Thomas J. McFeeley Communications

We are offended by the publicity stunt of PETA in the form of an offensive remark about the deaths of three people. Our loved ones died in an imitation sweat lodge at the hands of a narcissistic self-proclaimed guru who lied about his qualifications and whose actions – not the lodge itself – have been found as the ultimate cause of these deaths.

We are offended that these three deaths and numerous injuries have been ridiculed by this proposed billboard and represents the ignorance we now seek to eliminate – the lack of knowledge that self-help leaders have an unchecked ability to mislead, lie, and put hard-working decent people in harm’s way for the sake of ego and wealth.

The outcome of this trial will never bring “closure” to our grief. There is no way to fill the enormous hole that Kirby’s death leaves in our family. We will always long for her joy, enthusiasm, love and compassion.  Our hearts are forever broken by her death, just as our lives are forever blessed by her life. 

The family of Kirby Brown would like to thank the members of this jury who have set aside their lives for 5 months as they carefully considered the evidence presented to them.  We appreciate their dedication and careful discernment of the facts presented and regret that so much information which may have led them to a different conclusion was withheld from them. This trial has been a bitterly trying time for us, as well as for the families of James Shore, Liz Neuman, and Colleen Conaway – and those participants who have been traumatized by the events of the Spiritual Warrior Retreat. 

Our system is clearly designed to protect the rights of the accused and while many of the rules of evidence are proper, those same rules can be manipulated to confuse and obfuscate the truth.  Just because James Ray has been found “not guilty” of manslaughter does not mean that he has not conducted his business or his teaching recklessly for years. Rather, he escaped through legal loopholes. If he practiced what he preached, he would have accepted responsibility for his actions. He is a dangerous person who has shown little regard for the victims of the tragedy in Sedona.  He should not be allowed to lead events such as the Spiritual Warrior Retreat in the future. 

As the horrific details of the three deaths emerged in this trial, we realized that the potential danger posed by “self-help” gurus extends well beyond James Ray.  Since Kirby’s voice has been forever silenced, her family will now speak for her.  We have launched a not-for-profit organization, SEEK, (Self-help Empowerment through Education and Knowledge) to educate the public about the self-help industry. It will empower all seekers to ask important questions and consider possible “red-flags” before following a self-proclaimed “guru”, even if they have been vetted by the public media.  We will work to protect those desiring personal growth by exposing scam artists and frauds. 

SEEK will advocate for professional standards, and explore avenues of accountability for this totally unregulated industry. 

The SEEKsafely.org website is officially ready for participation. Kirby, our “super nova”would be proud that we stood together, each day to speak and seek the truth. 

We would also like to thank the Victim Services of Arizona, who have been incredibly gracious and helpful to the family and friends of the victims during this nightmare.  To the prosecutorial team and police investigators, who have not just been our “legal” defenders, but have displayed incredible compassion and sensitivity all throughout this trial, we owe a great debt of gratitude.

You know the old expression about what happens when you assume…..

Since day one of the James Ray manslaughter trial, the defense has tried to present its own specific version of reasonable doubt; that toxins could be responsible for killing three people and causing 18 other injuries.

In his opening statement, defense attorney Luis Li specifically mentioned that one witness, Ted Mercer said they used construction wood to heat the rocks in Mr. Ray’s imitation sweat lodge. Mercer may have guessed (or assumed) that construction wood was treated wood.

So, in the trial, the two phrases “construction wood” and “treated wood” have been used interchangeably.

About two weeks ago, my girlfriend mentioned to me that she has a thing for log cabins and has done some casual research about nicer log homes. She seemed to remember that the logs often used in cabin construction, so-called D-logs, were not treated until after construction. After the home was built, the outside of the logs were treated to withstand weather, etc.

Lo and behold, yesterday Michael Hamilton, owner of Angel Valley Spiritual Retreat Center, took the stand, he was asked about the wood used to heat the rocks for Mr. Ray’s event. They are construction logs, he said, but not treated wood. His employees were all instructed never to burn treated wood.

The defense has also proffered that rat poison was used the building where the tarps that were used to cover the lodge’s structure. One witness has said there were “granules” of poison kept in openings where mice and rats could possibly get into the building; but not where the tarps were stored.

