Commonwealth v. McCowen
Commonwealth v. McCowen
Opinion of the Court
A jury convicted the defendant of murder in the
first degree on theories of extreme atrocity or cruelty and felony-murder, of aggravated rape, and of aggravated burglary. The defendant appeals from his convictions and from the trial judge’s denial of his motions for a new trial. On appeal, the defendant argues that (1) the judge erred in ruling that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights after his arrest, and that his postarrest statements to the police were made voluntarily; (2) the indictments should have been dismissed because a grand juror knew the victim, and because the Commonwealth concealed exculpatory information from the grand jury; (3) the judge erred in denying the defendant’s pretrial motions seeking a change in venue or, in the alternative, sequestration of the jurors for the entire trial; (4) the judge made various evidentiary rulings at trial that constituted reversible error; (5) the judge erred in discharging a deliberating juror without good cause; (6) the judge erred in denying the defendant’s motion for a new trial because the prosecutor failed to disclose exculpatory information to the defendant; and (7) the judge erred in denying another motion for a new trial because the defendant was denied his right to an impartial jury by the racial bias of certain jurors. The defendant also asks us to exercise our power under G. L. c. 278, § 33E, to reverse the convictions.
We affirm the convictions and the judge’s denial of the motions for a new trial. After a complete review of the record, we find no basis on which to reduce the degree of guilt or order a new trial under G. L. c. 278, § 33E.
1. Evidence at trial. We summarize the facts the jury could have found from the evidence at trial, reserving certain details for our analysis of the issues raised on appeal.
In the late afternoon of Sunday, January 6, 2002, Christa Worthington (victim) was found dead in her home in Truro by Tim Arnold, a former boy friend, who had stopped by the victim’s
The Commonwealth’s medical examiner testified that the cause of death was a stab wound to the victim’s chest; the knife had entered the front of the victim’s chest and penetrated her left lung, and the tip of the blade had exited through her back. The victim had also suffered contusions to her nose and chest, abrasions on her face, hands, arms, and legs, and internal hemorrhaging in her skull. The medical examiner testified that these injuries were consistent with blunt impact.
Evidence presented at trial suggested that a struggle had occurred outside the house. Trace amounts of dried blood were found under the fingernails of the victim’s left and right hands. Small pieces of grass or other vegetative material were found entwined in the victim’s hair, both on her head and in her pubic area. Outside on the ground between the house and the victim’s automobile, crime scene investigators found a pair of woman’s eyeglasses and barrette, a pair of socks, and the victim’s keys. Near where the keys were discovered, just beside the victim’s automobile, the dirt driveway had been disturbed. Two long, irregularly parallel, furrow-like tracks led from the back of the automobile toward the entrance to the house. Police investigators were able to recreate similar markings by dragging a person across the driveway.
Apart from the medical examiner’s testimony as to time of death, which we will address later, the evidence would have allowed the jury reasonably to infer that the victim was killed after 8 p.m. on Friday, January 4, when she telephoned a babysitter, and before noon on Saturday, January 5, when she missed a hairdressing appointment. Both the Saturday and Sunday newspapers were sitting uncollected at the bottom of her driveway when her body was discovered on Sunday afternoon.
On March 18, 2004, after the State police crime laboratory identified a deoxyribonucleic acid (DNA) profile from various swabbings taken from the victim’s vagina and breasts, Troopers Mason and Burke conducted a second interview with the defendant as part of a larger effort to collect DNA samples from men interviewed during the investigation.
The defendant’s DNA sample was sent to the State police crime laboratory in July, 2004, with a batch of DNA samples from other persons. After receiving a written report on April 13, 2005, that the defendant “matched the major profile” in the DNA mixture taken from the victim’s right breast and was “included as a potential contributor of the minor profile” in the DNA mixture taken from the sperm in her vagina, the State police obtained warrants for the defendant’s arrest and the search of his residence.
Police officers arrested the defendant at his home in Hyannis shortly after 7 p.m. on April 14, 2005, and transported him to
When Trooper Mason showed the defendant the DNA report and told him that the crime laboratory had concluded that it was his DNA on the body of the victim, the defendant looked at the report for approximately one minute and said, “It could have been me.” The defendant then told the officers that, on Friday night, January 4, 2002, he was with Jeremy Frazier and had gotten “piss ass drunk” in the parking lot of the Juice Bar, an Orleans club.
The defendant then recalled that Frazier had driven him to the victim’s home, following the defendant’s directions, and that Frazier had accompanied him inside the house when they arrived. He said he and the victim had engaged in vaginal sex on the floor in the hallway off the kitchen (where the victim’s body was found), but then said they may have had sex in an office or the living room. Initially, he said everything was “cool.” He said that, as he and the victim parted, he gave the victim his telephone number, and then left, but he later said that the victim “flipped”
As if in conclusion, the defendant stated, “I had sex with her . . . I beat her ass, but it was [Frazier] that stabbed her.” He told the officers, “I never meant for that lady to get killed. It’s a nightmare after nightmare. And not a day goes by that I don’t think about it.” When asked what he would say if the troopers determined that Frazier was somewhere else that evening, the defendant responded, “Then it’s all on me . . . .”
