June 20, 2011
Posted: 01:45 PM ET
“There is something profoundly wrong with this case.”
That was the first image facing jurors as they took their seats for Day 52 of Arizona vs. James Arthur Ray. Those words, written in stark white letters in a classic font on a black background, hung prominently in the air, projected onto the large screen directly across the courtroom from the jury box. Moments later, in a room filled with friends and family seeking closure for the loss of their loved ones, Native Americans outraged that their sacred culture had been fatally co-opted, the steadfastly loyal parents and brother of James Ray, all under the watchful eyes of national and local media, defense attorney Luis Li continued his delivery of one of the most impassioned closing arguments you are ever likely to hear.
Anyone claiming confusion about what defines our criminal justice system, the rights of a defendant who must be presumed innocent, or the responsibilities of government prosecutors and their immense burden of proof, need only to listen to what Li carefully and methodically explained to 15 jurors, 12 of whom will decide the fate of James Ray.
Over the course of approximately five hours on Friday, Li thoroughly covered just about every conceivable aspect of the four month long trial, and the even longer criminal investigation, in his attempt to leave nothing to the imaginations of the 12 men and women who will determine Ray’s guilt or innocence. Assisted by clearly displayed key excerpts from both court transcripts and jury instructions, Li began his assault on the State of Arizona’s case against his client, obviously intending to indelibly implant the gravity of every word into the minds’ of the jurors.
The large screen that had earlier displayed words suggesting something is wrong with the case changed to read:
“The State must prove beyond a reasonable doubt that a superseding intervening event did not cause the death.”
This was Li’s signal to move on to a detailed explanation of “reasonable doubt” and the State’s “burden of proof.” He reminded the jury of the visual aid he established the day before when he asked them to reimagine the low wall immediately in front of the jury box as representing a continuum of the various levels of credibility of evidence presented by the State.
At the jury’s far left, they “know nothing.” Then, gradually moving along the wall’s approximately 20 foot length, past each juror, the continuum progressed through “reasonable suspicion,” “probable cause,” “preponderance of evidence” and “clear and convincing evidence” before reaching the State’s lawful burden, “beyond a reasonable doubt.” Li asserted that there is no evidence to substantiate the State’s claims beyond a reasonable doubt that the participants were conditioned by Ray to obey him, or that the most seriously affected were dehydrated, or that those same people were suffering from heat stroke whereby their body temperatures would have been close to the requisite 105 F, or that they effectively cooled down after the ceremony to the point where they all exhibited normal body temperatures.
Sweat lodge participant Dr. Nell Wagoner said that Liz Neuman “was very, very cold.” Paramedic Dustin Chambliss was unaware that Kirby Brown had been cooled down. Jennifer Haley splashed two cups of water on one of the participants which would have been inadequate to cool down anyone very quickly from a body temperature of 105 F. Ultimately, State Medical Examiner Dr. Robert Lyon said he was about 50% sure he cannot conclusively diagnose heat stroke for victims Kirby Brown and James Shore.
Furthermore, there’s the issue of the medical records of sweat lodge participant Stephen Ray who was treated at Flagstaff Medical Center by Dr. Brent Cutshall. These records not only indicated that Cutshall didn’t even think Stephen Ray suffered from heat stroke, but that he could not rule out, with any certainty, the possibility of organophosphate poisoning. Li revealed that Stephen Ray’s medical records were not even requested by the State until the later part of January 2011, after they interviewed defense witness Dr. Ian Paul and a full year after James Ray was indicted.
Having established the notion that the presence of organophosphates became a real possibility that the State ignored, Li continued on to the trace evidence analysis that had been done on samples gathered from the sweat lodge “crime scene,” specifically, two approximately 10 inch square cross-sections that had been cut from the tarp covering the lodge. One of those samples tested positive for a volatile substance called 2-ethyl-1-hexanol, an inert ingredient used in a range of products from food to pesticides to plastics. The other sample, however, tested negative.
“If the presence of this substance was due to the samples simply containing plastic, both should have tested positive,” Li argued. “This suggests there might have been something else at work…but we don’t know because the State never tested the blood that would have told us. Those samples are now useless due to their loss of integrity over time.”
Now, Li continued, one-and-a-half years later we’re sitting in a courtroom and the State is not only saying that organophosphates don’t matter, but that they can’t prove it.
“The State’s position is that organophosphates are rare, not very dangerous and did not exist at Angel Valley,” Li explained to the jury before laying his hand on the “know nothing” end of the wall that now represents a continuum of levels of proof. “Yet they did nothing to confirm that beyond a reasonable doubt.”
“The government never looked and they didn’t care,” Li contended.
They never even spoke to their own trace evidence analyst until days after the trial began, Li asserted. Days after the defense pointed out that both the possibility of organophosphate poisoning was mentioned in an audio recording made by investigators and that 2-ethy-1-hexanol had been detected in tests performed by their own evidence analyst. A superseding event, Li maintained, would alleviate criminal liability, and the State has not adequately proven that event didn’t exist.
Taking another stab at what he believes to be the gross incompetence of the State’s investigation, the defense attorney made a perhaps dramatic, but effective, analogy to the absolute precision required to land a fighter jet onto an aircraft carrier in a pitching ocean. He urged the jury to compare the State to someone tasked with landing that jet.
“If there is a real possibility that the State has not landed on that aircraft carrier, that they are off their flight path, that they’re a foot low, the game is over. If there’s a real possibility that this evidence does not convince you beyond a reasonable doubt, you must acquit. That’s the law,” Li said.
