Appellant McCowen Brief - Mass Cases

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Post-trial hearings pxoved racial prejudice affected at
least half the panel. "If a criminal defendant could show
that the jury was racially prejudiced, such evidence
could not be ignored without trampling the sixth
amendment's guarantee to a fair trial and an impartial
jury." Wright v. United States, 559 F. Supp. 1:139, 1151
(E.D.N.Y. 1983). Defendant need not prove "prejudice
pervaded the jury room __ bias or prejudice of even a
single juror" violates the Sixth Amendment. Dyer v.
Calderon, 151 F. 3rd 970, 973-4 (gth Cir. 1998).
A deliberating juror exposed to "extraneous matter"
mandates a new trial unless the Commonwealth proves
absence of prejudice beyond a reasonable doubt. The
definition and test fox "extraneous matter" remain
unchanged. Commonwealth v. Hunt, 392 Mass. 28, 41
(1984); Commonwealth v. Casey, 442 Mass. 1, 5 (2004).
This Court cannot ignore defendant's fundamental right
to a verdict rendered by twelve indifferent, impartial
jurors. Irvin v. Dowd, 366 U.S, 717, 722 (1961);
Commonwealth v. Tavares, 385 Mass. 140,152 (1982).
This jury's behavior could not have been
anticipated. Three jurors revealed the wrongdoiing after
the verdict. Miranda came forward after she saw news
coverage of laughing deliberating jurors posed in the
jury room, jurors' (minus Huffman, Bohanna and Audet)
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