James Ray and His Defense Team
ALERT: CNN is planning to pull the plug on its live coverage of the James Ray trial as of Friday. If you enjoy these updates, which are based almost entirely on that live footage, please contact CNN and ask them to continue its coverage. Thanks to Connie Joy for finding the contact information for Viewer Communication Management on the CNN website. They don't make it easy. Here's the email address: VCN@cnn.com
James Ray's defense team never ceases to amaze me. Over the weekend I downloaded their motion to preclude Dr. Kent from testifying. It seems a bit thin to me but I'll wait and see what Judge Darrow has to say on that. More to the point, attached to that motion is a list of every person who has ever attended Spiritual Warrior since 2003, including their addresses, phone numbers, and email. Connie Joy posted an alert on her Facebook page and the State was apparently deluged with complaints from people who were unhappy about having their private data available for download from the court website. Prosecutor Sheila Polk filed a motion and Judge Darrow ordered it removed and sealed. But, for the love of God, this thing was available all weekend because it was posted on a Friday. They're very vigorous about protecting Ray's data and incredibly cavalier about everybody else's.
I don't know if any of that was addressed in legal arguments this morning because legal arguments were well underway when CNN finally started the live feed this morning. This and failing to turn on the sound were recurring themes throughout the broadcast day. I do know that two jurors have been excused -- one, no doubt, was the sick juror for whom court was canceled yesterday. I also know that the defense is objecting to prosecution witness Douglas Sundling but this was not discussed in depth.
The day was fraught with legal argument, throughout, as Det. Diskin continued his testimony. There continued to be multiple objections, sidebars, and arguments over the breaks. So the actual testimony was rather limited.
Tom Kelly Cross Examines Det. Diskin
Tom Kelly's questioning of Det. Diskin is really a boilerplate defense tactic. There is lots of other evidence in the world that the police chose not to pursue. Any defense lawyer at any time can argue that because all detectives will narrow down their focus to the likeliest causes and suspects. And labs will only spend the money to test samples attached to viable, investigated theories. In this case, the Flagstaff facility declined to send the soil samples to Pheonix to be tested. Yet, Tom Kelly seemed flummoxed as to why the entire sweat lodge wasn't tested. The samples are so small and constitute a tiny percentage of the overall square footage of the crime scene. Hey, it's a tried and true defense tactic and maybe he can confuse one juror who's never watched a single detective drama and has no idea what leads and sampling are about.
In this case, Diskin narrowed the investigation down to James Ray because there were other sweat lodges conducted in the same structures, through the years, and the only problems occurred in James Ray's sweats. Those problems arose in three different sweat lodge structures. Because, I repeat, a James Ray sweat lodge is unsafe in any structure. That's the simple truth of the matter that became evident as detectives interviewed witness after witness. Det. Diskin described this last week as "the extreme nature" of James Ray's sweat lodges. The defense has worked very hard to keep that ugly history out of the court, which constrains Det. Diskin from explaining how he built his case. But enough of the prior sweat lodge testimony has gotten in to this point that I think it probably comes across to the jury.
If you really want to know how extraneous the defense's argument is, look no farther than the chemistry question. Last week, Kelly introduced lab results showing trace amounts 2 ethyl 1 hexanol. As explained, this is a ubiquitous chemical constituent of numerous, non-toxic, household products. In other words, in terms of causation, it's meaningless.
Likewise, today, Kelly introduced other chemical volatiles -- alpha terpineol and terpineol-4-OL -- expressed in trace amounts from the cedar logs. But what Kelly does not say is that terpineols are natural components of pine. They are under the broader category of terpenes, many of which make up cedar. Essential oil of cedarwood has many therapeutic properties and terpineols are commonly extracted and sold for use in perfumery. This is something that jumped out at me immediately, when I heard Kelly's questions because I went to school for aromatherapy. I had to learn a fair bit about the chemistry of botanicals. Today we learned that Tom Kelly actually has a degree in chemistry, so he certainly knows that the natural world is made up of many such impressive sounding chemicals. It's more than a little disingenuous for Kelly to imply to the jury that the presence of those naturally occurring compounds is evidence of toxic pesticides. Put simply, he knows better. It's an intentionally misleading line of questioning.
