Thu, Feb. 27

State: No merit to new trial request in Ray case

AP Photo/Deirdre Hamill, Pool<br>
From left, prosecutor Sheila Polk, Judge Warren Darrow, , and defense attorney Tom Kelly, in a sidebar during the trial of James Arthur Ray in Camp Verde earlier this year..

AP Photo/Deirdre Hamill, Pool<br> From left, prosecutor Sheila Polk, Judge Warren Darrow, , and defense attorney Tom Kelly, in a sidebar during the trial of James Arthur Ray in Camp Verde earlier this year..

CAMP VERDE - In a response filed Thursday, Yavapai County Attorney Sheila Polk strongly denied allegations of prosecutorial misconduct in the trial of James Arthur Ray.

A jury found Ray, a once-acclaimed motivational speaker and author, guilty on June 22 of three counts of negligent homicide in the October 2009 deaths of Kirby Brown, James Shore and Liz Neuman, all of whom passed away after a sweat lodge ceremony that Ray led at a retreat center near Sedona.

"The state has not engaged in prosecutorial misconduct," the motion reads. "Any error or mistake on the part of the state was unintentional and did not affect the jury's verdict as there was ample evidence of defendant's guilt."

Ray's defense team filed a motion for a new trial on July 13, citing multiple examples of alleged improper acts by Polk and her team - acts they claimed violated Ray's due process rights to a fair trial.

Polk's motion points out what any observer of the proceedings knows well, that "...the adversarial tone that is present to some degree in all prosecutions would be amplified," adding that "The state lost count of the number of times (Ray) urged this court to declare a mistrial," and that Ray's attorneys' "frequent, unfounded attacks on the integrity of the state... have been difficult to endure."

The motion goes on, over the course of more than 120 pages including exhibits, to detail the prosecution's responses to specific allegations.

The "secret" charging meeting

What began as a dispute of whether the state needed to provide notes taken by people at a meeting of prosecutors, investigators and medical examiners in December 2009 grew into an issue that led Judge Warren Darrow to order monetary sanctions against Polk's office. But Thursday's response reminds the court that the defense did in the end have the opportunity to interview all involved and that Ray "suffered no prejudice from the state's arguing a legal, good-faith belief" that it was right to withhold the notes.

Bad faith in jury selection

During jury selection, the defense sought to strike any juror who expressed a preconceived notion of Ray's guilt. The motion states that it was "neither error nor misconduct... to object to this approach" and to request additional questioning to determine if those potential jurors could be rehabilitated.

Late disclosure

The state's inadvertent error in failing to disclose the report of environmental consultant Rick Haddow, an error that led to a near-mistrial and a weeklong delay in the proceedings, did not in the end violate Ray's rights, according to the motion. That contention is bolstered by the fact that the defense chose not to take the opportunity to interview Haddow or call him as a witness with potentially exculpatory evidence to share. The motion minimizes the importance of other defense allegations of disclosure violations, contending that "there can be no finding that...disclosure could have influenced the verdicts in this case."

The motion also denies that the state made frivolous arguments during the trial, as the defense alleges. All its pleadings, they insist, "have been supported by legal authority" and, had they been without merit, they could not have affected the outcome of the trial.

As to the matter of improper questioning, Polk contends that she "requested the court's guidance before questioning witnesses regarding prior sweat lodge ceremonies or other matters."

Eliciting perjured testimony

The appearance of Mark Rock, a former Ray volunteer dream team member, in the trial led to one of the trial's more surprising moments, when Darrow was forced to appoint an attorney for Rock, whose testimony varied greatly from what he had earlier told police. That attorney advised Rock not to testify, despite an offer of limited immunity.

Polk said at the time that she had "not offered nor would we ever offer immunity for perjury on the stand" and her motion repeated that affirmation.

Errors in closing arguments

Ray's lawyers mentioned several ways in which Polk's closing and rebuttal arguments, in both the guilt phase and the aggravation phase of the trial, prejudiced the jury against their client. Those alleged errors included attempts to shift the state's burden of proof to the defense, using the prestige of the state as proof of the charges, misusing and misstating evidence and the law and implying that Ray was personally responsible for the actions of his company, James Ray International.

Some of those errors, according to the response, were corrected by Darrow's special instructions to the jury while others simply did not occur.

The final alleged error, which occurred when Polk played a portion of an audio recording that had never been admitted as evidence during the aggravation phase, "had no impact on the guilt phase of the trial" and was a harmless error.

In conclusion, the motion urged Darrow to determine that if any misconduct existed, it was unintentional and did not affect the outcome of the trial.

"It is undisputed that this trial in this matter was long and hotly contested," the motion reads. "Given the length and nature of the trial, as well as the curative instructions given by this court, any errors by the state must be found harmless."

Ray remains free on $525,000 bond. A pre-sentence hearing is scheduled for Aug. 16.

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