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Lawyer in Cape case eyes retrial

Alleged threats to jury are under investigation

By Megan Tench and John R. Ellement
Globe Staff / November 18, 2006

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BARNSTABLE -- As former trash collector Christopher M. McCowen faces life behind bars for the rape and murder of Cape Cod fashion writer Christa Worthington, McCowen's lawyer, Robert A. George, said yesterday he is confident that the jury's decision can be reversed on appeal and that the case will be retried.

"Mr. McCowen has a very powerful appellate argument for reversal, in particular for the things that occurred in the past few days," George said, referring to a cellphone call received by a juror, which led to her being dismissed from trial deliberations.

As jurors reflected on the decision to convict McCowen yesterday, Cape and Islands District Attorney Michael O'Keefe said his office is investigating threats to the jury made by someone connected to McCowen.

After the verdict was read, O'Keefe said a female telephoned the courthouse and his office with threats that he declined to specify.

"There is nothing to suggest any juror is in any danger at all," O'Keefe said, adding that it's not unusual for someone upset by a jury verdict to lash out.

But the incident prompted Superior Court Judge Gary A. Nickerson to impound names and addresses of the jurors until the matter is fully investigated.

A juror, who declined to be identified, said yesterday that she had been unnerved by something that took place after the verdict was read but declined to specify what it was.

Meanwhile, another juror, who also asked not to be named, said the decision to convict McCowen after the panel told the judge it was deadlocked was one of the toughest things she ever had to do.

"It was hard, extremely hard," the juror said. "I think it's much too soon to talk about it."

Under state law, first-degree murder convictions are automatically appealed to the Supreme Judicial Court.

While prosecutors insist the verdict was just, George and some legal specialists say that several issues -- dismissal of the juror, the admission of an unrecorded statement, and the barring of testimony from two experts -- could compel the court to reconsider.

Rachel Huffman, 22, was discharged Tuesday after the judge heard a recording of a cellphone call in which she indicated she was aware of television news coverage of the trial, an apparent violation of Nickerson's order to jurors about avoiding news accounts of it, and called investigators in another case "dumb," indicating a possible bias against the police.

George said he would ask the court to produce documents and witnesses involved with the call. "Something's really wrong here," he said.

O'Keefe dismissed any speculation that the government engineered her dismissal to get the verdict it wanted.

"Of course it isn't true," he said, noting that Huffman's lawyer said she was undecided when she was removed from the jury.

George also said he would appeal the admission of a 27-page statement investigators submitted based on an unrecorded interview with McCowen.

Investigators argued that McCowen waived his right to the recording. But according to state law, police are strongly encouraged to record statements and when investigators do not tape statements, the judge hearing the case must instruct the jury to approach them with skepticism.

In addition, Nickerson allowed some testimony from forensic psychologist Eric Brown, who said McCowen had a low IQ and was easily manipulated, and police interrogations expert Richard Ofshe, who wanted to discuss patterns he found in McCowen's police statement, but didn't allow them to include testimony from their own interviews with the defendant, saying it amounted to hearsay, among other reasons.

Though O'Keefe said police had acted within the bounds of the law, other observers say the combination of the admission of the statement and suppression of the expert testimony could make for a strong appeal.

"Six hours is a long, long time to be interrogated about a murder. If they are just going to sit there and trick a person with limited intelligence . . . [the SJC] could say we told you you should be recording these things," said Bob Griffin, a former Suffolk prosecutor who is a criminal defense lawyer.

David Siegel, a law professor at New England School of Law, agreed and said this could be the case that forces the SJC to mandate that police record all interrogations.