Cape Cod Murder

Further allegations of juror bias surface in McCowen murder case

Further allegations of juror bias surface in McCowen murder case

In the letter, Manso writes that Miranda told him that Gomes, in the past, has said:
"I don't like black people";
"I don't like what black people have done to the Cape";
"Blacks are lazy";
"These niggers come down here and they think they can do what they want. They're making us look bad";
"I don't hang around with black people";
"All niggers do is rob people, kill people and deal drugs."New accusations of deep-seated racial bigotry have been lodged against a Cape Verdean juror who is at the center of an unprecedented post-verdict hearing in the case of convicted murderer Christopher McCowen, Lawyers Weekly has learned.

It is believed that Julia Miranda, the 74-year-old great-aunt of juror Eric Gomes, signed a sworn affidavit that, if true, could seriously undermine Gomes' credibility and further strengthen McCowen's bid for a new trial.

This development was brought to the court's attention by Peter Manso, a Cape Cod journalist whose yet-untitled Simon & Schuster book about the McCowen case is due out in the fall. McCowen, who is black, was convicted in 2006 of killing and raping Cape Cod fashion-writer Christa Worthington, who was white.

In a Jan. 14 letter hand-delivered to Superior Court Judge Gary A. Nickerson, defense attorney Robert A. George and Cape & Islands District Attorney Michael D. O'Keefe, Manso writes that he spoke with Miranda and another of Gomes' relatives at the courthouse on Jan. 11...  Lawyer's Weekly. 

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Judge To Decide If Murderer Gets New Trial
McCowen Convicted Of Killing Fashion Writer

The man convicted of murdering fashion writer Christa Worthington is back in a Cape Cod courtroom Friday.

NewsCenter 5's Steve Lacy reported that a judge is trying to see if racism played a part in the jury's decision to convict Christopher McCowen last year. Last week, a judge questioned the 12 jurors in the case.

McCowen's attorney was expected to introduce an expert Friday witness to testify on how racial bias can affect the outcome of a trial. ... WCVB Channel 5

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Judge finishes questioning McCown jurors; Decision promised soon; Retrial called likely

Judge finishes questioning jurors about alleged racial bias
Says he "could order a new trial if he found that bias "

A judge finished questioning jurors Friday during an unusual hearing into whether racial bias tainted the conviction of a black trash collector for the murder of a white fashion writer.  After questioning the final five jurors in Barnstable Superior Court, Judge Gary Nickerson called a short recess. It was unclear how the hearing would proceed.

But Nickerson has said he could order a new trial if he found that bias affected the conviction of Christopher McCowen for the rape and fatal stabbing of Christa Worthington at her Cape Cod home in January 2002...   MSNBC. 
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Jurors’ Testimony in Cape Cod Murder Ends
McCowen's father attends hearing

“It’s obvious that Chris’s race and size had something to do with their notion that he killed her,”  McCowen's fatherRare juror testimony on whether racial bias tainted a high-profile murder conviction ended here on Friday, leaving the judge alone with the thorny task of deciding whether a new trial is warranted... Judge Nickerson must decide not only whether the statements described in the affidavits were made, but also whether they indicated racial bias. While it is exceedingly rare for judges to call back juries after verdicts and ask what occurred during deliberations, Judge Nickerson’s decision was not without precedent.

Some legal scholars oppose any such hearings, saying that private deliberations are sacrosanct and that opening them to public questioning could have a chilling effect on future jurors.  Some of the McCowen jurors were clearly uncomfortable being called back to court. “I do not in any way apologize for this inconvenience or detour in your lives,” the judge said, “because what is at stake is enormously important to all involved"...

Mr. McCowen’s father, Roy, who traveled from Virginia for the hearing, said he and his son were optimistic that a new trial was on the horizon. Christopher McCowen has said that he had consensual sex with Ms. Worthington, but that a friend of his killed her.  “It’s obvious that Chris’s race and size had something to do with their notion that he killed her,” Roy McCowen said. “They saw a guilty black man before the trial even started"...  New York Times. 
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Worthington jurors confirm quarrel
Foreman warned panel that race not relevant, 1 recalls

By the end of an extraordinary two-day hearing yesterday, almost all of the members of the jury that convicted a trash hauler in a notorious slaying on Cape Cod had confirmed that two jurors angrily confronted each other during deliberations after one referred to the defendant as a "big black man."  Whether the loud argument between a black female juror and a white female juror reflected racial strife that tainted the verdict or a misunderstanding about a "descriptive" phrase, however, remains in dispute.

