that the Hamiltons were simply destroying evidence. But they had waited for the police to release the area after taking what evidence they believed necessary.
Further questions about the lodge structure brought a lengthy sidebar. Polk wants Foster to testify to her experience with other sweat lodge ceremonies held in the same structure. It is the prosecution's contention that the lack of incident at other ceremonies proves that it is only Ray's sweats that cause illness, injury, and death. But there is some confusion as to whether or not all the coverings are the same. Photos of a prior sweat lodge look different. Although Judge Darrow doesn't hold to Kelly's preferred standard of the exact same materials in the exact same configuration -- something I expect is impossible -- he does think they look different enough to merit further foundational testimony before Foster can testify on the issue. So she may have to return to testify after the Hamiltons and Mercers have laid more foundation for those questions.
Foster was able to testify to some of the details on the sweat lodge and where the materials are stored and how. It is part of her job to fold the blankets and put them in the pump house between uses.
She also testified about what pesticides she's used, how she's used them, and where they were found. There are rats and ants that need to be gotten rid of. The products themselves sound fairly innocuous and minimally used. She uses her bare hands when she puts out the ant poison and rat biscuits.
She also described some of her landscaping duties which include killing pulling weeds and killing some of the with saltwater.
These are duties she only acquired in 2010 so she can't speak to how these duties were handled the previous year.
Kelly Cross Examines Foster
Tom Kelly has an anger problem and he looks like someone who knows it. He attacks, retreats a little, then ingratiates. His demeanor with Melinda Mullin was a case in point. Like a battering husband with a bouquet of flowers, he tried to ameliorate the damage of their "little fight" the day before.
Fawn Foster's hackles were raised early in his cross examination, before he'd even gotten noticeably aggressive or mentioned her criminal history. She regarded him with the wary look of someone who's dealt with predators before and whose internal warning system had kicked in.
He started off simply with questions about the poisons, the water on the property, and so on. She explained that she had never had a problem.
And what about the wood used in the fires that day. She had not gotten ill even though she had spent more time by the fires themselves than participants had. But Kelly pointed out, she was in the open air; not an enclosed structure filled with steam.
They had a chat about all the critters in Arizona and how they had to be controlled. He asked about the products used. And what about that garden? Surely they had to control insects there. No, Foster explained. It's an organic garden. Kelly seemed incredulous at the notion. But don't bugs eat the vegetables? They eat what they want, she explained.
Kelly abruptly changed gears. He reminded her that she's a convicted felon with a prison record. She has a tenth grade education and a GED. It's been difficult to secure employment, hasn't it. And her job history is kitchen work and day labor. She explained that she's had her own house cleaning business for thirty years.
But, yes, working at Angel Valley is definitely the best job she's ever had, she agreed. She's even worked way up from "kitchen work" to her current "status" and is even named on the web site, Kelly pointed out.
It would be hard to miss the disdain Kelly has for the menial labor she's done her entire life and the contention that this is the first time she's ever had "status."
She'd like to keep this job, wouldn't she. "If the Lord wants me there, absolutely yes sir," she replied.
The implication is obvious. Angel Valley is struggling as a result of this fiasco and, obviously, Foster is protecting the Hamiltons with her testimony.
Kelly began an assault on her testimony by listing the many things she didn't mention in prior interviews with police. Not because of anything contradictory, mind you. Just that some of what she said today hadn't come up in prior interviews. The only contradiction was a misstatement about the time of the ceremony from her police interview that night. She was in shock, she reminded Kelly.
He asked her about things like poisons and treated wood, none of which she has any real knowledge about.
There were moments of bizarre hilarity involving Kelly's attempts to calculate distance to demonstrate that she could not have heard Ray as clearly as she contends. What occurred to me during this presentation was the memory of a time I was taken in by a short change artist. I was teenager working at the Dairy Queen. He took me for thirty bucks.
Upon return from a break Kelly launched into questions about her Native American lineage and whether that is why she doesn't believe in charging for sweat lodge ceremony. She's not in agreement with James Ray International charging for a sweat lodge is she.
"I'm not in agreement with anybody charging money for a sweat lodge. Has nothing to do with him, personally," said Foster.
Kelly asked her about the number of rocks removed from the pit of the sweat lodge. When they were disassembling the lodge she counted 53 rocks being removed. I need to repeat that. There were 53 heated rocks in the sweat lodge ceremony.
Kelly then launched into a series of questions about whether or not she was aware of police removing various items from the property; pesticides, wood, the food, etc. She does not know. This, of course, gives the impression that these things were not done.
Kelly also asked her about a Dream Team member named Mark Rock and how long he lived there in 2010. She thinks it was about a month. Kelly thinks it was about half a year. I expect there will be more to come on Mark Rock.