Frazier testified that he was with the defendant at the Juice Bar that night and drove him to Dennis to visit the mother of his baby, but said that he later returned to the Juice Bar and went to a house party in Eastham in a vehicle driven by a friend, Shawn Mulvey. According to Frazier, the defendant followed them to the party in a separate vehicle that he drove. Frazier
The Commonwealth’s DNA analyst, Christine Lemire, testified that the DNA profile obtained from the swabbing of the victim’s right breast was a mixture of DNA from more than one source, with the defendant’s DNA matching “the major profile” and the victim “included as a potential contributor of the minor profile in this mixture.” Lemire testified that the statistical probability of such a match occurring in the major profile was one in 5.2 trillion among the Caucasian population, one in 99.8 billion among the African-American population, and one in fifteen trillion among the Hispanic population. The DNA profile obtained from the swabbing of the victim’s vaginal cavity was also a mixture of DNA from more than one source, with the victim’s DNA matching “the major profile” and the defendant “included as a potential contributor” of the minor profile. Lemire testified that the statistical probability of such a match occurring in the minor profile was one in 7.2 billion among the Caucasian population, one in 1.1 billion among the African-American population, and one in 10.2 billion among the Hispanic population. The DNA profile obtained from a swabbing of the victim’s left breast was also a mixture of DNA from more than one source, with the victim’s daughter’s DNA matching “the major profile”
2. Motion to suppress the defendant’s postarrest statements. Before trial, the defendant moved to suppress his postarrest statements to Troopers Mason and Burke. The judge denied the motion following an evidentiary hearing. On appeal, the defendant renews his argument that he did not knowingly, intelligently, and voluntarily waive his Miranda rights, and that his statements were not made voluntarily. Although the voluntariness of the defendant’s statements was decided by the jury under the humane practice rule, see Commonwealth v. Cryer, 426 Mass. 562, 571 (1998), the defendant directs his challenge on appeal primarily to the judge’s pretrial ruling. Therefore, in considering the defendant’s present challenge, we rely on the findings of fact made by the judge following the suppression hearing, recognizing that the testimony presented at trial concerning the voluntariness of the defendant’s statements was in all significant respects identical to that presented at the motion hearing. We accept as true the subsidiary findings of fact made by the judge in the absence of clear error and give deference to his credibility findings, because he had the opportunity to observe and evaluate the witnesses as they testified. See Commonwealth v. Peters, 453 Mass. 818, 822-823 (2009). We do, however, “make our own independent determination on the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. Tavares, 385 Mass. 140, 145, cert, denied, 457 U.S. 1137 (1982), quoting Brewer v. Williams, 430 U.S. 387, 403 (1977).
The judge found that around 7 p.m. on April 14, 2005, the defendant was arrested, handcuffed, and led from his home to a police cruiser. There, Trooper Mason advised the defendant that he was under arrest for the murder of the victim and read him his Miranda rights from a standard waiver of rights form. The defendant said that he understood his rights and wanted to discuss the case, but Trooper Mason told him to wait until their arrival at the State police barracks where recording equipment would be available.
Troopers Mason and Burke conducted the interview in “a loose format,” without raising their voices, and the defendant was talkative. As described earlier, the defendant initially restated his denial of any involvement with the victim and then, after being confronted with the DNA report, gave multiple versions of the events of the night of Friday, January 4, 2002. At 11:20 p.m., pizza and soda were brought to the interview room; the defendant accepted a soda but declined the food. After the defendant gave his final version of events, in which he admitted that he had joined Frazier in hitting and kicking the victim, and that Frazier had stabbed her in the chest, Trooper Burke stepped out of the interview room and the interview stopped. During the break, the defendant said that he knew he could have a lawyer but wanted to cooperate instead. He said he wanted to contact his attorney to arrange for the attorney to meet him at court in the morning, and he placed a telephone call to his attorney at 12:09 a.m., leaving a voice mail message. Trooper Mason told the defendant that they would proceed with booking, but the defendant said that he was not finished discussing the case. Trooper Mason twice expressed
During the interview, the defendant was sober and not under the influence of marijuana, Percocet, or alcohol. Nor did he suffer “from any defect of intellect or mental disorder.” He was responsive to the questions and gave “rational, cogent answers,” at times “in a narrative form.” His signatures on the various rights forms were “firm, clear and consistent,” and his diagrams of the crime scene were “accurate.” The troopers’ interrogation was “not heavy-handed but more in the nature of guiding a cooperative, albeit cagey, witness.”
The judge’s findings of fact are fully supported by the evidence in the motion hearing record and are not clearly erroneous. We conclude, as did the motion judge, that the defendant was twice advised of his Miranda rights and twice waived them, first in the police cruiser and later at the commencement of the interview in the conference room. We also conclude that the defendant’s waivers were knowingly, intelligently, and voluntarily made. The defendant wished to speak to the troopers in an attempt, in his words, “to straighten everything out” following his arrest for the victim’s murder. His refusal to be recorded, which immediately followed his second waiver of his Miranda rights, demonstrated that he could say “no” to the police when he wished.
The test for voluntariness of a defendant’s statement is “whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.” Commonwealth v. Selby, 420 Mass. 656, 663 (1995). In addressing the voluntariness of the defendant’s statement, the judge carefully weighed the evidence before
3. Motions to dismiss the indictments. Both before and during trial the defendant moved to dismiss the indictments based on
The defendant contends first that the indictments should have been dismissed when it became apparent, days after the indictments issued, that one of the grand jurors knew the victim, the victim’s child, and the child’s father. The defendant argues that this grand juror could not have been impartial, and that her presence compromised the integrity of the grand jury.
Before the motion was filed, the grand juror was questioned by a judge (who was not the motion judge
“It is clear that a grand jury must act in a manner consistent with their oath,” which includes the obligation to indict no one “based on ‘hatred or malice.’ ” Commonwealth v. McLeod, 394 Mass. 727,733-734, cert, denied sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985), quoting G. L. c. 277, § 5 (grand juror’s oath). Where a defendant makes a prima facie showing of grand jury bias or prejudice so egregious that it suggests that the grand jury returned an indictment based on “envy, hatred or malice” rather than the evidence in the grand jury record, further inquiry is warranted. See Commonwealth v. McLeod, supra at 733-734 & n.10. Evidence that a grand juror knew the victim and members of her family falls well short of the showing of bias or prejudice necessary to require such an inquiry, especially where, as here, the grand juror had said that she put her personal feelings aside during the proceedings and there is no evidence to the contrary. See id. at 734 (“fact that grand jurors may have some familiarity with an alleged crime, bring this information into the grand jury
The defendant also argues that the prosecution knowingly presented false evidence to the grand jury that “so seriously tainted the presentation to that body that the indictment should not have been allowed to stand.” Id. at 447. Frazier testified before the grand jury that, after a fight broke up the house party that followed the event at the Juice Bar on the night of January 4, 2002, Shawn Mulvey drove him to Mulvey’s house, where he spent the night. The defendant contends that Frazier’s account was false and that the prosecutor presented Frazier’s testimony to the grand jury knowing it to be false. The defendant also contends that the prosecutor concealed exculpatory evidence by failing to reveal to the grand jury that Mulvey (who did not testify before the grand jury) initially had denied to police that Frazier slept at his house that night.