Speaking of tarps, most people (myself included) have assumed that tarps were one of the materials used to line the roof of the lodge. We had seen the blue materials; many people have already referred to the “tarps.”  The blue material, it came out this week, were moving blankets – the type you’d get at U-Haul. Thick, but ultimately breathable.

So while the defense has given the jury images/thoughts/dreams of vinyl tarps dripping poison on participants or blankets full of pesticides, the state has skillfully and patiently waited for this testimony to counter the “reasonable doubt” theory of the defense.

It should be noted, the defense has shifted to emphasize the construction of the lodge itself and whether it contributed to the deaths of three people. While they are still offering the suggestion that an employee could have improperly used pressure treated wood, the prosecution seems to have put a huge brown rubber covering on Poison-gate.

And for James Ray’s defense team, they’ve been reminded what happens when you assume…..

With more than 10 days since she last took the stand, Debbie Mercer returned to the Yavapai Superior Court to resume her testimony.

You may remember that she, her husband Ted, and daughter Sarah were the fire tenders at the James Ray imitation sweat lodge on 2009. Debbie’s specific role was to open and close the flap to the lodge when Mr. Ray ordered. She gave compelling and important testimony that Mr. Ray ignored pleas from participants that specific people were “not breathing.” Afterwards, she testified, Mr. Ray sat in a plastic chair in the shade while chaos of his own doing surrounded him.

Early in her testimony, she clarified an answer she gave earlier in the month. She didn’t hear someone say people were “not breathing,” but rather that they were “unconscious.” While the language is significant, her reason for mixing up her words brought my favorite moment of the trial so far.

“I was having a hot flash,” she said sheepishly on the stand.

Mercer, like her husband and Fawn Foster before them, are among a handful of non-participants, folks who worked or volunteered at Angel Valley retreat center. Ordinary people caught in the middle of an international news story, a horrible tragedy, and something they realize is bigger than themselves.

But when Foster uses phrases like “critter biscuits” to describe pest control and Ted Mercer refers to “the big rubber deal” (a large brown covering over the sweat lodge structure), it shows that maybe they are bigger than this event.

They have shown remarkable poise, a hint of detachment from the tragedy, and grace under incredible fire. Those qualities may actually be forcing Mr. Ray’s high-priced lawyers off their game.

Debbie Mercer, following her hot flash comment, was subject to cross-examination by defense attorney Tom Kelly. In that testimony, she admitted she did not remember her interview with police while she was in the hospital (she was feeling nauseated and hadn’t eaten all day and spent the night for observation following the sweat lodge).

Kelly tried to seize on that and using his incredulous “how can that possibly be” tone that he’s relied upon before, attempted to discredit her. That is when she offered that she was in shock, answering what was asked of her and no more, and she couldn’t remember specific details of the brief conversation with police.

Later, when Kelly asked what’s become a standard question of most witnesses about whether people used their “free will” to leave the sweat lodge, Debbie Mercer countered by saying that those who were unconscious or physically weak could not use their free will and, in some cases, Mr. Ray’s words such as “you are more than that” and “you are more than your body” kept people from leaving.

Others have given similar testimony, but two things about Debbie Mercer made her words more powerful. She wasn’t a participant but an outside observer (see detached).

And she had a hot flash.

When this middle-aged jury goes to work and relies on various testimony to make such an important decision, you wonder what will stick with them.

I’ll bet a local woman trying to do the right thing, that lady who had the hot flash, will stand out. And it could be the difference between freedom and guilt for Mr. Kelly’s client.

We all know the justice system never delivers the truth. Despite asking witnesses to give “the truth, the whole truth and nothing but the truth,” lawyers want anything but. They ask questions that will yield only a fraction of the truth, or a certain angle of truth. The slice of truth that helps their client, or their chance of a conviction.

In the James Ray manslaughter trial phrases such as prior bad acts, 404(b), causation, disclosure,  and relevant case law have limited the scope of testimony (or the truth, the whole truth and nothing but the truth).

I don’t think anyone was fooled into believing the entire story would come out at trial. It’s a defense attorney’s job to limit damaging testimony. And this case has a ton of it.

I was prepared to be frustrated.

I wasn’t prepared to be scared.

