Bid for retrial in slaying alleges racism by jurors

Three members of the jury that convicted a black trash collector in the rape and murder of a white fashion writer on Cape Cod said in sworn statements that other jurors made repeated racist remarks during deliberations, at one point almost triggering a fight.

In affidavits filed yesterday that lie at the heart of a motion seeking a new trial for Christopher M. McCowen, the three jurors said other members of the panel referred to the defendant as "an intimidating big black guy" and voiced fears that he was staring at them. The affidavits also asserted that one juror described bruises on Christa Worthington, the victim, as the predictable result when a "200-pound black guy beats on a small woman."

The remarks prompted one of the jurors who submitted an affidavit to call another juror a racist and almost led to a fight between the two women, who had to be separated, the affidavits said.

Robert A. George, who defended McCowen in the case, said the three jurors who submitted the affidavits had called him separately shortly after the Nov. 16 guilty verdict that resulted in a life sentence.

"Over the years, I've been contacted by jurors after a trial, but I've never had three jurors from the same jury contact me," George, a criminal lawyer for 26 years, said in an interview yesterday. "If true, it demands a new trial free of racial bias."

George argued during the trial that the case was racially tinged because police and prosecutors would not believe McCowen's assertion that he had consensual sex with Worthington, thus accounting for his DNA found at the scene. Prosecutors contended that McCowen, a trash collector in Truro, raped and then fatally stabbed Worthington in January 2002 at her secluded bungalow in the affluent beach town.

Cape and Islands District Attorney Michael O'Keefe called George's request for a new trial a "routine postconviction relief motion." He declined to comment on the allegations, saying, "As a general proposition, lawyers exploit what they think they can exploit in order to further their interests."

Jeffrey B. Abramson, a former Middlesex County prosecutor and specialist on juries who teaches at Brandeis University, said judges typically avoid prying into jury deliberations after a verdict. But federal rules of evidence and case law make a notable exception for what Abramson called "irrelevant racist remarks," particularly if the comments intimidate jurors and prevent them from voting their conscience, he said.

In their affidavits, the jurors say the deliberations were tense and they at times felt threatened.

George has asked for a hearing into the allegations. If the hearing corroborates them, he said in his motion, then the burden shifts to the state, and prosecutors must show that the atmosphere in the jury room was not prejudicial.

The affidavits were filed by one black juror and two white jurors, including one who was dismissed part way through deliberations. The three jurors who complained said the racial remarks were made by two white jurors and a black juror.

The affidavits and motion did not name the jurors, but it was apparent that one of the accusers was Rachel Huffman. She was dismissed by Judge Gary A. Nickerson after five days of deliberations because of comments she made about news coverage and police officers in a tape-recorded conversation with her boyfriend, who was being held in the Barnstable County Jail in an unrelated case. The judge had routinely ordered jurors to ignore news coverage, and he agreed with prosecutors that her comments betrayed a bias against police.

Neither Huffman nor her lawyer returned phone calls yesterday.

The affidavits signed by Juror A, Juror B, and Juror C, Huffman, say that three other jurors made racially charged comments about McCowen and blacks in general repeatedly during deliberations.

For example, Juror A, a black woman, complained that Juror Y, a white woman, said it was obvious that McCowen bruised Worthington during a struggle because "when a big black guy beats up on a small woman," such injuries would result. Juror A said Juror Y also made snide remarks about her cornrow hairstyle and questioned her educational background.

At one point, she accused the white juror of racism, nearly resulting in a fight , the affidavit says . The two other affidavits corroborated that account.

Juror B, a white man, said in his affidavit that another white female juror described McCowen as "the big black guy" and expressed fear that the defendant was staring at the jury.

Huffman, who is white, said in her affidavit that a black male juror made racist comments about blacks in general. He told her that his brothers had married white women, that he hung around with whites, and that he did not like blacks because "look at what they are capable of," Huffman said.

McCowen was convicted by a jury of 10 whites and two blacks after seven days of deliberations during which jurors complained of being deadlocked.

In addition to alleging racial bias, the three jurors who filed the affidavits said members of the panel appeared to ignore some of Nickerson's instructions. During lunch and cigarette breaks, for example, jurors discussed their deliberations with alternates who had been kept separate to prevent that, the jurors said in the affidavits.

The white male juror also said in his affidavit that he was bitterly upset when, after the verdict, Nickerson privately thanked jurors and informed them that they could have remained deadlocked if they had chosen. Both he and the black female juror said they would not have changed their votes to guilty if they had known they could continue to hold out.

"I slammed my hand on the table and said I should not have caved in, but the judge told us that we had made the right decision and that the defendant would appeal," the male juror said in his affidavit.

Jonathan Saltzman can be reached at jsaltzman@globe.com.