“If you find that the State has lost, destroyed or failed to preserve evidence whose contents or quality are important to this case…this creates a reasonable doubt in and of itself.”
The jury then heard a short audio clip wherein sweat lodge fire keeper Ted Mercer is asked by investigators what was different about the 2009 sweat lodge ceremony. His immediate response, without hesitation, was, “I think it was the wood,” thereby introducing the suspicion that some of the wood may have been chemically treated. At this point, Li showed the photo of the wood pile at the sweat lodge and indicated the relatively few pieces the State gathered as evidence.
The jury was reminded of Mercer’s statements the day after the incident claiming that there were chunks of rat poison at Angel Valley and the jury also heard the defense’s claims that the State never collected evidence in either of the places where the poison was meant to have been. What action the State did take was in response to Michael and Amayra Hamilton, the owners of Angel Valley, and their request to have a “cleansing ceremony.”
Resurrecting his aircraft carrier analogy, Li explained to the jury that “Detective Ross Diskin, in his first homicide case, his first trip piloting that plane onto the pitching deck of the aircraft carrier, told the Hamiltons, okay.”
Less than 48 hours after the incident, the owners of Angel Valley were permitted to destroy the site along with all possible evidence. What the State now calls “the crime scene” is gone, Li said.
Hence, months later, when prosecutors get around to asking their trace evidence analyst, Dawn Sy, about the possibility of the wood used to heat the rocks having been chemically treated and about the possible presence of organophosphates in the soil on the floor of the sweat lodge, she asked for more samples, but the evidence is gone. Li suggested this short sightedness may have greatly aided the Hamiltons who were facing mounting civil suits, but not a criminal case against James Ray.
The State then talked to the Hamiltons and they explained to Det. Diskin that they don’t believe in insecticides. However, Michael Hamilton later admitted they forgot to mention that they occasionally used rat poison in the pump house where they stored the tarps used to construct the sweat lodge. The Hamiltons were then asked by the State to stage photographs of the poisons they used that also showed where they were placed in the pump house.
To substantiate their further claim that they have not used poison in a very long time, the Hamiltons provided other photographs illustrating, according to Li, outrageous rat poison consumption over an impossibly short period of time. He added that these were photos that the Hamiltons just happened to have saved on their computer for five years, depicting the same poison that Fawn Foster had only recently claimed that they used.
Li concluded this argument by mockingly pointing out that the only real evidence the State has provided for this scenario, other than the admittedly staged photos, were what he called the “bug whisperers.” Amayra Hamilton said they don’t need pesticides because they talk to the pests and added that Fawn Foster and Debbie Mercer are very good at it. Qualifying that he wasn’t intentionally impugning the character of Foster, Mercer or the Hamiltons, Li nevertheless challenged the jury to, “ask the State, does [testimony like this] have a place in a criminal trial?”
At one end of that low wall separating the jury from the rest of the courtroom, at the end of the continuum farthest from “beyond reasonable doubt,” Li placed two foot-high stacks of medical records and two gallon-sized paint cans, all of which arguably carry evidence of the possibility of the presence of toxins that investigators have allegedly ignored. Compounding this, he asserted, the medical examiners never had the benefit of the trace evidence reports; they didn’t even know the testing was going on.
Li added that testimony also revealed that the State told Dr. Lyon not to answer certain questions about his investigation. Li then retorted that he is neither “building a house of cards,” nor “serving up baloney,” as the State has suggested. The prosecutors had a crime lab at their disposal and didn’t use it. Dawn Sy didn’t test for organophosphates because no one asked her to. She wasn’t even aware that it was a possibility.
“So, why,” Li asked the jury, “does Mr. Ray need to get a State employee in here to explain what she did and why?”
Toward the conclusion of his closing argument, Mr. Li again put up the slide on the projection screen proclaiming:
“There is something profoundly wrong with this case.”
Li had already suggested that “no one in the sweat lodge knew people would die.” He described Laura Tucker sitting right to Kirby Brown and, when concerned, Tucker touching Brown on her shoulder and asking if she was okay, to which she replied yes; and James Shore arduously making the counterclockwise journey to help someone out of the sweat lodge and then going all the way back in. So Li now began his final attempt to revert the burden of proof back to the State, from where he believes it had been shifted.
He put forward to the jury, “why didn’t [the State] listen to their own evidence? Why didn’t they preserve the blood samples? Why, less than 48 hours after the incident, were the Hamiltons allowed to destroy the crime scene? Why didn’t [the State] follow up with their own trace evidence analyst?”
Li invoked the jury to make sure prosecutor Sheila Polk backs up each and every claim she will make in her rebuttal.
Pointing to the daunting stack of written and physical evidence still sitting on the wall of the jury box, he appealed to the jurors, “Ask the State this. Did [they] look in only one direction and not have the care or diligence to look at any of this?”
Turning to an easel holding a large multi-page calendar detailing many months of what Li believes to be investigative incompetence, voice rising, he further challenged the jury to “put the State to the test and,” throwing the calendar loudly to the floor, “ask, is this what you want from your government?”
Then, with an assured presence, Li solemnly asserted, “This is not a crime; this is an accident. James Ray will live with this for the rest of his life. You must hold the government to the highest burden the law demands… and you must acquit.”
Prosecutor Sheila Polk will deliver her rebuttal on Tuesday morning. Deliberations are expected to begin that afternoon.
-Jim Kyle, In Session Field Producer
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