Appellant McCowen Brief - Mass Cases

cause," is entitled to a new trial. McDonouqh Power
Equipment, Inc. v. Greenwood, 464 U.S. 548, 555-56
(1984). The prosecution argued jurors who use the word
"nigger" or other racial Slur5 aren't nec'essarily
racially biased. MNTR. 2/1/08, 67-83, but it's not the
law:
[W]e have considerable difficulty accepting the
government's assumption that, at this time in OUT
history, people who use the word 'nigger' are not
racially biased _- [Blecause the bias of a juror
will rarely be admitted by the juror himself ... it ...
must be inferred from surrounding facts and
circumstances.
I Id. at 558. Jurors George, Cahill and Gomes bared their
biases, consciously or not, in the jury room. Racial
animus communicated by a juror, not a third party, is
still an improper extraneous influence. IC even one
affidavit like the four offered here is found true "in
so far as it describes ethnically oriented st.atements
attributed to jurors," the defendant is entitl.ed to a
new trial. Laguer, supra at 99.
standard :
The Laquer Court pinpointed the applicable
[Tlhe only question ... [is] whether the _._ disclosures in ...
affidavit[s] of ethnically oriented statements ... made by
one or more jurors axe essentially true. we recognize
that the ultimate concern is whether any juror in fact
harbored ethnic bias against the defendant. we also
recognize the possibility (though not a probability) that
[the attributed] statements I. as tasteless as tlhey were,
were only jocular in nature and did not reveal a true
prejudice. However, we think that, if the judge were to
-43-