In Rare Twist, Jury in Murder Case Ordered Back to Court to Testify on Racial Bias

Law professors call judge's action extraordinary and possibly unprecedented

Denise Lavoie

The Associated Press

January 04, 2008

One juror, a white woman, was trying to convince the others that the murder victim had been bruised during a struggle, not during consensual sex with the defendant. Bruises like those, the juror supposedly said, can happen "when a big black guy beats up on a small woman."

Another juror, a black woman, took offense and accused her of racism. Things got so heated that the two women had to be separated.

Now, more than a year after the defendant, a black garbage man, was convicted of stabbing to death a white fashion writer on Cape Cod, the judge has taken the highly unusual step of summoning the entire jury back to court next week to testify publicly about whether racism infected the deliberations.

Depending on what he finds out, the judge could order a new trial.

Questioning jurors in open court about their deliberations after a verdict is extremely rare. Jury deliberations are considered almost sacrosanct.

"It's extraordinary," said Jonathan Turley, a law professor at George Washington University, who warned that forcing jurors to testify could have a chilling effect.

"The jury system depends on jurors being open and frank in their views. We protect the sanctity of the jury room for that reason," he said.

Christopher McCowen, 34, was convicted in November 2006 in the rape and fatal stabbing of Christa Worthington, 46, a writer who had covered fashion in New York and Paris before moving to the small town of Truro.

McCowen, who was Worthington's trash collector, claimed that he had consensual sex with her but that his friend killed her.

Race permeated the case from the first day of the trial, when McCowen's attorney, Robert George, accused authorities of focusing unfairly on McCowen.

"It's based on an assumption -- a false assumption -- that a Vassar-educated 46-year-old, world-traveling, wealthy heiress could not possibly have had consensual sex with a black, uneducated, troubled garbage man," George said.

The jury initially reported a deadlock but convicted McCowen two days later, after one juror was removed for talking about the case outside of court. She was replaced by an alternate.

Within days, three jurors -- including the one who was removed -- contacted McCowen's lawyer and claimed to have heard racially biased remarks from three other jurors, including one white woman who allegedly referred to McCowen as "the big black guy" and said she was afraid of him. One of the jurors also claimed a dark-skinned man of Cape Verdean descent said that he had been raised by white people and that he did not like blacks and "what they are capable of."

McCowen's lawyer said if the jurors made the remarks, McCowen deserves a new trial because his right to a fair and impartial jury was violated.

"You don't need to be a civil rights attorney or a social scientist to be able to detect or see racial bias, especially when it's staring you in the face," he said.

But District Attorney Michael O'Keefe said that even if some jurors made racially insensitive remarks, all 12 voted to convict McCowen and confirmed it when they were polled by Barnstable Superior Court Judge Gary Nickerson.

"It's our firm belief that he received a fair trial," O'Keefe said.

During the hearing, set for Jan. 10 and 11, Nickerson is expected to question the three jurors who submitted sworn statements, as well as the other members of the panel.

Jeffrey Abramson, a Brandeis University professor who specializes in jury dynamics, said although judges sometimes question jurors privately during trials about potential bias, he had never heard of a case in which a judge called back an entire jury for questioning in open court after a verdict.

Abramson said that in deciding whether McCowen should get a new trial, the judge will first have to find that the racially charged statements were made and then decide whether the remarks actually influenced the verdict.

It is extremely rare for a judge to grant a new trial based on allegations of racial bias among jurors.

But in this case, "I think if he were to find that these remarks were made and that certain jurors felt under pressure from them, it's going to be very difficult for the judge to say, 'Well, I don't think that the remarks really prejudiced the deliberations,'" Abramson said.

"These remarks, if true, are precisely the kind of remarks that undercut reasonable deliberations on the merits of the case."