But, he cannot carry fire arms, and he is still deemed guilty of negligent homicide.
Ray was in court with Attorney Tom Kelly on Tuesday, January 31, 2017, asking to have his civil rights restored and his felony conviction 'set aside.’ Having a conviction “set aside” is Arizona’s process to give those convicted of a felony a fresh start, although it does not erase the record.
James Ray is checked by security upon entering the Courthouse.
Ray explained that he has fulfilled all the terms of his sentence, paid the restitution ($57,514) and would like to have his conviction set aside so that he can travel internationally with fewer impediments caused by his felony conviction.
Victim family members, Virginia Shore, Jane Shore, Virginia ‘Ginny’ Brown, George Brown and Amarita Shore (via phone) were on hand for the hearing, vehemently opposed to the idea that Ray's felony conviction be 'set aside’.
Judge Michael R. Bluff chose not to swear anyone in for the proceedings. After a brief recess to allow media to set up their cameras, the hearing began.
Judge Michael Bluff
Bluff started with a question aimed at Kelly. "Tell me why I should set aside the judgment of guilt, why he's entitled to the restoration of his civil rights, including his gun rights, if that's part of the request… They are two separate issues, the civil rights and the set aside. I'll let everybody tell me what their views are on that. I'm looking to, Mr. Kelly, for you to articulate for me, if you believe it's an automatic restoration of civil rights under the statute. And it may be. But I think the bigger question is, and what we're probably all here for today, is the setting aside of the judgment of guilt, and that's a discretionary call on my part.”
Kelly stood to answer. "I believe this issue is clearly outlined in the Arizona statutes, 13-912 restoration of civil rights for first offenders. My client meets all the criteria for restoration. The statute indicates that it's automatic and i would respectfully submit, Judge, that you lack discretion in restoring those civil rights with the exception of, under subparagraph B, the person't right to possess a firearm or a weapon. Mr Ray is not interested in that civil right. He is more interested in the restoration of civil rights primarily for the reason to vote.”
Defense Attorney Tom Kelly
Kelly continued, "I do believe that your civil rights are suspended, not revoked, upon the conviction of a first felony, with enumerated exceptions in the statute, and automatically restored. My client meets all those requirements. He's paid the fines, fees and restitution, he's filed the certificate of absolute discharge with the Arizona Department of Corrections. I would ask you to restore those civil rights with the exception of legal right to bear arms, which Mr. Ray is not making that request."
County Attorney Sheila Polk offered her opinion. "I don't believe the statute would allow that, anyway,” Polk said. "With respect to the request to restore the right to vote, the state is not opposed, I don't think the statute is as clear cut as Mr. Kelly says it is, for the simple reason that this defendant was convicted of three felonies, not one. The state did some research, I apologize for not being able to come up with anything positive to shed light on whether or not 13912 applies to a person convicted of three felonies arising from one occasion I don’t have that answer. I don’t believe that the statute is clearcut... We don't object, our objection is really to the 2nd part of this motion.”
County Attorney Sheila Polk watches the family members as they offer their perspective
The family members added their opinions. Virginia Shore spoke first, stating succinctly, "No objection to him voting. I wouldn't want to see him in public office.”
"Should his life be unaltered by these events, when our life has been completely altered by the events?” Ginny Brown asked. "Again, whether or not he can vote is not as important to me, but the concept that his civil rights should be completely restored is confounding to me."
"No immediate objection,” George Brown said.
Judge Bluff issued an immediate ruling on the first issue. "I do find the defendant has fulfilled the conditions of his sentence, has been discharged from prison as of October 12, 2013. The issue of whether or not this is the first felony conviction, or if there is more than two, either way, I think that the restoration of civil rights is appropriate given the circumstances of the case. It is ordered restoring all civil rights law suspended excluding the right to possess a gun or carry a firearm."
The Court then turned to the complex issue of whether or not Ray should have his guilt set aside.
