Appellant McCowen Brief - Mass Cases

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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-
L D D D D B D D I I find ,. [an] affidavit essentially true, to the extent it purports to repeat ethnically oriented stateiments of jurors, it would be unrealistic to expect the judge to resolve with confidence a further question as to whether a juror or jurors charged -_ with having made those statements were or ware not - ethnically biased ., we think that a determination I concerning - actual ethnic prejudice among the jurors cannot confidently be made -. [Tlhe 'difficulty' translates into an 'impossibility' when the bias in question is ethnic or racial in nature .-. If the affidavit I. is found to be essentially true in that regard, the defendant shall be entitled .to a new trial. a, at 98-99. The Laguer affiants didn't support his claims. In this case, these four aifiants detailed racially derogatory statements/actions by three deliberating jurors, broader wrongdoing than that in other: racial bias cases. In Xavares, supra, a non-deliberating jurox's bias allegations didn't hold up under scrutiny. In-court testimony confirmed and supplemented the affidavits, the c0urt.s inquiry broader than defense counsel's. Fidler, supra. Denying ",.that race or racism exists i s possible only for whites whose majority status allows them to assume that they do not have $3 race.'' Justice Denied: Racial Bias in Jury Behavior,, Keene, D.L., Ph.D. & Handrich, R.R., Ph.D. (2002). This Court must consider how quickly the affiants came fomard, within a few days. They came singly, from distinct backgrounds, unknown to each other before trial, yet so haunted by what occurred in that jury room -44-
Page 1 and 2: COMMONWEAITH OF MASSACHUSETTS SUPRE
Page 3 and 4: TABLE OF CASES Commonwealth v. DiGi
Page 5 and 6: Commonwealth v. Laguer 410 Mass. 89
Page 7 and 8: Commonwealth v. Freeman 407 Mass. 2
Page 9 and 10: Turner v . Safley 482 U.S. 78 (1987
Page 11 and 12: on November 16, 2006 App. 52. That
Page 13 and 14: inquired about Arnold's leering at
Page 15 and 16: something and another witness descr
Page 17 and 18: ejected that argument. App. 20-22.
Page 19 and 20: Lemire: We ran two. One standard wa
Page 21 and 22: instant case. Tr. 3427-29. The tria
Page 23 and 24: counsel's request, the trial court
Page 25 and 26: people, referring to African-Americ
Page 27 and 28: factual findings of the unavailable
Page 29 and 30: time-of-death evidence and competin
Page 31 and 32: Diaz, the U.S. Supreme Court overru
Page 33 and 34: 13, 2006, the trial court conferred
Page 35 and 36: necessary "good cause," was reversi
Page 37 and 38: perfunctory dismissal was error. "A
Page 39 and 40: the trial judge's reasons fox refus
Page 41 and 42: judge. Kamara, 422 Mass. at 620; Te
Page 43 and 44: (whether the defendant or the polic
Page 45 and 46: interrogators less likely to use co
Page 47 and 48: a a 0 a 0 1) 0 0 poverty, inebriati
Page 49 and 50: counsel in opening, questioning, an
Page 51: post-verdict dinner with the prosec
Page 55 and 56: she "misled the court," was cast in
Page 57 and 58: juvenile, probation, arrest and cri
Page 59 and 60: trial. Despite repeated requests, t
Page 61 and 62: Worthington when he attacked two to
Page 63 and 64: e a 0 The trial court's denial of t
Page 65 and 66: 0 e 0 0 0 Q Q D B other; if with on
Page 67 and 68: (1983). The trial court‘s media p
Page 69 and 70: These questions opened the door to
Page 71 and 72: fX. THESE VERDICTS c. 278, §33E. S
Page 73 and 74: job was to help jurors understand i

Appellant McCowen Brief - Mass Cases

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