So, as stated, the defense suddenly and unexpectedly wrapped up their case Thursday after having called only two witnesses. But it would appear that they will be aggressively pursuing to the bitter end their real defense strategy, which is to say, getting this case thrown out before it can go to the jury. Even at this late date, they are apparently screaming about Brady violations and mistrial motions.
Yes, CNN's dogged coverage of weather maps and the empty blackness of the void deprived James Ray trial watchers of two days of courtroom drama.
Then again, maybe I should thank them for sparing us another Luis Li law lecture.
"This is the first time that the defense has been notified... of any duty personally owed by Mr. Ray," Li said. "The rules are that the defendant must know the substance of the charges against him."
Li made an oral motion for mistrial, based on a state-proposed jury instruction that stated that duty as fact. Darrow immediately denied the motion, but the argument about Ray's alleged duties, acts and omissions continued.
I'm not sure if having seen that in context would have made the reasoning any clearer to me. I thought the question of whether or not Ray had a duty to the people who'd paid him thousands of dollars was a) obvious and b) affirmed by Judge Darrow when he denied the Rule 20 motion. But, again, I could be missing something. Well, I am missing something. That entire day's proceedings.
It appears Tom Kelly also put on quite a show yesterday, claiming whole new Brady violations. This meme, that the State ignored its own evidence by not picking up a bit of unidentifiable background noise, has really gained traction. Kelly's new argument? That the State withheld exculpatory evidence by not disclosing that Dawn Sy's organophosphate test came back negative, not just because it was done too late, which was disclosed, but because the equipment was inadequate. This detail emerged during Sy's testimony. When Sheila Polk pointed out that the defense had interviewed Sy a year ago and never raised the issue of organophosphates, Kelly whipped out the now familiar talking point: The idea that the defense has "kept secret from the state its own evidence is ridiculous."
This is the defense earning its money when they have only one witness of their own to put forward. Their argument, is not so much that prosecutors deliberately withheld exculpatory evidence of which they were aware, but that they didn't reveal or test timely things they didn't know about or hadn't considered.
Personally, I just find it sad that even at this late date, they are trying to get this case kicked on technicalities they have to scrape the bottom of the barrel for. But when you have no real defense to mount or witnesses you didn't have to pay to present, what else can you do? I still think it looks terrible for Ray that they couldn't bring forward a single person he knew to defend him. After all his years of teaching large groups of people and traveling around the world with them, the defendant couldn't safely present a single witness to even testify to his character. Think the jury will notice?
The specter of the Haddow email also reared its ugly head with Tom Kelly again, it would seem, implying that the issue of carbon dioxide poisoning originates with Haddow. As we know, the State alerted them to the CO2 co-factor issue last year. It had been discussed and thoroughly misunderstood by the defense team. Yet, Tom Kelly appears to still be litigating the issue.
"There's no way that a human being could sit in the doorway of that sweat lodge and see molecules of carbon dioxide floating around," Kelly said.
Fair enough. But perhaps that point would have been better made when the issue of carbon dioxide poisoning came up during witness testimony, as opposed to a tangential reference during the State's argument against the Rule 20 motion.
Still I have to admire, in a way, the defense's tenacity in going after such minutiae and with such passion.
So, we also missed the rest of the testimony from the medical expert who was effectively the defense's only witness. By which I mean, the only witness who wasn't the State's sloppy seconds.
It sounds like Bill Hughes's cross went on for quite a while and managed to raise the good doctor's ire. If Hughes's questioning was anything like what we saw on Wednesday, that's not surprising. Hughes was doggedly thorough but without being hostile, aggressive, or insulting. What a notion.
It sounds like Hughes continued to hold Dr. Paul's feet to the fire on his inconsistency with the supporting literature he, himself, provided.
"You're implying that my entire report is based on those three articles," he said. "Just because it doesn't appear in those articles doesn't mean it isn't published. I can't provide you with everything I've read in the last 10 years.
