Why James Ray Mit. Hearing Stopped--Tom Kelly Situation

Arizona Attorney Tom Kelly, center. California Attorney Truc Do, barely visible

 Defendant James Ray, foreground

Don't you love it when an email begins, "Camille, I'm afraid you are wrong on this one?"  In this case, the email comes from acclaimed Arizona criminal defense attorney Michael Kimerer and he has, in the most gracious way possible, set me straight. In answer to a commenter's question about why the sudden illness of James Ray's Arizona attorney, Tom Kelly, should cause the whole mitigation hearing to collapse, Kimerer says it really isn't about needing the presence of a member of the Arizona Bar, as long as the paperwork is in order:

It is true that an attorney licensed in another State who wants to handle a case in Arizona must associate local counsel through a Pro Hac Vice Petition, which has specific requirements including a Certification of Good Standing from the State where the attorney is licensed. Once that is approved the out of state attorney may act independently and there is no requirement that local counsel must be present at all proceedings. 

[emphasis added by me]

But it is not that simple. Law never is. But you knew that. Take a breath. Here we go.

First there is the slightly sticky wicket that Tom Kelly, as Arizona counsel, would have taken on the burden to be answerable to Arizona authorities for the actions of the California contingent, whether he was present to keep an eye on them or not:

However, Local Counsel by agreeing to be local counsel is on the ”hook” should the out of state attorney not perform properly or abandon the client. Usually, there is an agreement between the Local Counsel and the Out of State Counsel defining their responsibilities in a particular case.

 So, if your law license or pesky fines are at risk, it might make one a tad nervous to let a gaggle of exuberant out-of-state lawyers run amok in your hometown courtroom.  Then there's that business of the team of lawyers divvying up the chores, or "defining their responsibilities."  That, I suspect, is where most of the answer in this week's turn of events lies. But, as Mr. Kimerer points out, none of us knows "what the agreement was in the Ray case."  Nor will we ever. None of us really cares anyway. But just knowing such an agreement exists, helps us understand why the mitigation hearing was called off when Tom Kelly couldn't show:

Even if lead counsel objects to going forward without Tom Kelly’s presence, the Court has the discretion to require him to proceed. If it is brought to the Court’s attention that Tom Kelly was prepared to handle a particular aspect of the mitigation (and Lead Counsel was unprepared to do so) it might be a good reason to ask for a continuance.

I think that last sentence that is the one I would put my money on. If Luis Li, Truc Do and the rest of the crew were not the ones who'd been studying up on these witnesses and this particular procedure, Darrow could reasonably conclude it would be an insult to justice to leave a defendant at the mercy of lawyers making it up on the fly through no fault of their own.

Some following this trial have expressed suspicion about this turn of events,  fearing delaying tactics. Looks like Judge Darrow was even a bit irritable over it. Seems rather odd, though, unless there's some strategy that would make a delay worthwhile. Even Martha Stewart chose to serve her sentence, getting it out of the way rather than waste more of life in limbo. All I can do here is bring you the analysis of an expert as to what the forces at work here are: the law, the relationships between lawyers, and how lawyers work.

A very great thanks to Michael Kimerer, who has offered his considerable expertise to this site before. This is an excellent answer and will help the thousands of people feeling frustrated and angry this week to understand how the sweat lodge sentencing came to be put off. And thanks to Jeanne Barkemeijer de Wit for asking.  I certainly learned something and hope you all did, too.


Mr. Kimerer is not affiliated with nor has he participated in any aspect of the James Ray trial.  Learn more about him here.

Camille Kimball's books:

What She Always Wanted

A Sudden Shot

The Mammoth Book of Tough Guys

James Ray Case Moves: What's Tomorrow

The James Arthur Ray trial is scheduled for a short hearing tomorrow (Sep 14). There has been constant bickering throughout the summer (anybody surprised?) about what comes next and how and how many and when. Tomorrow's hearing is supposed to smooth out the wrinkles so everybody shows up on time and on task in the near future. The points of bickering are:

 Vintage Prescott Rodeo bull riding

a) should the mitigation hearing proceed next week considering the parties are still waiting on Judge Darrow's ruling on whether there will be a new trial?

b) should there be a reschedule based on the additional concerns of coordinating witness's travel plans and accusations and counter accusations between defense and prosecution about who is cooperating with timely disclosure and other procedures so the other side can be prepared?

