Judge rules no new trial in slaying of writer

Says description used of McCowen not bias

A trash collector convicted of a notorious Cape Cod slaying does not deserve a new trial, even though a white juror referred to the defendant as a "big black man" during deliberations, spurring a confrontation in the jury room, a state judge ruled yesterday.

Barnstable Superior Court Judge Gary A. Nickerson said the juror, Marlo L. George, used the term innocently in November 2006 to describe Christopher M. McCowen, who was convicted of raping and fatally stabbing a white fashion writer, Christa Worthington, in her secluded house in the affluent seaside town of Truro in 2002.

"Set in this context, the words 'big black man' are descriptive, identifying who inflicted the injuries and the size of the assailant,' " Nickerson, the trial judge, wrote in his 40-page decision, adding that the phrase "did not constitute racial bias."

Nickerson held an unusual two-day public hearing in January to interview a dozen jurors about several allegations of racial bias, including reports that a dark-skinned juror said he did not like blacks and that some female jurors feared that McCowen was staring at them.

Nickerson said these reports, even if true, also did not constitute racial bias. He said two of three jurors who complained after the verdict appeared to have faulty recollections or axes to grind. They might have been influenced, he added, by widespread news coverage of the verdict.

Robert A. George, the Boston lawyer who defended McCowen and filed the motion for a new trial, condemned the ruling and vowed to appeal to the Supreme Judicial Court and, if necessary, the US District Court in Boston.

"I am not surprised that the court that oversaw the conduct of this case has endorsed the behavior of the offending jurors," said George, who is unrelated to the juror. "The opinion picks and chooses who the court believes, disbelieves, and who it's going to cast aspersions on and who it's going to endorse as outstanding citizens."

Cape and Islands District Attorney Michael O'Keefe, who had contended that the phrase "big black man" was merely a description, praised Nickerson for a "very thoughtful and comprehensive opinion which, in my view, is entirely consistent with the evidence."

Days after McCowen's conviction of a crime that garnered national attention, three jurors contacted his lawyer to complain of racial bias.

One, Roshena Bohanna, who is black, said Marlo George told jurors that a "big black man" could have undoubtedly left the bruises that were visible in police photographs on Worthington's body. During the hearing, almost all the jurors said the comment prompted a loud and angry confrontation between the two women. Bohanna accused George of being a racist, and George denied it.

The judge said he had no doubt that George used the phrase and that Bohanna was understandably offended.

"Despite the speaker's innocent intention, the image of a big black man beating on a small woman dovetails into a common racial stereotype that black men are prone to violence," Nickerson wrote.

But, he said, the phrase "does not render Juror George a racist."

Bohanna's decision to confront George, combined with entreaties by other jurors to simply focus on the evidence, was a healthy dynamic that blunted the effect of the stereotype, the judge wrote.

Jeffrey B. Abramson, a former Middlesex County prosecutor and specialist on juries, agreed.

"The judge is not denying there is a kind of unconscious or embedded racism in such a view," said Abramson, who teaches at Brandeis University.

"What he seems to be saying is he doesn't think that the individual who made the remark meant to be racist or in fact was," Abramson said. "It's just floating there in the background. And to live with the jury system is, of course, to live with the fact that some of these cultural stereotypes are going to always be in the air."

There were reports that another juror, Eric "Billy" Gomes, a dark-skinned Cape Verdean, made racist remarks about blacks and denied being black to other jurors.

Nickerson said that the jurors who made such allegations were not credible and that he believed Gomes, who denied making the comments.

Three weeks after Gomes testified at the hearing, his great-aunt, Delainda Julia Miranda, 74, came forward to testify that she had heard her grand-nephew make similar comments.

But the judge said two of Miranda's three sons have been convicted of crimes in Barnstable courts. He called her a "storyteller" and said she might resent law enforcement officials.

Abramson said that it was appropriate for Nickerson to deem some jurors credible and others not and added that that was the purpose of putting jurors on the witness stand one by one.

An appellate court, which relies on legal briefs and arguments, would be loath to second-guess a judge's assessment of witnesses' credibility, Abramson said.

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