Lively wants new trial

Attorneys for Marilyn Lively are seeking to have her murder conviction overturned, claiming one juror’s ability to read lips might have tilted the verdict against her.

Defense attorney Craig Colwart has filed a motion for a new trial for Lively, who is scheduled to be sentenced to life in prison on Tuesday.

The outcome of a hearing on the motion will determine when, or if, Lively is sentenced.

Lively was found guilty of killing five-year-old Jermasha Decuir on Oct. 23.

In his motion for a new trial, Colwart said interviews with jurors revealed that one, hearing-impaired juror read lips during the trial, then shared what she learned from those conversations with other jurors.

“I’ve been doing this for almost 30 years, and I’ve never come across a situation like this in a criminal case,” Colwart said.

“But the case law says that if the jury is exposed to evidence that is not on the record, it could result in a new trial.”

The motion states that on one occasion, the lip-reading juror relayed to other jurors that District Judge Lori Landry admonished Colwart when asked for more time during a bench conference.

Conferences between attorneys and the judge are not normally admissible as evidence.

“It also conveyed the sense that the defense was unprofessional, making excuses and seeking delay �” an impression that played into the hands of a prosecution case built around the theory that Ms. Lively was constantly seeking to shift blame to others,” the motion states.

The motion stated that the lip-reading juror also “overheard” private conversations between Lively and her attorneys. Lively did not testify during the trial.

Prosecutor Bo Duhe declined to comment on the motion, but expressed his opposition in court documents.

He said state law forbids jurors from testifying about their deliberations after a trial.

Duhe wrote that even if the lip-reading claims were allowed, they do not establish that Lively was denied a fair trial.

He said the judge’s denial of more time would not prejudice the jury, and that the conversation between Lively and her attorney involved an item of evidence that was referenced in open court.

The jury unanimously found Lively guilty of first-degree murder on Oct. 23. The jury deadlocked during the penalty phase, effectively sparing Lively the death penalty.

The motion hearing is scheduled to begin Tuesday at 11 a.m.