PORT TOWNSEND — Richard Davies, the lawyer for convicted double-murderer and arsonist Michael J. Pierce, is asking for a new trial on the basis of separate interviews the Peninsula Daily News conducted with jurors after they convicted Pierce on March 26, Davies said Monday.
In the March 26 interviews, reported in a March 28 article, jury foreman Eric Nagy and juror Ronald Hall said they recalled damning testimony from prosecution witness Michael Donahue linking Pierce to the odor of gasoline, which they said played a major role in convicting him.
But no such testimony was given during the Jefferson County Superior Court trial, according a court recording of Donahue’s testimony and interviews with county Prosecuting Attorney Juelie Dalzell, Chief Deputy Prosecuting Attorney Scott Rosekrans and Davies, who filed the motion for a new trial on Friday.
The PDN newspaper article “was one of the bases for the motion for a new trial, that is, the jury made a decision based on testimony that either never was or was certainly misinterpreted,” Davies said.
Dalzell is seeking a sentence of 108 years for Pierce, she said Monday.
She said Pierce’s conviction is not appealable on the basis of a newspaper article.
“The newspaper is not the record for the Court of Appeals,” she said.
“To my knowledge, there is no procedure to call back a jury and question their decision. Double-jeopardy attaches. I don’t know what process you would have to reopen [the case] because a juror told reporters something.
Davies also alleges prosecutorial misconduct by Rosekrans for making assertions during closing arguments that Davies said were not based on evidence presented at the two-week trial.
“He’s wrong,” Rosekrans responded. “The judge didn’t sustain his objections. The judge did not see what I was doing as objectionable.”
Davies also alleges juror misconduct for deciding Pierce committed arson on the basis of testimony that was never given.
Davies said there was insufficient evidence to convict Pierce of arson, so Pierce should get a new trial.
A hearing on his motion is scheduled for 8:30 a.m. Friday in Superior Court at the county courthouse.
The nine-woman, three-man jury convicted Pierce, 35, of eight charges including first-degree murder, arson, burglary and theft in the March 18, 2009, shooting deaths of Patrick Yarr, 60, and his wife, Janice Yarr, 57, at their Boulton Road home north of Lake Leland.
Pierce lived in Sequim and Quilcene and attended Peninsula College in Port Angeles.
Several times during the trial, witnesses were asked to speak louder so the jury could hear them.
In explaining the jury’s decision within hours of the verdict, Nagy and Hall told the PDN that Donahue had said Pierce asked him if he smelled of gasoline.
It was about an hour after the fire at the Yarrs’ house was called in to authorities.
Hall also said he and two other jurors heard the same testimony.
Hall and Nagy also said a bank video linking Pierce to the Yarrs and the fact that Pierce used the Yarrs’ PIN number to steal $300 from their account weighed heavily in their decision.
Hall and Nagy did not return calls for comment Monday afternoon.
Nagy and an unnamed juror gave a similar account of Donahue’s testimony to The Leader newspaper of Jefferson County for a March 31 article.
“I think the jurors misinterpreted a piece of cross-examination as to whether the defense investigator asked Donahue if Mr. Pierce smelled like gas,” Davies said.
But Rosekrans disagreed with the impact.
“One little mistake does not send it back to square one,” Rosekrans said.
“The jury can base their decision on all of what they heard or some of what they heard and make reasonable inferences,” he added.
“There was no jury misconduct. He’s going to have to prove that.”
The term “juror misconduct” mischaracterizes what may have happened, Davies added.
“It’s hard for me to say that it’s misconduct. It’s just that they are relying on something that was never said. That’s the trouble.”
A sentencing hearing has been scheduled for 2 p.m. April 22 before Judge Craddock Verser, who presided at the trial.
