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.