Over the last two days, the defense has argued for a mistrial (for the second time in a week) based on a simple two-page email  that the prosecution failed to turn over to the defense. (Over 8,000 pages of evidence has been given to Mr. Ray’s team. But 7,998 pages out of 8,000 could – it turns out – be good enough for a mistrial.)

The notion that James Ray will walk out of that courthouse a free man, legally blameless for these deaths, has crossed my mind. However my mental version had the jury (at least one or two stubborn members of it) hung up on some reasonable doubt.

I wasn’t prepared for that to come via a technicality.

Since the trial began, any watcher has noticed the approach of Sheila Polk, the lead prosecutor. What she lacks in style points she more than makes up in intelligence, strategy, and an unflappable nature that allows her to cover all of the bases. She has been impressive to say the least.

But over the last 48 hours, the notion that Sheila’s team could lose the whole ball game because someone didn’t hit “fwd:” on an email seemed impossible. And it taught me just how important this trial and its outcome really is to me.

Judge Warren R. Darrow took just a few hours to make his ruling. But as I mindlessly sat in my backyard swing, I didn’t think. I just felt.

I called Kirby’s mother, my Aunt Ginny, to see how she was. She was at work and she was, in her words, “horrible.” Contrary to my reasons for calling her, neither of us felt better for hearing each other’s voices.  I heard the fear in her voice; I was reminded how much more important these proceedings in Camp Verde, AZ are to her.

She buried a child.

We had a bad connection and the call dropped after just a couple of minutes. Neither of us tried to reconnect. I felt hollow. I texted Kirby’s brother, who had encouraging words for me. But mostly I waited.

This couldn’t be over today; the search for (part of) the truth, the (legal) responsibility for the death of three amazing people, the closure sought by so many for a large part of this senseless tragedy. It hung in the balance because 0.00025 percent of all the documents were not sent to Mr. Ray’s lawyers.

Thankfully, Judge Darrow ruled against a mistrial. Though he said a “Brady violation” was committed (that’s the legal jargon for failure to disclose a document), his belief was the evidence included in that two-page email was not different than evidence already known by both parties.

Someone’s right to a fair trial is not to be taken lightly. It’s a notion on which our legal system rests. As much as a defendant may not be likable (and this one is far from warm and fuzzy), he deserves his day in court, and he deserves a fair trial.

It was hard to fathom that a two-page email by an expert that the state did not hire, was not ultimately called as a witness, and the contents of which were not a formal report, could derail Mr. Ray’s fair trial.

I wondered what rights Kirby Brown, James Shore and Liz Neuman were built into this system.  Life is not fair. Death, it seems, might be less fair.

Anyone following this trial has been walking on eggshells for weeks. With each witness, each piece of testimony, and the momentum of one side over another, we tread carefully. But starting today, we move on, walking on another layer of figurative eggshells – just to get to the end of the trial.

And we hope everyone’s rights are protected and realized. Including those of Kirby, James Shore, and Liz.

When I was a reporter, I loved covering the courthouse. 

Because I reported in one of the richest counties in the country, there were a wide variety of storylines. I remember one day in family court, a very poor inner city couple was bitterly fighting over the terms of their divorce; how they would split up the husband’s $21,000 in annual earnings for their five children. Two cases later a well-to-do mother argued that her ex-husband violated the terms of their previously-filed divorce because he took their two children on vacation without adequate notification.

He took them to the south of France for a week.

Besides that variety, there were the characters: lawyers, judges and the honest to goodness people who earned their paycheck at the courthouse. I always wondered what kind of person, for example, became a public defender – to defend so many remorseless guilty people who lacked resources for their own defense. (One PD once told me “It’s for the kid who just gets caught being in the wrong place at the wrong time. To exonerate someone who deserves a second chance: that’s why I do what I do.”)

Because I had this experience, background and a basic working knowledge of how the system works, I was ready for the James Arthur Ray trial.

Or so I thought.

I’ve helped interested parties make sense of the unusual language of the legal system, filled in details of some testimony with research I had previously done, and kept in touch with reporters about the trial or who had questions about the victims. Surely this kind of work, I told myself, would keep me strong throughout the trial.

But I began having difficulty keeping it together a few days ago when someone (I honestly can’t remember who) testified that when paramedics took Kirby away, that Mr. Ray and his people claimed they had “no information” on Kirby. That they didn’t know who she was.

