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.