A few additional thoughts on yesterday's courtroom footage: I guess I expected more from Ray's legal team. I'm not saying that their overall strategy is poor, but in the opening argument, Li was working for the prosecution.
The Salty Droid has posted graphics of the screen shots Li presented of Ray's words. The defense's argument is that the prosecution has taken excerpts of Ray's speeches out of context and they hope to put these back into context. I had trouble making these statements out on my TV but Salty's graphics make clear that the statements they used here to exonerate him just raise whole other questions.
You will assist participants as they enter and leave the sweatlodge. If you are inside the sweatlodge, you must remain alert and ready to help the entire time. If you are outside the sweatlodge, be present and ready to quickly and immediately do what is necessary to assist anyone coming out of the sweatlodge.
Now, that being said when we exit, invariably there's at least one or two people, who are like, 'Oh my God it's over I've got to get the hell out of here.' And they and they try to stampede, and that's very dangerous. You're going to have to keep your **** together.
Leaving aside, for the moment, that it's a little alarming that this crack legal team can't get these tapes transcribed with something approaching proper grammar, these statements aren't helpful. I know they're meant to show that Ray was giving responsible instruction and that the problem was that people didn't follow it. The problem is that, Ray didn't follow it. There are too many accounts from participants that he waved people off when they cried out in distress over their own or other people's physical and emotional duress. As Salty points out, two of his top lieutenants also dropped the ball completely. And I think these two are actual employees; not, like much of his staff, unpaid volunteers. (I could be wrong. I'm not really sure if Ray pays anybody to work for him.) And these statements show that he was well aware of how stressed people were going to be. People stampeding to get out of a sweat lodge is not normal. But, again, Ray prides himself on not running your typical "weenie-ass sweat lodge." Yeah, traditional Native American practices are soooo weak.
So Ray knew full well the situation was potentially dangerous, told everyone to be vigilant, but remained oblivious when people started dropping dead. The prosecution is demonstrating that obliviousness and lack of concern, right out of the gate, with its first witness.
Yesterday, Melissa Phillips started her testimony. Phillips shared that she was one of those who "died" in the Samurai Game and went many hours without food or water before the sweat lodge. She shared that she wanted to do the sweat lodge because it was the culmination of the spiritual warrior training and that she was anticipating some sort of enlightening moment.
Ray, Phillips said, “told us that we would feel like we were going to die, but we wouldn’t.”
“I was not aware it was going to be dangerous,” she said. “I was aware it was going to be a challenge.”
. . .
Ray, she said, was sitting in a chair drinking an electrolyte drink and being hosed down.
Phillips quoted him as saying, “I’m not a nurse. Where’s the nurse?”
So, according to Phillips, Ray was waiting for a nurse to handle the problem; a nurse he did not hire to act in her capacity as a nurse. In fact, he hadn't hired her at all. She was one of his many unpaid volunteers.
It should come as no surprise that Phillips didn't understand the actual risks, having taken Ray at his word that no one would die. She does say that Ray said they should use their best judgment in terms of how their own bodies were handling the heat. So that's some acknowledgment from him that people should make decisions for themselves. But he was also telling them flat out that they would not die. This was someone who they knew had done this before and would know the hazards and know how far he could reasonably push them. Phillips makes clear at more than one point in her testimony that if she had known that life threatening injury was a possibility, she would not have taken the risk.
In addition to the fact that he was telling them flat out that they wouldn't die, in spite of their bodies doing some whacky things, in the context of telling them constantly to "play full on" he was challenging them to continue as a matter of personal best and even of attaining "enlightenment."
In today's testimony, defense attorney Tom Kelly asked Phillips about a woman who expressed concern about her high blood pressure condition and wanted to know whether or not it would be safe for her to stay. Ray's response was that he was "not a doctor" and that she had to know her own body and make her own choices. What Kelly is attempting to establish here goes again to the idea of personal responsibility but this is really a double edged sword. It raises the question of the waivers that people signed. Where physically rigorous activity is involved there should be some sort of disclosure of how rigorous and questions about physical ailments that could be contraindicated. Commonly, guidance or permission from a doctor is required. Abnormally hot sweat lodge, total fast in a desert environment... These are exactly the kinds of things a person with a medical condition would need to know in advance and possibly consult a doctor about.