And it gets worse. Injun Samurai, a regular commenter on the Salty Droid has been posting information on the toxicity of the chemicals in question, including organophosphates. As used in pesticides, they're not much of a threat to humans, at least in the short term. Long term, they're carcinogenic, like so much of what makes up the industrialized world. You'd have to ingest them... a lot of them to die suddenly. The punchline? None of the pesticides actually used by the Hamiltons at Angel Valley even contain organophosphates. No wonder Luis Li held up a jar of a pesticide he picked up at the hardware store that no one has claimed the Hamiltons have ever used. Reading off the labels of Just One Bite or Amdro -- which wasn't even used until 2010 -- wouldn't have afforded him the opportunity to name any organophosphates. The toxicity of the Hamiltons' products is extremely low, as per Injun Samurai on this thread. His comments are well-researched, documented, and laced with just the right amount of profanity in response to such shameless, diversionary tactics.
Also shameless is the question of nails in logs which Kelly actually raised again today. Sure the nails were used to hold down tarps, he acknowledged, but Amayra Hamilton said they would never burn wood that contained nails. Of course, her clearly stated point was that they would never burn wood that had been previously used as part of the old construction, which could be easily identified by having nails in it.
Kelly also questioned Diskin's assessment that heat could impact people irregularly but poison would take out everyone. Couldn't there be pesticides coming up out of the sand so that those people who laid down on the ground were more affected than others. Never mind that he provided no evidence that those people who got sick or died were those who laid down in the sweat lodge, as has been amply demonstrated it would take a tremendous quantity of such poisons and that kind of quantity would have definitely effected everyone to some degree.
It is increasingly clear that the poisons theory has no foundation; well except for the nameless, faceless, possible EMT who mentioned that organophosphates and carbon monoxide were a possibility. So Kelly played the amplified background noise again for Det. Diskin, over Sheila Polk's objections. I think it's worth noting that the defense team ignores the carbon monoxide theory mentioned by this unknown person. Carbon monoxide was ruled out by bloodwork. Organophosphates weren't because no one thought to test for them -- apparently, because that's not what the symptoms indicated.
He then launched into the medical records of Liz Neuman, Sidney Spencer, Stephen Ray, and Lou Caci, carefully reading only the preliminary, differential diagnoses which mention possible toxidromes. He also read that in Stephen Ray's case, they doubted heatstroke and suspected an acute toxidrome in their initial assessment. And in every case, they suspected carbon monoxide. What does that say about those preliminary reports, considering that carbon monoxide was ruled out?
Kelly also mentioned the interview with defense expert Dr. Ian Paul. He points out that Dr. Paul "cannot exclude organophosphates." Polk thought that was a misstatement of his testimony but even if it's a correct statement, it's not terribly impressive as evidence of organophosphates. Because, again, you can't rule out what hasn't been tested, which means there's quite a range of things that he could not possibly exclude. So I'm curious to hear what Dr. Paul actually has to say. Kelly also raised Dr. Cutshall and Dr. Lyon's testimony, to sustained objections. But the thing is, they also could only "not exclude" organophosphates. None of this actually indicates organophosphates. It just doesn't not indicate them.
Kelly invoked the Haddow information with Det. Diskin and started listing the events regarding the disclosure of the email. He used the word "sanction" to describe the consequences for the State. Polk objected because this is untrue. The State has, to date, not been sanctioned. Judge Darrow hastily called for lunch recess and heard legal arguments. They got very heated.
Polk argued that the defense is implying that it's the State that's trying keep Mr. Haddow and his "expert" information out of the court, when in fact, it's the defense at this point that's blocking his testimony.
Kelly's response was, again, to demand the elusive jury instruction.
Judge Darrow explained that he found the Haddow email exculpatory because it's the difference between reckless manslaughter and negligent homicide. I'm not sure I completely understand this but I think he means that if the structure is partly to blame, Ray was merely negligent in not recognizing the potential problem.
