Worthington jurors confirm quarrel
Foreman warned panel that race not relevant, 1 recalls
BARNSTABLE - By the end of an extraordinary two-day hearing yesterday, almost all of the members of the jury that convicted a trash hauler in a notorious slaying on Cape Cod had confirmed that two jurors angrily confronted each other during deliberations after one referred to the defendant as a "big black man."
Whether the loud argument between a black female juror and a white female juror reflected racial strife that tainted the verdict or a misunderstanding about a "descriptive" phrase, however, remains in dispute.
In response to a question by a Barnstable Superior Court judge about the atmosphere in the jury room, one of five jurors who testified yesterday said the foreman, Dan Patenaude, had admonished jurors that Christopher M. McCowen's race was irrelevant - even though McCowen's lawyer said police targeted the defendant partly because he is black.
"We want to make sure that we get this right, totally right; race doesn't come into it," juror Matthew Maltby recalled the foreman saying after one of the jurors had referred to the defendant's race.
"And it didn't," Maltby added.
But McCowen's father, Roy, said after the hearing that he believed some jurors failed to see beyond his son's skin color in the November 2006 trial and that he deserved a new trial.
"It's obvious that Chris's race and size had something to do with their preconceived notion," said Roy McCowen, who traveled from Virginia to attend the hearing. "He was guilty from the start and had to prove he was innocent, which is the opposite of what it should be."
Ultimately, it will be up to Judge Gary A. Nickerson to sort out.
Nickerson adjourned the hearing after interviewing seven jurors individually on Thursday and five more yesterday. He plans to resume next Friday with expert witnesses.
The jurors had returned to court more than a year after they convicted McCowen of raping and fatally stabbing fashion writer Christa Worthington, who was white, in her Truro home in 2002.
Among the five who testified yesterday was an alternate who did not participate in deliberations.
Acknowledging that the hearing had inconvenienced them, Nickerson said, "What is at stake is enormously important to all involved."
Massachusetts case law allows judges to question jurors about their verdicts only under extraordinary circumstances, such as when jurors allege that racism tainted deliberations.
Next Friday, McCowen's lawyer, Robert A. George, is scheduled to call to the stand Sam Sommers, a psychologist at Tufts University, and Mahzarin R. Banaji, a psychologist at Harvard - specialists on racial bias in jury deliberations.
George said that he and Cape and Islands District Attorney Michael O'Keefe will then file papers addressing whether the hearing proved that extraneous "ethnically based" comments tainted the verdict.
Several cases decided by the Supreme Judicial Court in recent years prohibit such comments in jury deliberations, George said.
He said he expected Nickerson would issue a ruling within 60 days but added that the losing side will undoubtedly appeal the decision to the SJC, which means the case could be unresolved for many months.
After the hearing, O'Keefe said he remained confident that McCowen got a fair trial and that jurors who referred to race were simply being descriptive.
"It's been my feeling throughout that this is not the kind of material that rises to the level of requiring, in any way, a new trial," he said.
Three jurors who filed affidavits with George days after the verdict was reached testified that other jurors made several derogatory remarks about blacks during deliberations.
One of the three, Roshena Bohanna, who is black, said Thursday that a white juror, Marlo George, said a "big black man" would undoubtedly have left the bruises that were visible in police photographs on Worthington's body.
The comment prompted Bohanna to rise from her seat and call Marlo George a racist, several jurors testified. Marlo George angrily denied being racist, and jurors separated the two women.
Marlo George testified Thursday that she described McCowen as a "200-pound black man" and made the remark at a different point during deliberations. She said it was purely for descriptive reasons.
Several other jurors yesterday agreed, saying she made the comment when referring to an assertion by McCowen that he had gone to Worthington's house in the middle of the night for consensual sex and did not rape her.
Several jurors yesterday denied or said they were unaware of other claims by the jurors, including that Bohanna called Marlo George a "Southern cracker" and that some jurors had made mocking references to Bohanna's racism accusation during a charades-like game at the hotel where the jury was sequestered. 