In response to a question by a Barnstable Superior Court judge about the atmosphere in the jury room, one of five jurors who testified yesterday said the foreman, Dan Patenaude, had admonished jurors that Christopher M. McCowen's race was irrelevant - even though McCowen's lawyer said police targeted the defendant partly because he is black.

"We want to make sure that we get this right, totally right; race doesn't come into it," juror Matthew Maltby recalled the foreman saying after one of the jurors had referred to the defendant's race.  "And it didn't," Maltby added...  Globe. 
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Cape jury bias probe now in judge’s hands
Experts see likely appeal after ruling

The fate of a black trash hauler convicted of murdering a white fashion writer now rests with a state judge who yesterday ended juror testimony in a rare public hearing to decide whether racial bias tainted the jury’s decision.  Barnstable Superior Court Judge Gary A. Nickerson is facing unchartered legal territory as he weighs whether to grant a new trial to Christopher McCowen.

Legal analysts predict the ruling will be appealed to a higher court, prolonging a sad saga that has captivated Cape Cod since Christa Worthington’s beaten body was found in her Truro home in 2002.  “If there’s even an odor of prejudice in the jury deliberations, they should get a new trial because it was a close case,” said retired Superior Court Judge Robert A. Barton...  Herald. 
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Judge finishes questioning jurors about alleged racial bias

A judge finished questioning jurors Friday during an unusual hearing into whether racial bias tainted the conviction of a black trash collector for the murder of a white fashion writer.  After questioning the final five jurors in Barnstable Superior Court, Judge Gary Nickerson called a short recess. It was unclear how the hearing would proceed.  But Nickerson has said he could order a new trial if he found that bias affected the conviction of Christopher McCowen for the rape and fatal stabbing of Christa Worthington at her Cape Cod home in January 2002...  Telegram.   

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Juror furor described by major, daily newspapers, could result in new trial for McCowen

Christa furor
Slay Juror Denies Race Bias

By Jack Coleman, New York Post correspondent

A white juror accused of making racially charged comments during deliberations at the Christa Worthington murder trial denied those allegations on the stand yesterday.

Marlo George, who voted to convict Christopher McCowen, testified she never said the bruises on the fashion writer's body were the result of a beating from "a big, black man."

But four other jurors testified they heard her say it.

One of those who took the stand was Roshena Bohanna, the sole African-American on the panel and one of the jurors whose complaints about racial bias motivated Judge Gary Nickerson to conduct the unusual hearing, which could result in him ordering a new trial...  New York POST.
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Jurors deny bias fueled verdict
Truro murder trial scrutinized

Three jurors accused in sworn statements of making racially charged remarks before convicting a black trash collector of murdering a white Cape Cod fashion writer yesterday point-blank denied making the disparaging remarks during a daylong hearing rife with contradictory testimony.

The rare judicial inquiry into the jury proceedings that convicted Christopher McCowen of raping and murdering globe-trotting fashionista Christa Worthington in January 2002 exposed starkly conflicting accounts of how race was raised during the six days of juror deliberations in November 2006.

Six jurors answered questions under oath from Barnstable Court Judge Gary Nickerson, who ordered the jury back to court after McCowen’s attorney, Robert George, submitted affidavits from three jurors who claimed race tainted the panel’s deliberations...  Herald.  
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McCowen Jurors testify about claims of racism

Terms used like "200-pound black man" and "big black man"Jurors who convicted a black trash collector in 2006 of raping and murdering a white fashion writer on Cape Cod hurled allegations yesterday of racism and inappropriate behavior in an extraordinary court hearing held to determine whether bias tainted the verdict.

In the same courtroom where Christopher M. McCowen was convicted, three jurors took the witness stand and said that another jury member referred to the defendant during deliberations as a "big black man" who would no doubt leave the bruises that were found on the much smaller Christa Worthington.