To justify dismissal of an indictment, a defendant must show not only that false or deceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment, but also that on the entire grand jury record, the false or deceptive evidence was material to the question of probable cause and probably made a difference in the grand jury’s decision. Commonwealth v. Mayfield, 398 Mass. 615, 621-622 (1986). The defendant has failed to show that Frazier’s grand jury testimony was false, much less that the prosecutor knew that it was false.
After the indictments were returned, Shawn Mulvey admitted to police that he drove Frazier home with him after the house
4. Motion for change of venue or juror sequestration. In light of extensive media coverage of the murder, the three-year police investigation, and the pretrial proceedings, the defendant sought a change of venue pursuant to Mass. R. Crim. P. 37 (b), 378 Mass. 914 (1979), or, in the alternative, sequestration of the jurors. The judge denied the motion for a change of venue before commencing jury selection but said that he would reconsider his ruling if he determined during jury selection that it would not be possible to seat a fair and impartial jury. He also denied the motion for sequestration of the jurors but said that he would reconsider that ruling if developments during trial suggested that the media were disregarding his order not to communicate with the jury or that the jury were disobeying his order to avoid exposure to media coverage of the trial. The defendant contends that these rulings deprived him of his right to a fair and impartial jury.
A judge has substantial discretion in deciding whether to grant a motion for a change of venue or whether to sequester jurors. See Commonwealth v. Clark, 432 Mass. 1, 10 (2000); Commonwealth v. James, 424 Mass. 770, 775 (1997), and cases cited. The judge did not abuse that discretion here.
Here, the defendant has shown nothing more than the existence of substantial pretrial publicity surrounding the murder of the victim and the arrest of the defendant. In selecting the jury, the judge conducted an individual voir dire where he asked each prospective juror whether he or she had read, seen, or heard anything about the case from any source and, if so, whether this information would affect the prospective juror’s ability to render a fair and impartial verdict. The judge, after appropriate inquiry, properly excused the one prospective juror who indicated that he could not be fair and impartial as a result of the media coverage. We have carefully examined the transcript of the jury selection and conclude, as did the judge, that the pretrial publicity did not prevent the selection of a fair and impartial jury.
The record reflects that the judge also properly exercised his discretion in initially refusing to sequester the jury, and in taking appropriate steps to ensure that the jury were shielded from media reporting of the trial. Before empanelment of the jury, the judge issued orders protecting the jury from being photographed by the media and prohibiting reporters from contacting
5. Evidentiary rulings at trial. The defendant claims the judge erred by admitting in evidence certain inculpatory information and excluding certain exculpatory information. He argues that these errors entitle him to a new trial. We consider each of these claims in turn.
a. Prior bad acts evidence. Over the defendant’s objection, the judge allowed Trooper Mason to testify during redirect examination that, apart from the contradiction between the laboratory report indicating that the defendant’s DNA had been found on the victim’s body and the defendant’s denials that he had had any contact with the victim beyond picking up her garbage, two factors that weighed in his decision to seek an arrest warrant against the defendant were that the defendant had five protective orders brought against him by five different women and a number of criminal charges in the Barnstable Division of the District Court Department. The defendant argues that admission of this latter evidence unfairly invited the jury to convict him because of his bad character or his propensity to abuse women.
While the prosecution “may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit
Whether evidence of prior bad acts is relevant, and whether the probative value of such evidence is outweighed by its potential for unfair prejudice, are determinations committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent “palpable error.” Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). Commonwealth v. Robertson, 408 Mass. 747, 750 (1990). To evaluate whether the judge abused his discretion in allowing this testimony, we examine his decision in the context of the trial. During the direct examination of Trooper Mason, the judge sustained the defendant’s objection to the admission of evidence regarding the prior protective orders issued against the defendant and his denial that he had an anger management problem. The judge asked defense counsel whether he intended to bring up these issues on cross-examination, and defense counsel assured him he would not. On cross-examination, however, defense counsel repeatedly questioned Trooper Mason concerning the adequacy of the evidence supporting the defendant’s arrest. The inference the defense attorney sought the jury to draw from this line of questioning was that Trooper Mason had decided to arrest the defendant based solely on the DNA report and the defendant’s prior denials of any personal contact with the victim, and that
The judge did not abuse his discretion in admitting the evidence subject to his firm limiting instructions. By challenging the good faith of the lead investigator in the case, defense counsel invited a fuller explanation of the investigator’s reasons for applying for an arrest warrant against the defendant.
b. Medical examiner testimony. The autopsy of the victim was conducted by Dr. James Weiner, but Dr. Weiner was unavailable to testify at trial due to illness; in his place, the prosecution called Dr. Henry Nields, whose knowledge of the case derived solely from his review of the reports, notes, and charts prepared by Dr. Weiner. The defendant argues that his right to confrontation, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, was violated by the admission of testimonial hearsay — the opinions and factual findings in Dr. Weiner’s reports and notes — through the testimony of Dr. Nields.