The Defense makes their request
Tom Kelly addressing Judge Bluff
Attorney Kelly began with a statement. "Judge, as articulated by Ms. Polk, this is the more difficult issue before the court... I would like to reserve most of my time for my client to speak to you, as well as the victims. And say very briefly, before Mr. Ray addresses the court that I've heard many times that granting the motion to set aside a judgment of conviction is akin to something like an expungement of the record. I would submit there is nothing further from the truth. The primary reason, and I'll have Mr. Ray explain this to you, that he's asking that this order be entered by the court, is to facilitate his international travel. I know, after listening to the victims, that is the hotly contested issue in this case – whether or not my client should be able to engage in his work and if so, of course, he can work within the state of California and the United States. But whether the court would enter an order facilitating his travel outside of the United States, again, Judge, I believe it's better for you to hear it directly from Mr. Ray and to reach a decision which I regard as an extremely difficult issue for the court.”
Kelly seemed to understand that this question would not be an automatic win for his client. "Finally, Judge, in this regard, if you were to deny his application to set aside, I believe Mr. Ray would like some direction as to what would be required and how long it would take before a subsequent application is appropriate."
James Ray, explaining to the Court why he needs and deserves the set-aside of his guilt
For the first time in the hearing, James Ray stood to speak. "Let me just first say once again that I - to say I'm sorry or to apologize seems to fall very short, I've done that numerous times. And there's no words that I can use to express the grief that you've experienced of the loss of your families and loved ones. I, too, have experienced that grief. Again, words fall short. That being said, I have come to this court, and for four months we were on trial, and the State took every measure to make sure that everything they could possibly think of was given towards me and asked of me. So, it's somewhat disheartening because this is my first statement in front of this court. I said nothing during the trial, I have always abided by the letter of the law, and I always will. I took the full measure of everything the court said and was asked of me, and I'm starting to put my life back together.”
How much did James Ray pay in restitution to the victims?
A total of $57,514, distributed amongst the family members.
In a video posted in December, 2016 Jean Brown, Kirby Brown’s sister, noted, “I know you fulfilled your legal obligations, made your restitution, I got my $47 check, thank you."
"I think one of the ironies is that my work was never on trial, or it shouldn't have been,” Ray stated. "What was on trial was a terrible tragedy. So, what Mr. Kelly has already stated is the reason for the set aside, I very well know, that that is going to be on my record, and it will be. And if anyone wants to look, they will find it. What I am dealing with now, as I'm continuing my work, and I believe I have many more abilities now to help people who have come up against difficulties and challenges to get back up and to continue.”
Ray continued to explain the obstacles he has met in continuing his self-help work after being released from prison. "And what I'm dealing with, is that I've always done a lot of international travel. Now, a set aside will not easily eradicate that difficulty. Some countries don't care. I can go now. But some countries are very stringent. Like Canada, for one. So, it's not going to set aside the fact that I still have to go through - I've got a lawyer in Canada right now, who is working now on helping to get me temporarily across the border, and I'm going to be dealing with that for eight years, according to that lawyer. So, it will help me, however, in some countries and it will help in Canada to say, to have on the record, that he has done everything that was required of him by law, he's putting his life back together, and that's why I'm asking for this.”
"I would ask you, Judge Bluff, to think about, beyond the emotion." James Ray
"Besides the fact that in my limited understanding of the law, it's my right to do that,” Ray said. "So, I would ask you, Judge Bluff, to think about, beyond the emotion. Because it is an emotional issue. Again, there's nothing I can say to emelioriate that. But, beyond that, and just to look at the law itself, and say, if this is a right of an American citizen, to have this, then I guess I'm a little perplexed, and yet not surprised, why the DA is going back in an 83 page* document and attempting to bring issues out that the jury said were not issues. And so, I would ask, in closure, that you grant this to me, and like Mr. Kelly very well stated, if you don't, tell me exactly what I need to do. Because I have always been a law-abiding citizen, I always will be, and whatever I need to do, I will do that.”
Family members respond to the set aside question
Ginny Brown, the mother of Kirby Brown,who died in the 2009 sweat lodge incident, stood up to speak.
