Attorneys in James Ray case prepare for closing arguments

Camp Verde, AZ – Day 49 of AZ v. James Ray was another day of contentious legal haggling.  There were several key points that were at issue with regard to what instructions the jury would be given before hearing closing arguments and beginning their deliberations.  After hearing each argument from the attorneys, Judge Warren Darrow registered somewhat of an opinion to which way he was leaning, but reserved his final ruling in the matter for Wednesday morning.

The first issue had to do with what is called the Willits instruction.  Specifically, this addresses Arizona case law wherein material evidence has been negligently lost or destroyed.  The defense argued that this is required since investigators did not adequately preserve the crime scene or blood samples from the decedents.  The State countered that the question is not if samples were, in fact, preserved, but if enough was preserved. 

The defense argued that lead investigator Detective Ross Diskin could have been more proactive in pursuing the leads he had already been given.  Diskin stated in testimony that he suspected toxins, yet there was inadequate follow through.  In conclusion, Judge Darrow said that he is inclined to permit the Willits instruction and instructed the parties to plan their closings accordingly.

The next issue regarded “motive.”  The State argued that James Ray’s “motive in running the sweat lodge ceremony was to take people to an altered state…and an altered state has been testified to as the hallmark for heat stroke.”  The defense countered that Melissa Philips’ testimony indicated that altered state could encompass more psychologically altered states and not a state physiologically linked to heat stroke. 

“Besides,” as defense attorney Tom Kelly indicated, “this is James Ray’s business, why, logically, would he want to kill his clients?” 

In the end, Judge Darrow indicated that he is inclined to allow this instruction.

Next, there was much contention over the use of the words “knowingly” and “intentionally” with regard to James Ray’s actions.  The defense argued that there has been no evidence that the defendant knowingly and intentionally caused the death of another, and the State argued that there is sufficient evidence that Ray acted knowingly. 

After the afternoon break, Judge Darrow suggested that the wording “should go no higher than ‘knowingly’ and exclude ‘intentionally.’”  The defense objected and offered, at the judge’s request, to provide case law to substantiate their objection.

Next on the agenda was “substantial and justifiable risk” and “gross deviation.”  There was much discussion regarding if the jury should be allowed to use their own definitions for these words, or if the court should instruct them as to the proper definitions.  Ultimately, the judge indicated he was inclined to allow meanings at the jury’s discretion.

With regard to “presumption of free will,” the State opposed this instruction since they believe it is not unsupported by law and they presume everyone possesses free will.  They also opposed the defense’s theory that this is an intervening cause.  The defense then insisted that this is an intervening cause and that Mr. Ray could not overcome the free will of his clients.  The judge said he will not allow a “presumption of free will” instruction.

The next particularly contentious issue involved the words “flight or concealment.”  The State believes that James Ray’s response to Detective Barbara’s question indicating that Ted Mercer was the person running the sweat lodge constituted concealment and that it is up to the jury to decide if Ray was confused about the question or deliberately concealed the fact that he ran the sweat lodge.  Judge Darrow said he believes that concealment and flight indicate physical acts and asked for the State to provide case law to substantiate their request.

One of the last issues involved the 1^st Amendment.  Could what James Ray said to the sweat lodge participants, and the ideas he professed, be used to prosecute him?  The Defense argued that elements of manslaughter cannot, per the 1^st Amendment, be based upon views or the spoken word.  The State’s clever argument was, “then you can’t use a bank robber’s words, hand over the money” to define that a crime is being perpetrated.  Judge Darrow concluded by saying he would not give this instruction.

The judge’s final rulings with regard to all of the jury instructions will be made record Wednesday morning before the jury arrives.  Afterward, the final instructions will be read and closing arguments will begin.   

 -Jim Kyle, In Session Field Producer

Filed under: James Arthur Ray • Sweat Lodge • Trial Updates • Trials