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SJC ruling hovers over 2002 Cape slaying case

By Jonathan Saltzman
Globe Staff / August 29, 2010

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A lawyer for a trash collector convicted of the notorious 2002 murder and rape of a fashion writer on Cape Cod says a recent ruling by the state’s highest court in another murder case indicates that the justices may overturn his client’s conviction.

Christopher M. McCowen, the Hyannis man convicted of fatally stabbing and raping Christa Worthington in her secluded seaside house in Truro, raised the same issue on appeal that led the Supreme Judicial Court to toss an unrelated murder conviction, according to Gary G. Pelletier, who was involved in both challenges.

In its unanimous Aug. 19 ruling in a Somerset murder case, the high court held that a trial judge was wrong to let the state medical examiner testify about findings in an autopsy performed by another forensic pathologist. The testimony at the trial of Eric J. Durand, who allegedly beat his girlfriend’s 4-year-old son to death in 2003, was hearsay and violated his constitutional right of confrontation, the court said.

Pelletier, the Providence lawyer who handled Durand’s appeal, also helped McCowen’s trial attorney, Robert A. George of Boston, prepare the trash collector’s challenge, which was argued in May. And the first thing McCowen’s legal team homed in on was the Barnstable trial judge’s decision to let a substitute pathologist testify about the autopsy findings of another doctor.

“The issues are identical,’’ Pelletier said Thursday. “The same principle applies that you can’t testify to the factual findings in the report of another medical examiner.’’

Julia K. Holler, the Cape and Islands prosecutor who represented the state in the appeal, acknowledged in her brief that it was wrong for a substitute pathologist to testify in the McCowen case on the findings of the other doctor’s autopsy.

But because George did not object at trial, she wrote, the SJC must limit its review to determining whether the testimony created a “substantial likelihood of a miscarriage of justice,’’ a higher legal standard than the high court used in the Durand appeal. The testimony under scrutiny in McCowen’s case did not meet that standard, she wrote.

Holler also wrote that George used some of the disputed testimony of Dr. Henry Nields, the forensic pathologist from the state medical examiner’s office, to bolster the defense claim that Worthington’s time of death might have been much later than authorities claimed. McCowen told police that he had consensual sex with Worthington and beat her but that someone else killed her later.

Cape and Islands District Attorney Michael O’Keefe said Friday that Nields’s testimony passed constitutional muster because the pathologist was giving his expert opinion about the cause and time of Worthington’s death, not merely regurgitating the autopsy findings, which the SJC forbade.

“You have apples and oranges,’’ he said of the two appeals.

McCowen’s appeal was argued May 7. The SJC typically issues decisions within 130 days of arguments, so the court’s ruling could be handed down by mid-September.

Worthington, a world-traveling, Vassar-educated writer, was found stabbed to death in January 2002 in her hilltop bungalow in Truro. She was 46. Her 2 1/2-year-old daughter was found clinging to her half-naked body and smeared with blood but unharmed.

The murder was the first in Truro in more than 30 years and led to a highly public 39-month criminal investigation, including a controversial dragnet in early 2005, when authorities sought to collect DNA samples from all men in Truro.

In April 2005, police charged McCowen, who authorities said barely knew Worthington. McCowen, who had a criminal record and was the subject of at least four restraining orders by women on the Cape, picked up trash weekly from Worthington’s house.

McCowen agreed to give police a DNA sample three months after Worthington’s slaying. But police did not collect his DNA until two years later, and then it took more than a year to match the sample with DNA from Worthington’s body.

At the time, O’Keefe attributed the delays to several factors, including investigators’ focus on other suspects and a lack of resources at the State Police crime laboratory.

Fourteen months after McCowen’s November 2006 conviction for Worthington’s murder and rape, Barnstable Superior Court Judge Gary A. Nickerson, who had presided at trial, held an unusual two-day public hearing to interview a dozen members of the jury about several allegations of racial bias. The allegations included that a white juror referred to McCowen as a “big black man’’ during deliberations, spurring a confrontation in the jury room.

Based on the allegations, McCowen’s trial lawyer, George, filed a motion for a new trial. But Nickerson ruled in April 2008 that the white juror’s remark was an innocent description and rejected the request for a new trial. McCowen’s lawyers have challenged that ruling in their appeal as well.

Saltzman can be reached at jsaltzman@globe.com.

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