Appellant McCowen Brief - Mass Cases

counsel in opening, questioning, and closing. Tr. 578,
1873, 3530. Each seated juror denied racial prejudice
during voir dire. It's now clear some were less than
forthright, consciously or not.
The affidavits and in-court testimony establish
rampant racial prejudice in these jury deliberations ,
"particularly egregious" misconduct. United States v.
Henley, 238 F.3d 1111,1121 (9th Cir. 2001) (error to
reject black defendant'a offer to prove juror used the
word "nigger"); Tobias v. Smith, 468 F. Supp. 1287
(W.D.N.Y. 1979) (habeas corpus granted where juror said
"you can't tell one black from another"); State v.
Johnson, 2001 WL 694730 (S.D. June 20, 2001) (jurors'
comments 'I have a rope" and "I have a tree" during
black defendant's trial constituted misconduct); Wnited
States v. Heller, 785 F.2d 1524, 1526-28 (11th Cir.
1986) (conviction reversed where juror said "thte fellow
we are trying is a Jew, 1 say, let's hang him"). See
generally Developments in the Law - Race and the
Criminal Process: VII: Racist Juror Misconduct During
Deliberation. (1988) 101 Harv. L. Rev. 1595.
The Sixth Amendment guarantees a verdict rendered by
impartial jurors. Even one racially prejudiced juror
would violate McCowen's right to a fair trial. United
States v. Hendrix, 549 F.2d 1225, 1227 (gth Ciic. 1977).
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