EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, February 5, 2008

You're Sure To Fall In Love With Old Cape Cod: Judge Allows Testimony By Juror's Great Aunt In Juror Bias Hearing

In November 2006, Christopher M. McCowen, an African-American man, was convicted of raping and fatally stabbing fashion writer Christa Worthington at her secluded bungalow in the affluent beach town of Truro on Cape Cod.  Days after the jury rendered the verdict, however, three jurors contacted McCowen's attorney, Robert A. George, and told him that there had been racial bias during deliberations.  Two jurors specifically indicated that juror Eric "Billy" Gomes, a "dark-skinned Cape Verdean," said that he "did not like blacks because they cause trouble and that he considered himself white and preferred to socialize with whites."

These jurors' statements led to McCowen moving for a new trial and Judge Gary A. Nickerson conducting hearings to determine whether racial bias had an effect on the jury deliberations.  During questioning, Gomes denied making racist remarks, and his testimony was reported in a Cape Cod newspaper, which his 74 year-old great aunt Delainda Julia Miranda read.  Miranda then contacted Peter Manso, who is writing a book about the case, and Manso contacted George.  This led to George calling Miranda at the hearing, and she testified that Gomes "doesn't like blacks."  She claimed that Gomes "often made disparaging remarks about blacks similar to those he allegedly uttered to jurors" and "repeatedly denied being black."  She further testified that Gomes said that "all blacks do is come down here and get in trouble, do drugs," that they "don't like to work, and that all blacks like to do is kill people."  Nickersen is expected to rule on the motion for a new trial within 60 days.

According to the article on the case, "[l]egal specialists have said that Nickerson's decision to interview the former jurors was highly unusual because judges typically avoid prying into deliberations after a verdict. But federal rules of evidence and case law make a notable exception for extraneous racist remarks, particularly if the comments intimidate jurors and prevent them from voting their conscience."

This statement is partially correct.  Under Federal Rule of Evidence 606(b), "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying." (emphasis added).  Massachusetts applies the language of Rule 606(b) in its case law. See Commonwealth v. Delp, 672 N.E.2d 114, 116 n.3 (Mass.App.Ct. 1996).

The article is wrong that there is an exception under Rule 606(b) for racist remarks by jurors as courts have held that these do not constitute extraneous matters. See  Commonwealth v. Laguer, 571 N.E.2d 371, 376 (Mass. 1991).  The article is right, though, that some (but not all) cases have created an exception for racist remarks by jurors, allowing them to be admissible irrespective of the rules of evidence because deeming them inadmissible would violate defendants' rights to due process/equal protection/fair trials. See id.  This is the conclusion that the Supreme Judicial Court of Massacusetts came to in Laguer, where it held a hearing on juror bias when a defendant was convicted, and there was evidence that "[t]he deliberations were tainted wih blatant racism...." Id. at 375.   

Furthemore, the article on the case cites Jeffrey B. Abramson, a former prosecutor and now a professor at Brandeis University as saying, "I don't believe I have ever heard of a judge going to this length to essentially call a collateral witness....It means we now have a minitrial within a trial. We have a particular juror on trial."  I was in the same position as Professor Abramson until I heard about a bizarre case in Illinois where a judge allowed a reverend and his brother to testify in a post-verdict hearing that a juror told them that he had doubts about the defendant's guilt and was pressured by other jurors into finding him guilty.  In commenting about the case, I contended that the judge ruled incorrectly because the juror could not testify about this internal pressure pursuant to Rule 606(b), and the testimony of the reverend and his brother constituted inadmissible hearsay.

In the McCowen case, however, I think that the judge got it right.  As I noted, when a judge decides to hold a hearing investigating juror bias, he is saying that, despite the rules of evidence, the defendant has a Constitutional right to a hearing to investigate whether racism, sexism, etc. tainted the jury's verdict.  Thus, any argument that Miranda's testimony constituted inadmissible hearay would seem inapposite because the judge has already ruled that this is not a situation governed by the rules on evidence.



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