The accused juror, Marlo George, later took the stand and said that she had referred to McCowen as a "200-pound black man" but said she merely "meant it as descriptive."  As juror after juror took the stand yesterday, seven in all, a picture was painted of a jury in one of the state's highest-profile cases in years riven by racially tainted strife. At one point during deliberations, emotions became so heated that the foreman called for a pause to let passions cool.  Adding to the disharmony, yet another juror testified yesterday that one of the accusing jurors called a different juror a "Southern cracker"...   Globe.  
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Jurors in a Cape Cod Murder Case Testify About Racial Remarks

“That’s why I don’t like black people”More than a year after it convicted a black trash hauler of a shocking murder on Cape Cod, a jury returned to court here Thursday for an extraordinary hearing on whether racism influenced its verdict...  Judge Nickerson questioned 7 of the 14 jurors on Thursday, calling them into the courtroom one at a time and asking whether the issue of race came up during their deliberations. Some of the jurors’ answers contradicted those of others, and many said their memories of the deliberations, which took place in November 2006, were vague... 

One of those jurors remarked that the bruises on Ms. Worthington’s body, as seen in evidence photographs, were consistent with “if a big black man hit her,” Ms. Bohanna testified.  The other, Ms. Bohanna said, told her fellow jurors that she feared Mr. McCowen because he was black.  After she confronted those women, Ms. Bohanna added, a male juror who is black admonished her and said, “That’s why I don’t like black people”... New York Times. 

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Extraordinary hearing probes role of race; Worthington juror denies alleged bias

Worthington juror denies alleged bias
“Did you say he’s a big black man?” - Judge Gary A. Nickerson

“Did you say he’s a big black man?” asked Superior Court Judge Gary A. Nickerson. "No" said Cahill.

A white female juror who was accused by a fellow panelist of making racially charged remarks about a black man convicted of killing Christa Worthington denied displaying racial bias about the defendant during the trial.  The woman, who is referred to as Juror X in an affidavit signed by three other panelists, testified today that she never referred to Christopher McCowen’s race.

“I said that the defendant made me uncomfortable or intimidated,” said Carol Cahill, who is the first juror to take the stand following testimony from the three jurors who gave sworn statements...  After the trial, McCowen’s attorney, Robert George, filed affidavits in which three jurors said other panelists referred to McCowen as “an intimidating, big black man.”  Under questioning from Nickerson, Cahill reviewed portions of those statements that describe racially charged remarks from jurors. She denied making the remarks attributed to her...  Herald. 
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An extraordinary hearing probes role of race in Cape murder trial

"This is an extraordinarily unusual situation, when a court makes inquiry of jurors after the delivery of a verdict."
    - Judge Nickerson.A member of a Cape Cod jury that convicted a black trash collector of murder in 2006 testified today in an unusual court hearing that her fellow jurors had made racially insensitive remarks during the trial.

Roshena Bohanna, who is black, said she had heard the remarks, both directly and indirectly, before jury deliberations, during deliberations, and even when the jury was sequestered at a hotel.  She said that she had gotten into such a heated confrontation with a white juror over one remark that the jury foreman had to call for a break in the deliberations...  Globe. 
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Worthington jurors back in court

The Christa Worthington murder case is back in Barnstable Superior Court today. Judge Gary Nickerson will question jurors about alleged racism during their deliberations 14 months ago.

Back then, Christopher McCowen was convicted of rape and first degree murder. He's now serving a life sentence. But that could change with today's public hearing. ... Listen to Real Audio at WBUR.org

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Judge to question jurors about alleged bias in deliberations

Jurors that convicted a Cape Cod man of murdering fashion writer Christa Worthington are being asked to testify publicly about whether racism infected their deliberations.

In a highly unusual move, Superior Court Judge Gary Nickerson convenes a hearing Thursday that could determine whether Christopher McCowen, a black garbage collector, receives a new trial.

Within three days of McCowen’s November 2006 conviction, three jurors contacted his lawyer and claimed to have heard racially biased remarks from three other jurors — including one who allegedly referred to McCowen as "the big black guy." ... Boston Herald

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Hypnotizing a potential witness - Worthington's daughter

The idea makes you cringe, doesn't it? Me too, until I thought about it. Then I went from cringing to wondering if it's an inherently bad idea.