One of the things that came out in Phillips's testimony yesterday had to do with the paucity of information about the nature of the activities. This is from the "Spiritual Warrior Participant Guide," which can be downloaded from the Salty Droid site here.
Keep in mind that we will be working diligently to make this event memorable. For this reason, it is important that we do not disclose any further information regarding the event schedule or planned activities. However, we will tell you that it is going to be an exciting, unforgettable, and transformational week!
Later today, Polk asked Phillips if she knew from the waiver she'd signed that death was a possibility. She said no. And she said, again, that had she known her life could be in danger she would not have participated. Polk also pressed her for more details about the woman who had high blood pressure and jurors learned that she was also overweight and that at the end of sweat lodge, Phillips observed her laying down and being attended to.
Here is what Phillips, the woman with high blood pressure, and other participants learned from the waiver about the risks.
I am fully aware and understand that I will be given the opportunity by the Company to participate in physical, emotional and other activities during the Event, some of which may take place outdoors and/or require the participants to be isolated from one another and/or include very loud music. These activities may include physical exercise (e.g., hiking, swimming, yoga, team games), Holotropic Breathwork (a psychotherapeutic approach believed to allow access to non-ordinary states of consciousness), a sweat lodge ceremony (a ceremonial sauna involving tight, enclosed spaces and intense temperatures), and/or a Vision Quest (a multi- day, solitary, personal and spiritual quest in the wilderness without food or water) (the “Activities”). I am fully aware that I may suffer physical, emotional, financial or other injury during any of the Activities and there is and can be no assurance or guarantee regarding my health or safety in connection with my participation in the Activities. I understand that (1) there are inherent risks in the Activities; (2) people may have been seriously injured by participating in the Activities; and (3) if I voluntarily choose to participate in the Activities, there is a risk that I may receive injuries requiring medical attention. I fully understand and acknowledge that there is no requirement whatsoever that I participate in the Activities. If I do choose to participate in any of the Activities, I affirm that I have not been nor will I be coerced or persuaded in any way to do so and I assume full responsibility for and risk of any injury sustained in connection with the Activities, whether caused by the negligence of Releasees or otherwise.
I also understand that the Company does not purport to offer any medical, psychological, therapeutic, religious, or other professional advice at the Event and that the information provided at the Event is not a substitute for professional psychological or psychiatric care. I agree that under no circumstances shall Releasees be liable to me based on my use or misuse of and/or reliance on any information provided to me at the Event. And I assume full responsibility for and risk of any injury whether personal, financial or otherwise that I might incur based on such use, misuse and/or reliance thereon.
The only information in the "Spiritual Warrior Participant Guide" regarding the nature and risks of the events is in the waiver. While the waiver seems to exonerate JRI of responsibility, it does not, in my opinion, realistically portray the extent of the risks or give adequate information for people with health conditions by which to determine the extent of the physical stressers. It does not, for instance, disclose that Ray's sweat lodge would be much, much hotter than all those "weenie-ass" sweat lodges Native Americans and others do. This would be particularly confusing for anyone who had participated in a traditional sweat lodge in the past and thought they knew what was meant by "a ceremonial sauna involving tight, enclosed spaces and intense temperatures." Having done sweat lodge ceremony myself, I would say that's a fair description of traditional sweat lodge ceremony. It would not have occurred to me, from that description, that it would be sweat lodge as endurance challenge or intentionally much hotter than what I'd experienced in the past. (It also does not disclose that Ray is not certified to facilitate the Holotropic Breathwork. No shock there.) It does not recommend or require people with preexisting health conditions consult their doctor. In short, the intent seems to be entirely for the purposes of protecting James Arthur Ray; not of informing or protecting the participants. Again, my opinion. It will be interesting to see how well those waivers protect Ray, in the final analysis.
The central argument between the prosecution and the defense in this trial comes down to abuse of authority vs. personal responsibility. The waiver is a prime example of that conflict. Boiled down to the essence, that is what jurors will have to decide: Did Ray, as an authority figure have enough influence over his students to overwhelm their best judgment and risk their lives? Or, were these adults making choices of their own free will every step of the way? As pertains the waiver and Ray's repeated statements about how they would not die, the question that arises is, did participants have enough guidance to make informed choices?