Polk argued again that the obvious remedy would be to allow Haddow to testify and called for a jury instruction because of the defense's repeated references to information that will never be demonstrated in court and the implications that it's the State that's blocking it.
There is a lot of the legal argument missing due to CNN's failure to turn on the stream... again, but Judge Darrow allowed that Kelly had usurped the court's authority by claiming a nonexistent sanction. He also, though, expressed renewed concern about whether or not the Brady violation can be rectified as he'd hoped and wanted to know if the defense was still urging a mistrial. They are. He also has concerns about how long the trial is taking, so there he may well be considering granting the mistrial. We shall see.
When we returned to Kelly's cross there was no audio for quite a while so we have no idea how Kelly addressed the disputed questions about the Haddow email and Brady violation. We do know that he was on about bugs on fruit again. Strangely he left the question about what bugs Det. Diskin found hanging.
Sheila Polk Redirects Det. Diskin
On redirect, Sheila Polk took up the bizarrely truncated bug question by allowing Det. Diskin to point out the flies he sees on the images. She blew up a digital image and allowed Det. Diskin to close in on what is without question an ant.
Polk also underscored that the samples have been available for testing by the defense all along. It is kind of interesting that Kelly has a degree in chemistry but didn't think it important to test these samples at any point.
Det. Diskin defended his crime scene saying that he was quite sure that it was never contaminated and that no important evidence was missed. Even after listening to two months of trial testimony, he remains quite comfortable with his level of investigation and still sees no reason to have called in additional experts or scientists.
Polk also used one of Kelly's charts as an object of deserved ridicule. This chart was his attempt to outline the course of the investigation. As Det. Diskin pointed it failed to include things like hundreds of interviews with witnesses. It excludes searches of Angel Valley and JRI offices and the examination of all that evidence. It excludes the chasing down of leads and further interviews.
Kelly's Investigation Overview Leaves Out a Few Things
Polk also Det. Diskin about the photo of Fawn Foster walking about and whether it was inconsistent with her testimony. He did not because Kelly's assertion that she claimed to have been sitting on a log outside the sweat lodge the entire time, except for her assistance with Lou Caci, is a straw man. It's not what she said. She described a variety of activities as well as times when she was sitting on that log.
She also asked him to clarify his stance on Foster's credibility and that of the Hamiltons. He explained that credibility is not about peoples' spiritual beliefs but whether their testimony is corroborated by evidence and other testimony, their body language, and any possible motive to lie. In other words, he's in the business of detective work, not religious bigotry.
Polk also picked off another of Kelly's straw man questions; this one regarding Ted Mercer's statements about what wood he burned. He never said he'd burned the "wrong wood." He was asked what was different in 2009 and it was that the cedar logs were burned exclusively, rather than mixed with other tree wood as had been done in previous years. He also explained that he observed no staining or other treatment of that wood. Kelly raised many objections as to his qualifications to make that assessment but he did work in construction after all.
Another recess was called with Kelly arguing that Polk's questions are "leading." (Pot calling the kettle what?) This goes back to the conundrum of allowing Det. Diskin to defend his investigation if he can't address the (leading) questions that were asked by Tom Kelly. Ultimately it was agreed that Polk would stop asking his "opinion" or "conclusion" and instead ask for his "belief."
Det. Diskin also addressed the crosscut samples of the sweat lodge coverings and testified that the plastics were all on the outside; with only fabric blankets facing inward. He also determined that the plastics themselves did not get hot. (In other words, they would not have been expressing volatiles into the sweat lodge.)
Polk also went after Kelly's questions about the chemical evidence. Diskin explained the difference between "trace evidence" and "trace amounts." Trace evidence is things like hairs and carpet fibers that are very small but evidentiary. A trace amount is a tiny, tiny amount of something that is found in evidence. He also explained that an inert ingredient means it's not the active ingredient. He did look up 2 ethyl 1 hexanol and learned from the EPA that's in everything.