There is a potential witness to the murder of Christa Worthington in January 2002 at her isolated Truro bungalow - Worthington's daughter, Ava, who was 2 years old when her mother died.

But how could Ava's memory of this horrific incident, assuming she has any, be unlocked? Speaking for myself, the earliest memories begin around age 4, vague ones at that. A few earlier ones may kick around upstairs, but I can't be sure if they are genuine, or fragments of dreams, or recollection of events I wish had occurred but actually didn't.

Supposedly, distant memories from toddlerhood and even infancy can resurface - through hypnosis. This is not something I've ever seen, nor have I been hypnotized. But I've read about it enough the years, of people recalling in exact detail the circumstances of  birthday parties when they were toddlers, what everyone was wearing, the gifts that were given, the weather. I've also noticed the persistent appearance of ads for quitting smoking or losing weight to believe there might be something there.

Consider also that some people refuse to be hypnotized, for fear of what will surface or be suggested while they are in a trance.

This is not something Ava, now of elementary school age, could decide for herself until she was at least a decade older. It would be for her guardians to consider, though I doubt they will.

But if I were in their shoes, I'd consider it at that point when the child in my guardian care was mature enough to understand the implications. And if the practitioner could assure me that my child would possess no conscious memory of being hypnotized.

Another question comes to mind - what good can come of this, especially considering the risk of revisiting such trauma? Would any of it, assuming any could be summoned through hypnosis and recorded, be admissable in court?

Probably not, though perhaps someone better acquainted with the law could correct me if I'm wrong.

But two reasons come to mind for the possibility that Ava may remember what happened the night her mother died, even if the memory is buried far below the surface.

As anyone familiar with this case can attest, Worthington is unlikely to have gone gently into that good night. No, she raged and fought, not only for herself, but to protect her child. There is hardly a woman alive who wouldn't do the same to protect her cub.

Clearly there was a desperate struggle outside, the door kicked in and Worthington stabbed to death on the kitchen floor by the stairs leading to the second floor, where Ava was presumably sleeping - at least until she heard the screaming. Those of us who've raised children know what little noise it takes to awaken a 2-year-old.

The second reason I believe Ava may remember what happened has to do with something she allegedly said at the wake for her mother in Hingham, according to a reporter from New York magazine who managed to get inside the funeral home.

"Parading around in a green velvet dress topped by a Peter Pan collar, Ava smiled a wide Worthington smile as she navigated the crowd," wrote Vanessa Grigoriadis in the Feb. 4, 2002 issue of New York. "Ava is now living with Cliff and Amyra Chase, the Cohasset couple designated as her guardians in Worthington's will, which bequeaths $700,000 to the child.

"' 'Yesterday,' clucked one of her babysitters, watching her, 'Ava went into the corner of the room and said six times, loud and clear, 'Get out of my house, I'm not afraid of you.' Six times she said it.' "

Yeah, I know, 2-year-olds say all sorts of things and back when my daughter and son were that age, I took most of it with a grain of salt. But considering when this was supposedly said, it's much tougher to dismiss with a shrug.

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McCowen wants new trial - claims real murderer was Frazier

Cape Cod Fashion Writer's Murderer Requests New Trial
McCowen claims prosecutors withheld key evidence about Frazier

The trash collector convicted in the fatal stabbing of a fashion writer from Truro claims prosecutors withheld key evidence in his case. Christopher McCowen (in composite photo from the trial on right facing Jeremy Frazier)  is seeking a new trial.  His lawyer argues in a court motion that prosecutors withheld evidence that a man McCowen says was the real killer of Christa Worthington was once arrested for threatening to kill two British tourists with a knife.

McCowen's lawyer says if jurors had known Jeremy Frazier used a knife in another crime, it could have bolstered McCowen's claim that it was Frazier who stabbed Worthington in January 2002...  Fox-TV.  

