Motion For Retrial Rejected Judge Finds No Problem With Jury Re-Enacting Birnel’s Fatal Fight With Wife

A Spokane County judge ruled Friday that jurors have a right to re-enact crimes while deliberating.

Superior Court Judge Kathleen O’Connor rejected a request that she declare a mistrial in the recent second-degree murder conviction of Thomas “Rick” Birnel.

Defense attorney John Rodgers argued the jury had introduced new evidence by acting out the fight in which Birnel’s wife, Cookie Birnel, was stabbed 31 times.

Birnel was convicted of second-degree murder Dec. 4 and will be sentenced Tuesday.

The jury rejected Birnel’s defense, that he was only trying to defend himself after his wife attacked him with a 12-inch butcher knife.

Jury members say they acted out the fight - using the same knife that killed Cookie Birnel - to determine whether it was possible she never took her hands off the knife, as Rick Birnel claimed during the trial.

Considering the location of the wounds, they decided, it wasn’t possible.

The re-enactment was improper, Rodgers said, because the fight wasn’t re-enacted during the trial.

Also, he said, jurors used their own experiences with fights to sway one another’s opinion.

But O’Connor said she could find no evidence of jury misconduct.

“There’s clearly an expectation that jurors bring into the courtroom and into the jury room their life experiences,” she said.

The jury deliberated more than 20 hours before reaching its verdict. Six of the 12 were undecided until the final hours, said one of the six holdouts.

It was a variety of evidence, not just the re-enactment, that convinced the six to convict Birnel, said the juror, who asked not to be identified.

Another juror, who spoke on the condition of anonymity, called Birnel’s appeal “ridiculous.”

“What went on in there didn’t taint anybody’s opinion,” he said.

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