How Can He Do That? (Judge throws out aggravator)

At James Ray's sweat lodge trial in Camp Verde, jurors deliberated more vigorously on the state's "aggravators" than they did on guilt. While the "emotional harm" aggravator was a slam dunk, jurors deadlocked on the the "pecuniary gain" aggravator and on the "unique position of trust" aggravator.

That is, except for victim Liz Neuman. Liz Neuman had been associated with the James Ray International organization for a few years and even earned commissions on JRI events she organized in her home state of Minnesota. For Liz, jurors unanimously agreed the "unique position of trust" aggravator did, in fact, apply.

However, Yavapai County judge Warren Darrow decided to toss that second aggravator anyway. I was not in court to hear him explain his reasoning (technical difficulties!) so I wanted more insight on how a jury finding could be thrown out. I thought you would, too.

I asked renowned defense attorney Michael Kimerer for help. Keep in mind, he wasn't in court to hear Darrow's reasoning, either. But, as a matter of law, well, no one knows his stuff better than Kimerer.

"The aggravating factors that can be used to enhance a sentence are those enumerated in A.R.S. 13-701D," Kimerer told me via email.

"Violating a 'unique position of trust' is not one of the enumerated aggravating factors, but under paragraph 24 of that section the state can introduce any other evidence they think is relevant regarding the defendant's character or background or the nature or circumstances of the scene."

So I guess the key thing there is any other evidence "they think" is relevant. In other words, the prosecution can try, but as the referee, the judge can still intervene. When they go off the prescribed list Kimerer cites, they are taking risks.

Kimerer goes on to postulate (remember, he wasn't there, either) that after listening to everything, the judge "determined those facts were not sufficient or relevant enough as a matter of law to support the jury's finding."

So it boils down to the law books. Things may look a lot simpler to those of us in the courtroom focused on the case at hand. But to the judge, there are many, many more layers.

Because of the way this aggravation phase turned out, "The Secret" philosopher is no longer facing 11 years in prison. The maximum Ray could get would be about 9 years. He could also get none. Without enough aggravators, he is still eligible for probation.

I hope this helps you as you follow the sweat lodge trial of James Ray.

The case now moves into the "mitigation" phase, the opposite of aggravation. The jury has been released. Judge Darrow alone decides on the mitigators, which are presented by the defense.

Sentencing has been set for July 25.

ARS=Arizona Revised Statutes

A very great thanks go out to Michael Kimerer for his help in this confusing moment in this trial.

ADD: Sentencing dates info? See this post.

Camille Kimball's books are:

What She Always Wanted

A Sudden Shot

The Mammoth Book of Tough Guys

Aggravation Phase at the Sweat Lodge Trial, Come Inside with Me

True Crime Author Camille Kimball at the Yavapai County Courthouse

This is the exact courtroom where James Arthur Ray, master of The Secret and Master of the Lodge, was convicted of three counts of negligent homicide. Second story, exactly where my finger is pointing.

I would say his demeanor has changed since his convictions. During the biggest part of the trial, where he hoped to be found Not Guilty, he usually had a sort of abstract look on his face. Part detachment, part confidence, almost like he was pretending he was some place else. During closing arguments when his attorney Luis Li was talking, he had a rather earnest looking expression, as Li tried to paint him as a victim of Big Bad Government.

But now he looks worried and anxious. He can be seen in urgent conference with his parents, perhaps making plans and arrangements for a difficult future.

One thing I never seen Ray do is pester his lawyers. Many homicide defendants, in my experience, frequently pass notes and whisper in the ear of their attorneys. You certainly see it in Casey Anthony right now. But sitting behind him in court, I don’t recall seeing Ray initiate any of these moments with his attorneys. He must be paying a fortune for the 4 member team, apparently he has confidence in them.

Before every court session, the bailiff delivers a remarkable lecture to those of us in the gallery, admonishing us not to react to testimony in any way. Her litany goes: no gasping, no sighing, no shaking of the head, no nodding, no clicking the tongue and on and on. That’s why you don’t see much response in court to some very gut-wrenching testimony.

We learned from Liz Neuman’s 27 year old daughter (25 at the time of the sweat lodge), Andrea, that she first learned what happened a full 24 hours after the sweat lodge. While she was in Minnesota, she got a phone call from a cousin in South Carolina who had seen the national news. Wasn’t Aunt Liz doing something with that James Ray guy?

Andrea immediately started googling and her alarm increased to full on panic. She started phoning hospitals in Flagstaff. When it finally occurred to her ask for “any Jane Does from the Oct 8 sweat lodge” instead of for “Liz Neuman,” she was transferred upstairs to a nurse standing near her comatose mother and this is how the doomed patient was identified.

All of the three sweat lodge victims, we learned, had spent at least 24 hours or more languishing in hospitals as Jane or John Does. The anguish this caused the families was palpable. James Ray, who had made approximately 1/2 a million dollars on the Spiritual Warrior event that week, flew out of Arizona within hours. Frankly, I would like to hear him say why he didn't go to the hospital and make sure everyone was identified.

Kirby Brown

Kirby Brown’s mother lives in New York. Kirby had lived in San Jose del Cabo on the Sea of Cortez. When Kirby’s remains finally were shipped back to New York, Virginia Brown had nothing to dress her in for her final rest. She asked, Mika Cutler (pictured below), to help.

Mika lives in southern Utah. She drove down to Sedona and retrieved Kirby’s belongings, everything she had packed for her grand adventure as a Spiritual Warrior with James Ray. Mika sent a box of Kirby’s clothes to New York but most poignant of all, she sent Kirby’s hair. James Ray had asked his “spiritual warriors” to shave their heads as some kind of rebirth ritual. Now Virginia keeps Kirby’s pony tail on her dresser where she sees it every day as soon as she wakes up.

photo by Camille Kimball

James Shore’s widow testified, too. That was grueling for everyone. More on that later. Right now, I will leave you with the image of the woman who packed up her dear friend’s hair and sent it to a heart stricken mother. I might also add that Mika Cutler during the ponytail testimony was softly rocking in her seat, her arms clutching her ribs, which, I defiantly report, is not on the bailiff's list of no-nos.

Camille Kimball's books are:

What She Always Wanted

A Sudden Shot

The Mammoth Book of Tough Guys