Jury in Cape murder ordered back to court
In an extraordinary hearing scheduled Jan. 10 and 11 at Barnstable Superior Court, each of the jurors - including a woman who will be flown in from Texas - will be questioned under oath in open court by a judge about whether racially insensitive remarks allegedly made during more than a week of deliberations tainted the verdict against Christopher M. McCowen.
   Superior Court Judge Gary A. Nickerson ordered the hearing after McCowen's lawyer asked for a new trial, based on sworn statements from three jurors who contacted him within days of the November 2006 conviction. The jurors said three other jurors made repeated racist remarks, at one point almost triggering a fight...  Globe. 

Read these stories from capecodtoday's archives about Frazier:

• Read from our trial reports; "...During the six-hour interrogation that followed, according to police testimony, McCowen gave an evolving series of accounts of the night of Worthington's death, culminating with his claim that a friend of McCowen's, Jeremy Frazier, stabbed her.  Testifying during the trial, Frazier denied killing Worthington and no evidence was presented linking him to the scene. "
•  As false confessions go, not a very good one: "...All of which is tantamount to alleging police corruption -- along with abject bigotry -- while avoiding those actual words. But ask yourself -- if police are willing and capable of what George is claiming, of compounding the tragedy of a brutal murder by railroading an innocent man and sending him to prison for life, an act comparable to murder in and of itself, why would they introduce a second suspect -- Jeremy Frazier -- when this has the potential to blow their case out of the water?..." 
  

• Those problematic fibers; "... Richard Saferstein (defense expert) also pointed out that white and blue fibers found on Worthington's genital area were not tested by the crime lab -- and as those who followed the trial are aware, Jeremy Frazier, the Wellfleet man alleged by McCowen to have killed Worthington, was wearing a white and blue sweater on the night the prosecution believes Worthington was murdered...
     "But Frazier was not the only person wearing white on the night of the murder. So was McCowen, who can be seen clad in white pants on video footage taken at the Juice Bar. And that fibers from Frazier's sweater could have transferred to McCowen's clothing, and then to Worthington, is hardly beyond the realm of possibility..."

• Defense lawyer in Cape Cod slaying known for aggressive style; "...When a black trash collector was arrested in the killing of a well-known fashion writer in her Cape Cod home, some thought the police had a slam dunk.Christopher McCowen's DNA was found on the battered body of Christa Worthington, and he allegedly told police he helped a friend beat her. Although McCowen insisted that it was his friend, Jeremy Frazier, who killed Worthington by plunging a knife into her chest, police believed McCowen acted alone.... 

• The mysterious 12:03 a.m. phone call from state police;  "...And with a retrial, one of the holes in the prosecution's case to be patched is the mysterious phone call to Jeremy Frazier from the Yarmouth state police barracks at 12:03 a.m. on Saturday Jan. 4, 2002.   Defense attorney Robert George made frequent references to the call as part of a broad strategy of raising doubts about the state's case against accused killer Christopher McCowen. Frazier, when he testified, denied receiving any call from state police that night, nor that he had any relationship with police..."

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Reasonable doubt about a verdict

Readers over a certain age may remember a great television series of the mid-70s called "Ellery Queen" based on the literary crime sleuth. The title character was played by the late Jim Hutton, father of actor Timothy Hutton. Each week's show would revolve around a murder mystery and Queen's efforts to solve it, which he'd invariably do at the end of every episode upon noticing a previously seen but seemingly innocuous clue.

That's it, Queen would say, turning to the camera and addressing the viewer. And if you paid attention, you figured it out too. After a commercial break, the show would return with all the major players assembled and Queen would explain whodunit, and why.

Would that real life and actual murder mysteries played out so tidily. A year ago in Barnstable village, a Superior Court jury began deliberating the fate of a 34-year-old Hyannis trash hauler, Christopher McCowen (seen at right being escorted from court), accused in the brutal stabbing death and rape of Christa Worthington, 46, a former fashion writer and single mother in Truro.

In the year since the trial, I've wondered - had there been a seemingly innocuous piece of evidence or testimony that, if held to the light at the right angle, would become a Rosetta Stone unraveling the mystery?

Based on what I saw and heard while covering the trial as a stringer for the New York Post and blogging about it here, there was no such clue, at least not for me. But there's one that came close - the mysterious driver barreling out of Worthington's driveway on the afternoon of Jan. 5, 2002, the day before her body was discovered.

