July 15, 2011
Posted: 08:35 AM ET
Atlanta, GA – Last week, in a courtroom in Orlando, Florida, virtually the entire world witnessed an extraordinary example of the American judicial system in action. They saw first-hand the beyond a reasonable doubt burden of proof a jury must, and did, place upon a prosecution team. And, what was unarguably overwhelming circumstantial evidence, meticulously gathered and handled by top investigators, proved to be inadequate to persuade six men and six women that Casey Anthony was responsible for her daughter’s death.
Nevertheless, this jury did exactly what they were charged to do. They maintained Anthony’s innocence throughout and based their decision entirely upon the quality of evidence presented by prosecutors in order to determine her guilt beyond a reasonable doubt. So, amazingly, a young mother, undeniably and completely responsible for the health and welfare of her two-year-old child, who admittedly lied to law enforcement with regard to the disappearance and death of that child, all in the face of a staggering amount of inculpatory evidence, was found guilty of the lies, but not guilty of the death.
At the same time, in a courtroom on the other side of the country, a decidedly different scene played out. In stark contrast to the meticulously investigated case surrounding the murder of Caylee Anthony in Florida, in Arizona, we saw a four-month trial, rife with plausible accusations of prosecutorial misconduct and inadequate disclosure of evidence, not to mention a crime scene that was irresponsibly allowed to be destroyed within 48 hours of the crime, well before the defendant was even indicted.
In spite of these alleged prosecutorial transgressions, within almost the same length of deliberation, a jury found James Arthur Ray guilty of three counts of negligent homicide in the deaths of three participants in a sweat lodge he conducted outside of Sedona, Arizona. On the one hand, we had a mother who was forgiven her obvious responsibility for her toddler and probable complicity in her death, and, on the other, we have a charismatic, New-Age guru ultimately found to be responsible for the deaths of a group of capable adults, technically free to come and go as they pleased, yet willingly engaged in an activity that ultimately endangered their lives.
As I’ve pointed out, Arizona v. James Ray had already been plagued by numerous heavily substantiated requests for mistrial. However, making matters worse, the defense recently pointed a finger at prosecutors yet again by citing another instance in what they are calling “a pattern of aggressively unrepentant misconduct by the Yavapai County Attorney’s Office.”
On June 28, a court hearing was held so that the jury could determine if there were aggravating factors associated with Ray’s conduct during the 2009 “Spiritual Warrior” retreat that culminated in the fatal sweat lodge ceremony. In her attempt to argue the aggravating factor of financial gain, prosecutor Sheila Polk played a recording wherein we heard Ray describe the “investment” made by the participants in order to attend the retreat in light of the primitive living conditions at Angel Valley. Upon hearing it, the defense was adamant that this audio had never before been heard in court and they immediately objected. Three days later, Polk filed an avowal claiming that she had, in fact, played this recording during her opening statement four months earlier and that the video of the prosecution’s opening statement, which was presented by defense attorney Tom Kelly to illustrate that the audio in question was not played, was not true.
Earlier this week, after reviewing video of her opening, Polk was finally compelled to file a notice now admitting “that approximately one minute of an audio clip was played in front of the jury during the aggravation hearing that was not played for the jury and admitted during the guilt phase of the trial.” Therefore, not only was audio that was played to the jury something they had never heard before, that audio was never admitted as evidence. On the same day the prosecutor admitted her fault, Ray’s defense attorneys filed a motion for a new trial maintaining that what they believe to be a pattern of misconduct substantiates “real doubt whether a criminal defendant in Yavapai County can have a fair trial” and that “at least, the extreme misconduct in this case [mandates] a new trial and sanctions.”
Within this 98-page motion for a new trial, Mr. Ray’s defense outlined a minimum of ten categories of “egregious prosecutorial misconduct” that “began before the trial and continued through the final hour of the proceedings.” They claim that, among other things, this misconduct was characterized by repeated Brady violations incurred by the State failing to properly disclose evidence. In addition, they pointed to tainting of the jury selection process and improper closing arguments in both the guilt phase and aggravation phase.
Beginning with opening statements on March 1 through its conclusion on June 22, this trial has been hindered by legal arguments and bench conferences almost too numerous to mention. Judge Warren Darrow’s frustration and annoyance were frequently palpable during many of these disagreements and at times he appeared to be overwhelmed by the seemingly intractable disputes. More often than not, rather than making a conclusive ruling one way or the other, Darrow would instead straddle the issue by essentially leaving the decision up to the jury by giving them instructions that further qualified what they could and could not consider.
However, now, given the defense’s ever increasing list of incidents of legal and ethical misconduct, knowing misstatements of law, and Constitutional violations, it may finally be impossible to entirely sidestep this most current infraction, especially since Judge Darrow purportedly considers this to be a particularly serious issue if, in fact, the jury never before heard this audio clip. Even though he has already ruled that the two previous disclosure violations alone did not warrant a mistrial, perhaps the judge might not be able to ignore the cumulative effect of the mounting number of transgressions and, at least, consider a new trial, as the defense has suggested.
It must be noted that this is not the only motion citing prosecutorial misconduct that has come across Judge Darrow’s bench in recent weeks. The strong accusations against prosecutors Sheila Polk and Bill Hughes by Ray’s defense team come on the heels of another motion to dismiss for similar reasons. This time, the motion was filed by the defense team of Steven Democker, whose trial for the murder of his wife will be presided over by Judge Darrow later this year. On the same day that Polk precipitated by filing her notice claiming that the audio she played in the aggravating factors phase of Arizona v. Ray was, in fact, heard by the jury; defense attorney Craig Williams filed a motion to dismiss the State’s case against Steven Democker for prosecutorial misconduct or to disqualify the Yavapai County attorney’s office.
In his motion, Williams reveals that the State Attorney’s office illegally viewed and printed defense documents clearly marked “Ex Parte, In Camera, Under Seal.” Furthermore, this transgression was not reported to the Court or to the defense. The State confesses to viewing and printing these sealed documents, but places blame on the department that manages the computer system and on the Clerk of Courts for improperly filing the documents in a way that allowed inappropriate access. The State contends that, “although [they] accessed documents that it was not supposed to have access to, the mistake was unintentional and was done through procedures not set up by the Yavapai County Attorney’s Office, but rather the Clerk of Court.”
Williams argues, “If the Yavapai County Attorney feels no obligation to follow court orders sealing ex parte documents, how many other cases have the Yavapai County Attorney been spying on?”
The outcome of the Casey Anthony trial raised a lot of questions to which we may never adequately know the answer. And the trial of James Arthur Ray perhaps further compounds that confusion. The actual guilt or innocence of Anthony and Ray aside, we cannot overlook the vast difference in burdens of proof to which their respective juries held the prosecutors and ponder exactly what prompts a jury to focus so intently on one set of circumstances and virtually ignore another. What caused a Florida jury to be so inflexible with regard to the prosecution’s burden of proof to the point where they seemed to ignore some very obvious circumstances surrounding the death of Caylee Anthony and her mother’s complicity in her death? And what caused an Arizona jury to be so forgiving of an investigator’s egregious ineptitude and a prosecutor’s disregard of proper judicial procedure to the point where they almost completely ignored the State’s burden of proof, sometimes placing it on the defense, thereby turning the whole system on its head? In these two cases we have clearly seen how a jury can determine the outcome of a trial by alternately giving more weight to the decidedly more emotional factors surrounding circumstantial evidence or to the more logical and pragmatic factors surrounding physical evidence. Nevertheless, it is the best system we have and we must trust that if a panel of basically 12 strangers reaches a decision unanimously, it is the right decision.
-Jim Kyle, In Session Field Producer
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