State files cross appeal in Sedona sweat lodge case

FLAGSTAFF, AZ - Attorneys on both sides of a trial that ended with a self-help author imprisoned for the deaths of three people following an Arizona sweat lodge ceremony have raised challenges with the state Court of Appeals.

Attorneys for James Arthur Ray are seeking to have his conviction on three counts of negligent homicide and his 2-year prison sentenced overturned or be granted a new trial. An appeal they filed earlier this year calls into question some jury instructions and the conduct of prosecutors from Yavapai County.

Assistant Attorney General Craig Soland responded to the appeal Monday, saying the trial court was right to allow jurors to consider the "extreme nature" of Ray's conduct and the October 2009 event but also what Ray didn't do to ensure the participants were safe.

But in its own appeal, the attorney general's office argued that jurors should have been told that Ray had a duty to aid participants in distress and to avoid creating a situation that put them at unreasonable risk of harm.

Ray's attorneys contend that he was harmed by an ever-changing theory that ranged from prosecutors saying Ray exerted mind control over the sweat lodge participants, failed to act when things went wrong and personally acted in a way that put dozens of people in peril.

Ray's attorneys said prosecutors did not prove beyond a reasonable doubt that an unknown toxin did not cause the deaths. Medical examiners who performed the autopsies testified that they could not rule out organophosphates but stuck to their conclusions that two people died of heat stroke and the third of organ failure.

Jurors were given the option of convicting Ray of manslaughter but decided on the lesser charge of negligent homicide in June 2011. He was sentenced that November to two years in prison.  More than 50 people attended the "Spiritual Warrior" retreat near Sedona that culminated in the sweat lodge ceremony meant to symbolize rebirth.

When the two-hour ceremony in a makeshift tent heated with hot rocks ended, two participants -- Kirby Brown, 38, of Westtown, N.Y.; James Shore, 40, of Milwaukee -- were dead. A third person, Liz Neuman, 48, of Prior Lake, Minn., died more than a week later. Eighteen others were hospitalized, yet others emerged with no major problems.

Soland also is challenging a judge's decision that kept a doctor who attended Ray's 2008 sweat lodge ceremony from testifying at trial. County prosecutors wanted to use David Kent to rebut the defense's toxins theory and show that participants in past events also were incoherent, violently shaking and apparently lost consciousness.

Kent would have testified that some of those participants could have died if they had not been pulled from the sweat lodge to cool down, Soland wrote. A judge ruled that Kent's testimony would unfairly prejudice Ray.

Soland's other two issues on appeal center around jury instructions -- one that was granted to the defense and another denied to county prosecutors. The appellate court had set the Monday filing deadline for his response and cross appeal after granting three requests for an extension and threatening sanctions if it wasn't met.