Testifying during the trial, Truro resident Girard Smith said he saw a "large dark vehicle" speeding down Worthington's driveway between 1 and 3 p.m. on Jan. 5. The vehicle came within 15 feet of him, Smith testified, and was driven so fast it could easily have crashed into another vehicle.

Did you see the driver, Smith was asked on the stand. Yes, he was a white male in his late 30s, early 40s - which means it could not be McCowen, who is black. 

Don't get me wrong, this hardly proves McCowen is innocent, nor is it proof the driver in such a hurry had anything to do with Worthington's death.  But when combined with another aspect of the case, it allows for the unsettling possibility that McCowen did not murder Worthington or did not act alone as alleged by the prosecution.

Early in the trial, on Oct. 23, 2006, pathologist Henry Nields testified that Worthington "had likely been dead for 24 to 36 hours when a colleague from the state medical examiner's office examined her at the crime scene," as reported by Court TV (that colleague, Dr. James Weiner, was too ill during the trial to testify).

Weiner arrived at the Worthington house around 8 p.m. on Sunday, Jan. 6, according to testimony during the trial. Extrapolating back with the timeframe of 24 to 36 hours to the time of Worthington's death, this means she was most likely murdered between 8 p.m. and 8 a.m. on Saturday, Jan. 5.  And smack dab in the middle of that timeframe is when Smith saw a vehicle high-tailing it out of Worthington's driveway, presumably with an extremely agitated driver. And the driver seen by Smith was white, not black - and could not have been McCowen.

Again, what Smith witnessed doesn't prove anything beyond his credible description of it. But Smith's testimony does allow for reasonable inferences. Such as - it is reasonable to infer that the person driving the vehicle was aware of, if not involved in, Worthington's death. It is reasonable to infer that the person driving the vehicle was fleeing from the scene in a panic because he was implicated in Worthington's death, either by direct involvement or covering up after the fact. And it is reasonable to infer of at least the possibility that Worthington was murdered on the afternoon of Jan. 5 and not the night before by McCowen, as the prosecution claimed and jurors ultimately agreed.

Eight months after Worthington's death, I attended a journalism conference in Maine with several of my colleagues from the Cape Cod Times, where the paper was honored with several awards, including one I received for investigative reporting. The guest speaker at the opening night dinner was author Dominick Dunne, who spoke mainly about the conviction earlier that year of Michael Skakel for the October 1975 bludgeoning death of 15-year-old Martha Moxley.

The Moxley case was not one I'd followed but Dunne's remarks - and the man is a consummate raconteur - piqued my interest. The Moxleys and the Skakels had lived only a block apart in Greenwich, Conn., and Dunne described how Dorothy Moxley, Martha's mother, told him of the anguish she suffered for years whenever she drove past the the Skakel house (she eventually moved out of the neighborhood).

Every time Mrs. Moxley saw the house, Dunne recounted, she thought that maybe the person who killed her daughter did not live there, but the people in the house knew who did. And that was almost as bad.

I think the same can be said of the driver of the vehicle witnessed by Smith. His presence at the scene hardly proves the man committed murder, whoever he is. But it sure as hell looks like he knows who did.

(photo credit, washingtonpost.com)

230 comments »

No decision by Worthington trial judge for hearing on alleged racism among jurors

Update, 4:30 p.m. -  

Barnstable Superior Court Judge Gary Nickerson has taken no action on a motion filed by defense attorney Robert George alleging racial bias among jurors in last fall's murder trial of Christopher McCowen, who was convicted of killing Truro resident Christa Worthington in January 2002.

 Nickerson held a hearing on the motion this morning with George and assistant district attorney Lisa Edmonds, but did not come to a decision or set a date for another hearing, according to clerk magistrate Scott Nickerson.  

George filed the motion  in January asserting that at least three jurors made racial remarks during their week-long deliberations at the end of the trial.

The jury convicted McCowen of first-degree murder, aggravated rape and aggravated burglary. McCowen, Worthington's trash hauler, was sentenced to life in prison without chance of parole, a mandatory punishment for conviction of first-degree murder in Massachusetts. A first-degree murder conviction also triggers an automatic appeal.

