Sweat lodge trial: Polk says witness is barred from telling the truth

The Daily Courier, Arizona/April 28, 2011

Camp Verde - YCSO Detective Ross Diskin thought of a lot of things during the four-month investigation that led to manslaughter charges against James Arthur Ray in February 2010.

He thought of wood and he thought of rocks. He thought of heat and he thought of symptoms.

He thought of toxins, but dismissed the idea when nothing showed up in the initial tests that doctors performed.

He did not think of organophosphates, a chemical family comprising the ingredients in many common pesticides. In fact, Diskin said during his testimony Thursday, the first time he ever heard the word was during an interview with Dr. Ian Paul, a New Mexico forensic pathologist, at the end of January 2011.

He didn't think of the toxic compounds, which doctors who have previously testified in the trial allowed can produce symptoms similar to those of heatstroke, despite an early piece of evidence.

On the night of the sweat lodge tragedy, in the Angel Valley dining hall, detectives were interviewing the participants when an unidentified man, possibly an emergency medical technician, commented on tape that there "could have been some carbon monoxide with maybe some organophosphates mixed in."

After the Paul interview, Diskin discovered that it was too late to test the blood samples of victims Kirby Brown, James Shore and Liz Neuman for organophosphates because the compounds degrade within days, a trait that makes them ideal for home use.

So, even as Ray's trial began, Diskin went to the owners of the Angel Valley Spiritual Retreat Center, Michael and Amyra Hamilton, and asked them how they controlled pests on their 70-acre property.

"I found that no products containing organophosphates had ever been used at Angel Valley," he said. The Hamiltons, in their own testimonies, said they did use various poisons as a last resort to avoid rodent infestations, and had also used Amdro ant killer in 2010.

Diskin, embarking on the first homicide investigation in which he is the lead agent, arrived on the scene the morning after the incident. By the end of the day, he had deduced that Ray, with the extreme heat and length of his sweat lodge ceremonies, was all but certainly to blame for the deaths.

His opinion was bolstered by tales he heard of sweat lodges from previous years in which many participants had become ill. The pattern emerged, which Yavapai County Attorney Sheila Polk has taken to court, that people suffer illness and, finally, death, only when Ray leads the ceremonies in the lodge that Angel Valley personnel erected.

That pattern, though, is difficult for the prosecution to present in court, due to a ruling by Judge Warren Darrow that evidence from prior sweat lodges is only relevant if it goes toward proving the cause of death, and that Ray recklessly disregarded evidence that his ceremonies could cause people to die.

That is a huge frustration for Polk, who is at the moment barred from bringing in that evidence through Diskin's testimony.

"He's taken an oath to tell the truth and he's on pins and needles up there because he's not allowed to say what he believes," Polk said after the jury had been dismissed for the day. "He believes that it's the extreme nature of Mr. Ray's sweat lodges that causes people to get sick and caused three people to die."

Once again, though, Darrow replied that "it's just not permissible" to "have all the prior sweat lodge information come in and have the detective connect it and give his opinion."

Earlier in the day, Polk reacted to Darrow's Wednesday comment that he had yet to hear any evidence of life-threatening injury in reports of prior Ray-led sweat lodges. She said that a 2008 participant, Dr. David Kent, had contacted prosecutors and said he could testify that he saw signs of approaching heatstroke in himself and others in the lodge.

Polk told the court that Kent also said he had contacted members of Ray's volunteer dream team and told them that people could die from the conditions in the sweat lodge, and that he believed he had saved the lives of two participants after the ceremony.

Darrow noted that Kent was disclosed as a potential witness two weeks after the trial's opening statements, and by day's end the defense had filed a motion to preclude him as a witness, writing that allowing him to testify "subjects Mr. Ray to an unfair moving target and surprise evidence" that would "unfairly prejudice the defense."

Darrow has yet to rule on the matter, and Diskin's testimony is scheduled to continue today.

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