James Ray Trial Day 22: Selective Hearing
Men, it is said (by women at least), have something called “selective hearing.”
The theory is simple. We hear what we want to hear. As a result, we remember what we want to remember.
I’m starting to think defense attorneys are like that. Or, stated a better way, they want the jury to have selective hearing, and memory.
Take the current witness, Ted Mercer. Mercer, of course, is the man who heated 100 rocks for James Ray’s sweat lodge. During his testimony, he revealed he was CPR certified, which may have surprised some. (He seems like a Jimmy Buffett burn-out. Not that that’s a bad thing. Just what he seems like.)
So when defense attorney Luis Li asked him about his observations about people’s physical conditions, he prefaced his questions with “I’m not asking you from a medical point of view, just what you observed.” Then, when Li wanted to know if he thought ants should be all over day-old fruit in pans near the sweat lodge, he grilled Mr. Mercer as if he was the Orkin man and should possess expert testimony on insects.
Mercer, who was instructed to strictly answer yes/no questions only with those words or “I can’t answer that,” often would add to his answer “but can I explain?” Li replies “we’ll get to that in a little while.” Surprisingly, he never gets back to that point of explanation.
Mercer also testified that when the police asked him what was different with the 2009 sweat lodge compared to the other two James Ray lodges for which he has assisted, Mercer said the wood was different. In 2009, construction wood was used and in the past, at least a mix of “tree wood” and construction wood was used.
Li then presses Mr. Mercer to admit he has never been inside the sweat lodge, or any other for which he heated the rocks. So, he makes the point, he cannot personally testify that Mr. Ray’s lodges were hotter than others.
All great points (albeit out of context) for the defense. They do not consider that Mercer testified yesterday that the rocks themselves are what heats the lodge, and Ray ordered three times as many rocks to be heated.
Now Li’s team of attorneys is quite accomplished, talented and smart. I would even call them brilliant. They are probably the smartest people in the room, perhaps aside from the judge.
But superior intelligence does not equal emotional intelligence.
When you tell someone “we’ll get back to that” and then never do, the people in the jury box may remember that. If you say it more than 10 times, which Li has, the jury is sure to spot a pattern. When you pick and choose when someone is an expert and when to ask questions that start with “Would it surprise you to know…” you’re walking a very clever line. You may in fact be smarter than the jury of your client’s peers, but that doesn’t mean they are stupid.
Throughout the trial, Prosecutor Sheila Polk has excelled at “cleaning up” the defense’s “selective” questioning. It’s as if the defense questions are a bag of flour dropped on the kitchen floor, she’s done a terrific job of “sweeping it up” so that the kitchen was pretty much as she left it.
Everybody has a job to do. And the defense has truly been great at highlighting bits of testimony that suit their cause. But they are selective as to context, content and the angles which they present to the jury.
Let’s hope the men and women in that box select to consider the truth, the whole truth and nothing but the truth.
