Whether they be boxers or briefs, a convicted murderer’s underwear defense didn’t fly with a jury in January.
It also didn’t pass muster Friday with a judge.
Daniel Jay Perez, 21, will not get a new trial, even though a juror in his case went home and experimented with his own underwear during deliberations, a judge ruled Friday.
In a rare move, Snohomish County Superior Court Judge Ellen Fair summoned the panel back to court on Friday in an attempt to get to the bottom of what prosecutors ridiculed as the “Fruit of the Loom” defense.
Jurors, who convicted Perez of second-degree murder, were allowed to leave without being questioned in court after attorneys decided to go solely by the answers to a short questionnaire Fair sent to panel members. The questionnaire was sent after the judge learned that one of them had experimented with his briefs by checking the strength of the waistband after hearing testimony during the trial.
She ruled that the experiment was at least close to juror misconduct, but the evidence in the trial was so great that the juror’s actions didn’t affect the verdict, and Perez should not receive a new trial.
Underwear became an issue because of Perez’s testimony.
On the witness stand, he denied having anything to do with the strangulation death of Cory Garzina, 24, his cellmate at the Monroe Prison Complex. Prosecutors maintained that Garzina was strangled with the drawstring from a pair of sweatpants.
Shortly after the death, Perez had red marks on his hands, which he admitted at the time were caused by the drawstring when he strangled Garzina.
In court, Perez changed his story.
He said he ripped the elastic waistband from his underwear and tried to strangle himself in an unusual suicide attempt after Garzina’s body was found. That’s how he really got the red marks on his hands, Perez testified.
One juror told fellow panel members that he went home and tried to rip his underwear as Perez described. The juror said he either couldn’t do it, or the ripping left no marks on his hands, jurors responded to the questionnaire.
“There was overwhelming evidence even if there was misconduct,” Fair said, and it didn’t affect the verdict.
She ruled that Perez’s confession plus prison video showing that nobody else came or went from Perez’s cell during the time of the murder was sufficient evidence to convict him.
Veteran public defender Caroline Mann argued that one juror saying that Perez’s underwear defense was not possible and that the defendant lied “is the clearest case of misconduct I have ever seen.”
Deputy prosecutor George Appel told the judge that the juror’s actions were not misconduct, because underwear is part of people’s common life experience. Perez took the stand and told jurors something anyone would consider remarkable, Appel said.
Everyone knows that ripping the waistband off while wearing underwear would be hard to do and uncomfortable, Appel argued.
The judge set Perez’s sentencing date as May 14. He could serve 30 or more years in prison for the murder.
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