Today the Judge heard oral argument on the Defense’s Motion for Mistrial. I should say that the Judge heard mostly the Defense as it argued for over an hour and the State argued for approximately 10 minutes. Is this telling? Maybe, maybe not.
The Defense filed its Motion last week and the State had until last night to file its Response, which it did. After reviewing both the pleadings and listening to the oral argument live on CNN.com/live; it was clear that the parties were simply arguing what was already in the pleadings. In other words, the oral argument did not add anything to what had already been filed. However, it did give the parties the chance to answer any questions, had the Judge had any, which he did not. Plus, it allows the parties to “make a record” in the event either wants to appeal.
(Basically the Defense has argued that the State had an email/report in its possession from an environmental expert that it failed to disclose to the Defense even after repeated requests to do so. The Defense argued this email/report clearly showed exculpatory evidence in that it explained the deaths could have been caused by the construction of the sweat lodge and the resulting air quality – all of which was out of the control of James Ray. The State argued that it did inadvertently fail to disclose the email but that the information contained therein was not exculpatory and in fact implicated James Ray further.)
I think the Judge already had his mind made up about whether there was a Brady violation when he entered the courtroom this morning, especially in light of the fact he didn’t ask any questions and there was nothing new presented during oral argument. At the end of argument he simply stated he did find there was a Brady violation and the only thing left to determine was the remedy. He then stated he would issue his ruling this afternoon. So, you can only imagine that the parties are waiting on pins and needles.
This Judge seems to really take his time making decisions and I mean that in a good way. After being in the courtroom all of last week I have seen that he patiently listens to both sides and asks very good questions. It is clear to me that he takes his job seriously and really thinks before he answers and gives a ruling. If only all judges were as thorough. Now, I will say that he has made a ruling or two that is confusing to me and the Defense, most notably in regards to prior acts, but, that doesn’t change my overall opinion of him.
With this particular Motion there are several options the Judge has (from harshest to lenient):
1. Deny the Motion for Mistrial and allow the trial to continue (undoubtedly this would cause an appeal unless James
Ray is acquitted);
2. Deny the Motion for Mistrial, find there was a Brady violation and allow Defense to recall witnesses, add to their opening argument, issue an instruction to the jury and/or postpone trial to allow Defense more time to investigate;
3. Grant the Motion and declare a mistrial without any type of prejudice thus allowing the State to bring the case again;
4. Grant the Motion and declare a mistrial with prejudice in finding it was an intentional non-disclosure by the State which would mean the charges could not be brought again.
Considering the Judge found there was a Brady violation, which means the State failed to properly and timely disclose exculpatory information, the first option is gone. There must be a punishment and a remedy. Understand that the punishment/remedy is within the Judge’s discretion. He will consider the timing, the length of the non disclosure, the repeated requests by the Defense for the information, the value of the information, the fact that trial has been going on for over 8 weeks, the relevant case law and the rules. All eyes are on him now as we anxiously await his decision…