"I am here to urge you not to grant this motion. Because I believe this motion is a deliberate attempt to obfuscate the truth. The truth of what happened in Sedona and how these deaths actually took place. The State's objection to this motion clearly outlines Mr. Ray's actions and inactions, that caused these deaths, that made death inevitable. We live with the loss of our amazing daughter every day. We live with the effects of her no longer being here for our other children and our grandchildren and her numerous friends. And now we are here to talk about how she died? Mr. Ray has apologized, and you have apologized on many occasions. You've apologized that this happened. I'm sorry it happened, too. But you haven't taken ownership of your actions that caused these deaths.”
Judge Bluff interrupted and asked Ginny Brown to look at him during her response, not at Ray. Ginny Brown turned her attention from the defendant and continued. "Mr. Ray has continually referred to this as an accident,” Ginny Brown stated. 'The lame defense of organo-phosphates was clearly disproven during the trial. He claims to take full responsibility and yet, in a CNN documentary, he says he's the only person who's faced conviction because of other people's decisions."
"This didn't happen because my daughter decided to go unconscious in his sweat lodge and, unconscious, decided not to leave." Ginny Brown
"This didn't happen because my daughter decided to go unconscious in his sweat lodge and, unconscious, decided not to leave. It was his decisions that put those people in that lodge, and his decisions not to take care of them,” she said. "To watch him in a public arena address people, on stage crying for the loss of his three good friends, the people that he left in the dirt, and walked out of, never looked back, never called for help, and didn't even remain when there was chaos outside of the tent. He's now presented himself as the victim of this tragedy. He's not the victim, he's the architect of this tragedy.”
Ginny Brown had much more to say. "The irony here, your Honor, is that Mr. Ray has always lived by the letter of the law, the irony is that he has no credentials, no license, and having been convicted, nothing has been revoked. So, he can return to this arena to continue to do what he did at that time. There's no letter of the law to prevent him from lying, from manipulating people or from running away. He's not a psychologist, he's not a religious leader, he's a capitalist. And now he wants his civil rights restored and he wants to set aside the verdict of guilty."
"He's not the victim, he's the architect of this tragedy." Ginny Brown
"Our concern is really that the language of this motion will be used so that he can publicly declare himself as being innocent, which isn't the truth. He took a Native American ceremony, perverted it, turned it into a marathon, by his own words. Even when you run a marathon, there's water stations. There are people there to help you if something goes wrong. He had no risk management plan because he didn't have to. This is an unregulated industry. He didn't have to have a risk management plan. He didn't have to have medical support on hand when he was doing something so dangerous. This is why we created an organization to educate people about self-help. I don't want any family to have to go through what we've gone through. I don't want people to die because people in this industry do not have to protect their customers.”
"So, the language of this motion I believe will be manipulated just as he has manipulated these events. And his narrative of being a victim -- is he being deliberately deceitful? Or is he simply delusional? I think both are pretty dangerous,” Ginny Brown said. "Does he not understand that what he did that entire week set those people up and stripped them of their ability to make rational decisions and then he walked away when they were in distress and did nothing? He was in charge. So, if he doesn't even understand that his actions caused this trauma, how can he be safe to continue to work in this arena? I feel a responsibility to tell people that there is danger here. You need to ask more questions. We put a promise that was asked practitioners to sign to practice in an ethical and safe way. We're looking at some legislation to see if we can create some safeguards for people who go to a self-help event. I just can't believe that we're back here after having a year of our lives blown apart, after having our lives blown apart by losing our daughter. And now we're back here to talk about the truth of having stuff actually occur."
The next family member to speak was Jane Shore.
"I am not as articulate as Virginia, I am a mother who lost her son, who tried for a week to not come to this program, but was refused to get his $9000 back, and went back and forth in trying to decide whether to come or not to come. In the end, he thought well, I've paid for it, I guess I should go ahead and go. And to have him left, ignored, when he called for help, and was told to wait for another around, and he called again, and said Kirby is in trouble, and was told again to wait until the end of another round, and then it was over and people left the lodge, and they were all out and people were on the ground and sick and throwing up, and in distress. James Ray was still not even aware that my son and Kirby Brown were not even there, they were inside dead and hadn't been found. So, for him to have this non-guilt issue set aside, I think is wrong, and my son's 16-year-old daughter, is who is on the phone, my grandchild, who would have liked to have been here to speak, but was unable to get away from school, so, Amarita can tell you how she feels about the loss of her father and the fact that this never should have happened. Please, do not grant this motion.”