Edmonds replaces original prosecutor Robert Welch III, who was nominated for a judgeship by then-Gov. Mitt Romney in the closing days of the Worthington trial. Welch has since been sworn in as a district court associate justice.

Worthington, 46, a former fashion writer, was found stabbed to death in her isolated bungalow by a former boyfriend on Jan. 6, 2002, a day after she was attacked. Her 2-year-old daughter, Ava, was also found, unharmed. 

McCowen, first questioned by police two months after the murder, denied any physical contact with Worthington, according to police testimony during the trial. 

A DNA link proving that McCowen had sexual contact with Worthington prior to her death led to McCowen's arrest in April 2005. During the six-hour interrogation that followed, according to police testimony, McCowen gave an evolving series of accounts of the night of Worthington's death, culminating with his claim that a friend of McCowen's, Jeremy Frazier, stabbed her.

Testifying during the trial, Frazier denied killing Worthington and no evidence was presented linking him to the scene. 

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As false confessions go, not a very good one

Two dubious claims by Robert George, defense attorney for convicted killer Christopher McCowen, in Tuesday night's CBS broadcast of a "48 Hours Mystery" segment on the murder of Christa Worthington --

In the eyes of police, "a person of Chris McCowen's race, class and limited capacities was an easy target," George alleged. "This is a person with a 76 to 78 IQ, on his best day, meaning on a day where he's not using drugs and alcohol, not under pressure."

"This is a false confession and I don't accept it," George asserted. "I don't know how much of it is actually coming from Chris McCowen's mouth and how much of it is coming from the police investigation, I don't know."

All of which is tantamount to alleging police corruption -- along with abject bigotry -- while avoiding those actual words. But ask yourself -- if police are willing and capable of what George is claiming, of compounding the tragedy of a brutal murder by railroading an innocent man and sending him to prison for life, an act comparable to murder in and of itself, why would they introduce a second suspect -- Jeremy Frazier -- when this has the potential to blow their case out of the water?

In fact, it is difficult to reconcile the premise of corrupt police coercing a false confession with these same police introducing a hugely problematic element that risks losing a conviction for them. Logic, common sense and a passing knowledge of human nature dictate that if police are fabricating a false confession, it will be a better lie.  And this assumes that the officers involved in McCowen's interrogation -- Christopher Mason and William Burke -- have even the slightest whiff of corruption attached to them -- which they don't, unsubstantiated allegations aside.

The second dubious claim by George -- "If you had the same body of evidence, and 'Johnny Whitebread' was home for the holidays, and was from an affluent family on the Cape, the same body of evidence, he wouldn't have been charged."

But the analogy doesn't hold water because George tweaks it to remove a crucial element of the case against McCowen -- his frequent access to Worthington's property as her trash hauler, and with it McCowen's awareness of Worthington as a single mother in an isolated location. An easy target, you might say.

"Johnny Whitebread," scion of an "affluent family" on Cape Cod, is not only unlikely still to be home for holiday cheer as of Jan. 6 when Worthington's body was found, he's returned to whatever he was doing before the holidays, wherever else that was. The very premise of George's hypothetical rules out "Johnny" working as a trash hauler.

As for that "same body of evidence"? This includes a defendant with frequent access to the scene of the murder and an awareness of the victim's vulnerability, plus five restraining orders against him -- from five different women. He's already spent years in prison on previous convictions. A defendant who just a week before police questioned him a second time about the case, pleads guilty in court to threatening to kill a girlfriend. Who lies repeatedly to police about not having any physical contact with the victim until he is presented with irrefutable DNA evidence that he's been lying. Who then describes to police an evolving series of scenarios that have him engaging in consensual sex with Worthington, then inexplicably assaulting her -- but hey, it was my buddy Sluggo who actually killed her.

I'll hazard a huge leap of faith here that the same district attorney whose critics believe is a closet Nazi because of the voluntary DNA sweep in Truro is not going to look the other way when it comes to "Johnny" (the DNA sample from McCowen, not incidentally, was also provided voluntarily).

