Mar 31, 2011

James Arthur Ray Sweat Lodge Trial: Day 22

Crossposted from Reflections Journal.

James Ray Sweating in Court

There is much to report on the trial today. But first, this fascinating item from reporter Tim Geller. Ray may be on trial but that doesn't stop him from sell, sell, selling.  Nor from relying on the adage, there's no such thing as bad publicity.  A sales letter to James Ray's email list went out for a product called Mind Movies:

You know, when I first started to study the laws that govern our Universe, I diligently practiced daily visualization. If I had the Mind Movies technology, it would have added a whole new powerful dimension to my "going 3 for 3" practice!

Gee wiz James, are you saying that if you'd had Mind Movies technology you wouldn't currently be  on trial for reckless manslaughter?

But here's the catch...

The team at Mind Movies are only able to offer the incredible Mind Movies 2.1 software at a MASSIVELY discounted price with all the extras to the first few thousand people to take big, bold, fast action.

Oh! There's a catch? And time pressure... What to do? What to do? Tick, tick, tick.

So they're sweating it out, because there is a good chance they will sell out today.

Did he say "sweating?" He did, didn't he. Bad taste? Perhaps. But we can't let all that great media attention to the sweat lodge trial go to waste, now can we? Not if his current website is any indication, where news videos of the trial are featured prominently. But a sweating reference? Seriously?

Well, this is the man who featured death as the prominent theme at a seminar only a few short months after Colleen Conaway died at another of his seminars. Some might find that to be in bad taste as well. But they don't know how the universe works.

Judge Darrow Decides

Judge Darrow ruled against the prosecution continuing to investigate at this point in the trial and against them giving the product of investigation to upcoming expert witnesses. He does not feel that the organophosphate defense should have constituted surprise.

Interestingly, the defense seemed far less interested in the "disclosure violation" that they were ranting about yesterday and rapidly let the matter drop. After prosecutors explained that Dr. Lyon had not read the new material they'd sent over from the now disallowed investigation, the defense quickly moved on. They were so quick to dismiss their concern, in fact, that I can't help wondering if this was yet another red herring in order to remove Dr. Lyon from the witness list. They're primary concern with allowing Dr. Lyon to testify today actually revolved around whether or not his testimony will cover the prior sweat lodge of 2005. This involves "Daniel P" and his shower at the hospital.

After all Kelly's ranting about Constiutional issues, concern over which Judge Darrow dismissed, the defense team greenlighted Dr. Lyon's appearance and was eager to proceed.

It remains unclear whether or not Darrow will allow the Hamiltons to testify. 

But it was a day full of legal wrangling. After Do's cross of Dr. Lyon, prosecutors again tried to move the prior incidents in through the back door. It seems to me that they are as determined to get this evidence in as the defense is to blocking it.

Bill Hughes argued that because Do had left the impression with the jury that Dr. Lyon had been under-informed by the state, they should be able to question him on what information he did get. This includes a powerpoint presentation that includes, among other things, references to past sweat lodges and the heat related illnesses that occurred. It also looks like Hughes is going to contend that Daniel Pfankuch did, indeed, have heatstroke because he exhibited delirium, which we now know from medical testimony is consistent with heatstroke. It is not consistent with syncope, which was his official diagnosis. The defense strenuously objects. Do, to her credit, did not reduce his experience to showering.

At the end of the day there was more legal wrangling but it's hard to say what it was about because CNN failed to turn the audio on again today.

If I go strictly by the visuals, I'd have to assume that it wasn't going well for the defense. Tom Kelly was gesticulating wildly again and turning red as beet. Or maybe he was just demonstrating the effects of organophosphate poisoning. I'm afraid I'll never know.

Dr. Robert Lyon

Dr. Robert Lyon is a forensic pathologist and a medical examiner. He and two other medical examiners are currently on loan from Maricopa County to Yavapai County, which currently lacks someone to fill the position permanently. He has extensive experience as a medical examiner, both in Texas and Arizona. This quickly becomes apparent from his practiced courtroom manner. He delivers his answers to the jury, not the attorneys. He knows to give one word answers to yes/no questions. All in all, it's a pretty slick courtroom presentation.

Dr. Lyon went on to explain that medical examiners are brought in to determine cause of death when that death is from something other than disease. In such cases autopospies are performed. Such autopsies don't necessarily determine cause. Sometimes they simply rule things out.

In a sense this is true with heatstroke for which there is no specific lab test. The findings for heatstroke are "nonspecific." In such a case, he would have to look primarily at temperature factors and rule out other possible causes of death. 

Lyon found that both James Shore and Kirby Brown died from heatstroke. The only complicating factor was his discovery that James Shore had heart disease and evidence of high blood pressure. His heart was enlarged and there was some arterial plaque. He did not think, however, that Shore died of a heart attack. There is some possibility that he had one but, if so, it would have been caused by the heat exposure.

Kirby Brown had no underlying physical condition that could have contributed to her death. She appeared to be in great health. 

