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UPDATE: Mistrial motion denied in Harmon-Wright trial

A mistrial over malice?

The sentencing phase in the Harmon-Wright trial was scheduled to begin at 1 p.m. Wednesday afternoon.

However, in what media present were calling a bizarre twist, occurred when it was learned that the discovery by a court's clerk of two dictionaries and a thesaurus in the jury room on Tuesday evening could constitute misconduct on the part of the jury.

Defense attorney Daniel Hawes felt it appropriate to put in a motion for a mistrial.

Harmon-Wright was found guilty on three counts Tuesday afternoon and not guilty of one. One of the charges was murder and the verdict there could have been first degree murder, second degree murder or voluntary manslaughter.

The difference in degree of homicide is the presence of malice and it was this word that several jurors wanted more clarity on.

Speculation on the part of the defense was that if instructions had been disregarded by seeking outside research materials then perhaps jury members sought other information beyond the guidelines given them – to only base their decision on the evidence presented to them during the trial.

Jury members had been explicitly instructed by Judge Susan Whitlock early in the proceedings that no outside research materials were to be used in their deliberations. They were to read no newspaper accounts, watch television news programs, conduct their own research online, share emails, Facebook, or other social media, have conversations with family or friends or in any way discuss the case unless they were in the deliberation process and within the confines of the jury room and only when instructed to do so.

Sheriff Scott Jenkins had been scrambling to find enough deputies so that jury members were kept separate and individually escorted into the courtroom.

Each was called in to answer questions from Judge Whitlock, defense attorney Daniel Hawes and special prosecutor Jim Fisher.

Some jurors appeared puzzled and confused that dictionaries were considered research materials.

For those jurors who acknowledged that they read or heard the definition of malice shared from the dictionary(s), it helped resolve any doubt and favor the defendant.

All said that while clarifying the word 'malice' in their minds that ultimately they based their decision on the judge's written instructions – a document carefully honed by the defense and prosecution that lays out a blueprint for how they are to construct their verdict.

Questioning each juror lasted until nearly 3 p.m. Wednesday afternoon.

Fisher found the jury's responses to be “very honest” and with “no prejudice to the defense.”

“A common theme throughout was to clarify the element of malice,” said Fisher, “and by doing that the verdict favored the defendant.”

Fisher also paralleled the definitions found by the jurors in the dictionaries to the words used in the judge's instructions and noted the similarities.

Hawes agreed that ultimately the jury did not find Harmon-Wright guilty of a higher charge but nonetheless felt that their need for clarification over terms like 'malice' or 'unlawful' suggested confusion on their part and sufficient cause for a mistrial.

Hawes specifically referred to the comments made by two of the jurors.

Transcripts of those two jurors will be shared by the defense and the prosecution.

Judge Whitlock has taken Hawe's motion for a mistrial under advisement and will announce her decision Friday morning after both attorneys have submitted their arguments in a memorandum to her.

The two dictionaries used were Webster and Random House.

The one juror who brought the two dictionaries and one thesaurus into the jury room said it was done with the consent of one of the bailiffs.

Harmon-Wright faces a maximum sentence of 25 years for the fatal shooting of 54-year-old Patricia A. Cook on Feb. 9, 2012.

He was found guilty on three counts: murder, malicious shooting into an occupied vehicle and malicious shooting into an occupied vehicle that resulted in death. He was found not guilty in the use of a firearm in the commission of a felony.

Court resumes at 9 a.m. on Friday, Feb. 1.

Contact the writer at asherman@timespapers.com

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