Apr 22, 2011

James Arthur Ray Sweat Lodge Trial: Day 32

Crossposted from Reflections Journal.

Judge Darrow Rules on Prior Sweat Lodge Testimony

There were no big surprises in Judge Darrow's rulings this morning. Daniel Pfankuch is out. So is the 2005 sweat lodge entirely. He also ruled that there'd be no more prior incidents admitted because at this point it is cumulative. 

The testimony on prior incidents that has already been given will not be stricken -- at least not at this time -- which is what the defense had specifically asked for.

Judge Darrow also said that if the defense opens the door on prior incidents with their cross examination, he will allow the prosecution to pursue the issue on redirect.

As I said yesterday, I fully expected that Truc Do would want to cross examine Hamilton on whether or not he was in legal compliance on tax classification. Judge Darrow said, no. It's not relevant. Do argued that the prosecution opened the door by asking him to clarify his tax status. Judge Darrow explained that Sheila Polk was just clearing the matter up because the issue was raised by the defense in its cross examination of another witness.

I'm not surprised that Truc Do raised the issue. I'm only surprised she checked with Judge Darrow first.

Truc Do

Truc Do spent the day debating how many angels can dance on the head of a pin with the co-owner of Angel Valley. And Michael Hamilton also owned Do. It was, for the defense, an unmitigated disaster. The combative Do didn't land a single, clean blow. If she scored any points at all it was through implication and because, as usual, she managed to confuse something enough to cause a little doubt.

I thought yesterday, watching Hamilton's direct testimony, that he must have experience testifying in a courtroom. It's the little things. He speaks slowly, clearly, and thoughtfully. He takes time to think through his answers and to seek clarity when he needs it. (He needed a lot of clarification from Do.) And he turns in his chair to direct his answers to the jury, not to the attorneys. That's a learned behavior. Most people look at the person who asked them a question.

Today, Hamilton demonstrated that he knows courtroom procedure better than Truc Do. Not only did he have to correct her numerous times on matters of fact, he even highlighted how bad and improper her questions were by asking her things like "Do you want hearsay?"

Truc Do doesn't do well with witnesses who aren't compliant. She needs them to follow her script. She takes her time baiting the trap by asking a series of questions she thinks she knows the answer to, to lead the witness along to the big piece of cheese. Then she clobbers them with some piece of prior testimony or something that is at least inconsistent enough to raise a little doubt. The problem is that she a) is very unsubtle, b) often doesn't get the answers she expects to her teaser questions, and c) isn't mentally agile enough to adjust her strategy to the changing circumstances. Instead she just keeps be pounding people to try to get them to give some version of the answer she's seeking, even if she has to put that answer in their mouths. This makes her look simultaneously aggressive and a little obtuse. It also takes for frigging ever. I was amazed at how little ground was actually covered today in the hours of cross-examination.

She started by reminding him how important it was for his testimony to be clear and honest; something he agreed with wholeheartedly. But after several minutes of dancing around that topic, she slammed him with the accusation that when he examined pieces of the sweat lodge blankets from the police evidence samples and determined them to be the same material used in sweat lodges from 2006-2009, it was "sloppy testimony."

"It was not," retorted Hamilton, making no attempt to hide his anger at her insult. There are probably any number of ways that she could have made the same points about him not being directly part of the chain of custody and having no idea what processes police and lab technicians may have put them through, without being blatantly insulting. He bought the blankets. He recognized them as what he bought.

Next, Do's script required that Hamilton agree that he "cringed" when he heard the criticism directed at the sweat lodge structure itself, in the immediate aftermath of the incident.

Do: You heard things like the sweat lodge structure was quote unquote makeshift, correct?

Hamilton: Correct.

Do: And that made you and your wife cringe didn't it?

Hamilton: All truths are true to the people who hold them, so yes, that's their truth.

Do: No, I understand. I'm asking how you and your wife responded. That made you cringe because you did not believe it was makeshift, correct?

Hamilton: No, we knew it was not makeshift.

Do: Right. And it made you cringe to hear people make that accusation, correct?

Hamilton: Did I love it? No.

Do: Alright.

Hamilton: Did I accept it? Yes.

