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UPDATED: Judge Weighs New Trial Bid in Sweat Lodge Case

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CAMP VERDE, Ariz. — Attorneys for a self-help author convicted of negligent homicide want a new trial based on what they contend was a pattern of misconduct by prosecutors. Prosecutors say that’s unnecessary because any errors they made during James Arthur Ray’s trial were unintentional and did not affect the jury’s verdict.

The two sides outlined their arguments Tuesday in a Camp Verde courtroom, but the judge made no immediate decision on the defense request. Yavapai County Superior Court Judge Warren Darrow said he instead would take the motion under advisement.

The parties presented their arguments nearly two months after jurors found Ray guilty on three counts of negligent homicide. Kirby Brown, 38, of Westtown, N.Y.; James Shore, 40, of Milwaukee; and Liz Neuman, 48, of Prior Lake, Minn., died following an October 2009 sweat lodge ceremony that Ray touted as the highlight of his weeklong “Spiritual Warrior” retreat near Sedona.

Dozens of people went into the structure with Ray’s promise that the experience would help them break through whatever was holding them back in life. When the two-hour ceremony ended, nearly two dozen people were transported to hospitals with illnesses ranging from heat exhaustion to kidney failure, while others emerged with no major problems.

The defense submitted a motion for a new trial last month, saying Ray was deprived of his constitutional rights.

His attorneys outlined 10 categories of alleged misconduct that included bad-faith arguments during jury selection, disclosure violations, improper questioning of witnesses that elicited hearsay, and impermissible statements by prosecutors. They said the list wasn’t exhaustive.

The latest example, they say, is that prosecutors played an audio clip for jurors considering aggravating factors that never was admitted into evidence — a matter Darrow has said he considers serious.

“We’ve not heard an explanation or any type of assertion by the state that these repeated instances in the motion did not affect the verdict by the jury in this case,” defense attorney Tom Kelly said.

County Attorney Sheila Polk took hours to explain what she understood were 31 allegations, adding to an already extensive record in a case that’s bound for appeal.

She acknowledged that prosecutors committed a trio of errors during the trial, but she said those errors were harmless because they were unintentional; the information was cumulative; they did not influence the jury; prejudice Ray or rise to the level of prosecutorial misconduct.

“Clearly prosecutors are ministers of justice, clearly it is our obligation to make sure the defendant has a fair trial and clearly that is what we tried to do throughout the trial,” Polk said.

The other 28 allegations “are not even errors” and were unsupported by the record, Polk said.

Darrow found that prosecutors broke disclosure rules when they withheld an email from an environmental scientist for a year that discussed the construction of the sweat lodge.

When prosecutors argued to jurors that Brown’s state of mind was clear through a recording of her words played during the trial, Darrow had to remind the jury that the clip could be considered only to determine its effect on the listener.

When Polk played an audio clip in which Ray discusses the financial investment of the retreat’s participants, the defense said it had not been played for jurors before.

Kelly argued the three errors were more serious than what Polk portrayed because prosecutors either already had been warned about them or they led to other errors.

“You have to consider the cumulative effect of that on my client’s right to a fair trial,” Kelly said.

Darrow has denied at least eight previous requests for mistrials based on some of the same issues that Ray’s attorneys brought up in the latest motion.

If Darrow denies the request, Ray’s attorneys will move forward with presenting witnesses during a mitigation hearing scheduled for Sept. 19-23.

Ray was set to be sentenced on Sept. 26, when he could face anything from probation to nine years in prison.

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Aug. 16, 2011 6:27 p.m.

CAMP VERDE, Ariz. — Attorneys for a self-help author convicted of negligent homicide want a new trial based on what they contend was a pattern of prosecutor misconduct

Prosecutors say that’s unnecessary because any errors they made during James Arthur Ray’s trial were unintentional and did not affect the jury’s verdict.

The two sides outlined their arguments Tuesday in a Camp Verde courtroom.

But the judge made no immediate ruling on the defense request. Yavapai County Superior Court Judge Warren Darrow instead took the matter under advisement.

Ray’s attorneys made the request nearly two months after he was convicted on three counts of negligent homicide.

Three people died following the October 2009 ceremony Ray led near Sedona as part of his weeklong “Spiritual Warrior” retreat.

 

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