Well... I think he will... presently. But I sure do understand the frustration of the families and friends of the deceased -- let alone the many, many, many people who have suffered physical, emotional, and financial damage at the hands of this lunatic. Due to Kelly's health issues, Judge Darrow said in a hearing yesterday that he will not reschedule the presentencing hearing before the middle of October.
Attorney Tom Kelly, still recovering from treatment for a heart condition, appeared alone in court and outlined the defense's difficulties in arranging schedules, both their own and that of the many witnesses they intend to present at a pre-sentence hearing.
Kelly said his doctor has cleared him to defend a client in a jury trial that begins Oct. 19, but emphasized that he was also ordered to be on light duty. He said he needs a second procedure that has not yet been scheduled.
The re-emergence of Kelly prompted Yavapai County Attorney Sheila Polk to suggest that the proceedings could resume immediately, even offering to forego a scheduled family vacation the week of Oct. 7-15. Saying that the state has made a strong showing, both in arguments and pleadings, of "the need to move this case forward," Polk said she would be fine with the previous scheduling, which would have started the pre-sentence hearings on Wednesday.
Darrow, though, said he would not set the hearings and sentencing, which will require at least six court days, to begin before Oct. 15, adding that perceptions that the delays have been solely caused by defense maneuverings were somewhat inaccurate.
Notice the use of the weasel word "somewhat." In other words it's essentially accurate, if not entirely. I don't know if Mark Duncan is quoting Darrow or if that phrasing points to his own subconscious understanding of how much the defense team, of which he seems so enamored, is playing the system here. They play it well. And having read both the motion for continuance and the response I'm not at all surprised the defense got their continuance. I think Darrow was between a rock and a hard place on that one. Kelly even openly threatened to use this as yet another appellate issue in his reply. Personally, I think Judge Darrow is well aware of how litigious Ray's defense is and no judge wants his case overturned on appeal. So he's given the defense a lot of leeway and not a little rope to hang themselves. And they have, repeatedly.
Aside from granting the continuance, Judge Darrow denied several of the defense's other motions. He denied a motion to seal Tom Kelly's affidavit to protect his private medical data, in the interest of a transparent legal process. He is, however, allowing the defense time to provide a redacted copy. He denied their motion to have much of the prosecution's evidence for the presentencing hearing excluded, as discussed here. And he denied the defense's request to seal the support letters for the presentencing hearing because they "inadvertently" failed to redact the contact information of the letter writers. Yes, they copped to having screwed that up royally.
Aside from their error in, once again, broadcasting the addresses, phone numbers, and email addresses of private citizens, I can understand why they'd want to hide those letters from public view. They totally betray the weakness of their hand going into the presentencing hearing. Far from demonstrating support from over a hundred people, in some cases multiple letters are from the same people, it's not clear in many cases how old the letters are and if that support is still forthcoming, and some of the most supportive letters are totally whack.
It's also not clear how well the defense's witness list is holding up. I have a sneaking suspicion that a lot of the foot-dragging is about the crumbling of support for Ray going into the mitigation hearing. The letters are not as represented. And I have a sneaking suspicion that their witness lineup isn't either. It's already officially gone from twenty-seven to nineteen. And in their motion for continuance they repeatedly hedge on the number of witnesses described. They use the word "several" as in this footnote:
Several of these witnesses had flown into Prescott at their own expense for the hearing that was scheduled for Monday, September 19, 2011, and were present in Prescott on Monday.
Strictly speaking, several means more than two or three but not many. If they're using the term appropriately, that's considerably fewer than nineteen.
Later in the document they refer to an unspecified "number."
Undersigned counsel from Munger, Tolles & Olson had not been in direct communication with any witnesses prior to today, as Mr. Kelly was handling all witnesses, but upon reliable information believe that a number of these witnesses are not available during the week of September 26.
Such vagaries bode ill for Ray's defense. There's a whiff of desperation and more than a small sense that their long list of supporters is evaporating. That's not to say that Ray doesn't have steadfast support. He definitely does, but among the more telling details is the fact, noted by many, that only his mother and brother are scheduled to testified -- not his father. Weird.
One letter-writer whose support for Ray appears to be unflagging is coming under scrutiny by some of Ray's former students. Bill Harris, he of Holosync fame, received a letter from Connie Joy and an earful from Nancy Ogilvie. The details can be found in this thread on Joy's Facebook page. I note that Joy graciously referred him to my blog for background. Were he to read through my coverage of the trial -- and I'm not holding my breath -- he'd learn some interesting things. Among them, the fact that Ray misused the Holosync meditation CDs, which is to say, not in accordance with the warnings provided by Holosync. And when Dennis Mehravar testified that he experienced exactly the kind of "severe overwhelm" the Holosync FAQ warns is possible through overuse, Ray's attorney Luis Li mocked him mercilessly for not being able to handle a relaxation tape.
On the plus side, the additional downtime will allow the prosecution to scrutinize this crazy batch of letters and possibly challenge the inconsistencies. Meanwhile, they appear to have assembled a strong contrary case, which Judge Darrow has signaled he wants to hear. Connie Joy will be appearing for the prosecution and will testify to, among other things, Ray's attempt to slime his way out of refunding the prepayments for events he canceled. I wrote about this bit of blatant chicanery here.
In a sense it's not surprising that the sentencing is dragging on forever. This whole trial has happened in slow motion. From the long, involved, and thoroughly compelling case the prosecution presented, to the numerous stall tactics of the defense, to a closing argument by Luis Li that caused me to age ten years. (Dear God that was surreal.) During the trial itself I think I sort of became one with the proceedings. I spent those months in a kind of fugue state, unaware of the passage of time, and almost unconcerned as to whether or not it ever ended. The process itself was so fascinating and so consuming.
Sure, I find it sickening that Ray remains free to tweet his sanctimonious platitudes and extol the virtues of expensive coffee and tea -- despite having convinced numerous students not to "poison" themselves with coffee. (Yeah. He's a hypocrite. So what else is new?) I also think he just looks sort of sad and desperate with his new website and other attempts to reinvent himself, while simultaneously claiming that he's too broke to pay his mortgage or his lawyers. (!!!) This path he's on may be long and a little desultory but I firmly believe it will end in the clink.