In a particularly telling series of questions, Polk asked about the Haddow email and asked Diskin about whether he had expressed his belief that carbon dioxide was a contributing cause of death and if that was consistent with the Haddow email. I don't think there's any explaining the looks on Li and Do's faces during this testimony. I don't know if they've finally grokked that Det. Diskin was, in fact, explicit about carbon dioxide or if they are still confused as to the difference between carbon dioxide and carbon monoxide, but they were very reactive to Diskin's statement on the issue.
Polk also showed Det. Diskin a page from Stephen Ray's medical chart that Kelly had ignored. It explained that he was found to be severely dehydrated and it was, in fact, heatstroke. Again, this is the difference between focusing on a preliminary diagnosis and the diagnosis made after the patient has been evaluated.
Det. Diskin explained that he, himself, was surprised when carbon monoxide was ruled out. But it was and the investigation led to the reckless use of heat by James Ray. That was based not only witness testimony but, later, on the recording of James Ray's recorded speech before the sweat lodge in which he described the intensity; that it would be "hellacious hot" and that they might vomit. Kelly tried to have he vomiting excluded because it's not in the segment of the recording referred to, but as the entire recording is in evidence, Judge Darrow allowed the references to vomit. You can see why Kelly would want that out.
Ultimately Det. Diskin explained that the case was about the way James Ray conducted his sweat lodges, not any possible poisons.
The jury asked a rather telling question about the poisons, specifically. They asked if the poison control center, having been contacted, came back with any results on the presence of poisons. Answer: No.
Steven Michael Page
Former detective with the Yavapai County Sheriff's Office and current computer forensics analyst, Steven Page gave brief but complicated testimony. Page did the crime scene diagrams and he's a serious math guy. Questioned by Bill Hughes, he explained the ins and outs of measuring a crime scene and constructing a diagram with a computer program.
Luis Li began his cross of Page by surreptitiously trying to discredit poor Fawn Foster. The defense really seems to have it in for her. Without ever saying it, Li set out to prove that the log she sat on was too far from the sweat lodge for her to have heard Ray say things like, oh, I don't know, that he was the alpha and the omega?
Li sketched the log into the diagram. He asked Page to estimate the distance from the door of the sweat lodge to the log, admitting that the diagram was not to scale. Then he took out the tape measure to measure the distance, estimating the distance from the back of the sweat lodge to the log as 48 feet from the back of the sweat lodge, and estimating the log to be outside of the courtroom and into the hall. Then he estimated that the door would be where Bill Hughes was sitting at the prosecutors' table and pointed out that from that Bill Hughes point, the log would still be in the hall. Wouldn't it have made more sense to start from the door point, putting that at the front of the courtroom, and leave Bill Hughes and the irrelevant length of the sweat lodge out of it? Of course it would, but then he couldn't have put the log in a place beyond the jurors' vision.
What the aware juror would notice, however, is that even when Li was standing by the doors at the back of the courtroom, greater than the approximated distance from the sweat lodge door to the log, he and Page could hear each other easily. So he actually proved that Fawn Foster would have no trouble hearing what was James Ray was saying loud enough to be heard in the 24' sweat lodge. That's if the juror was not hopelessly confused by Li's intentionally misleading and extraneous measuring.
Next Li did more math to determine what percentage of the sweat lodge scene were taken as samples, repeating Kelly's erroneous line of questioning. When he took out a calculator to verify his math, an exasperated Judge Darrow interrupted to ask him how long it would take. He promised five minutes and, thankfully, came in pretty darned close. So that math, he could do.
Bill Hughes promised a very short redirect and he delivered. He asked Page to calculate the distance from the log to the sweat lodge door. Page asked for scratch paper and a calculator so that he could utilize a Pythagorean theorem to calculate the distance. He arrived a measure of 33.' In other words, not outside the courtroom and into the hallway, but a very reasonable distance that Li had already demonstrated was within hearing range.
There were no jury questions for the mathematikoi. Go figure
Steven Page was dismissed subject to recall.
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.