If you’ve ever met my cousin, or even read about her since this tragedy, you’ll know that she made an immediate impression on everyone. The girl with the quirky name had a dynamite smile, and an even better heart. If you met her for only 2 minutes, you would never forget Kirby Brown.

So knowing that some people affiliated with James Ray (and Mr. Ray himself)  let her be a Jane Doe as she got into the ambulance tells me that after six full days – the last six days of our loved one’s life – they pretended to know nothing about Kirby Brown. Like I once wondered about public defenders, what kind of person does that?

My difficulty arose again late last week when Debbie Mercer, who assisted with the imitation sweat lodge ceremony, testified. She was a local volunteer who often assisted with Angel Valley retreat center events. She was positioned less than 5 feet from the door of Mr. Ray’s imitation sweat lodge ceremony. She gave strong testimony about some of the confusion, chaos, and ultimately silence late in the ceremony from within the tent. She also saw the horror of those who were pulled out, stumbled out, or suffered various physical and mental ailments as a result of the searing heat.

That testimony is consistent with others and did not alarm me; I guess I’m numb to much of the horror. But I found out a few minutes later, I was not.

Debbie Mercer testified to three other details: That before the 8th and final round, that someone called out that two people were down in the back of the tent (which I knew happened). And that after the ceremony, with so much confusion in what one witness described as “a war zone,” that James Ray took a seat on a chair in the shade and simply observed. After about 15 minutes of this chaos, Mercer said, she stuck her head in the lodge “because something told her to” – and she saw three people passed out inside, including Kirby Brown.

Those three pieces of testimony hit me so hard. James Ray knew Kirby Brown needed help. From the moment he knew, for the next 30 minutes, he did nothing to make sure she received any help (or anyone else; the people he now calls “his friends.”)

What kind of person does that?

There were some truly great people at this event. The list of people I owe a “thank you” to for trying to save my cousin, grows with almost every witness’s testimony. So knowing there was so much chaos happening after this ceremony tells me that truly good people were too distracted to take a look in the sweat lodge to make sure everyone was out.

And one man sat in the shade.

That idea made me cry.

I sat on my couch, listening to Debbie’s testimony, my head in my hands, quivering  lips, tears running down my face.

My beautiful, knowing, loving  girlfriend Rachel (who has watched so much of this trial with me), noticed and simply came over to me and held me. No words were exchanged. Just love and warmth.

I thought briefly how much Kirby would have loved Rachel and cried a bit harder knowing that could never happen.

But mostly I cried because three people lay motionless in a tent; one man sat in a chair.

What kind of person does that?

I don’t like conflict.

I mean I love to debate meaningless things: Whether a Sugar Daddy is a candy bar (It is, the stick is for convenience); whether cats can prefer one food over another (you can’t prove it; preference is a human word/concept cats can’t communicate; guess away though); whether the designated hitter is necessary (It’s not; pitchers should hit).

But I hate fighting.

Fights themselves, obviously, are uncomfortable. But the atmosphere after a fight, or during an ongoing longer-term disagreement, has everyone walking on eggshells.

Debbie Mercer, a former volunteer at Angel Valley retreat center, is testifying on egg shells today in the James Ray manslaughter trial.

Tom Kelly, one of the defense attorneys, is vehemently objecting to 30-40 percent of questions and replies. Obviously, her testimony about the conditions of people in sweat lodges at Angel Valley (both James Ray’s and others) is potentially very damaging to Mr. Kelly’s case and excluding as much of it is in the defense’s best interests.

So when we arrive at a portion in which almost every question is objected to, the witness is confused with his or her eyes darting around. Their answers are tentative and cagey. And as a viewer, I feel as if we are not getting the “whole truth” as we were promised.

Since Judge Warren Darrow has allowed a limited amount of evidence about “prior acts” to be admitted earlier this week, the prosecution has seized that opportunity; the defense quite obviously is sitting on the edge of its seat waiting for what it believes to be inappropriate questions and evidence to be presented to the jury.

The stakes are just as high as they have always been. Three families (and thousands of friends) have lost loved ones in this horrific story. But the trial, as you hope ever y official proceeding in this country does, started civilly with great respect for the process. The state respects the court and the defense and vice versa. The fate of one self-help guru (and in a way the future of the industry) sits in the balance.

