The Main Stream

Aug 16, 2011 8:57 AM

Attorneys argue new trial bid in sweat lodge case

CAMP VERDE (AP) - Attorneys for a self-help author
convicted of negligent homicide want a new trial based on what they contend was a pattern of prosecutorial 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 are set to outline their arguments before a judge Tuesday in Camp Verde, nearly two months after jurors found Ray guilty on three counts of negligent homicide. Kirby Brown, James Shore and Liz Neuman died following an October 2009 sweat lodge ceremony that Ray touted as the highlight of his weeklong "Spiritual Warrior" retreat near Sedona.

The defense submitted its motion for a new trial last month, saying Ray was deprived of his constitutional rights. Ray's attorneys outlined 10 categories of alleged misconduct that include bad-faith arguments during jury selection, disclosure violations, improper questioning of witnesses that elicited hearsay and impermissible statements by prosecutors. The latest example, they
say, is that prosecutors played an audio clip that never was admitted into evidence.

"There is real doubt whether a criminal defendant in Yavapai County can have a fair trial given the pattern of aggressively unrepentant misconduct by the Yavapai County attorney's office," the defense said in its motion. "At the least, the extreme misconduct in this case mandate a new trial and sanctions."

Yavapai County Attorney Sheila Polk said the record doesn't support the defense allegations, though she acknowledged playing about a minute of the audio clip for jurors during the aggravating factors phase that she shouldn't have. But Polk argued that the information was cumulative and didn't prejudice Ray.

"The state would simply ask this court to review the record objectively as a minister of justice and to disregard defendant's continued aggressive efforts to portray every word spoken or action taken by the state as having some unethical or sinister motive," Polk wrote in her response.

If Darrow rules against the bid for a new trial, Ray's attorneys will move forward with presenting witnesses during a mitigation hearing scheduled for Sept. 19-23, with Ray's sentencing set for Sept. 26. He faces anything from probation to nine years in prison.

Darrow has denied at least eight previous defense requests for mistrials based on some of the same things Ray's attorneys brought up in their latest motion. But he noted that he considered playing audio that wasn't admitted in the trial a serious issue.

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