Cape Cod Murder

With a strong defense, why cut corners?

Something I noticed about the Worthington trial within days of following it in the courtroom -- the closer the proximity of an observer to the trial, the more likely the person accumulated doubts about the prosecution's case.  There are plenty of exceptions, to be sure, namely among partisans on each side, but I'm not the only person who's noticed this.

Which makes it all the more curious why defense attorney Robert George (above right) trimmed so many corners in his closing argument. By that point in the three-week trial, George had punctured plenty of holes in the prosecution's contention that Christopher McCowen raped and killed Christa Worthington, and acted entirely on his own. The last blog post I wrote here pointed out that the failure of state police to check for matches of certain evidence might be enough, in and of itself, for jurors to acquit McCowen.

During Monday's closing arguments, I took many pages of notes, then listened to the arguments a second time that evening after having recorded them on Court TV. Since then I have listened again to excerpts from both. All of which left me with the impression that George would have prevailed with the better argument -- had he not so often fudged with the facts.

Among the more glaring examples was when George recounted the testimony of Truro resident Girard Smith, who saw a a "large dark" vehicle barrel out of Worthington's driveway between 1 and 3 p.m. on Saturday, Jan. 5, one day before her body was found. This was the most likely time that Worthington was murdered, George told jurors.

To George, the persistence of prosecutor Robert Welsh in pinning down Smith as to exactly what he saw, persistence not unlike that of George toward numerous witnesses, was an example of the prosecution "attacking" Smith and impugning his integrity.

"Is he lying about the dark truck coming down the driveway?" George asked jurors. "Did he identify Matthew Frazier's truck? (emphasis added) Did he say there was a plow just because someone threw a picture in his face?," an allusion to police showing photos of vehicles to Smith one month after the murder in an effort to determine the model of the vehicle. "The guy is telling the truth!"

Yet elsewhere in his closing argument, George pointed out that the list of vehicles sought by police from the Registry of Motor Vehicles, based on the description supplied by Smith, was not compiled until May 2002. The photos of trucks were shown to Smith in February 2002. With the list of suspect vehicles not available until May, how would it be possible for police to steer Smith toward identifying any specific owner of a vehicle  -- such as Matthew Frazier, the uncle of Jeremy Frazier, the man McCowen alleges killed Worthington?

Simply put, it's not possible, and the problem here is not a simple error in chronology. What George is doing, and I'll cite other examples as well, is what Welsh described in his closing argument as the magician's ploy of "misdirection" -- getting you to look "here" while the trick is performed "over there."

Not only was it impossible for police to push Smith toward identifying any vehicle or owner in the absence of the list from the Registry,  it is not the police or prosecution who have any incentive to conjure up the specter of Jeremy Frazier at the scene of the murder via Uncle Matt's truck. The incentive for this comes entirely from the defense, starting on the night of McCowen's arrest when he can no longer lie about his alleged lack of physical contact with Worthington and concocts an evolving series of stories culminating with Frazier killing Worthington -- Frazier being a man McCowen had already seen engaged in violence, the fight at the party in Eastham, on the same night Worthington was later stabbed to death.

Of the mysterious driver in the dark vehicle, George asserted that "one thing is clear -- that person who killed Christa Worthington, or had something to do with killing Christa Worthington, was white, in his late 30s to early 40s -- and he wasn't Chris McCowen."

But the only part of George's claim remotely "clear" is that McCowen isn't white, and for George to assert that the driver was wholly or in part responsible for killing Worthington is clearly speculation. One could just as plausibly claim the driver was someone who happened upon the scene, then fled in panic for fear of being accused of a horrific murder he didn't commit. People occasionally don't come forward after learning of a crime because to do so might compromise them for reasons apart from the crime itself -- such as the guy in bed with his mistress on the afternoon of Nov. 22, 1963 who hears four gunshots outside, looks through a window and sees a man he'd later recognize as Lee Harvey Oswald fleeing from a dying Dallas police officer. Years later, after the man's marriage fell apart, he came forward to describe what he witnessed.

George said of Worthington's former boyfriend Tim Arnold that "his hairs were all over Worthington's body" -- while George also claimed at another point in his closing argument that state police failed to analyze the hairs found on Worthington to determine who they came from. But if police failed to analyse the hairs, how can George say they came from Arnold?

Another example of misdirection by George -- the unidentified DNA of  "three other men, at least," found under Worthington's fingernails, "none of whom are Christopher McCowen." Operative word here -- "other." In fact, McCowen's DNA was found under Worthington's fingernails -- along with that of at least three men "other" than McCowen. But based on George description of this evidence, someone unfamiliar with the case might come away with the impression that McCowen's DNA was not found under the victim's fingernails -- which it was.

Another example -- George's description of the meeting in Orleans between police and McCowen as a drug informant on Jan. 7, 2002, only one day after Worthington's body was found. Contrary to the police claims that they did not first make contact with McCowen until two months after the murder, George said, "in fact, they talked to him for the first time 24 hours after this happened when four cops were in a police car with him down in Orleans. And all they can remember is how big his hands are."

Yet in his very next statement, George refutes his own claim of alleged police amnesia about the meeting. It turns out that McCowen had detailed information about a specific alleged drug dealer on the Outer Cape,  George points out, a guy named Jeremy Frazier.  Yet even with this information from McCowen, George said, police fail to pursue Frazier's alleged drug-dealing.

 Contrary to George's assertion two breaths earlier about "all" that police remember about their encounter with McCowen, the two police officers who testified about the meeting recalled Jeremy Frazier's name being cited by McCowen -- the same name McCowen evoked three years later after his arrest. If this is not the single most unlikely coincidence in the entire case, it's pretty damn close.

The police officers who testified also recounted how McCowen provided them with a multitude of details about Frazier's suspected drug-dealing, and one of them, Lloyd Oja, testified that McCowen seemed nervous.

More examples: George describes how McCowen's hairs and fingerprints were not found in Worthington's house -- after having lambasted police for not scrupulously analyzing every possible hair and fingerprint at the scene. McCowen has a shaved head, not incidentally, and I don't recall if it was established that McCowen's lack of hair is limited to the upper half of his body. That McCowen may have worn a hat on a chilly night in January is hardly a stretch, seeing how there's not much hair up top to begin with, nor that a trash hauler might be acquainted with winter apparel known as gloves.

George claimed the prosecution has "nothing" putting McCowen at the scene -- "except proof that he had consensual sex with Christa Worthington at some point that week."

Yet another example of misdirection -- the DNA link between McCowen and Worthington, based on his semen in her vagina, isn't proof of consensual sex, it's proof of sexual contact -- big difference. Physical evidence of rape is lacking in any number of scenarios -- such as when a woman is beaten senseless before she is sexually assaulted (and if after this trial there's a surge in rapes preceded by women being rendered unconscious, we'll know why).

That George may harbor doubts about his client became clear with the Freudian slip toward the end of his closing argument. "McCowen sits here asking you to acquit him," George said," not because of your sympathy, not because he is poor, not because he is not that smart, not because he's the victim of a false statement, and not because he had sex with Christa Worthington at some point in time."

"He is asking you to find him guilty ... " -- yeah, that's what George said -- " ... as the government's case is based on nothing but reasonable doubt, it's based on assumptions that aren't true, and it's based on incorrect and ignored evidence."

All of which, if true, should give rise to a defense not guided by misdirection.