FLAGSTAFF, Ariz. (AP) — Jurors who had just convicted self-help author James Arthur Ray of negligent homicide listened as prosecutors played an audio clip of his words that the defense was certain had not been heard before in court.

Ray’s attorneys quickly objected. Prosecutor Sheila Polk stood before the judge and vowed that jurors who were determining aggravating factors had listened to the clip during her opening arguments, during witness testimony or that they considered it before they decided on June 22 that Ray was guilty.

Polk acknowledged this week that the clip in which Ray discusses the financial investment of more than 50 people who attended his 2009 “Spiritual Warrior” event that ended with a sweat lodge ceremony was not admitted into evidence. But she said the information was cumulative and did not prejudice Ray.

Defense attorneys used that as the latest example of what they say is a pattern of prosecutorial misconduct. They filed a motion Monday for a new trial, alleging Ray has been deprived of his constitutional rights.

“There is real doubt whether a criminal defendant in Yavapai County can have a fair trial given the pattern of aggressively unrepentant misconduct by the Yavapai County attorney’s office,” the defense said. “At the least, the extreme misconduct in this case mandate a new trial and sanctions.”

Yavapai County Judge Warren Darrow has denied at least eight defense requests for a mistrial based on some of the same things that the defense alleges in its motion for a new trial. The defense outlined 10 categories of misconduct that include bad-faith arguments during jury selection, disclosure violations, improper questioning of witnesses that elicited hearsay and impermissible statements by prosecutors.

A gag order in the case prevents the defense and prosecution from discussing it publicly.

Darrow won’t immediately rule on the motion. He’s out on vacation until Monday, a judicial assistant said.

Three people — Kirby Brown, 38, of Westtown, N.Y., James Shore, 40, of Milwaukee, and Liz Neuman, 48, of Prior Lake, Minn. — died following the sweat lodge ceremony Ray led at a retreat he rented near Sedona. The ceremony was meant to be the highlight of the weeklong retreat.

Ray is scheduled to be sentenced July 25, but his attorneys have asked for that date to be vacated. The defense likely will appeal the conviction once Ray finds out whether he’ll receive probation or prison time up to nine years.

The trial that began in mid-February routinely was interrupted with legal arguments that clearly frustrated Darrow and led him to further instruct the jury on what it could and could not consider. He admonished both the prosecution and the defense for verbally attacking one another.

Darrow found that prosecutors twice violated disclosure rules, once when they did not immediately turn over material that medical examiners used to determine the causes of death for the victims. Prosecutors had argued the information was “work product” that didn’t need to be disclosed to Ray’s lawyers.

A second violation came when prosecutors withheld a report from an environmental scientist for a year that discussed the construction of the sweat lodge. Prosecutors said it was inadvertent, and Darrow ruled the violation did not warrant a mistrial.

Jurors heard the audio clip that Polk acknowledged she shouldn’t have played while they were considering aggravating factors. In it, Ray tells participants that they made an investment to do whatever it takes to have a breakthrough.

Polk said that because jurors did not find that Ray benefited or expected to benefit financially from the deaths, that playing the clip was harmless. The defense said it was grounds for a mistrial.

“It is the prosecutor’s responsibility to ensure that unadmitted evidence is not played for the jury and to make accurate representations to the court as to whether and when a disputed statement was admitted,” Ray’s attorneys said.

Darrow said at the time that he considered the issue serious if, in fact, it was the first time the jury was hearing the clip. He wanted to give the parties time to obtain the transcripts and make comparisons.

(© Copyright 2011 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)


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