Unsurprisingly, Kelly asked for more details about the dismantling and burning of the sweat lodge structure. She explained that it was all burned except for the plastic tarps which were disposed of elsewhere.
Was she aware that the anniversary ceremony at Angel Valley offered to those with pending lawsuits if they dropped those suits? She had no idea.
When Kelly moved on to the sweat lodge and its aftermath, he triesd many times to get her to say that there more people than just Ray and a couple of those closest to him who looked okay. But, no, she insisted the rest dropped like flies.
As she recounted the events for the second time in one day, she again dissolved into tears.
Of course it probably didn't help that he'd asked her about the two totally incapacitated people she saw by saying, "And you didn't help them?"
She explained that she was helping people in other areas because they were laying everywhere.
As she struggled to compose herself, Kelly sounded, for a moment, concerned for her well-being. "You okay?" he asked gently
But no. It's another tactic.
"It's been a year and a half since this happened, correct?... And you seem to be pretty upset. Is that affecting your ability to remember what happened?"
It's just Kelly trying to exploit what he believes is a discrepancy in her testimony. She'd told Det. Diskin that there were three people removed unconscious from the tent. Now she seems to remember only two. But as she'd already explained, she only had a clear view of two. She knew there was a third. It's just more of Kelly getting basic facts wrong and attacking people for his own confusion.
He tried to open up more room between her previous testimony and the present by saying that she was saying that James Ray never helped anyone. No, she explained. Her testimony is that she never witnessed him helping anyone.
But Kelly protested. Didn't she say in a police interview that if anyone said Ray had helped anyone, they'd be a "bald faced liar."
Yes, she'd said it. "I was also very angry."
So was she calling Dr. Jeanne Armstrong a bald faced liar?
Once again, I'm at a loss to understand Kelly's strategy. Far from impeaching this woman's testimony, he's unnecessarily read into the record that Ray looked to her, as he did to many witnesses, like he was doing nothing. And he's read into the record her outrage over that fact. And now he has her on record, as the gracious person she is, willing to accept that her perceptions were colored by her anger at the time.
Tom Kelly has a real problem with coming off far worse than the witnesses he tries to impugn.
Polk Redirects Foster
On redirect, Sheila Polk gave Foster an opportunity to clarify her outrage at Ray on the day of the sweat lodge.
At that time I was very, very angry because I saw James Ray go into the tarps and then disappear and I never saw him again. And my heart just couldn't understand why. Why somebody would walk away from that. And if he did go back. Awesome. Great. But I can't say he did 'cause I did not witness that. I did not see it.
Had Kelly never brought her previous testimony up, he would not have had such powerful statements on the record. Instead, he opened up room for someone to give powerful, emotional testimony about Ray's lack of leadership when people were struggling and dying.
What Kelly doesn't seem to grasp is that having a witness here or there testify that they saw him do something doesn't help Ray. If that many people didn't see him doing anything but standing around and attending to his own needs, he can't have done much. That's a big problem for any leader and it comes down to, among other things, symbolism. This is the difference between Reagan's famous photo op pitching sand bags around a Louisiana flood and George W. Bush's photo op flying over one. Appearances matter in a leader. Reagan at least knew how to look busy. If Ray had pitched in in a visible way, there would not be witness after witness testifying that he was useless in a crisis.
Polk also untangled the tape measure fiasco and got clarity from Foster about how far she believes she was from Ray and how clearly she could hear him.
What did she hear him say? Foster racked her brain and restated all the things about them being strong, that they could make it, that they were not their bodies, and that they could push through this. And then she accessed another memory. One far more shocking than she seems realize as she says it.
I could hear him sayin' at some point that he was the Alpha and the Omega, the beginning and the end, and he was God, uh..
Kelly fairly whispered the word, "Object."
When Judge Darrow asked for grounds, there was silence, and then a stammered request to approach the bench.
After the sidebar, Polk quickly finished her questions and Kelly was offered an opportunity to cross examine the witness again.
What followed was a reiteration of the police interviews, and earlier testimony in which Foster had never mentioned Ray's Alpha - Omega speech. "No sir, I did not," she said in each case.
Kelly: On August 13, 2002, you were convicted of lying to a law enforcement officer.
Polk: This goes beyond the scope.
Foster: Yes sir, I was.
. . .
Kelly: On March 18, 2005, you were convicted of lying to a law enforcement officer.
Foster: Yes sir, I was, as I stated to begin with.Kelly: Thank-you.
Judge Darrow rejected the jury's questions at his discretion.
Fawn Foster was excused subject to recall.
Tom Kelly rushed quickly from the court, the smile long gone from his face.
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.