McDONOUGH — A reporter’s casual comment to a juror nearly resulted in a mistrial during the second day of jury deliberations in the murder trial of Jennifer and Joseph Rosenbaum.
After the lunch break, Superior Court Judge Brian Amero said that Juror 76, who had been wearing his juror badge, was at lunch when a reporter approached him and “asked him how far along they were, and then proceeded to say, ‘I know I’m not supposed to talk with you.’ And this person has been described as someone who has been in the courtroom on a couple of occasions, and who has been wearing a diabetes patch. Obviously, this is not something we can accept. The juror’s response was, ‘I’m not allowed to talk to you.’ And so that’s where things are. I wanted to share it with you, because it appears that the juror handled it 100 percent appropriately, and then reported it to the sheriff’s deputy, who then reported it to me, and I report it to you.”
Amero continued, “And if we see someone who shows up in this courtroom, whether they be a part of the media or not, please let me know immediately so that we can consider what needs to happen next.”
After a bench conference, Amero said, “I’ve just had a note handed to me by the sheriff’s deputy, who indicated to me ‘I believe she’s in the back currently, light blue dress.’”
Amero asked the reporter, Alexis Stevens from the Atlanta Journal-Constitution, “Ma’am, did you have any contact with a juror today?”
Stevens replied, “I asked him how it was going. His response to me was not that he couldn’t talk. He did start talking. Then I walked away.”
Amero, dumbfounded, took off his glasses, paused to gather his thoughts and glared at Stevens, his mouth hanging open, then grimacing, then clamped shut.
“Your Honor, not knowing who’s telling the truth at this point, we move for a mistrial,” said Mull.
Amero had Stevens state her name and spell it as Tessa Daniel, Laila and Millie’s mother, turned to glare at the reporter.
“I’m going to start by saying you are not to have any contact with members of the jury. Not friendly regards, not ‘How’s it going?,’ nothing that would elicit any sort of feedback from them to you about the nature of this case or anything,” Amero scolded. “You understand?”
“Yes, sir,” she replied.
“We’ve been trying this case, we’re in our fourth week,” Amero continued. “What we don’t need is members of the press putting themselves in the position where they’re causing us trouble. There’s a motion for mistrial that’s been made by the defense. Now what says the state?”
DeKalb Assistant District Attorney Edward Chase asked for time to gather information, but said there was “insufficient basis” to declare a mistrial.
“Your Honor, this reporter stated that the juror did respond to her,” Mull replied, “and we ought to, at the very least, inquire into that. Because if the juror is responding to her substantively, and not just ‘I can’t talk to you,” then there is grounds for a mistrial.”
Amero asked the juror if the incident would affect his ability to decide the case fairly, to which the juror responded, “No.”
Stevens was asked to step into the hall.
After questioning the juror, who said he was still able to deliberate fairly, Amero said he saw no reason to interrupt jury deliberations.
He then called out the entire jury. “Based on what that juror reported in the jury room, is there anyone who cannot be fair and impartial? If so, please raise your hand.”
Not one hand went up.
With that, Amero told jurors to do exactly as Juror 76 had done should anyone contact them and reminded them to say off social media. “You see how important your instructions are?”
The defense’s motion for a mistrial was denied.
In response to a separate note in which jurors asked for clarification on Counts 27, 28, 29 and 30, Amero read to them the text of the law without further explanation, and sent the jury back to deliberate.
Deliberations began Monday. The Rosenbaums are accused in the 2015 murder of Laila Daniel, a 2-year-old foster child in their care, and the injury of her sister, Millie Place.
The couple faces 49 counts, some individually, some together, which include murder, aggravated assault, aggravated battery and cruelty to children.
Jennifer Rosenbaum has said Laila was choking on a piece of chicken that she tried to dislodge using the Heimlich maneuver and that she also did CPR on Laila, but she wasn’t sure if she was doing it correctly.
Prosecutors say Rosenbaum beat the children, ultimately causing Laila’s fatal internal bleeding, while her husband, Joseph, failed to report the alleged abuse.
The first note jurors sent out to Judge Amero Monday requested that they be allowed to stick to the 9 a.m. to 5 p.m. schedule that has governed most of the trial. Jurors asked for and got 15-minute breaks at 10:30 a.m. and 3 p.m., with lunch from noon to 1:15 p.m. daily.
In a second note, jurors told the judge they had no way to view electronic files in evidence because the jury room had only VHS and DVD players. Amero said the jury was welcome to come into the courtroom to view any files if necessary.
Around 4:15 p.m., the jury sent Amero a note asking for clarification about the legal definition of “parties to a crime.” Specifically, they asked about a party who ”intentionally advises, encourages and counsels.” Amero said, “My first response is that we cannot clarify this. They have to clarify what these words mean in the context of this case. I am not aware of any case law that allows for clarification under these circumstances.”
After conferring with both sides, Amero sent the jury a note stating, “It is for you to decide,” and declining further clarification.
A fourth note was sent out late Monday afternoon about counts 36 and 37, asking whether the charges applied to “the right, left or either” leg. Again, Amero said, “My first response is again we can’t provide any further clarification and leave it at that.” Count 36 is aggravated assault and Count 37 is child cruelty in the first degree, which are related to injuries to Laila Daniels’ inner thigh.
Deliberations resume at 9 a.m. Wednesday.