As to the larger question about how much influence Ray had, the prosecution will have to prove that it was a manipulative, cult-like atmosphere. The defense has made it clear that it is arguing that these were adults who were free to leave and responsible for their own choices. It's a compelling argument, unless you understand just how heavily inclined we humans are to submit to authority. As of now, I think the prosecution will have a hard time meeting their burden, in this regard. It is still not a certainty that their cult expert Rick Ross will be able to testify or what the scope of that testimony will be. His credentials are very much at issue. As my husband has asked repeatedly, why isn't Phil Zimbardo on the prosecution's witness list? Zimbardo, who is best known for the Stanford Prison Experiment, was a friend of Stanley Milgram and was very influenced by Milgram's groundbreaking research into obedience to authority. The Milgram Experiment demonstrated in study after study that people will defer to perceived authority figures even if it means going against their own morality and ethics. Subjects from all walks of life administered electrical shocks to people they heard screaming from pain as long as someone who appeared authoritative told them to.
If a person in a position of authority ordered you to deliver a 400-volt electrical shock to another person, would you follow orders? Most people would answer this question with an adamant no, but Yale University psychologist Stanley Milgram conducted a series of obedience experiments during the 1960s that demonstrated surprising results. These experiments offer a powerful and disturbing look into the power of authority and obedience.
. . .
The level of shock that the participant was willing to deliver was used as the measure of obedience. How far do you think that most participants were willing to go? When Milgram posed this question to a group of Yale University students, it was predicted that no more than 3 out of 100 participants would deliver the maximum shock. In reality, 65% of the participants in Milgram’s study delivered the maximum shocks.
We all like to think that if we were told to administer painful electrical shocks to another person, we'd refuse, but the research says otherwise. And if you asked the average person on the street if they'd endure vomit, tremor, and unconsciousness inducing levels of heat, we'd forgo our promised enlightenment and leave. But the research of Milgram, Zimbardo, and others, demonstrates that it's not so simple. [No live humans were harmed during this experiment.]
Here is Melissa Phillips describing how she perceived James Arthur Ray:
He was the leader and we had to follow what he said. He was the person I entrusted myself to in the seminar to learn from. I felt he had a reason behind his request.
Clearly, she was not the only participant who invested that much in Ray's authority and guidance.
On cross, Kelly tried to shake Phillips on her observations about Kirby Brown's state during the sweat lodge. She concedes that Brown was so loud in her encouragement of others that people were telling her to keep quiet. The defense is arguing that she was fine and vigorous at that point. But Phillips had repeatedly called out for help for Brown because it was her perception that she was "not in her right mind." Personally, I think the fact that she was yelling and needed to be shushed tends to indicate that Phillips was correct in her observation. The defense is arguing that Brown said she was "fine" when others called for help for her. This is the kind of situation where someone with some actual medical knowledge would have been helpful to determine whether or not she was lucid enough to know if she needed help. Disorientation is a symptom of heatstroke and the medical examiner ultimately determined that heatstroke caused the death of Kirby Brown.
Tomorrow Darrow is expected to rule on whether or not to allow in a recording of Kirby Brown describing her experience during the Samurai Game and how she was so determined to see through her commitment to remaining dead for hours on end that she held her water and even swallowed her own vomit. Darrow has indicated that he may allow it because it goes to Ray's state of mind and his knowledge of the physical and emotional state of participants.
Also of interest in Melissa Phillips's testimony:
Her description of her own physical state following the sweat lodge: Phillips was one of those who had to seek medical attention. She was shaky, unable to stand, nauseous, disoriented and oblivious to her surroundings. The nausea continued and left her unable to eat. She also describes red marks on her skin and fluctuating body temperature and chills for days afterward.
She was able to read into the record what the "Journey of Power" is. The defense worked very hard to keep that out. But Phillips described it as all of the coursework, culminating in the "Spiritual Warrior" training and the sweat lodge which was supposed to be the pinnacle event. This speaks to the investment, monetary and otherwise, participants had in this seminar as a path to their "enlightenment" and "breakthrough."
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.