The District of Columbia Court of Appeals ruled today that because a trial judge allowed the jury in an assault case to consider a statement "muttered" by a witness without asking what the statement was, the defendant, Robert Garrett, will get a new trial.
The details of the underlying case weren't included in the appellate court’s opinion (PDF), but Garrett was convicted in February 2008 by a District of Columbia Superior Court jury of assault with a dangerous weapon, possession of a firearm during a crime of violence and other weapons possession-related charges.
During deliberations, the jury sent Judge Harold Cushenberry Jr. a note asking: “[If] something is muttered [by a] witness while on the stand that was not in response to a question, can we consider that utterance?”
Cushenberry expressed concern that probing the request would “violate the jury’s deliberative process,” according to the appellate judges. Garrett’s attorney objected, arguing that without further review, no one would know if the statement was something neither the court nor the parties had heard or had an opportunity to consider.
The judge denied the request, noting that perhaps the attorneys hadn’t been paying close enough attention during trial, according to the appellate opinion.
The appeals court judges wrote that while the trial judge was correct to question whether further involvement in the deliberative process was wise, there was enough ambiguity about what the jury was asking that the judge should have delved deeper. They noted that in describing the statement as “muttered,” the jury clearly saw the statement as distinct from “normal testimony.”
“While inquiring into a jury’s thinking is—as the trial court correctly recognized—always fraught with risk, in the circumstances here some limited inquiry about the remark the jurors had in mind was necessary to forestall potential reliance by the jury on a statement it had no business considering,” they wrote.
Finding that there was no way of knowing whether the error was harmless without knowing what the “muttered” statement was, the appeals court sent the case back for a new trial.
Garrett’s appeal was argued by Stefanie Schneider of the D.C. Public Defender Service. The office declined to comment. Assistant U.S. Attorney Anne Park argued on behalf of the government; Bill Miller, spokesman for the U.S. attorney’s office, declined to comment, saying the office was still reviewing the ruling.