In his direct examination, Dr. Nields testified in detail from Dr. Weiner’s notes and reports as to Dr. Weiner’s observations of the victim’s body and his findings as to the nature of her wounds when he arrived at the scene of the crime at 7:55 p.m. on January 6, 2002, and when he conducted the autopsy on January 7. Three charts prepared by Dr. Weiner documenting the location and nature of the wounds on the victim’s body were admitted in evidence. Dr. Nields also testified to Dr. Weiner’s opinion as to the time of death of the victim, which was “an estimated postmortem time of twenty-four to thirty-six hours.”
The observations, findings, and opinions of Dr. Weiner reflected in his notes and reports were testimonial hearsay, because a reasonable person in his position would anticipate that they would be used against the accused in investigating and prosecuting a crime, and they were offered for the truth of the matters asserted. See Commonwealth v. Nardi, 452 Mass. 379, 392-394 (2008). As the Commonwealth concedes, it was error for the judge to permit Dr. Nields to testify to what Dr. Weiner saw, found, and opined. See Commonwealth v. Durand, 457
The facts that Dr. Nields recited from Dr. Weiner’s notes and report concerning the physical condition of the victim’s body at the crime scene had already been admitted in evidence through the testimony of multiple other witnesses who had observed the crime scene and gave nearly identical firsthand descriptions of the victim’s body after she was found. The facts concerning the location and nature of the victim’s injuries that Dr. Nields recited from Dr. Weiner’s notes and reports had been previously admitted in evidence through the testimony of State Trooper Carol Harding, who attended the autopsy, testified to each injury Dr. Weiner examined during the autopsy, and authenticated ten photographs from the autopsy that documented the victim’s injuries and that were admitted in evidence.
Dr. Weiner’s opinion as to the estimated time of death of the victim, however, was not in evidence except through the erroneously admitted testimonial hearsay. See Commonwealth v. Nardi, supra at 394. Although Dr. Nields properly could have testified to his own opinion as to time of death, based on his forensic expertise as a medical examiner and his review of Dr. Weiner’s notes and reports, see Commonwealth v. Avila, 454 Mass. 744, 761-762 (2009), he did not do so. The erroneously admitted evidence of Dr. Weiner’s estimate of the victim’s time of death, however, favored the defendant, because it suggested that the victim most likely had been killed between 8 a.m. and 8 p.m. on
After the prosecution rested, the defendant called Gerard Smith, a neighbor of the victim, who testified that at approximately 1 p.m. on January 5, he saw a dark “work type van” depart the driveway of the victim’s house “at a very fast speed” driven by a dark-skinned Caucasian man.
c. DNA expert testimony. The defendant raises a similar confrontation clause challenge to the admission of testimony by the Commonwealth’s DNA analyst, Christine Lemire, regarding the results of DNA testing generated by another analyst. Lemire testified that the analysis employed by her laboratory assigned numbers to specific locations, or allele sites, on DNA extracted from the known sample provided by the defendant and from the unknown samples drawn from swabbings and fingernail scrapings recovered from the victim’s body. Lemire herself developed
Lemire’s testimony regarding the DNA testing she performed on the unknown samples was not hearsay. Nor was her opinion testimony because, as an expert, she was entitled in reaching an opinion to rely on her own personal knowledge as well as facts or data that are themselves hearsay, provided this information is of a type reasonably relied on by experts to form opinions in the relevant field. See Commonwealth v. Barbosa, 457 Mass. 773, 783-784 (2010); Commonwealth v. Nardi, 452 Mass. 379, 390 (2008). Therefore, Lemire’s opinions whether the defendant was a potential contributor of the DNA profile in each unknown sample and the statistical likelihood that an individual in various population groups could have been a contributor of that DNA profile were not hearsay. See Commonwealth v. Barbosa, supra. But the allele numbers derived from the testing of the known samples by another analyst that were included in Lemire’s chart were testimonial hearsay, because these were factual findings made by a nontestifying witness for the purpose of investigating the murder. See Commonwealth v. Barbosa, supra at 784; Commonwealth v. Banville, 457 Mass. 530, 540-541 (2010). The allele numbers produced by the nontestifying analysts were therefore admitted in error.
Because the defendant did not object at trial to the admission of the other analyst’s factual findings or to the chart that included these findings, we consider whether the admission of this evidence resulted in a substantial likelihood of a miscarriage of justice. See Commonwealth v. Nardi, supra at 394. We conclude that it did not.
d. Exclusion of defendant’s statements made to defense expert psychologist. At trial, the defense called Dr. Eric Brown, a clinical psychologist, who offered his expert opinion that, because of the defendant’s low level of intelligence and limited cognitive abilities, the defendant lacked the “cognitive functioning” necessary to participate intelligently in the interview that resulted in his postarrest inculpatory statements to Troopers Mason and Burke. On cross-examination, the prosecutor asked if, in making his evaluation, Dr. Brown had reviewed the diagrams that the defendant sketched for the troopers of the interior and exterior
The trial judge is afforded substantial discretion in deciding whether, and for what purposes, evidence is relevant, see Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991), and a trial judge’s rulings on these questions are reversible only for an abuse of discretion. See Cottam v. CVS Pharmacy, 436 Mass. 316, 327 (2002). If offered to prove that the defendant had a “sexual encounter” with the victim that Thursday afternoon, the defendant’s statement to Dr. Brown was inadmissible hearsay, because the defendant made the statement outside the court room, the defendant was not subject to cross-examination regarding the statement, the statement was intended to prove the truth of the matter asserted, and the defendant, not an adverse party, was offering the statement in evidence. See generally Mass. G. Evid. § 801 (2010). The defendant argued at trial that the purpose of offering the defendant’s prior statement was not to prove that he was inside the victim’s house that Thursday afternoon, but to explain how he had been able to draw the diagram of the interior
6. Removal of deliberating juror. The defendant argues that he is entitled to a new trial because the judge improperly removed a deliberating juror after the jury had informed the judge that they were deadlocked on each of the charges. We set forth the undisputed facts concerning this issue. The jury commenced deliberations on Tuesday, November 7, 2006, and continued through Friday, November 10. During the weekend recess, one of the jurors became involved in a highly publicized police investigation unrelated to the defendant’s case when the father of her child was arrested at her home in connection with a shooting in Falmouth.