Both of them had had their heads shaved... or cut. Whatever you want to call it. You know, I think from here on out I'll just refer to these as buzz cuts. It's an accurate term and it splits the difference. So there we are. James Shore had been buzzed to 1/4" in length and Kirby Brown to 1" in length.

Hughes raised the question of pupil size. Neither James Shore nor Kirby Brown exhibited pinpoint pupils. In both cases, their pupils were described as fixed and dilated at the time of death and the pupils do not change significantly at the moment of death. They may change later as rigor sets in but not at the time of death.

Lyon found that the deaths were accidental. This does not mean that this wasn't manslaughter. He explained in testimony that the classifications --  natural, accident, suicide, homicide, undetermined -- do not correspond to the criminal statutes.

Hughes posited the following scenario for clarification: If a drunk driver ran over a pedestrian in a crosswalk, would that be ruled accidental? It would, explained Lyon, unless it was deliberate. Then it would be homicide.

The conditions of the sweat lodge and the fact that others became ill were major components of his determination. He attended an official briefing on the sweat lodge and the conditions.

Hughes asked if he tested for organophosphates. He did, but not at the time of the autopsies. He saw no symptoms that suggested organophosphate poisoning that would have prompted him independently to have that lab work done. He also explained that he has never, in his career, seen a death from organophosphates.

In further explanation of his finding of heatstroke, he testified to some of the other factors. Hughes asked him if body temperature was a factor. He said that it would be more evidence to consider. That temperature would be most relevant at the time of death. Hughes asked him if the body could cool down once it was removed from the hot environment and into cooler one. He said that yes, the heat would disseminate into the cooler environment. He expected that the extremities would cool faster than the torso but not necessarily. (Again, Shore and Brown were out of the sweat lodge and cooled with water and cool desert air some time before being transported to the hospital.)

Lyons testified that he has examined many cases of heatstroke over the course of his career; at least three or four a year. His worked entirely in desert environments where it's not uncommon. From people attempting to cross the border to elderly people in trailers without air conditioning, these instances come up for examination.

It was Lyon's finding that neither Shore nor Brown were dehydrated and he did not agree that the CCR and fluid IVs would have moved fluid into the eyes which is how the postmortem testing was done. Their electrolyte levels were normal.

However -- and this was my favorite part -- he made the point that dehydration is NOT a necessary cause of heatstroke. Yes, Bill Hughes finally got round to asking that very essential question. He explained, as I have previously, that heatstroke is a result of the body's inability to cool itself. If it's hot enough, no amount of hydration will save you. Hughes asked if you gave someone a large bottle of water and locked them in a car on a hot Arizona day, could they succumb to heatstroke? Yes, according to Dr. Lyon.

Do Cross Examines Dr. Lyon

Truc Do started out her cross examination by, again, going after the credentials of a witness whose testimony did not favor the defense. In this case, she drew a distinction between medical doctors who treat living patients and pathologists like Dr. Lyon. Are there doctors who do both? Yes there are. And they would, of course, be better qualified to speak to how a living person would respond to both heat exposure and toxic poisoning, Dr. Lyon agreed.

Do also quickly introduced the word "circumstantial" to explain Dr. Lyon's findings. Circumstantial simply means pertaining to the circumstances around an event. But we all know that the word has a negative connotation when it comes to law -- as in, "The case is entirely circumstantial."

In a finding of heatstroke, the doctor explained, the finding would indeed be circumstantial. There is no positive test for heatstroke. There are only things that can be positively ruled out. 

Do also quickly established that he would not have access to Maricopa County's high tech facilities when he was working for Yavapai County.

Do challenged him on the "vitreous testing" that was done to determine whether or not there was dehydration in the cases of Shore and Brown. She pointed out that he had used exclamation points to designate the importance of getting that lab work back. And those very important labs showed a normal level of hydration.

The rest of their lab work was also normal. There was no evidence of intoxicants and, once again, no evidence of carbon monoxide, all of which were tested at the hospital.

As Do really got going with cross, it became apparent that it would be another examination by bombardment. She also dragged out the Pictionary again. Lyon became visibly annoyed as it went on.

It also became apparent that Do was building up to the implication that the state and Det. Diskin had prejudiced Dr. Lyon's findings. Most of his "circumstantial evidence" had come from the police investigators who had surveyed the scene. They hadn't passed on all that other very important information, like the nameless, faceless person who suspected organophosphates. They hadn't told him that the sweat lodge materials had been stored with rat poison. They hadn't told him that the wood used in the fire may have been treated. They had never told him that there were reports of people foaming at the mouth. They had never told him about some victims having pinpoint pupils.

He was never told that the rocks, the materials for the sweat lodge, and the wood were sent out for testing. He never got that report.

Curiously absent from Do's description of what had been tested is anything about what results there may have been from those tests.

Still, the doctor agreed that had he known that any of these substances were suspected he would have tested for them.

He had ultimately ordered an environmental test for organophosphates because the state had requested it -- in response to the defense's position at trial --  but by then it was too late. As such, he can't rule out organophosphates

Do also implied that the Det. Diskin may have controlled the flow of information in other ways by selecting which witnesses he would and would not be able to interview.