But when the judge admonishes the parties that “personal attacks” won’t be permitted, everyone knows a new, critical level has been reached. The case is expected to last another couple of months. With no love lost at this point, every day should be tense and very charged.

But let’s hope that the truth is the real winner. That witnesses are able to testify despite their discomfort and fear. And that everyone pays respect to the three victims who died; and remembers there are dozens, perhaps hundreds of other victims. And despite our differences, and our fighting, that we hold them up a little bit higher than our enemies.

Today marked the beginning to a truncated week six of the James Ray manslaughter trial. From the first few days of testimony and opening arguments that I witnessed in court both sides have been building their cases. The prosecution contended James Ray knew people could die and disregarded that notion; the defense said something else caused what it called an accident, and has frequently cited poison as a possible cause.

In the days prior to the trial, Judge Warren Darrow ruled out so-called “prior bad acts” of previous James Ray sweat lodges. In short, he said, there were never any life-threatening illnesses at previous sweat lodges. He at the time said a medical foundation needed to be presented, by experts, to show the presence of medical conditions that threatened lives.

A key witness in doing so was Dr. Jeanne Armstrong. You may recall she was not very friendly to the state, and was essentially a defense witness. At the time I wondered why the state called her, but said they must have a good reason. That reason turned out to be that she, in part, laid that medical foundation for a continuum of heat-related illnesses up to and including heat stroke. Now direct testimony about these symptoms will be allowed, and will be forthcoming.

This “prior acts” issue has been simmering since before the start of the trial. Numerous legal arguments have been forwarded by the state to try to include this evidence, and witnesses to previous sweat lodges. Judge Darrow, always careful and thoughtful , has resisted letting in this testimony.

Until today.

This simmering issue has now resulting in a full, heated boil. It’s a banner day for the prosecution. The defense is now fighting with all of its guns, immediately filing a motion for a mistrial. (It was denied, but they indicated they will file a special action to a higher court objecting to the Judge’s opinion.)

How does this ruling affect the trial? It pretty much completely changes it.

For the state, they can call witnesses from previous sweat lodges who did NOT attend the 2009 Spiritual Warrior event. Expect stories of hallucinations, out of body experiences, convulsions, vomiting, participants screaming and yelling (including one who screamed “James Ray is trying to kill us.”) and speaking nonsense – all symptoms of the heat continuum and possible heat stroke.

For the defense, they will be objecting more than normal now. Because all testimony must have proper foundation, the defense will speak up whenever a witness has not properly demonstrated knowledge. And, as Judge Darrow said today, a mistrial is a clear risk if witnesses offer testimony beyond what they know.

Luis Li, Mr. Ray’s lead attorney, also said he would be filing a motion of misconduct by the prosecution, a serious allegation in a trial. We can also expect this case now to go to a higher court if the defense follows through on its threat of a special action.

The stakes have gone way up today. Mr. Ray’s talented and high priced defense team was outmaneuvered by the Yavapai County prosecutor’s office.  It will give them a cause for appeal if/when their client is convicted, but that was a foregone conclusion anyway.

Now  the state has many more tools in its shed to help them demonstrate James Ray knew there were risks in his sweat lodge ceremony.

And this simmering legal event is now likely to become a barroom brawl. Expect all the stops to be pulled and the intensity to increase, and to stay high through the end of the trial.

Stay tuned

When I think about my cousin Kirby Brown, I often think of imperfect people.  She cared about everyone, but she paid special attention to those who might have had a checkered background, who might have been left behind by society, or otherwise was an afterthought.

So when Fawn Foster (a worker at Angel Valley) took the stand today, I immediately thought about Kirby. Foster has a history of arrests (including a DUI about 15 years ago, possession of drug paraphernalia) that the defense plans to use to impeach her credibility. (A witness’s past is relevant; the defendant’s is not?)

As I watched her testimony, I learned that she stayed down by the sweat lodge during the imitation ceremony “because my gut told me to” and that she helped people she didn’t know “because that’s what you do.”