A mitigation hearing is all about proving James Ray should not be given a tough sentence. For the only time in the trial, the burden of proof is on the defense.  That's currently scheduled for several days next week. After that comes actual sentencing. The current date for sentencing is Sep 26.

One thing we do know is that all this will take place in a different venue than you are used to seeing: the town of Camp Verde is one player that has been definitely taken off the field. This was strictly an administrative decision having to do solely with housekeeping issues of doing criminal justice in sparsely populated Yavapai County. 

Prescott is not far from Camp Verde and has a western frontier flare all its own, having been established in the middle of the Civil War. It served as Arizona's first capitol when the region was named a territory. It still boasts the country's longest continuously operating rodeo. Hey, I'm just quoting them, don't make me prove that. I've attended several times and it is loads of fun. That photo above is vintage Prescott Rodeo.

However, apparently in the early part of the 20th century, as the cowboy life was disappearing all over America, the Prescott Rodeo felt the insidious threat of extinction. A group of vigorous community characters got together and invented the "Smoki tribe." That's pronounced "smoke-eye." They put together elaborate performances, including a scary snake dance, that became an instant hit at the rodeo in 1921. The audience and the revenue came back.

For a history of the Prescott Smokis in Arizona, google a bit. It's pretty interesting and definitely colorful. Iconic statesman Barry Goldwater was a member and many other Arizona power brokers. As you can imagine, rumors and suspicions dogged the group in later years. Ultimately, the Hopi tribe--real Indians who needed no makeup nor fictional folklore (invented by local historian Sharlot Hall) nor mocked up initiation rites--put an end to the performances forever. But for most of the 20th century, the Smoki performances were considered roaring good fun for generations of Arizonans. 

Pioneer Sharlot Hall was one of the West's earliest professional historians. She used her skills to invent a backstory for the Smoki tribe--really a group of Caucasian community leaders,

No introduction of Prescott would be complete without a mention of fiery and witty former U.S. Congressman Sam Steiger. Sam, who still lives in Prescott, embodied the can-do man-of-action legacy of the West when, under cover of moonlight, he grabbed cans of white paint and hand brushed on a crosswalk in downtown Prescott between Whiskey Row (yeah, a bunch of cowboy watering holes lined up together) and the historic Prescott Courthouse in the middle of the square. Sam wanted the crosswalk and no tenderfoot City Council was gonna stand in his way. 

So to sum up, the difference between Camp Verde and Prescott is roughly 40 miles; Prescott is much bigger but still small; Prescott was a territorial capitol while Camp Verde was an Army camp (Civil War era); both had loads of sad history with Indian tribes but Camp Verde in the 20th century became known for preserving ruins while Prescott wrangled with a major breach of etiquette with the Hopi Tribe; and most pertinent to James Arthur Ray, Camp Verde's luxurious courthouse is brand spanking new while Prescott's is historic, charming but much less comfortable. No tigers, though, at the Prescott courthouse. It's actually surrounded by town, not safari land.  (see this post for context & photos on that last remark)

It's interesting to think about the final end of the Smokis, succumbing to the opposition of the Hopis who felt their ceremonies and traditions were being bastardized for offensive commercial uses. Many tribes today feel the same way about James Arthur Ray's adaptation of the sweat lodge rite. The Smokis adopted a good neighbor policy, stopped the performances and converted their creative contribution to a museum. That bit of enlightenment came over 20 years ago. And, as far as I know, no one ever died at a Smoki event.  

Tomorrow I'll let you know what happens in the James Arthur Ray hearing. Thanks for visiting.

UPDATE: CLICK HERE

Camille Kimball's books:

What She Always Wanted

A Sudden Shot

The Mammoth Book of Tough Guys