So, it seems obvious at this point that the defense is accusing the state and Det. Diskin of impropriety.

She also implies that he was pressured into finalizing his conclusions -- that is to say, unpending the pending determination that he'd had for months -- without his having crucial information.

How much of Dr. Lyon's conclusion, Do asked, was based on circumstantial evidence. Over 50%, he explained. But Do was armed with the results of a past interview in which he'd said it was 90-95% circumstantial. He had no argument with that.

Remember that circumstantial evidence, in this case, is a description of the environment in which these injuries had occurred; a sweat lodge of unusually high temperature in which a number of people became ill. Temperature exposure would naturally be the key element in a finding of heatstroke.

Do also asked him about a difference in opinion he had with Dr. Mosley who did the examination on the deceased Liz Neuman. They did not agree as to whether or not to call this heatstroke. Mosley placed more emphasis on the body temperature at the time of expiration than Dr. Lyon. Dr. Lyon felt that obtaining that temperature information is not always possible. In many cases those high temperatures remain undocumented.

Mosley also placed more emphasis on whether or not there was dehydration. Do claimed that Mosley is of the opinion that dehydration is a necessary component of a finding of heatstroke. Dr. Lyon did not recall that to be true. Do asked if he would dispute it? He said no.

This started an academic discussion of that key question of whether or not dehydration was necessary to a finding of heatstroke. Do implies that there are "many" in the medical field who believe that. "I don't know that," replied Dr. Lyon but he did acknowledge that there were some.

Many of them would include the doctors who treat live patients, said Do. Dr. Lyon didn't know that to be true either. But would he have reason to dispute it? No.

For as often as Do likes to invoke Dr. Cutshall, strangely, she didn't in this case. Dr, Cutshall also had a contradictory opinion on dehydration. He didn't believe normal lab findings disproved it, believing instead that it is really a clinical diagnosis.

She also asked if the knowledge that Liz Neuman's temperature was recorded at the hospital as being 101.7, would have changed his finding. It would not.

Dr. Lyon also disputed that Dr. Mosley did not believe that Liz Neuman had died of heatstroke. The debate was actually semantical. Ultimately Dr. Mosley concluded that she had died because of hyperthermia (elevated temperature).

In fact all of the missing information suggested by Do, and absent any positive findings of such facts, he is still confident of his findings of heatstroke to a reasonable degree of medical certainty.

On redirect Bill Hughes tried to dispel the idea of Det. Diskin's impropriety.

Is it common practice for detectives to attend autopses? Yes. And he's fairly certain that Det. Diskin was present.

Hughes also pointed out that Dr. Lyon had the discretion to pursue any witness he wanted to.

Hughe's also took the tack of asking Lyon if he was aware of some of the other evidence when he reached his conclusion. Did he know the sweat lodge was full of steam? Did he know how many people were packed into it? No and no.

Hughes asked Dr. Lyon if Do had shown him any evidence of organophosphates. He said she had not. Had he seen any medical evidence that pointed to organophosphates. No, he had not.

Hughes also asked him to posit, in the event of treated wood, who would be most effected: the fire tenders or people walking by. Answer: Most likely the fire tenders and people walking by only if they happened to be taking deep, gulping breaths.

Had the doctor, himself, seen any evidence of foam in the mouth. This was interesting. Apparently James Shore had some residual pink foam in the mouth. This, Dr. Lyon found wholly consistent with his finding of heatstroke. He explained that when someone goes into cardiac arrest their bodies release fluids.

Can you ever be 100% certain of the cause of death? Hughes asked. No. Not even if there's a bullet or a knife in the heart could there be 100% certainty.

Hughes also asked him to clarify his disagreement with Dr. Mosley. According to Dr. Lyon, Dr. Mosley felt that heatstroke was a clinical diagnosis that could only be reached by doctors treating live patients. Dr. Mosley prefers the term hyperthermia as it relates to findings on dead people. Hence his finding of hyperthermia in Liz Neuman's case. Dr. Lyon feels hyperthermia is too nonspecific because it covers a range of causes and temperature variations. It's more of an umbrella term.

Dr. Lyon also also disagreed with Dr. Mosley as to whether these deaths were caused by an accident or homicide. So, if Dr. Mosley actually thinks this was homicide, his testimony could be very interesting. I hope he's not excluded and is able to give it.

The most demystifying question actually came from the jury:

Approximately how much "organic phosporus" poison would have to be absorbed by a normal, healthy person to expire from that poison within that time-frame of two hours?

Dr. Lyon does not know.

Hughes followed up by asking if Dr. Lyon if he had ever seen a case of organophosphate poisoning which he had not.

Do followed up by asking if he knew that the CDC has organophospates listed as the most common form of pesticide poisoning. There is actually a little problem with this logic. If it's so common why haven't any of these health care professionals asked so far ever seen it? This raises an interesting question: How many of those exposures are actually life threatening?

Dr. Lyon was excused subject to recall.

Gary Vanderhaar... I think

The above paramedic was called and questioned in the shortest witness testimony yet. I have no idea what was said because CNN, once again, failed to turn the audio on.

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.

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