The defense will try to make the witnesses sound less convincing, the same way they try in the guilt phase of the trial. The jurors then vote and if they find two aggravators, James Arthur Ray will face an enhanced sentence.
In this case, the aggravators that prosecutor Sheila Polk has listed she will argue are as follows:
1. The presence of an accomplice (I take it this will be the members of the Dream Team, including one or more actual employees)
2. The especially heinous, cruel or depraved manner in which the crime occurred (My guess is the way Ray discouraged people from helping those from falling into unconsciousness...and, well, being baked to death is pretty heinous.)
3. Crime committed in expectation of pecuniary gain. (This is going to be tough, I think, because it usually applies to hitmen who get paid or to spouses and business partners who are trying to get an inheritance or insurance payout from a murder. Here she will have to argue that the $10,000 the participants paid is the pecuniary gain or his expectation that "extreme altered states of mind" [heat stroke] was the product he was selling for money and these extreme conditions would lead to further sales and prestige for him.)
4. The victim, or the victim's survivors, suffered financial, physical or emotional harm. (Pardon me, but this one is a slam dunk. You can't sit there watching the friends and family sniffling in the front row without knowing this is true.)
All twelve have to vote for two aggravators, for the prosecution to prevail and get Mr. Ray qualified for enhanced sentencing. In regular people talk rather than lawyerese, that means if she gets the jury to agree unanimously on at least two aggravators, James Ray gets a more severe sentence.
I doubt Ms. Polk will get all her aggravators passed, but looking at this list, it seems hard to believe she won't get at least one.
Kirby Brown's dear friend Mika Cutler facing the press the day James Arthur Ray was convicted of being responsible for Kirby's death.
photo by Camille Kimball
ADD: updates on this post (state changes list) here and here (Judge throws one out)
(The penalty phase of Arizona trials is a bit confusing. There are actually several posts on this aspect of James Ray's trial. Just click on any of the tags below and you will be sure to find most of them. Hope they help!)