A more skillful attorney would simply have asked Mr. Hamilton how he felt instead of wasting time trying to get him to accept her projection of how he would react. No one likes to be told what they're feeling. A more skillful attorney might also have avoided seeking hearsay information on his wife's feelings; especially considering that she's scheduled to testify next. I highlight the exchange primarily for its weirdness. But also because the discussion of his knowledge of what he knew when about public criticism went on for a while and was raised later.

At one point in this exchange, he agreed that he became aware of some criticism the day after the incident but as she continued to expound, his confusion and frustration became increasingly apparent.

Hamilton: It's challenging because you're taking a whole eighteen month period where I heard things and wanting to condense it the day afterward and I don't, I don't know that.

Do: Well, if you can't just tell me you can't but I'm asking you the question of whether or not you became aware of any of these criticisms the next day and I believe when I asked the first time you said yes.

Hamilton: Yes but when you narrow it down to particulars, no I can't answer that.

Do: Okay, so that's your testimony now, correct?

Hamilton: Yes.

Later in the day, of course, it became clear why she wanted so desperately for him to admit that he knew about public scrutiny of the sweat lodge structure itself. Because that would bolster the defense's theory that they destroyed the sweat lodge to destroy evidence. In asking him about things like whether it was inspected and permitted, she looped back to the issue of his awareness of public scrutiny.

Hamilton explained that the police had released the scene and were well aware that Angel Valley intended to destroy the structure. No, he did not think to hold onto it for anyone from the county to look at because the police work for the county and they were done with that part of their investigation.

Do continued.

Do: Earlier we talked about whether you became aware, in the aftermath of the accident that there were criticisms about the structure not being permitted, that it was makeshift, and that it was faulty. Do you remember that line of questioning?

Hamilton: Yes. And I told you that I did not know for sure the day after on that Saturday that it was going after the lodge itself. We got rid of it because it was out of alignment. People died there. We needed to continue our business. So we went in and we did the most honorable thing we could and that is to, honoring the people that died, is to burn the lodge, which is the traditional way of doing it and get on with putting our lives back together again.

Do: I understand Mr. Hamilton and let's just, I'll ask the questions, you give the answers so the jurors can decide what to do with facts, okay? My question to you is this. When we began this morning we talked about how in the aftermath of the accident you became aware that there was negative public scrutiny about Angel Valley and the construction of the sweat lodge. True or not true?

Hamilton: I said there was [exasperated sigh]

Do: I'm not putting a time frame on it, if you listen to the question. I'm not saying you learned about it on the 9th or the 10th. I'm saying that in the aftermath, after the accident, you did become aware, correct?

Hamilton: After the lodge was physically taken down, I became aware that people were questioning the structure of the lodge. It was afterward. That morning. I did not know anybody questioning the lodge itself.

Do: This morning you had told the jury that you learned about it on October 9th, 2009. And then -- let me finish the question please -- and then after that you said you weren't sure about the time frame. Do you remember that? Do you remember that?

Hamilton: I remember part of what I said yes.

Do: You told the jury after the first answer, you then told the jury, that you just simply don't remember when it was that you heard ABC. Do you remember that?

Polk: Objection. Mischaracterizing his earlier testimony. Council is arguing with the witness. And this is all asked and answered.

Darrow: Sustained.

Do: You're now telling this jury that you remember specifically, correct? That you heard about the scrutiny, I'm sorry the criticisms of Angel Valley and the construction after you took down the structure. Is that your testimony now?

Polk: Same objection.

Darrow: Overruled.

Hamilton: May I be clear with exactly what I'm saying?

Do: I'd be happy to give you the opportunity to explain it but I want the jury to get an answer.

Ultimately, Judge Darrow had to step in and ask him to offer a yes or no answer, or say that he couldn't answer that way.

Do: Mr. Hamel, my question is this: Did you just now tell the jury that you recall hearing the criticisms of the construction of the sweat lodge, whether it was makeshift, faulty, not permitted. You now remember that that came to your attention after you took down the structure. Is that your testimony now? Yes or no.


Do: Do you believe that to be in any way inconsistent with what you told this jury this morning?

Hamilton: No.

Let's face it. To call that an inconsistency is really quite a reach. And the punchline is that that sequence was probably the most effective she was all day in making Hamilton's words fit her strategy.