At that point, Polk asked 16-year-old Amarita Shore to speak to the judge. Amarita spoke via telephone, but her voice and emotions were clear for all to hear.
"My name is Amarita Shore. I'm the middle child of 3, and my father is James Shore, and my mother is Alyssa Gillespie. I am calling today because I strongly do not agree with the passing of his record, or, I can't remember what it is called. In 2008, my life was definitely changed, because my dad, like many others, trusted Mr. Ray. By clearing his record, or making him be able to teach again or do life courses, almost in my mind, justifies what he did. Or makes it seem more ok. Which it's NOT ok, it's not fair to me, or to my family or to the other families that are still suffering because of James Ray. Growing up, I didn't have a father. I haven't been able to say "Happy Father's day," or, call someone dad since that day. My sister woke me up almost every night for years after my dad died, screaming my dad's name. We're still confused what is happening. I haven't been able to hug my dad, or even have a father figure in my life, because of James Ray. He doesn't even know the stress and the trauma he has placed on my family, and the other families. He will never be able to understand. He can apologize all he wants, but the truth of it is, he won't ever be able to grasp what I'm going through."
Growing up, I didn't have a father. I haven't been able to say 'Happy Father's day,' or, call someone dad since that day." Amarita Shore
"After he got out of jail, he could have done anything,” Amarita continued. "But instead, he's choosing to go back to what ultimately killed my father. By him doing this, it just goes to show, or to me, it feels like he's learned nothing from killing people. And that makes me feel really sick. It's hard to think of someone wanting to just go back to what he did that ended in three deaths of three people, that their families are still dealing with the trauma and the junk that he put on us. I'm sorry, that was kind of confusing, I'm very shaken right now."
Amarita paused for a moment. Then she said simply, "Thank you for taking your time to hear what I have to say.”
Judge Bluff thanked her for her comments and noted that she was a very articulate young lady.
The next family member spoke. "Thank you, your honor. I'm Virginia Shore, the sister of James Shore. We vehemently oppose the motion to set aside the negligent homicide conviction of James Arthur Ray. James Arthur Ray killed three people. James Shore, Kirby Brown and Liz Neuman. The motion refers to his crimes as non-dangerous and non-repetitive. Anyone who sat in the courtroom would dispute these characterizations. Anyone who has reviewed his past behavior would also dispute the description of his behavior. He was and is dangerous. He will repeat his reckless and negligent behavior. If you need further evidence of Mr. Ray's tendencies, please review the records which were not admitted to the court by Judge Darrow about Miss Conway, and the ceremonies between 2005 and 2008. We felt the exclusion of that evidence was a mistake at the time of the trial, but to ignore Mr. Ray's habitual dangerous behavior at this time would, we think, be a further insult to his victims and their families. And dangerous to society.”
"It is our firm belief Mr. Ray should still be in prison for the murder of these three people,” Virginia Shore said. It was obvious that the pain she felt had not subsided over the years. "His motion to expunge the conviction is further evidence that he has not remorseful. A remorseful person granted an insultingly lenient sentence would consider himself fortunate and try his best to make amends to society and to those he's wronged. James Ray wants to erase his convictions so he can deceive and endanger others and continue on. He's yet to fully face the consequences of his actions. He received a nominal sentence, he denied the continued pleas for help from the dozens of people who were crying out in that tent. He dismissed them and told them to ignore their bodies. He was completely aware of his customers' compromised mental state after they had been fasting for days in the desert. They were dehydrated and fragile. He knew they were vulnerable, he used his star or faux evangelist status to convince them he knew better and was watching over them. He was negligent and uncaring. this isn't the first time, this is a pattern. He's a normal man with delusions of super power twisted in some bizarre belief of religious superiority. He's a charlatan with a steel will and uncanny ability to let those around him fall. He had no regard for the people in the tent, he saw them as funds for his business. He ran from the scene, there were people all around him in need of help, who needed aid or water, and were calling out. He didn't help them, he went back to his room and showered while dozens of people were in distress and three people were dead in the dirt.”
