Jury Probed for Racial Bias in Cape Cod Case
RENEE MONTAGNE, Host:
NPR's Tovia Smith reports.
TOVIA SMITH: Christopher McCowen said he had consensual sex with Worthington, but denied the murder. His attorney Robert George says he always expected race would make McCowen's story tough for jurors to buy.
ROBERT GEORGE: I must have told them five times to be careful of their predispositions because he was a poor, black garbage man in an almost entirely white community, just sticking out like a sore thumb.
SMITH: George is now arguing race did influence the jury. He says three jurors called him after trial to complain about blatantly biased comments, like one from a white juror who allegedly said the victim's bruises were, quote, "What happens when a big, black guy beats up on a small woman?"
GEORGE: That's over the line. That's something that has no place in the jury room because race has nothing to do with that.
SMITH: George says the comments sparked a confrontation with a black juror who took offense and that's when another juror, a Cape Verdean, allegedly pointed to the angry outburst and said he, quote, "didn't like blacks because that's what they were capable of."
GEORGE: That is an idiotic, racist statement that offended people and there was no doubt in my mind that racial bias was in this jury room.
SMITH: Judges are usually loath to pry into jury deliberations, which are suppose to be free and candid exchanges. But in this case, the judge interviewed every juror to determine if the comments were actually made. If so, experts say, he'll then have to decide whether they tainted the verdict enough to call a mistrial.
GEORGE: There is no bright-line rule that if there is an impermissible mention of race, it's over.
SMITH: Ron Sullivan is a professor at Harvard Law School.
RON SULLIVAN: In this sort of case, we give the judge a lot of discretion to determine whether the defendant got a fair shot.
SMITH: An expert witness, Tufts Psychology Professor Sam Sommers is expected tomorrow to describe how even one biased juror might influence others.
SAM SOMMERS: He could, at some level, liberate me to feel that if it's okay to speak to my own prejudices and stereotypes. It could also make me feel marginalized seeing the health situation is a deck stacked against me and say why would I argue with these people and they were going to change that kind of attitude so I might as well just switch my vote.
SMITH: In the Worthington case, defense attorney say it was the latter. Two jurors, who were holding out for not guilty, caved when they perceived racial bias they couldn't overcome. While it's unusual for that kind of thing to be investigated, Sommers says it's not unusual for it to happen.
SOMMERS: There's no magic portal through which you step when you become a juror and you're suddenly free from all the biases and preconceived notions that regular humans have in their daily lives. We know from data that race does have pervasive effects on people's decision making when they're jurors.
SMITH: But Old Dominion University criminologist Donald Smith calls that a useless exercise.
DONALD SMITH: Those three questions are so obvious that no one's going to fess up to having a problem with any of those things.
SMITH: Smith says jurors in racially charged cases like this one should be asked a long list of more proving questions like what they read and how they feel about various public figures. But ultimately, Smith says, biased juries are often chosen not in spite of lawyers' best efforts but because of them.
SMITH: It is in fact a poker game, and that jury is literally the hand you've been dealt. And everybody is trying to stack the deck. Sometimes, they can't help but smile when they see the jury they've drawn.
SMITH: Tovia Smith, NPR News, Boston.
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