Michael Hamilton

She had even more difficulty when she tried to impugn the business practices at Angel Valley. She sidled right up the line on the tax structure question, making it glaringly apparent in the process that she doesn't understand tax law.

But, despite the fact, that Darrow did not give her leeway to question the legality of their tax status, she asked a lot about how the ministry, the business, and the property fit together. She also tried to draw him out on his services and his kooky beliefs -- he believes the name Angel Valley was given to him by the Archangel Michael and that there are many angels there. He also believes in channeling and autowriting. Do was very obviously trying to set him up as a figure of ridicule, freedom of religion be damned.

She also asked a lot about the rate structure. The rates are high, although Hamilton really threw her for a loop when he explained that there's flexibility and that services aren't always charged for. There is also no refund policy. It varies from contract to contract, which makes sense really. I think it goes without saying that a facility has a lot more to lose when a huge event is canceled than when, say, an individual cancels. Of course the jury is not allowed to hear that Ray offers no refunds for any reason, even his own cancellation of events.

The prosecution must feel very confident in their ability to recast James Ray's events as business rather than spiritual, because they're demonstrating a lot of antipathy for charging rates for spiritual teaching and services. Ray's rates are, of course, higher, and far less flexible. It just seems a little bizarre for Ray's attorneys to keep making an issue of the mixing of money and spiritual services when they represent someone who's been doing just that with abandon for years.

Do also tried to get Hamilton to agree that Angel Valley set the menus and everything else the Spiritual Warrior retreat. This is, of course, the opposite of true. JRI picked the menus. And Angel Valley had to follow JRI's syntax; not the other way around. Amayra picked locations for the vision quest but they had to be approved by James Ray.

On the subject of those vegetarian menus, I found this little tidbit quite interesting. Hamilton mentioned that in past years they had provided fish and chicken during Spiritual Warrior -- but only for Ray. So while he was, by his standards, making everyone "ungrounded" and "off-balance" with vegetarian meals, he was tucking into the animal protein.

Do brought up the waivers used by Angel Valley. Let's just say that Hamilton and Do have a very different frame of reference for "personal responsibility." Hamilton's is philosophical and, even though he recognizes what the lawyers did in structuring the documents, he doesn't see the waivers as something that can prevent him from being sued.

Do also, once again, introduced a document that she did not actually want admitted into evidence. This time it was Hamilton who balked because he didn't see how it was fair for him to read segments out of context. He made it very clear that he thought Do was trying to force him to misrepresent himself.

But where Do looked the most desperate was when she tried to salvage the poisoned wood argument. Did all the employees know not to burn pressure treated wood? He was pretty sure they did. He was a little surprised to learn that Ted Mercer thought he may have burned the wrong wood. Mostly because that's not what Mercer said at all, as Polk pointed out. He was concerned that the wood he'd been instructed to burn was treated. Okay, Mercer's not the sharpest pencil and Hamilton probably didn't realize what he was dealing with there. But the bottom line is that Mercer testified that he burned wood from the pile he was instructed to use by Hamilton and Hamilton knew exactly what wood he allowed to be burned. Do asked about scrap from the bridge that must be pressure treated because Hamilton had said that pressure treated wood was required in bridge building. But, no, the wood he'd thrown in the scrap pile was from the railings; not the parts of the bridge that would have contact with water and need to be pressure treated.

I'm abbreviating the wood discussion. It went on for quite a while. Do failed utterly. Hamilton knows his wood.

Hamilton also explained that a lot of that wood was sold off as firewood. Hear of anyone in the greater Sedona area dying of toxic poisoning from their firewood? Neither have I.

She also tried to trip him up on the rat poison but by the end of that, it was unclear who was more confused; Hamilton or Do. Seriously. I think sometimes she confuses herself. She couldn't seem to grasp that the rat poison he originally reported was that which was used in 2009, around the time of the incident. Amdro, for the ants, wasn't even introduced until 2010 but she still wanted to ask about it. Weird.

Strangely enough Do closed by asking about prior lodges and whether he'd heard of any incidents. He hadn't. But it seems odd that she would want to open that area on cross when it could open the door again for the prosecution.

All in all, I thought Hamilton came off as forthright and like someone who had been very cooperative with the authorities. Do's aggressiveness actually made him seem more sympathetic than he otherwise would have because, once again, she turned a witness into a victim by trying to beat him up and deliberately confuse him.