Another leap of faith that requires hardly any effort -- this same defendant is not only going to be charged with murder, he'll be convicted in less time than it took in the Worthington trial.  His lawyer wouldn't be able to play the only ace George is holding -- the race card.

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Those problematic fibers

Interesting story in the Cape Cod Times on Saturday under the headline, "Post-trial: DNA tests, appeal in works."

"Cape and Islands District Attorney Michael O'Keefe said yesterday he would test some of the DNA samples in the state police crime lab that were not previously tested, but not because he expected to gain any new information," wrote Times staff writer Hilary Russ.

"'I have asked that certain testing be done only because it became such a huge issue at the trial," O'Keefe is quoted as saying. "I want to see that those who have questions, even though we may not feel that they are persuasive at all, attain some level of satisfaction."

Russ goes on to write that "one piece of evidence in particular -- the external vaginal swab collected from Worthington's body -- came up in trial when an expert for the defense, Richard Saferstein, pointed out that though it tested positive for semen, it had never been DNA tested for a match to McCowen or anyone else."

O'Keefe (shown in the photo above) described this as "a red herring" and said the protocol at the crime lab "is to test only internal vaginal samples, which can prove penetration and hence rape charges," Russ writes. On this point, O'Keefe said, "the laboratory's experience is that what comes out is a seepage or a drainage."

But whether DNA from the external swap matches with convicted killer Christopher McCowen was one of several areas of uncertainty raised by Saferstein, who spent 20 years working for the New Jersey state police crime lab and wrote a widely-used text on forensic science now in its ninth edition (the sperm found in Worthington's vagina did match with McCowen's DNA, to a 1-in-199.8 billion chance it wasn't his).

Saferstein also pointed out that white and blue fibers found on Worthington's genital area were not tested by the crime lab -- and as those who followed the trial are aware, Jeremy Frazier, the Wellfleet man alleged by McCowen to have killed Worthington, was wearing a white and blue sweater on the night the prosecution believes Worthington was murdered.

"But O'Keefe said he had no intention of testing those fibers," Russ writes. "I don't find those persuasive," O'Keefe said. "Fibers are very generic. Many people have sweaters with blue and green or whatever the colors were. You can conjure up any kind of expert these days to say anything."

But Frazier was not the only person wearing white on the night of the murder. So was McCowen, who can be seen clad in white pants on video footage taken at the Juice Bar. And that fibers from Frazier's sweater could have transferred to McCowen's clothing, and then to Worthington, is hardly beyond the realm of possibility.

O'Keefe deserves credit for taking a risk in ordering further tests of the evidence, and I won't be surprised if the external swab matches with McCowen's DNA, thereby demolishing one of the doubts in this case. But I wish O'Keefe had gone a step further and asked for the fibers also to be examined for a possible match with Frazier's sweater. Yet O'Keefe is not alone in declining to make this request.

Another person with a prominent role in the trial -- arguably the most prominent -- could have asked for the fibers to be scrutinized for a match, and chose not to: Robert George, McCowen's attorney.

Nor did George seek for any other forensic evidence to be further examined during the trial. Nor, for that matter, was such a request made by prosecutor Robert Welsh III.

That O'Keefe wasted little time in requesting more DNA testing -- only one day after the verdicts against McCowen were announced -- shows that the issue hovered like a pall over the prosecution's case, and O'Keefe is moving quickly to resolve it before the case is heard on mandatory appeal or possibly overturned.

But it was George with much more at stake in leaving the issue unresolved -- the potential for his 34-year-old client to spend the rest of his life in prison. Perhaps an arcane rule of law would have prevented state police analysis of evidence during the actual trial, but even so, nothing would have prevented George from filing a motion to that effect. Even if his motion was rejected by Judge Gary Nickerson, George would have been on record as wanting the issue resolved, and let the chips fall where they may. And whoever filed the motion would have put the other side in an inherently defensive position when it came to the forensic evidence.

That George chose not to take this path means, at least as I interpret it, that he could not be certain of the results. Faced with this uncertainty, George apparently decided it was preferable to leave doubts in the minds of jurors about the work of the crime lab, rather than seek further analysis that may have only further incriminated McCowen. 

(photo credit, Barnstable Patriot)

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