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<< Previous   of   Next >>   ADVERTISEMENT   ADDITIONAL ITEMS • Prosecutor's brief arguing against motion for new trial ( PDF) • Excerpt from trial testimony about underwear ( PDF)   CONTACT THE HERALD Robert Frank, City Editor frank@heraldnet.com   Published: Wednesday, March 26, 2008 Underwear test by a juror puts murder verdict in doubt By Jim Haley, Herald Writer EVERETT -- The "Fruit of the Loom" defense didn't work for an accused murderer in January, but attorneys are taking another shot at it after learning a Snohomish County juror experimented with his own underwear during the trial. In a rare move, a judge on Tuesday said she will order all 12 members of the panel back to court April 9 to get to the bottom of things by asking a few questions. She'll then decide if any juror misconduct warrants a new trial for Daniel Jay Perez, 21. Perez was convicted of second-degree murder for using the drawstring from his sweatpants to strangle his cellmate at the Monroe Reformatory in the Monroe Prison Complex. Perez confessed after the body of Cory Garzina, 24, was found in their cell, saying the marks on his hands came from the drawstring. At his January trial, Perez told a different story, saying the marks on his hands actually came from a unique suicide attempt. Perez testified that he was afraid of two other inmates who were the killers. So he tore the elastic waistband from his underwear and used it to try to strangle himself, causing the marks on his hands. During the trial, deputy prosecutor George Appel scoffed at Perez's story, asking if the jail-issued underwear had a waistband made of elastic or of steel cords, in order to cause the marks. They were "Fruit of the Loom," Perez responded. Jurors didn't buy what prosecutors called "The Fruit of the Loom" defense. In a conversation following the verdict, the jury foreman told prosecutors that at one point during the trial, another juror talked about going home and trying to rip the waistband off from his own underwear. From his experiment, the juror concluded that it would have been difficult for Perez to have entirely separated his underwear waistband from the rest of his drawers. When Perez's attorneys heard about the experiment, they asked for a new trial, alleging juror misconduct. Prosecutors argue that jurors are allowed to use knowledge within "a typical juror's general life experience," and that testing the durability of one's underwear waistband is just that. "It is highly likely that most of the jurors were wearing underwear throughout the trial," the prosecutors wrote in their legal briefs. "Therefore, pulling on the waistband of one's underwear is simply common experience." Public defender Caroline Mann told Judge Ellen Fair on Tuesday that there's not enough information to make a decision about what the juror did and said regarding his underwear test. Fair agreed. "I don't think the court has sufficient record to determine one way or the other," Fair said. Reporter Jim Haley: 425-339-3447 or jhaley@heraldnet.com.

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