Judge agrees evidence was suppressed but denies sweat lodge mistrial

The Daily Courier, Arizona/April 13, 2011

Camp Verde - The manslaughter trial of motivational speaker and author James Arthur Ray will continue Thursday after a two-day hiatus while the court dealt with a motion for mistrial.

Judge Warren Darrow listened to two-plus hours of argument before denying the mistrial, even though he agreed that the state had committed a Brady (disclosure) violation by suppressing evidence that was both favorable to the defense and material to the case at hand.

He ruled that the violation did not call for a mistrial because the "defendant still has an opportunity to present to the jury the favorable information contained in the Haddow report," and that the information "appears to be consistent with the defense being presented at trial."

In addition, Darrow notes that the "circumstances regarding the late disclosure can be the subject of cross-examination of both future witnesses and witnesses who are recalled to testify."

At issue was a preliminary report from an environmental engineer, Richard Haddow, who informed the state on April 29, 2010, that he believed conditions in the sweat lodge that Ray conducted on Oct. 8, 2009, varied in different areas of the lodge. According to Haddow's report, Kirby Brown, James Shore and Liz Neuman, all of whom died from trauma they allegedly received during the ceremony, were in the hottest part of the lodge, where the air was stagnant and overloaded with carbon dioxide.

The state did not disclose the report to Ray's attorneys until last week despite repeated specific requests for it.

Defense attorney Luis Li maintained that Ray could not have known that people were dying in the sweat lodge because he was seated in another, cooler part of the lodge.

The day's arguments closely followed the lines of the briefs both sides had filed with the court. Li said that Haddow's report was clearly exculpatory and that knowledge of its existence would have dictated a different strategy for the defense, given that the Angel Valley Retreat Center of Sedona, and not Ray, built the sweat lodge.

Prosecution co-counsel Bill Hughes reiterated his argument that the information in Haddow's report was "clearly not exculpatory" because "each of the factors discussed in the report are factors that are controlled by Mr. Ray." Hughes also made the point that the defense could summon Haddow as a witness.

As to the circumstances surrounding the late disclosure, the state's lead investigator and the person who initially received the email from Haddow, YCSO Det. Ross Diskin, is expected to testify during the state's case.

When the trial resumes Thursday, Debbie Mercer, who helped her husband Ted build the sweat lodge, is expected to be back on the witness stand for cross-examination.

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