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Jury in Cape murder ordered back to court

Bias claims put year-old verdict at risk

Christopher McCowen, convicted in November 2006, is serving a life sentence. The judge could order a new trial if the verdict was biased. Christopher McCowen, convicted in November 2006, is serving a life sentence. The judge could order a new trial if the verdict was biased. (Kevin Mingora/associated press/pool)
Email|Print| Text size + By Jonathan Saltzman
Globe Staff / November 30, 2007

More than a year after they convicted a black trash collector of raping and murdering a white fashion writer, members of a Cape Cod jury will have to return to court - and this time, they will be on the witness stand.

In an extraordinary hearing scheduled Jan. 10 and 11 at Barnstable Superior Court, each of the jurors - including a woman who will be flown in from Texas - will be questioned under oath in open court by a judge about whether racially insensitive remarks allegedly made during more than a week of deliberations tainted the verdict against Christopher M. McCowen.

Superior Court Judge Gary A. Nickerson ordered the hearing after McCowen's lawyer asked for a new trial, based on sworn statements from three jurors who contacted him within days of the November 2006 conviction. The jurors said three other jurors made repeated racist remarks, at one point almost triggering a fight.

Although judges sometimes privately question a juror in chambers or softly, next to the bench, about possible bias during a trial - or, more rarely, in open court after a verdict - one legal specialist said he could not recall another case when a judge held a public hearing to interview an entire jury months after a trial.

"I have not come across such a case," said Jeffrey B. Abramson, a former Middlesex County prosecutor and a specialist on juries who teaches at Brandeis University. "It's normally the case that the judge is not interested in knowing what went on in the jury room, but the one great exception to that are allegations of racial bias in deliberations."

A state trial judge who is not involved in the case said he, too, was unaware of another case when a judge summoned a jury for questioning months after the verdict. The judge, who insisted on anonymity because of the sensitivity of the case, said the challenge for Nickerson will be determining whether the alleged remarks tainted the verdict or reflected the kind of freewheeling discussion that is at the heart of jury deliberations.

"We're all against racial bias, but how far can you trace it in the system without invading equally important public policy questions like the freedom of the jury to discuss the case" candidly behind closed doors? said the judge.

Nickerson, who presided at McCowen's trial, could not be reached for comment. If he finds racial bias, he could throw out the verdict and order a new trial.

One juror who made allegations of bias said he had no problem returning to the court to take the witness stand.

"I'm not stressed out about it at all," said Normand Audet, 64, of Pocasset, who declined to discuss details of his allegation.

McCowen was convicted of raping and killing Christa Worthington, 46, whose secluded Truro house was located on his trash-hauling route. Worthington, who had lived in Paris and New York before moving to the quiet beach town, was found stabbed to death in January 2002 with her 2-year-old daughter, Ava, clutching her body, smeared in blood but unhurt.

After McCowen's conviction, he was sentenced to life in prison without the possibility of parole. He is at MCI-Cedar Junction, according to his attorney, Robert A. George.

Race was a subtext of the case even before the allegations of bias in the jury room. George argued at trial that police and prosecutors refused to believe McCowen's assertion that he had had consensual sex with Worthington, which would account for his DNA found at the scene, and that someone else killed her.

Days after the verdict, three jurors contacted George with concerns about racially insensitive remarks, including repeated references to McCowen as a "big black guy" who one juror feared was staring at her in court. Another juror reportedly commented that Worthington's bruises were predictable when a "200-pound black guy beats on a small woman."

Another juror, a black man, made racist comments in general, saying that he hung around with whites and did not like blacks because "look at what they are capable of," according to one of the sworn statements.

The statements were filed by one black juror and two white jurors, including one who was dismissed partway through deliberations for unrelated reasons. They said that the racial remarks were made by two white jurors and a black juror and that the comments intimidated them.

George said this week that "you do not have to be a social scientist to understand that certain comments and statements are racially biased in nature, and the type of comments on file in this case . . . compromised the jury deliberations."

However, Cape and Islands District Attorney Michael D. O'Keefe, who filed a motion arguing that the hearing was unnecessary, said McCowen got a fair trial even if jurors made racially insensitive remarks.

"The issue is whether or not, despite what people may feel or think of certain events, they can return a fair and impartial verdict based upon the evidence that they hear and only that evidence, and we believe that the jury did that in this case," he said.

O'Keefe added that it was unfortunate "that we have to further inconvenience those [jurors] who sacrificed in giving their service, particularly in a difficult case like this."

Tony Jackett, the shellfish constable and Ava's father, said the upcoming hearing illustrates that the Worthington murder case has not ended for many people on the Cape.

"It's just something that you can't put behind you," said Jackett, one of several individuals in Worthington's orbit whom police considered suspects during an investigation that lasted more than three years, until McCowen's arrest. "It's been like that for the last six years." Jackett was on the list of potential witnesses at the trial but was never called to the stand.

Ava, now 8, is being raised by close friends of Worthington's.

George filed a separate motion yesterday for a new trial. It alleged that prosecutors withheld evidence, including that a friend of McCowen's, Jeremy Frazier, was arrested and accused of threatening two British tourists with a knife in Wellfleet the year after Worthington was stabbed to death. The charges were later dismissed. McCowen told police after his arrest that Frazier was with him when Worthington died and that it was Frazier who killed her, according to testimony at the trial.

It has evidently been challenging for the court to arrange the upcoming hearing. One of the three jurors who contended racial bias, Roshena Bohanna, moved to Texas after the trial and initially refused to return to court, according to court records.

She retained a lawyer, James S. Dilday, who said she left the Cape after the trial in part because of a public backlash against her as a result of her allegation. George's motion for a new trial, which triggered the January hearing, did not name the accusing jurors, but their identities were soon reported by news outlets.

"She feels the government is against her and the judge is against her," Dilday said. "She's fearful of retribution."

Dilday has persuaded his client to return for the hearing and has booked her flight. He said he expects all 12 jurors who convicted McCowen, plus the one who was replaced during deliberations and later complained of bias, will be questioned by the judge.

George said the judge has also given him permission to hire two expert witnesses to testify about racial bias. They are Sam Sommers, of Tufts University, and Mahzarin R. Banaji, who teaches at Harvard.

Jonathan Saltzman can be reached at jsaltzman@globe.com

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