1. The Guilt Phase You might also think of this is as the "guilty or not guilty" phase. This is the Big Kahuna of the process, where a jury decides guilt or innocence, witnesses testify and evidence is held to a very strict standard.
James Arthur Ray lost this particular phase. He was judged Guilty of three counts of Negligent Homicide in the sweat lodge deaths of Kirby Brown, James Shore, and Liz Neuman.
2. The Aggravation Phase In this phase, the jury is still present. The prosecutor argues, with witnesses, for certain specific aggravators. If the jury agrees with her (in this case, Sheila Polk), James Ray is eligible for a harsher sentence.
James Ray got a mixed decision in this one. Jurors found for one aggravator each in two of the deaths. They also found a second aggravator in one of the deaths (Liz Neuman). However, Judge Darrow threw out that second aggravator.
3. The Mitigation Phase This is what begins November 8. The jury has already been dismissed. This proceeding will be played out to persuade the audience of one, Judge Darrow. Think of this as the opposite of the aggravation phase. The defense tries to show factors that prove Ray should get a lighter sentence. One very strong one in his favor, that is always given much weight by judges, is the lack of prior convictions. The catch is, the standard of evidence is much more lax in this phase and prosecution will have the opportunity to talk about prior incidents of illness and recklessness at previous James Ray events as well as his ongoing (as in right this minute) efforts to market questionable self-help products. A big display of remorse usually helps in this phase, and it will be interesting to see if Ray speaks directly to the judge and how convincing he can be.
3a. Actual Sentencing I could give this its own full number, but in this case it happens adjacent to the mitigation hearing and it might be useful to link it. We will finally find out exactly what Judge Warren Darrow thinks of James Ray on November 18. He has given himself the long weekend after the several-day hearing to weigh the opposing arguments and calculate a sentence. If we're lucky, Judge Darrow will make something of a speech before he pronounces the sentence. This is always one of the most dramatic moments in a trial, with the defendant standing, often glaring, at the man in the black robe. This is the moment when Ray will have no lawyer shielding him. Judges, however, don't always make a speech revealing their thoughts. Sometimes they let the sentence speak for them. I always hope for the speech.Something you may have seen referred to is a "Pre-sentence report." This is always a fascinating document and is prepared by a probation officer who meets with the defendant and possibly also includes a psychiatric report. The p.o. makes recommendation to the judge based on a professional assessment of the defendant's attitude, remorse, social or functional deficits (literacy? ADD? etc.), substance or alcohol issues, psychiatric needs (medications? etc.). In this case the p.o. is using words like "reckless," which does not bode well for a super-lenient sentence.
What to expect this week? Gut-wrenching testimony by the prosecutor's witnesses, devoted and enthusiastic testimony by the defense's. And TONS of bickering amongst the lawyers. This case is truly remarkable for lawyers who cannot let 5 minutes go by without somebody objecting to something.
You've seen the pictures of the actual sweat lodge where three seekers of enlightenment suffocated in October 2009. I wanted to post the above recent photo I took of a sweat lodge built by Navajo hands on the Navajo reservation. The official display plaque clearly states the lodge is used for cleansing because water is such a scarce resource or for muscle relaxation after a hard day. You are supposed to feel better when you emerge, not sick, not vomiting, not delirious. It is NEVER used for an endurance test. At NO time would the tribe cram people in neck-to-neck. As you can see, the scale of their sweat lodge is for a small party of friends or family, never 5 dozen.
The photo did not have enough resolution to show you who was inside the lodge at the time I snapped it. A medium-sized dog had taken refuge from the snow. With her inside, 2 or 3 human adults might comfortably join her. She was the picture of cozy content, showing just what the lodge is supposed to be, a refuge from the elements such as grime and hard labor, not an oven of machismo and commerce.
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