Sheila Polk

Sheila Polk barely got into her redirect this afternoon. In part, because the schedule was cut short for the holiday. She only asked a few questions but I was struck anew by the dichotomy between her courtroom style and Do's. Polk always seems grounded and clear. Listening to her is such a relief after the frenetic, disjointed, and unbelievably confusing style of Truc Do. It's like the world suddenly makes sense again. If they teamed up, they could do a hell of a good cop, bad cop routine.

Who, if I cried out, would hear me among the angels' hierarchies?
and even if one of them pressed me suddenly against his heart:
I would be consumed in that overwhelming existence.
For beauty is nothing but the beginning of terror, which we are still just able to endure,
and we are so awed because it serenely disdains to annihilate us.
Every angel is terrifying.
And so I hold myself back and swallow the call-note of my dark sobbing.
Ah, whom can we ever turn to in our need?
Not angels, not humans, and already the knowing animals are aware
that we are not really at home in our interpreted world.

~ Rainer Maria Rilke, from the 1st Duino Elegy
Translated by Stephen Mitchell

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.


  1. with tom kelly, last week, I felt by the end of his cross of debbie mercer that he had actually inflicted considerable damage on his client, JR.
    my reaction to his cross was more visceral. I felt like I wanted to do him a slap upside the head.

    But after Do, I just shake my head in amazement. All that comes to me, ARE YOU KIDDING ME? He's paying these people? Yavapi county taxpayers ought to be picking up their tab. They are hurting JR more than helping him, imo.

    But thats fine with me. I really don't think Sheila Polk needs quite that much help. But whatever.

  2. @flightseeker, Their courtroom tactics are awful. They come across as thoroughly unlikeable; almost as unlikeable as their client must be to the jury by now. Every time I hear one of them cross examine a witness I think that's the one I loathe the most, until the next one handles the cross. They are each unbelievably annoying in their own idiosyncratic way. I expected a more impressive defense team. The one thing they're pretty darned good at, though, is keeping information from getting in front of the jury. Let's face it. Using every legal argument necessary to keep damning facts out of the courtroom is a big part of any strong defense. And keeping a lot of Ray's history, business practices, and personality, out of the trial is his best hope.

  3. It's kharma. James Ray is so self-absorbed that he hired the most conniving, unsympathetic legal team, not understanding the jury would see thru their tricks and hate them ... and JR.

    Poor Miss Do. And to think she was a prosecutor in the 2nd Phil Spector trial.

  4. Makes you wonder how the jury is taking this dog and pony show. I have a hunch that the good, and semi-normal, compared tp LA and SFO, citizens of Yavapi kounty must be angry and fed up with the tactics of the DT. They also may resent the slick lawyer types from the west coast pulling all the fake rabbits out of hats and blowing smoke all over the place, as if the jurors aren't smart enough to see it for what it actually is.

    i thought any normal person watching truc do's ross of hamilton would see it as a load of dirty lawyers tricks and resent the heck out of it. then i read some local columnist from one of the regions newspapers and the headline was that hamilton was being evasive, which made me wonder, what the f....

    but i'm biased, so maybe i'm overreaching and hoping.

  5. @msbaird, Yeah, I read that article. As you can see, I had to comment. The problem is that the Hamilton's also have some credibility problems. A lot people, who don't think Ray is innocent, also see the Hamiltons as culpable and discussion was swirling about their taking down the sweat lodge being a cover-up. So a lot of people wanted to see Michael Hamilton called on the carpet as well. And I dare say, Hamilton was slick. Maybe a little too slick. But the bottom line is that the defense totally failed to pin him down. They failed to prove that they took down the sweat lodge to hide it. And Truc Do came of as way smarmier than he did. I can't speak to how the jury will take it but that's how it looked to me. I'll be interested to see what happens with his redirect. Polk really has a gift for demystifying the defense arguments and comes across as far more likable and sincere.

  6. I'm aware reading this that my mind is engaged reading your synopsis (thank you for that as I missed much of this) and then get to the courtroom transcripts and my mind gets all fuzzy and diffuse. Can you imagine what's happening to the members of the jury? Many of them are quite elderly. How are they staying awake? Seriously!


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