A veteran of about 10 sweat lodges, Miss Foster was concerned by what she saw and called the scene after the lodge as “about the worst thing you could imagine.” She had very good recall of what she saw and heard, including:

• Dream Team members pushing a participant back into the sweat lodge until someone spoke up for the woman;
• Someone saying “We have three people down back here” after round 7 of the ceremony, and Mr. Ray responding by saying they would have wait another round (about 15-20 minutes)
• Mr. Ray calling for 18 rocks in the lodge for one round, a number she called “astronomical.”

When she testified about the burning of the lodge two days after the deaths, Foster became emotional. Foster, who is at least 50 percent Native American, clearly respected the sweat lodge ceremony and was moved by the tragedy.

So I wondered if Fawn had said hello to Kirby during the week. Doubtful, but she was the type of person Kirby would spend an extra moment or two with. She would ask her about the locale or ask for a restaurant recommendation, or a great hiking trail. At the end of that conversation, Foster would feel a little better about herself, and seek out Kirby again. We all sought out Kirby.

Having met literally hundreds of people directly because of this tragedy, I’ve been reminded that Kirby had so many friends to whom I might not give a second chance. Or even a second glance.

She had that magical ability to instantly see something great in everyone, and to find it within one conversation.

So while Fawn Foster might be called an alcoholic or drug user (perhaps in court today, by the defense), I’ve learned to see something different. I choose to see her heart, her goodness, rather than her “record.”  I once heard that everything you can remember about your life is in your past. I don’t know who first said it, but it could just as well have been Kirby.  Today Fawn Foster is a hero; someone who is coming forth to tell the truth because “that’s just what you do.”

If we can all learn that lesson from Fawn and Kirby, we can make sure these senseless deaths actually have some meaning and we live a better today because of them.

I love baseball, as I mentioned a few days ago, because it is played most every night for six months. Following your favorite team from April through September is like a really great reality series – there are subplots, emerging stars, unexpected developments, injuries, rookies, trades and so many other factors that go into the season-long success for failure of a team

Some nights, though, it’s flat out boring.

In the four-month event that is the James Ray trial, some days are starting to get boring.

Actually, I should correct myself. Late yesterday, for the last 90 minutes or so, I stepped away. Rachel’s son had a school dance. As has become the custom for these 90-minute dances, I dropped him off, and killed time by having a couple of beers and, last night at least, watching the NCAA basketball tournament.

I had tried to pause the testimony in the case. For whatever reason, I could not go back to see Scott Barratt’s first 90 minutes on the stand. He was a name I was not overly familiar with, surely not a vital state’s witness. Between pausing the computer feed, my Twitter friends (with their #jamesray tweets and updates), some news stories and Facebook postings, I would get the essence of what I missed.

So when it came time today for Mr. Barratt to continue on the stand, I was into it less than almost every other witness so far.

He was important for the state in that he is a former military pilot, an impressive figure standing 6’5” and in very good shape for his 62 years of age. Earlier in life he was even a cowboy. (How cool – how often do you meet a real-life cowboy!) He was another likable figure to present a jury while the defense continues to utter words like “cultish” to describe the conventional wisdom about their client’s fans and events.

Mr. Barratt was often very funny, didn’t appear to have taken a “side” in the case, and was a good foil to defense attorney Tom Kelly, who handled the cross examination. He provided testimony that James Ray knew a larger woman was presumably passed out behind Mr. Barratt, that he thought the sweat lodge participants had been “hypnotized” during the week to participate in dangerous activities and to suspend their normal common sense.

Those types of statements need to come from almost all participant witnesses for the state now; it will be the essence of prosecutors’ arguments at the close of trial – combined with that idea the Mr. Ray knew there was trouble, and a reasonable risk of serious injury or death.

I only write about the statements I did see, either in highlights or on TV/computer today. I do not want to characterize his overall testimony.

But it’s Friday, and this is a tiring trial. And it was just a bit hard for me to get into today.

So when I hear the defense ask each witness if this waiver looks familiar, and if they put one foot in front of the other to walk into the lodge, and whether they exercised free will and choice to participate, my eyes glaze over or I check my e-mail.

I wonder what the 17 remaining jurors (5 will be picked as alternates) must be feeling. At least when the lawyers argue or they are in recess, I can make lunch or pay a bill or run to the store. They are stuck in probably a small non-descript jury room.

So I hope that the overall impression of a credible witness trumps the repetitive, often important, testimony that they may not be focused upon.

I mean even Derek Jeter takes a night off once in a while, right?