In accordance with the practice approved in Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978), the judge conducted an individual voir dire of each juror (including two alternate
Before jury deliberations commenced the following day, the Commonwealth moved to dismiss the juror on the basis of two telephone conversations between the juror and the jailed father of her child that had been recorded by the Barnstable house of correction the previous afternoon following the judge’s issuance of the sequestration order. In a hearing attended by the defendant, defense counsel, and the prosecutor, the judge found on the basis of the recordings that she maintained a “strong ongoing relationship” with the father of her child. The judge further found that the recordings showed that the juror was disregarding his repeated orders to the jury not to communicate with others about the case and to avoid media reports concerning it. Finally, he found that the juror’s representation that she remained fair and impartial “to be less than reliable” because “she clearly sides with [the father of her child]” and “expresses concern” about the conduct and integrity of the police involved in the shooting investigation. The judge concluded “that the palpable conflict is not only one that can be inferred; it’s one that can be established
Once a jury commence deliberations, a juror may be discharged if “unable to perform [her] duty” because of illness or “any other good cause shown to the court,” G. L. c. 234, § 26B; or, after a hearing, “upon a finding of an emergency or other compelling reason.” G. L. c. 234A, § 39. The facts of Commonwealth v. Garrey, 436 Mass. 422 (2002), presented circumstances similar to those before the judge here. There, we concluded that “a palpable conflict existed” that justified the discharge of a deliberating juror where her son and husband were arrested, held in jail, and awaited prosecution by the same district attorney’s office prosecuting the defendant. See id. at 430-431 & n.5. Here, a comparable “palpable conflict existed,” where the father of the deliberating juror’s child, with whom the juror had a “strong ongoing relationship,” was arrested on felony charges, held in jail, and awaited prosecution by the same district attorney’s office prosecuting the defendant. While that “palpable conflict” was sufficient to support the judge’s exercise of his discretion, there were additional reasons that supported the judge’s decision to discharge the juror here. The juror’s statements in the tape-recorded telephone calls supported the judge’s findings that the juror was upset with the police and their conduct of the investigation of the child’s father, and that she had learned of media reports regarding the arrests for the shooting.
There is no evidence that the judge sought to affect the jury’s verdict by his discharge of the juror. As the judge found, there
The judge here acted within his discretion in concluding that there was compelling reason to discharge the deliberating juror. See, e.g., Commonwealth v. Garrey, supra at 430-431 & n.5; Commonwealth v. Olavarria, supra at 620-622.
7. Motion for a new trial based on prosecutor’s alleged failure to disclose exculpatory evidence. The defendant argues that he is entitled to a new trial because the prosecutor failed to reveal to the defense that Jeremy Frazier had been charged with assault by means of a dangerous weapon in August, 2003; he contends that this information would have implicated Frazier in the stabbing of the victim. Defense counsel, however, had a copy of Frazier’s board of probation record during his cross-examination of Frazier at trial and questioned him regarding the dismissal of various District Court charges, suggesting in his questioning that the charges had been dismissed in return for Frazier’s testimony at the defendant’s trial. Defense counsel, therefore, knew of the charge and of its dismissal at the time of trial. Defense counsel did not attempt at trial to offer the underlying alleged incident — which involved the brandishing of a two-inch pocket knife against British tourists in an argument
The defendant also contends that he is entitled to a new trial because the prosecutor failed to reveal administrative problems in the reporting of DNA test results at the State police crime laboratory that were documented in two official reports. These reports, however, were issued in 2007, after the conclusion of the defendant’s trial, and there is no evidence that the prosecutor or his investigators were aware at the time of trial of the deficiencies at the laboratory. “It is clear that a ‘prosecutor cannot be said to suppress that which is not in his possession or subject to his control.’ ” Commonwealth v. Daye, 411 Mass. 719, 734 (1992), quoting Commonwealth v. Donahue, 396 Mass. 590, 596 (1986). Moreover, the 2007 reports focused on the backlog of unprocessed DNA samples held by the laboratory and administrative inefficiencies in the laboratory’s handling of information in the DNA database used by law enforcement; they did not reveal any deficiencies in the quality of scientific work conducted at the crime laboratory that would put in question the analyst’s opinion that the defendant was a contributor of DNA found on the victim’s body. The judge did not err in denying this frivolous motion for a new trial.
8. Allegations of juror misconduct. Approximately one month after the conclusion of trial, the defendant moved for a postverdict inquiry of the jurors based on information contained in affidavits from the discharged juror and two other deliberating jurors that the jury’s deliberations had been infected by racial prejudice. The claims of racial prejudice were based on three separate incidents and alleged (1) that one juror (Juror X) had
The judge conducted a postverdict evidentiary hearing in open court where he questioned ten of the twelve jurors who deliberated to verdict, the discharged juror, and the alternate juror concerning the allegations in the affidavits.
Following the hearing, the judge made detailed findings of fact in which he concluded that there was “no factual basis” to support the allegation that Juror X had tied her fear of the
After considering whether Juror Y’s statement reflected “overt prejudice” or “veiled or subconscious bias or stereotyping,” the judge found that it “was descriptive in nature and intent and did
Because “[t]he determination of a juror’s impartiality ‘is essentially one of credibility, and therefore largely one of demeanor,’ ” Commonwealth v. Ferguson, 425 Mass. 349, 352-353 (1997), quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984), we give a trial judge’s determination of impartiality great deference. See Commonwealth v. Ferguson, supra at 353, and cases cited. We will not disturb a judge’s findings that a juror is unbiased absent a showing that the judge’s conclusion was clearly
We recognize the difficulty of the judge’s task in ascertaining the facts here and the extraordinary care he took in setting forth in detail his findings. Having taken similar care in examining the record, we conclude there was no clear error in his findings of fact. We therefore turn to the question whether the judge erred as a matter of law in denying the defendant a new trial based on the facts that the judge found.
