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Sat, Feb. 29

Sweat lodge trial: Case may go to jury by mid-week

CAMP VERDE - Closing arguments in the manslaughter trial of James Arthur Ray could begin as early as Tuesday afternoon, and the decision in the four-month-long proceedings could be in the hands of the jury by Wednesday.

Attorneys on both sides spent all day Friday arguing the few still-contentious issues that remain unresolved, from matters of alleged disclosure violations through proposed jury instructions.

Ray faces the charges, which could land him in prison for more than 30 years, over the October 2009 deaths of Kirby Brown, James Shore and Liz Neuman, all of whom died as the result of trauma they allegedly suffered during a sweat lodge ceremony at the Angel Valley Spiritual Retreat Center near Sedona.

Ray defense attorney Tom Kelly asked Judge Warren Darrow to declare another Brady (disclosure) violation against the prosecution, based on the testimony of Department of Public Safety criminalist Dawn Sy. Kelly maintained that the state had not notified the defense in a timely manner that Sy's test for organophosphates in evidence collected at the scene of the sweat lodge came back negative not because the toxins were not present but because her equipment was not capable of performing the test.

"There was no disclosure and it is potentially exculpatory," Kelly argued.

But Yavapai County Attorney Sheila Polk countered with the fact that the defense had interviewed Sy in June 2010 and had never raised the question of organophosphates with her.

"That was in keeping with the defense strategy to keep secret the defense of organophosphates," Polk said, adding that the state only became aware that Ray's team would base its case on the "superseding intervening" presence of poisons during its opening statement.

The combative nature of the proceedings continued when Kelly replied, saying the notion that "we have kept secret from the state its own evidence is ridiculous."

Darrow denied the existence of a disclosure violation, but the arguments continued into a discussion of the previous disclosure violation, in mid-April, when the court decided the state had erred in not providing a copy of environmental consultant Richard Haddow's report to the defense. That previous issue nearly led to a mistrial and resurfaced Friday over the issue of carbon dioxide in the sweat lodge.

Kelly pointed to the state's recent response to a defense motion for acquittal, in which Ray is blamed for conditions including excessive heat and humidity, as well as carbon dioxide his lawyers maintain he could not have known was present.

"There's no way that a human being could sit in the doorway of that sweat lodge and see molecules of carbon dioxide floating around," Kelly said.

The daylong argument drifted through issues of Ray's intentions for the sweat lodge ceremony and into the evidence explaining the difference between heat exhaustion and heatstroke before finally settling on the extent of the duty that Ray owed the participants in the ceremony.

Darrow had cautioned the state more than once during the course of the trial that it was incumbent on them to prove that Ray had a duty outside of the criminal charges he faces to protect his clients. That caution hung over the proceedings, and was a major element of the defense motion to acquit, until the judge denied that motion on Tuesday, stating that he found that duty based on the large amounts the victims had paid to attend the Spiritual Warrior seminar. On Friday, the discussion turned to another definition of Ray's alleged duty, the "creation of peril," under which he would be compelled to act once he became aware that his clients were in distress.

This notion raised the ire of defense attorney Luis Li.

"This is the first time that the defense has been notified... of any duty personally owed by Mr. Ray," Li said. "The rules are that the defendant must know the substance of the charges against him."

Li made an oral motion for mistrial, based on a state-proposed jury instruction that stated that duty as fact. Darrow immediately denied the motion, but the argument about Ray's alleged duties, acts and omissions continued.

"If the defendant's conduct... causes the harm, it's the defendant's duty to help them," prosecutor Bill Hughes said. "It's that conduct, that failure, that triggers the reckless manslaughter statute."

"This is a very new theory of criminal liability," Li countered. "It now purports to argue that even if Mr. Ray's conduct was not at fault, he's responsible. There's no defense anymore."

The scheduling of closing arguments for Tuesday afternoon depends on the court's completion of jury instructions that morning, and a decision by Polk on the state's possible need to call one or more rebuttal witnesses.

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