While that's true, he probably should have provided the literature that supported his rather novel ideas of what does and does not constitute heatstroke. Remember, it's Dr. Paul whose theory is at odds with every other medical expert who's testified, by stating that it was absolutely not heatstroke that killed these people. I didn't see the length of Hughes's cross examination but I'm fairly certain that he resisted the impulse to call him "the outlier" over and over.
I find it fascinating that he has become so wedded to the organophosphate theory that he now says this was in his differential diagnosis from the get-go... even though it wasn't in his paper. He apparently stuck to his guns throughout the day that the symptoms were most consistent with organophosphates or an organophosphate-like poison. But his insistence that cholinergic poisoning symptoms were cited in the medical reports got to me to thinking about Dr. Cutshall's testimony. According to this doctor who treated Liz Neuman, Sidney Spencer, and Tess Wong, there was a mix of cholinergic and anti-cholinergic indicators. In fact, the symptoms were more consistent with anti-cholinergics, which is to say not organophosphates. You'd think Dr. Paul would have noticed that, having the benefit of looking at the full spectrum of medical reports.
What raised red flags for me with Dr. Paul early on was his full-throated support of the organophosphate theory. Had he echoed his earlier finding of an unspecified toxidrome, I would have found him more credible. I find it hard to believe that the lack of Stephen Ray's complete record at the time he wrote his report made such a difference in what appears suddenly to be a near-certainty of organophosphate poisoning; especially when what symptoms there are of organophosphate poisoning are cross-indicated in heat illness and that a number of organophosphate symptoms were not noted.
It sounds like the jury also had some dubiety.
The jury then had a few questions for Paul that possibly suggest they have a healthy amount of skepticism in what the doctor had testified. He was first asked if he had treated any cases of organophosphate poisoning or death. The doctor claimed to have not treated such cases, but is thoroughly trained in the area and professed to have spoken with medical examiners who have performed autopsies on organophosphate related deaths that have occurred in tobacco growing areas where farm workers experienced excessive nicotine absorption through their skin from the tobacco leaves.
The next question had to do with what level of organophosphate exposure is necessary to cause death. The doctor said that would depend upon the specific pesticide, how toxic it is and what its concentration was. He conceded that knowledge of lethal doses is outside his area of expertise.
Perhaps the most telling question with regard to the jury’s frame of mind was the last. “If a person passes out in a sweat lodge, should they be removed, or is it okay to wait?” The doctor’s reply was fairly obvious. “Passing out is a sign of heat exhaustion. They should be removed.”
On that question, it appears that Truc Do tried to do some damage control by asking if people around them should have been aware. He replied that, yes, they should have. Now, again, I missed the exchange and have nothing but tweets to go by, but this seems like an odd clarification for Do to have made. People were aware and raised concerns about others who appeared to be passed out or in trouble and Ray invariably responded that it would be dealt with later. He even went so far as to admonish both Scott Barratt an and Mike Oleson to leave an unconscious Linda Andresano where she was while they finished the ceremony.
It would have been nice if prosecutors had been given the opportunity to question Ray about some of his choices during that ceremony but he has retreated to the cone of silence, as is his right. I never thought he'd testify but the possibility was certainly tantalizing.
It is kind of ironic that a man whose career was running his suck has suddenly discovered the wisdom of silence. Who knows. Maybe he read the recent study indicating that quiet, unsmiling, brooding men are sexier. It has been fascinating to watch the man who made his living espousing the power of positive thinking and endlessly projecting cheerful, intense enthusiasm, doing the terrible James Dean impression we've seen in court.
Women find happy guys significantly less sexually attractive than swaggering or brooding men, according to a new University of British Columbia study that helps to explain the enduring allure of "bad boys" and other iconic gender types.
Then again, maybe being cheerful and accessible just isn't working for him anymore. Looking at him now... he just shouldn't smile.