"He's a normal man with delusions of super power twisted in some bizarre belief of religious superiority. He's a charlatan with a steel will and uncanny ability to let those around him fall." Virginia Shore
Virginia Shore concluded, "My brother, it was in the trial, kicked out the back of the tent during the ceremony because people were calling for air. He chastised him, he asked who did it. My brother brought Sidney Spencer out of the tent past him [Ray] when he [Ray] was sitting in the opening and breathing the fresh air and telling them to continue on and telling them to go another round. He [Ray] saw him [my brother, James Shore] bring her out. He went back in to help Kirby Brown, saying, "We really need help back here, we really need air." He [Ray] just ignored them. There is no question here that he can't continue to be allowed to do this and that's what will happen if this is set aside. It didn't just affect these families here, it affected dozens and dozens of others. He bastardized the spiritual traditions of Native American people, he's negatively affected so many. We hope that you will not exonerate him. Thank you.”
Kirby Brown’s father, George Brown, spoke next. He appeared frail as he explained his own health situation, but showed a glimpse of a sense of humor. "Thank for the opportunity to address the court. You're goinig to see me tremor a little bit. I'm gifted with Parkinsons disease. Right now, I have it, it doesn't have me."
Then he continued, "I'm here today because Kirby, James and Liz are not.”
"James Ray cannot take away what he did to the individuals and their families,” George Brown said. "In a deposition taken in the Colleen Conway case, Mr. Ray finally admitted that he lied about his credentials and training and experience. All false, designed to impress and inspire confidence in his customers. His first business was built on lies and he's now looking to restart that business in a new way. He's also lying at the beginning of that. Calling it a tragic accident. This was no accident. The results are the outcome of his choices and his actions. It was his decision not to act when people were in distress just as Virginia Shore stated. Ray would directly respnd to James, saying, "We'll deal with that later." And then he never did. It was his decision to leave them lying in the dirt, despite repeated calls for help. It was Ray's decision to leave the scene of the sweat lodge, going to shower and eat while people were being transported to the hospital. It was his decision to convince his customers that signs of a heat stroke were signs of a break through, the great breakthrough in the sky that everybody's looking for.”
"So, where are we now? After the airing of his CNN infomercial, so-called documentary, he lies again in an interview, attacking Kirby and her family, by hushedly saying to the interviewer, "You know, she was estranged from her family." My other children want to pulverize him for that. It is the furthest thing from the truth,” George Brown said with a monotone, steady voice.
"I guess that leaves us in a courtroom with a killer guru who's harmonically bankrupt." George Brown
"So, why are we here today? We're here because the elephant is hiding in the room. And the elephant is money,” George Brown said. "I was amazed when Ray started off talking about the real reason he wants his decision of guilt set aside is so that he can go to Canada and make more money. In the first time I heard him speak, that's what he spoke about. He was standing on Mt. Everest, figuratively, jumping up and down about making $10M that year. So, his first goal, someone called it, he's not a guru or a teacher, he's a capitalist. The issue that is in front of this court today is, are we going to allow him to make more money, and, uh, from his point of view, lots of it.”
Brown said quietly. "I guess that leaves us in a courtroom with a killer guru who's harmonically bankrupt."
So, to the Court, I ask you not to ignore the victims, don't turn your back on them, as he did. Don't turn your back on the family members. And all of us who are standing here in the pain of the decisions James Ray made…” George Brown was suddenly overcome with emotion. “...to leave out people lying in the dirt, don't do it again. Thank you."
County Attorney Sheila Polk makes her case
Then it was Polk’s turn. She spoke for about 12 minutes, regarding her concerns and her perspective of the law.
Yavapai County Attorney Sheila Polk addresses the Court.
"Thank you, your honor. The family members that you have heard from this morning have traveled here from Colorado, and Washington, DC, and New York, and Amarita who is on the phone was calling in from Colorado. Family members of Liz Neuman, were not able to be here in person, but I know that they have submitted comments to the Court and I am sure the Court has had the opportunity to read everyone's statements and understand the very, very strong opposition from the victims that these convictions be set aside. And of course, the State shares that very strong opposition.
