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 by the prosecution. 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.
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?
Do: What other possibilities that you considered?
Diskin: Carbon dioxide poisoning.
Li: Carbon dioxide or monoxide?
Diskin: Carbon dioxide. Carbon monoxide was ruled out.
Do: Right. What else?
Diskin: Lack of oxygen, which apparently is different than carbon dioxide.
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?
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.