Thomas J. McFeeley Communications

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.

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.

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?

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?

I am a fan of the New York Mets (one of my many faults, I know). Have been since age 4.

One of my favorite players, just a few years back, was a pitcher named Steve Trachsel. He worked very deliberately – yes, slowly – on the mound. People called him “the human rain delay” and said watching him pitch was like watching paint dry.

But I liked him because his deliberate nature allowed me to think about his next pitch as he did. Even when I saw him pitch in person several times, I could follow his thought process: Whether is was disrupting a batter’s timing, throwing inside or outside/up in the strike zone or down, when to throw to first, or which pitch to select in a certain count.

He wasn’t the best pitcher in the world, but to me, his approach was clear and I understood his strategies more often than not. But, I do admit, he was a nightmare for other people to watch.

I thought of him today watching the James Ray triple manslaughter trial. Today’s witness, Melinda Martin, is a former James Ray employee who was both at the Spiritual Warrior retreat and has spoken to the news media about the tragedy. Her testimony will not surprise the defense too much.

The defense attorney who will cross examine her is Tom Kelly. He is the man who has complained about the speed of the trial, complaining “I’m a busy man” who seemingly cannot afford a trial longer than anticipated. Every day he has objections and concerns, many relating to the 6^th Amendment (essentially the right to a speedy trial).

But he has objected dozens of times to the state’s questions to Ms. Martin. Form of the question. Leading questions. Lack of foundation. It seems as if he’s objected to about 50 percent of Sheila Polk’s questions (and winning many objections by the way).

Obviously, her testimony stands to be among the most damning for James Ray; she was employed for only a few months; had never been to Spiritual Warrior or one of Mr. Ray’s sweat lodges; spent a lot of time helping others and being shocked at the conditions people were in, only to be told it was “normal” and to assume a sunnier disposition about the whole experience.

So Mr. Kelly’s repeated objections are serving to: keep out damaging testimony, to throw the prosecutors off their game; and to play both sides of the same coin by working slowly while also complaining things are not moving quickly enough.

Aside from possibly frustrating a jury that is surely eager to move along, Kelly’s legal strategy is fairly sound. And, truthfully, many of Ms. Polk’s questions are inadmissible, perhaps her attempt to get the jury to hear things that they won’t forget, even if she needs to rephrase the question.

These are among the legal maneuvers designed to convict, or acquit, a defendant. It’s all part of the game. While Kelly’s stall tactics annoy me, I’m thinking maybe I young lawyer is watching him like I once watched Steve Trachsel.

Lee Plentywolf Police Interview Transcript – Oct. 20, 2009

Brownan Richards Police Interview Transcript - Oct. 22, 2009

Daniel Pfankuch Police Interview transcript Oct. 31, 2009 – Oct. 31, 2009

Josh Fredrickson Police Interview Transcript – Nov 11 2009

Megan Fredrickson Police Interview Transcript – Nov. 18 2009

Laura Phillips Police Interview Transcript – November 24, 2009

Martha Sterm Police Interview transcript Dec. 2, 2009 – Dec. 2, 2009

Michele Pfankuch Police Interview Transcript - December 5, 2009

Josh Fredrickson Immunity Interview Transcript – January 14, 2010

Megan Fredrickson Immunity interview transcript – January 14, 2010

Supplement #140 Ray, Stephen transcript 012510 C23 – January 25, 2010