'I'm not going to focus on the emotion, Your Honor, I think the Court can see from the statements of our victims this morning how traumitizing it has been for them to become aware that even the application was filed. For them it has been like ripping that bandaid off of a very, very deep wound. But what I want to focus on instead, is the law, and what the obligation is of the State of Arizona in this case. I pulled up 13101, which talks about the general purposes of Title 13, our criminal code. And specifically looking at number 5, it tells us that our obligation is to ensure the public safety by preventing the commission of offenses through the deterrent influences of the sentences authorized.
"That mandate does not end upon the sentencing of a defendant in a courtroom. That is a mandate that continues throughout the process and certainly continues and applies to what happens three or four years later to convictions that have been entered in a court, upon an application to set them aside. The Court, the defense attorney, the State, we all agree that it is discretionary with this Court whether or not you set these convictions aside. But, I think, particularly looking at our mandate under 13101 and looking at the nature of this offense, it is clear to me that this is one of those cases where these convictions absolutely should not be set aside.
"Several people have referenced a documentary that aired within the last month called, "Enlighten Us, the Rise and Fall of James Ray." It was a production by CNN. And I referenced it in my response, and I gave the Court a site to find the documentary. I have watched that documentary, not once, but twice. I watched it again in preparation for this hearing this morning, because I was trying to find the answer to specifically whether or not we are fulfilling that mandate of making sure that our sentences have a deterrent effect.
"...it is clear to me that this is one of those cases where these convictions absolutely should not be set aside." Sheila Polk
"I looked at that documentary again, asking two things in particular. The first was, "What has Mr. Ray learned because of the criminal proceedings?" and, secondly, "Is the public safe today from his extreme ways?" I found the answer to both of those questions in that documentary, and I find the answer to be disturbing and somewhat chilling. Because I don't think that he has learned much on the criminal justice system, and I do not believe that the public is safe from Mr. Ray.
"In the application, I believe it was in the reply filed by Mr. Ray's attorney, he wrote, "After the sweat lodge tragedy, use of any activities to impose emotional or physical stress on participants to emphasize his therapeutic or spiritual principles is specifically prohibited." I don't know that that is true. That certainly did not happen in the criminal case. I know that there is a civil case, the State has not been privy to that settlement, the victims have all told me that they don't believe that is true. To my knowledge, there are no restrictions on Mr. Ray's activities, as he goes out there and attempts to resurrect his business. Mr. Ray has made it clear that that is what he intends to do and that was clear in the documentary.
"So, why do I conclude that he has learned nothing? I wrote down a couple of quotes from that documentary, because I think they shed light on Mr. Ray's state of mind. And the first quote came from an event that Mr. Ray held after his release from prison. It was, back to the same old business of selling his self-help industry. But here's what, how he opened that event in the documentary. He said to his audience, "In October, 2009, my world changed dramatically. I am responsible. There were things that were overlooked and missed. I am responsible. There were people assigned to certain duties, they were trained well, they were paid well, that was their job. Doesn't matter, I am responsible. The case they ensued set legal precendent. The first in the history of this country, the United States of America, that consenting adults, not minors, consenting adults, participated willfully in a legal activity, not drinking and driving - an accident occurred. It was prosecuted as a crime. The first time in the history of our country. That doesn't matter. I am responsible."
"I think the Court would agree with me when I say that that is not a statement of taking responsibility. That is a statement of pretending you are taking responsibility while blaming the people who worked for him. While blaming the system. While claiming that his was the first case in the history of the United States where negligent homicide charges were brought. And of course we know that's not true. I would say that the BP oil spill is perhaps one of the most famous examples of cases across the United States where negligent homicide charges are brought arising from situations where, like Mr. Ray, people are being negligent in conducting the events. That is not a statement of taking responsibility. That is a statement of blaming everybody else and continuing to be the victim.