Article 12 of the Declaration of Rights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution, applied to the States through the due process clause of the Fourteenth Amendment, guarantee the right of a criminal defendant to a trial by an impartial jury. Commonwealth v. Vann Long, 419 Mass. 798, 802 (1995). “The presence of even one juror who is not impartial violates a defendant’s right to trial by an impartial jury.” Id. See Aldridge v. United States, 283 U.S. 308, 314 (1931) (“if any [juror] was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit”).
Where a defendant files an affidavit from a juror (or, as here, from more than one juror) alleging that a juror (or more than one juror) made a statement to another juror that reasonably demonstrates racial or ethnic bias, and the credibility of the affidavit is in issue, the trial judge should conduct a hearing to determine the truth or falsity of the affidavit’s allegations, because “the possibility raised by the affidavit that the defendant did not receive a trial by an impartial jury, which was his fundamental right, cannot be ignored.” Commonwealth v. Laguer, 410 Mass. 89, 97 (1991). See Commonwealth v. Amirault, supra at 625-626 (where defendant after verdict raises “reasonable claim” that juror in child rape case failed during voir dire to reveal that juror had been victim of rape during childhood, defendant entitled to hearing conducted by trial judge to determine whether juror was actually biased).
In evaluating claims of juror bias, a judge, as the judge did
Where one or more of the challenged statements are shown to have been made, the judge must then determine whether the defendant has proved by a preponderance of the evidence that the juror who made the statements was actually biased because of the race or ethnicity of a defendant, victim, defense attorney, or witness. See United States v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001). See also Commonwealth v. Tavares, 385 Mass. 140, 156 (1982) (finding that alleged statement suggesting racial prejudice had been made but determining that statement considered in context did not show actual bias). A juror is actually biased where her racial or ethnic prejudice, had it been revealed or detected at voir dire, would have required as a matter of law that the juror be excused from the panel for cause. Cf. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (where civil litigant seeks new trial because of alleged juror bias, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause”); Commonwealth v. Amirault, supra
In some instances, the statement made by the juror may establish so strong an inference of a juror’s actual bias that proof of the statement alone may suffice. See Commonwealth v. Laguer, 410 Mass, at 94, 98-99 (if alleged statement — “[T]he goddamned spic is guilty just sitting there; look at him. Why bother having the trial” — were made by juror, judge must find actual ethnic bias). See also Commonwealth v. Amirault, supra at 628 & n.5 (“in certain exceptional circumstances implied bias may be applicable”). Generally, though, the judge must determine the precise content and context of the statement to determine whether it reflects the juror’s actual racial or ethnic bias, or whether it was said in jest or otherwise bore a meaning that would fail to establish racial bias. See Commonwealth v. Tavares, supra at 153 n.21, 154 (jurors referred to witness as “Sapphire,” a reference to shrewish wife on “Amos ‘n Andy Show” on radio and television, but record supported judge’s findings that “this term had been used in a jocular manner without any racial prejudice”). Because actual juror bias affects the essential fairness of the trial, a defendant who has established a juror’s actual bias is entitled to a new trial without needing to show that the juror’s bias affected the jury’s verdict. See Commonwealth v. Hampton, 457 Mass. 152, 163 (2010); Commonwealth v. Vann Long, 419 Mass. 798, 802-805 (1995). See Commonwealth v. Laguer, supra at 98-99.
Where statements suggesting juror bias are shown to have been made but the defendant has failed to prove that the statements reflect actual bias by the juror who made the statements, the judge still must determine whether the statements so infected the deliberative process with racially or ethnically charged
9. Review under G. L. c. 278, § 33E. Having reviewed the entire record pursuant to our duty under G. L. c. 278, § 33E, we discern no error, considered alone or collectively, that provides a just basis to set aside or reduce the verdict of murder in the first degree.
Judgments affirmed.
Orders denying motions for a new trial affirmed.
At the time of the March, 2004, meeting with the defendant, thirty to thirty-five other men had provided DNA samples to investigators. At a later point in the investigation, police conducted a public “DNA roundup” in Truro in which police officers asked men voluntarily to provide DNA samples to assist in their investigation. Approximately 150 to 200 men provided samples.
The police confirmed that the Juice Bar in Orleans held a “rap night” on Friday night, January 4, 2002, and a videotape taken that night showed that both the defendant and Jeremy Frazier attended the event.
The police found the victim’s cellular telephone in her home; the number nine appeared on the screen, indicating that that digit had been pressed.
The defendant later provided a variation on this account in which Frazier kicked in the door when he left the house, after earlier having chased the victim inside.
Another witness, Christopher Bearse, testified that he saw Frazier and Mulvey leave the house party together and enter the same automobile. He acknowledged that the defendant was “nowhere in sight” when Frazier and Mulvey departed.
Christine Lemire testified that this was consistent with the victim’s daughter attempting to nurse from the victim’s breast.
The defendant is African-American.
Because the voluntariness of the defendant’s statements was a live issue at trial, the judge properly submitted the issue to the jury by providing the humane practice instruction. See Commonwealth v. Cryer, 426 Mass. 562, 571 (1998). The judge’s instructions on voluntariness adhered to the requirement in Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004), that the absence of an electronic recording of a custodial interrogation permits the jury to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt. The defendant urges us to go beyond that ruling to hold that the fruits of an unrecorded interrogation may not be admitted at trial and that the defendant’s statement here must be suppressed. We decline to revisit the holding of the DiGiambattista case and note that the present appeal presents a singularly unlikely occasion on which to do so, where, even after being informed by Trooper Mason that courts prefer the electronic recording of interviews, the defendant declined in writing to consent to such a recording.
