Attorney Sam’s Take: Boston’s Supreme Judicial Court Rules On Jury Bias In Rape – Murder Case

A funny thing happened to me today on the way to the Boston Criminal Lawyer Blog: I got Pi…really angry. I had planned to end the week with a pleasant little story about a gentleman getting arrested at an MBTA stop. It appears that he turned out to be a Massachusetts sex offender and was urinating in public at the time.

Of course, I now see that our “news brief blogger” has already reported that story.

Anyway, my attention got diverted by two stories from Boston’s Supreme Judicial Court. The court’s rulings are not really what ignited the fire in my gut. It was some of the commentary from one of our esteemed political prosecutors.

Before I address the issue of Massachusetts Attorney General Hypocrisy, let me explain the first ruling. I will address the second story when I calm down…presumably on Monday.

You may recall the story of the late Christa Worthington from Cape Cod. She was murdered in her home in January, 2002. Her body was discovered with her 21/2 year old daughter huddled next to her lifeless body.

During the course of the criminal investigation, attention focused on Christopher McCowen, 30, the trash collector, known hereafter as the “Defendant”. The investigation continued as did the growth of public interest, particularly when books about the case, including Maria Flook’s book, Invisible Eden: A Story of Love and Murder on Cape Cod were published.

Finally, the Defendant was arrested in April, 2005. The evidence accumulated against him was DNA evidence (which is the connection to the ruling I will be discussing on Monday). The trial began in October, 2006. The Defendant claimed that he had had consensual sex with the deceased. Such sex seldom causing death, the Defendant was found guilty of various murder counts as well as aggravated rape and burglary. He received three concurrent life sentences without the chance of parole.

One issue which outlived trial was that of race. The deceased was white; the Defendant was black. The Defense team claimed that racial animosity among jurors fueled the conviction of their client.

The Defendant’s appeal finally reached the SJC which has now ruled, “We affirm the convictions and the judge’s denial of the motions for a new trial.” Justice Ralph Gants wrote for the unanimous court. “After a complete review of the record, we find no basis on which to reduce the degree of guilt or order a new trial.”

In a concurring opinion, Chief Justice-designate Roderick Ireland agreed that the convictions should be upheld but added that he was haunted by the racial issues that surfaced among jurors. He suggested that judges in similar cases should probe for signs of “unconscious racism.”

The trial judge, Barnstable Superior Court Judge Gary A. Nickerson had not taken the allegation of racism lightly after the trial. In fact, he held an unusual two-day public hearing to interview a dozen members of the jury about several allegations of racial bias months later.

The allegations included that a white juror referred to McCowen as a “big black man” during deliberations, spurring a confrontation in the jury room. Ireland wrote that a woman juror, who is a minority, was asked about her hairstyle and education level during deliberations.

“It would have been informative to know whether Juror A was the only juror asked about her level of education,” Ireland wrote. “If she were the only one, it would have raised a red flag for me, as it apparently did for Juror A…Because of unconscious racism, it is the subtle clues that help give a judge insight into a juror’s true feelings.”

Judge Ireland, who will become the first black to lead the SJC and the state court system, added “unconscious racism could affect the outcome of trials.”

A View From The Trenches:There is very little doubt that racism is alive and well in the criminal justice system. However, many kinds of bias happily reside therein. Many of them are treated with mere lip service. For example, we tell jurors that criminal defendants are actually to be considered innocent unless and until they are proven guilty. Of course, the assumption by many jurors, as well as most participants in the theatre of justice, is that the defendant must be guilty of something…after all, where there is smoke, there is fire.

Other biases are secretly accepted, sometimes even encouraged, in the criminal justice system. Say, for example, the testimony of police officers. We have seen many instances that prove that being a member of law enforcement is not a shield against human weakness and the ability to stretch…and often break…the truth, however, during everyday practice, we allow the bias that police officers do not lie and that they are much more reliable than other people. Say, for example, that probably guilt ridden defendant over there.

The fact is, though, disturbing a jury verdict is quite difficult to do. The fact that there may have been bias on the part of jurors is not enough. One has to show that said bias made a difference.

One can only hope that Justice Ireland’s warning rings a big bell with trial courts. Such concerns are not to be taken lightly. It might even be nice to see some prosecutors, whose job it is, after all, to “do justice” to be concerned as well.

After all, Christmas is coming…!

In the meantime, if you would like an attorney who has experience in such matters and will look out for how such biases could harm you if your last name is suddenly “Defendant”, get someone who has been around awhile and has a lot of trial experience.

I happen to be one of those, so if you would like to contact me about such a matter, please feel free to call me to arrange a free initial consultation at 617-492-3000.

Have a great, safe and law-abiding weekend!
To view the original stories in which parts of this blog were based, please go to : and

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