"At the end of that documentary, the reporter specifically asked Mr. Ray this question, "When I look at the event in Sedona, I ask myself, how did that happen? I wonder if you ask yourself that question." And here's Mr. Ray's answer. "I think I know the answer to that question. It had to happen, because it was the only way I would experience, learn and grow through the things I've done. That's what I think is the reason for me. Am I drinking the koolaid? Maybe, but you know, the koolaid works for me. I think you come out of a situation like this, and you're either bitter and angry or you're more awake and grateful. And I choose awake and grateful. And I choose to see it as a test of character and a test through fire, and I think I do ok.”
"I choose to see it as a test of character, and a test through fire, and I think I did OK.” James Ray
'I think it's that answer in particular that I find the most chilling. The idea that Mr. Ray would look into a camera, knowing that he's producing a documentary for the world to see and make the statement that, "... it had to happen because it was the only way I would experience, learn and grow through the things I've done."
'This event did not have to happen. Three people do not need to be dead so that Mr. Ray can experience, learn and grow. But I think that statement is clear evidence for this Court that this is not a man who has learned from what has happened. And this is certainly not a man who should be allowed to go out there and put his spin on the events of what really occurred in October of 2009.
"This Court should not be a party in allowing Mr. Ray to take an eraser and magically erase this history and recreate this history and be allowed to say to participants at his future events that not only is this the only case in the history of the United States where someone has been charged with these types of crimes arising from an event, but he would also be able to say, "And the Court agrees with me. Look, the Court set aside these convictions. This is a history that needs to stand. This is a history that, in order for us to fulfill our obligation to continue to protect the public, it needs to stand as it is. It is not a history that should be set aside through this criminal process.
"And finally, Your Honor, I would like to draw your attention to a case, State vs. Bernini, it is 233 AZ 170, we did not note it in our response, but the defense noted it in their reply. But it is a case that says that if an offense is dangerous by nature, it is not an absolute bar to the Court setting aside the conviction. However, that case does tell the Court that even though not charged as a dangerous offense, even though not convicted as a dangerous offense, the Court can still take into consideration the fact that this was a dangerous offense. And in determining whether or not to set aside a conviction, the Court can consider the nature of the offense, the time since the conviction occurred, along with any other factor that the Court deems worth considering.
"Pursuant to 13-105.13, and 105.12 clearly this qualifies as a dangerous offense, because of the way that this sweat lodge was used and because of the resulting consequences. And so the Court can consider the nature of the offense, the Court can consider that it was a dangerous offense by definition as yet another reason to refuse to set aside these convictions.
"And then finally, Your Honor, I just want to emphasize the rights of the victims. I appreciate the fact that they did travel so far, have made such efforts to make sure the Court understands their position, but our criminal justice system is very focused on respecting the rights of the victims, respecting their views and they are unanimous in opposing this application. The State opposes it as well, and I do urge the Court to deny this motion to set aside the conviction. Thank you."
Tom Kelly stood once again to respond to Polk’s statement. "I would just like to attempt to correct a couple of things. First of all, in response to Ms. Polk, citing my pleading where I wrote, that, "Mr. Ray continues his occupation of attempting to provide spiritual guidance only through seminars and counseling and does not engage in high risk activities," I did not mean to imply that somehow that's a mandate imposed by either a civil court or a criminal court. It's a voluntary action taken by Mr. Ray. The second thing is, in regards to the dangerousness of the offense, this is a non-dangerous conviction, that is the judgment of the Court that is the finding of the jury. And I understand the argument of Ms. Polk that the circumstances surrounding the sweat lodge tragedy can be considered by this Court, that is entirely true.
"But I would take issue that it can be legally defined as a dangerous activity. And finally, Judge, I would like to emphasize that a motion to set aside based on my career, and I've filed many of these, and then represented people after, the motion to set aside has been granted by the Yavapai County Superior Court, it does not erase a conviction, it is not an expungement, the criminal database will show three convictions for negligent homicide the rest of his life, it can always be used as specified by statute for future criminal purposes and any licensing authority entity, and this has been my experience with people after a motion to set aside has been granted, they can still consider that crime. Again, as explained by Mr. Ray, his Canadian attorney who said that this order will facilitate his international travel and I would hope that no one would walk out of this court, and should you, on this date, or some future date, grant an application to set aside, believe that this erases this terrible event from Mr. Ray's history. It simply does not. Thank you.”