The motion judge was also the trial judge.
The evidence presented to the grand jury included a videotape that showed the victim as she was discovered.
The record before us does not include any police reports documenting Mulvey’s statements in the course of the investigation. We therefore rely on uncontested testimony at trial concerning these statements.
The judge explained to the jury, “To the extent that it’s a live issue in this trial as to whether the police have acted fairly or appropriately or as to whether statements are or not voluntary, then perhaps this trooper’s thought process leading up to taking the statement is fair game.”
Arnold and the victim lived together in the victim’s home for approximately one year while they were romantically involved. He had moved out of the house when the romantic relationship ended sometime in the early months of 2001. His semen was found on a blanket that had been taken from a couch by one of the emergency responders to cover the victim after she was found. The DNA analyst, Christine Lemire, testified that DNA may remain on an item for twenty to thirty years.
We caution defense counsel, in preparing cross-examination, to consider the risk that their inquiry may open the door to the admission of evidence that would otherwise not have been admitted. We also caution judges that evidence that poses a risk of unfair prejudice need not always be admitted simply because a defendant has opened the door to its admission; the judge still needs to weigh the probative value of the evidence and the risk of unfair prejudice, and determine whether the balance favors admission.
On cross-examination, Dr. Nields indicated that the twenty-four to thirty-six hour period was measured from the time Dr. Weiner observed the body on the evening of January 6, not from the time of the autopsy on January 7.
In addition, Dr. Nields, using the photographs admitted in evidence, properly testified to the location and nature of the victim’s injuries based on his expertise as a forensic examiner. Dr. Nields also properly offered his own opinion as to the cause of the victim’s death — a stab wound to the chest — and as to her death from that wound not being instantaneous. See Commonwealth v. Avila, 454 Mass. 744, 761-762 (2009).
Defense counsel failed to elicit this concession from Dr. Nields, who testified that Dr. Weiner’s estimate did not set “an outside time limit for time of death.”
Gerald Smith testified that he told the police that the driver was the sole occupant of the vehicle.
The defendant in his statement to the police in April, 2005, did not speak of a sexual encounter with the victim on Thursday, January 3, 2002; he claimed that his first and only sexual encounter with her was on Friday night, January 4. But the defendant at trial called a social psychologist, Dr. Richard Ofshe, who, while he did not did not offer an opinion whether the defendant’s statement to police in April, 2005, was false, offered expert testimony regarding the existence of false confessions and the circumstances that increase the risk of a false confession.
Although the defendant did not testify and defense counsel never found a permissible basis to introduce evidence that the defendant had a sexual encounter with the victim that Thursday afternoon, he suggested in closing argument that it was a “reasonable inference” the jury could draw from the facts in evidence. The prosecutor made no objection to this argument.
Police discovered a second man hiding in a rear bedroom of the dwelling and arrested him on an outstanding warrant.
We do not rely on the judge’s finding that the juror had deceived the police regarding the nature of her relationship with the father of her child. While she indicated, in words and gestures, that they were in the midst of splitting up, she did not expressly say so, and we are not convinced that her expression of solidarity with the father of her child following his arrest and her assistance in paying his attorney demonstrated that they had not been in the process of splitting up prior to his arrest.
There is also no merit to the defendant’s ancillary claim that the judge’s ruling must be reversed because the juror was not present at the second hearing where the judge reviewed the recorded telephone calls and made his findings. The defendant, defense counsel, and the prosecutor were all present at this hearing. The defendant did not request that the juror be given an opportunity to explain her statements on the telephone recordings, and the judge reasonably could have concluded that nothing she would say in explanation would affect his decision to discharge her from the jury. The judge acted within his discretion in conducting the hearing without the juror present. See Commonwealth v. Haywood, 377 Mass. 755, 769-770 (1979) (“Depending on the nature of the reason why replacement of the juror is being considered, the juror’s presence may or may not be required . . .”).
The defendant makes similar allegations regarding the prosecution’s failure to disclose information concerning the criminal records of four other individuals listed as potential Commonwealth witnesses (only one of whom actually testified at trial). We agree with the judge that, for similar reasons, this information was inadmissible at trial.
The juror making this allegation described Juror Z as “black” in her affidavit. The judge in his findings of fact declared:
“Casting aside for the moment the futility and folly of pigeonholing individuals racially, by physical appearance one might say the gentleman is black. To this jurist, as a man who has lived his life entirely in Southeastern Massachusetts where Cape Verdeans are a major component of the minority community, [Juror Z] appears to be Cape Verdean.”
The affiant who made this allegation was the discharged juror, whom the judge after hearing did not find credible. From the allegation in her affidavit, one would infer that Juror Z was referring to the defendant and the crimes he was alleged to have committed, but the discharged juror at the hearing testified that Juror Z was referring to the black female juror who had called Juror X a racist for her comment in the jury room.
The judge treated the defendant’s motion as, in substance, a motion for a new trial. The motion also alleged that one of the alternate jurors had participated in, and impermissibly influenced, jury deliberations. On appeal, the defendant does not challenge the judge’s finding that there was no factual basis to support this allegation.
The remaining two deliberating jurors were excused, without objection by counsel, because of health and travel issues.
The judge found that Juror X had expressed fear of the defendant, but not because of his race.
While the discharged juror and a deliberating juror testified that they heard Juror Z say that he did not like blacks, the judge did not find the discharged juror to be credible and found that the deliberating juror had been told about the statement by the discharged juror and had not heard it said by Juror Z. The judge did not credit any of the testimony of the discharged juror and found that her claims were refuted by others whose testimony he did credit. The judge also did not credit the testimony of Juror Z’s great-aunt that Juror Z had previously articulated his racial prejudice. He concluded that she “has proved to be a storyteller, perhaps someone seeking her fifteen minutes of fame.” The judge concluded, based on his voir dire of Juror Z during jury selection, Juror Z’s testimony at the postverdict hearing, and the judge’s observation of the juror throughout the trial, that Juror Z “did not express prejudice towards blacks but instead served as an impartial juror.” The judge added, “Nothing in [Juror Z’s] demeanor suggested a closed mind.”
