Samizdat

Because, with the Christa Worthington murder case, nothing is ever as it seems, today's hearing for a retrial may have struck some as a dull, ritualistic three-hour torture session, another painful slog with no end, this time held in a cramped side court in Barnstable, a session with little fanfare, none of big TV trucks parked outside and none of the posh trappings of the previous hearings that were held in the big, ornate courtroom with two tiers and everywhere history.

Delainda Miranda went toe-to-toe with Cape & Islands District Attorney Michael O'Keefe, and then matched wits with Judge Gary Nickerson who seemed  irritated by the DA's conductBut it was no less dramatic for those of us in the room and no less monumental for the man in the middle, the shackled and temporarily among us Christopher McCowen, who is brought to these hearings from his cell at Walpole in a van that doubles as a rolling cage with plenty of windows for everyone to see.

McCowen is back in jail now, to be sure, and may be there for a while. But, just as surely, he is going to have his case heard again, and for that he has many people to thank, most recently Delainda Miranda, who went toe-to-toe with Cape & Islands District Attorney Michael O'Keefe, and then matched wits with Judge Gary Nickerson, and left the stand as others had before her, one more voice in a chorus of men and women who testified to the bad behavior of the jury in the deliberations that led to the conviction and life sentence of Chris McCowen in the murder of Christa Worthington, a single mother whose baby was left to scramble for her own survival after a knife ended her mother's in January, 2002.

Here this morning was 74-year old grandmother Delainda Miranda, who had the temerity, if not the good sense, to involve herself in L'Affair Worthington by remarking to a writer at a hearing last month that her grand nephew, juror Eric "Billy" Gomes, had been uttering racial epithets since about 15, and had a well-known history of racial intolerance, irrespective of, or informed by, his own Cape Verdean heritage.

This was enough to get her subpoened to appear in court, which she did, and stuck to her guns even while first O'Keefe, and then Nickerson, asked her a battery of questions designed more it seemed toward impeaching her credibility than to enhance her stature for having come forward.

To O'Keefe's suggestion that she herself had on occasion used a specific bad word, she allowed as to Yes, how she had, but of course it was well-established that she had not been a member of the McCowen jury.

Although it was true that McCowen's fate hung in the balance, it was just as true that O'Keefe's performance as a prosecutor was the thing on trial nowTo Nickerson's suggestion that she exchanged a glance at the last hearing with the writer, Peter Manso, she said No, didn't happen -- but the impression was left that if she had said yes, it would have carried some other, more sinister meaning that was lost on at least one observer.

O'Keef's rubber bands replaced Queeg's ball bearings 

Although it was true that McCowen's fate hung in the balance, it was just as true that O'Keefe's performance as a prosecutor was the thing on trial now, and O'Keefe passed good chunks of his listening time by twirling a large rubber band from his right index finger...literally just sitting alone at his table for two and twirling one of those over-sized rubber bands like a kid with a new toy, or Queeg in Herman' Wouk's Caine Mutiny, in which Lt. Cmdr. Philip Francis Queeg, played by Humphrey Bogart in the 1954 movie, saw his mental health slip and his crew mutiny and his career fall apart.

Instead of Queeg playing with a handful of balls at his court martial, here we had O'Keefe twirling a rubber band -- and for everyone in the small courtroom to see -- during a hearing to reconsider the biggest case of his career, and it could not have been missed by anyone in the room, least of all the judge.

George argued that he had proven the jury's taint, had shown the unfairness of the decision, and had supplied the evidence necessary for a new trial, not with one juror who submitted an affadavit attesting to racial bias among other jurors, but with three.

"They stood pat on essentially all of what they're saying on their affadavits," George said. The court repeatedly heard similar versions of comments that could be construed either as ethnically oriented, racially biased, or "outright racist."

Chubby and easy with a smile, but all business in terms of courtroom demeanor, George went all through the relevant case history and came out the other side convinced that he had attempted to prove nothing, and in the process proved a lot, that he doesn't want to change the law on these sorts of things, but only wants to change the result for his client; he also stroked the judge for his good discretion in ordering the hearings and for his conduct throughout the trial, from vois dire to the present, none of which should be blamed on him, as the bad stuff all happened "behind closed doors."

The burden of proof that a fair trial was conducted has thus moved to the commonwealthThe burden of proof that a fair trial was conducted has thus moved to the commonwealth, he said. This wasn't a case where a juror's unspoken bias was alleged afterward. "People were talking about it, so we know it occured here. Now we have to do something about it."

"On balance," O'Keefe told Nickerson, "there isn't any question this jury wasn't more than fair." The court should treat the assertions of one juror as a form of retribution for having been bounced off the jury for lying. Another should be considered in light of the fact that she asked the court to help cover the expenses of her trip back to Cape Cod to testify. And the third juror who complained about racial bias suffered from what O'Keefe characterized as "buyer's remorse."

Jury deliberations are like sausage making, he said. "It's not a pretty process, but we expect the results to be good."

A 74-year old grandmother Delainda Miranda, who had the temerity, if not the good sense, to involve herself in L'Affair WorthingtonDelainda Miranda was asked by O'Keefe why she came forward in January, and not before.

Before, she said, her family told her "don't get into it, but I couldn't let it go on any longer."

Let what go on? O'Keefe asked.

"Oh, c'mon," she told the district attorney. "This is not a joke."

All the while, as the embattled DA was sparring with the great aunt of a former juror, sparring over a man's biased attitude toward blacks, Chris McCowen sat silent as a Buddha, silent, focused, and shackled at the feet.

O'Keeke loses his cool 

Judge Nickerson said he would not rule on the new trial until the lawyers have filed legal briefs in the coming weeks. But he left the court with the clear impression that he already has decided there is enough to order a retrial. If the racial taint could be considered something "extraneous" to the case, that'd be one thing. "But when it's internal," when a biased jury represents "a fundamental flaw" in the application of justice, a new trial is required, and he will take the matter under advisement in a manner consistent with his feeling that time and distance are beneficial to a sound decision.

In the apparent belief that he was arguing a losing case, O'Keefe continued to argue even after the judge had made his final commentsIn the apparent belief that he was arguing a losing case, O'Keefe continued to argue even after the judge had made his final comments, and asked the court when it might be scheduling a hearing on the other motion pending in the McCowen retrial attempt, relating to evidence the prosecution allegedly withheld from the defense during the trial.

"We should hold a hearing?" Judge Nickerson asked.

Before the matter stretches into "the next millenium," O'Keefe said.

To which Nickerson replied, in reference to the motion, "I'll figure that out after I've read it."

He assured everyone that he is moving as fast as he can, and he hopes that people can appreciate the difficulty of his position as the same human being who conducted the trial and who is now conducting a hearing that would discredit the results of the trial, not to mention the prosecutor whose performance in the Christa Worthington murder case has been shameful from the very beginning.