Defense Attorney Tom Kelly and James Ray listen to the Judge's ruling.
Judge Bluff makes a decision
Judge Bluff responded to all that he had heard with little hesitation, acknowledging the complexity of the issue. "I probably do these set asides three or four times a week, and they're fairly routine normally. What they all have in common, the ones that I do grant, are that there is an extended period of law-abiding life after the conviction. There has been less than four years in this case. I look at ARS section 907E, which talks about setting aside a judgment of guilt, and whether or not exceptions in that section apply. These were designated as non-dangerous, non-repetitive offenses, I understand the victims view on that, and that they may view them as being different than that, but from a legal standpoint, they are simply not dangerous and not repetitive.”
Bluff addressed some of the case law referenced by the attorneys in the hearing, "I have read the Bernini case about the dangerousness of the offense, and how the factors that describe dangerous offenses might be used to have these offenses be considered dangerous, and therefore, not eligible for set aside. I'm not making that finding today. The bottom line is, I'm just not comfortable that enough time has passed, frankly, that the wounds have healed, maybe they'll never heal. But I'm not comfortable today making a decision to set aside the judgment of guilt."
As for Ray’s next steps on his quest for a set aside? Bluff was non-committal. "Mr. Ray, you asked a fair question about so, what's the next step. How long do you wait? I can't tell you that answer. And I can't tell other people that, and give them an answer to that question. When people ask me that all the time. They ask me, do I wait a year? Two years? Three years? I can't tell you that. Any time I grant a set aside, it's because there's been an extended time of law-abiding behavior by the individual. But, I can't put a number on that. I will tell you that if a similar application is submitted in the future, I will give it my full attention, I will let the State and the victims provide any input that they want, and I'll make a decision at that time. But at this point in time, I'm not comfortable setting aside the judgment of guilt, being I - it's been less than three years since discharge from prison. I am not making a finding that the exceptions in 13-907 E apply or do not apply. I am simply denying the application based on the fact that there has not been enough time passed. I'm not suggesting that I will grant it in the future, I'm suggesting that I will look at any application that is brought before me in the future. So, the application to set aside and vacate the judgment of guilt is denied at this time.”
In a recent review by People Magazine of the CNN documentary, Enlighten Us, Ray is quoted as saying,
"Sure, we all did something that was extreme. I fully know that Liz Neuman, James Shore and Kirby Brown are not victims — they’re heroes.”
“James, Liz and Kirby were there for a reason. It’s a reason we all have. It’s compelling people to do more, to be more, and to become more. They were totally and completely committed to that end. And so to me, that’s heroic. I think it’s disrespectful to their memory to label them as victims. I honor them. I hold them in the highest regard, and if their life is going to continue to have meaning — which, if I have anything to do with it, it will — then I believe the story needs to be told from their heroic position rather than a victim position."
This video from Jean Brown, sister of victim Kirby Brown, was posted in December, 2016
Other links & information:
Arizona law does not allow for a conviction to be “expunged” from a person’s criminal record. It does, however, allow the conviction of guilt to be “set aside” under certain circumstances.
According to the AZ Criminal Defense Blog website,
"Arizona law does not recognize an expungement of a criminal conviction so that it is erased from your record. However, Arizona law does provide that a person may have the judgment of guilt “set aside.” Under Arizona Revised Statute, section 13-907 an individual who has been convicted of a crime may request a “set aside” of her conviction under certain circumstances. For someone who is convicted of a felony, a set aside can be very important because it has the effect of releasing the individual “from all penalties and disabilities resulting from the conviction” with a few exceptions. While setting aside the judgment of guilt does not erase it from occurring, it does allow a person to explain that a judge has determined that judgment of guilt should be vacated. This may be persuasive when trying to convince someone that you have moved on from the incident.”
The Death Dealer, by The Verge
A blog post by Jean Brown written after the hearing.
Seek Safely an organization created by Kirby Brown’s family to advocate for safe practices in the self-help industry
“Enlighten Us” a CNN documentary on the life of James Ray.