The judge found that it was impossible to determine the precise language used by the juror but it was clear that, in discussing the severity of the victim’s injuries, she had spoken of their source as either “a big black man” or “this big black man.” After weighing conflicting testimony, the judge concluded that the juror was referring to the defendant specifically rather than to black men as a class.
The judge also concluded that, even if the defendant had met this burden, the Commonwealth had proved the absence of prejudice to the defendant beyond a reasonable doubt based on the totality of the evidence.
The judge characterized the black female juror’s role in this interchange as “honorable,” finding that she “was appropriately vigilant in keeping racial bias from infecting the deliberations” and that her “ire” served “as a warning flag that careful scrutiny must be given to [Juror Y’s] words.” The judge also noted that each juror was selected after a voir dire that explored racial bias, that the judge’s final instructions directed the jury to remove bias from their deliberations, that fellow jurors reminded the jury to be on guard for racial bias, and that the offending statement was uttered once during eight days of deliberations.
We share the concurrence’s recognition of and concern with the risk of unconscious racial bias among jurors. We also agree with the concurrence that unconscious racial bias is most effectively addressed by recognizing it and addressing it, as was done in this case by the judge in his voir dire questions and jury instructions, and by the jurors during deliberations.
Where juror testimony is needed to ascertain whether the racist statement was made, a judge may inquire of the jurors whether the statement was made but may not inquire into their subjective thought process, such as their reasons
We do not suggest that a judge may find that a juror was actually biased only where the prospective jurors during voir dire were asked about racial or ethnic bias; a judge may make such a finding even where no such inquiry was made during voir dire. Here, however, the judge asked each prospective juror whether the race of the defendant or victim would affect the juror’s ability to be fair and impartial.
The judge here characterized this question as whether the jury were “exposed to racial bias” from the exchange of words between Juror Y and the black female juror.
“[W]e emphasize that not every stray or isolated off-base statement made during deliberations requires a hearing at which jury testimony is taken.” United States v. Villar, 586 F.3d 76, 87 (1st Cir. 2009).
The judge in his findings referred to the testimony of the defendant’s social science expert that people have the ability to rise above racial stereotypes where they make a conscious effort to do so.
Concurring Opinion
(concurring). I concur in affirming the judgments
of conviction against the defendant. I write separately to set forth my thoughts on the issue of juror bias raised in this case.
I agree with the judge that Juror Y’s statement that the victim’s injuries would result “when a big black man” beat a small woman raised the specter of racism, warranting closer examination. Indeed, Juror Y’s statement provoked an immediate reaction from the black female juror (Juror A), who accused Juror Y of racism. The confrontation included the two women yelling back and forth and swearing at each other.
In assessing whether the defendant met his burden to prove that Juror Y was actually biased, Smith v. Phillips, 455 U.S. 209, 215 (1982), the judge very conscientiously and sensitively
“Since the 1990’s, a number of studies have deconstructed the complicated ways in which the human mind maintains and manifests racially biased implicit attitudes and stereotypes. Many of these studies have reached the same conclusion — that implicit biases are real, pervasive, and difficult to change .... [Moreover] racial attitudes and stereotypes are both automatic and implicit. That is, that people possess attitudes and stereotypes over which they have little or no ‘conscious, intentional control.’ Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking and Misremembering, 57 Duke L.J. 345, 351-354 (2007) (Levinson). This is because, according to “[Research on stereotype formation and maintenance^] . . . stereotypes are instilled at an early age and come from cultural and societal beliefs. . . . [Psychologists have found that stereotypes arise when a person is as young as three years old and are usually learned from parents, peers, and the media. As people grow older, their stereotypes become implicit and remain mostly unchanged even as they develop nonprejudiced explicit views. ‘Stereotypes about ethnic groups appear as a part of the social heritage of society. . . . [And] [n]o person can grow up in a society without having learned the stereotypes assigned to the major ethnic groups.’ Id. at 363, quoting Page, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 203 n.22 (2005). See Symposium Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 Yale L. J. 1353, 1391 (2005) (individuals restrict their racist speech).
Courts are aware that unconscious racism could affect the
The judge here expressed his understanding of unconscious bias by relying, in part, on the defendant’s “expert social psychologist on matters of racial bias,” Samuel R. Sommers, and stating that he was assessing Juror Y’s testimony through the filter of Justice O’Connor’s concurring opinion in Smith v. Phillips, supra at 221-222 (O’Connor, J., concurring), concerning unconscious bias.
As the judge also recognized, courts use mechanisms that studies suggest can counteract implicit racially based attitudes and stereotypes. Here, during the voir dire, the judge asked each juror about their attitudes about race.
Given the societal norm that one does not overtly express racially biased attitudes, see Sommers, 7 Psychol., Pub. Pol’y & L., supra at 208, as well as the mechanisms to which the jurors were exposed before their deliberations, Juror Y’s “big
Because of unconscious racism, it is the subtle clues that help give a judge insight into a juror’s true feelings. Indeed, the judge here explored in detail such a subtlety: whether Juror Y said “this” big black man rather than “a” or “the” big black man. He found that she was referring directly to the defendant and concluded that she did not harbor prejudice against blacks as a class but was speaking descriptively of the defendant. A similar analysis of the hair and education questions would have added another dimension to the judge’s analysis. Both questions, but particularly the question about Juror A’s level of education, implicate racial stereotyping. See Lawrence, supra. I would want to know whether Juror Y asked other jurors about their education or asked just Juror A.
I agree with the court that the judge’s task here was tremendously difficult, ante at 494, and do not suggest that the judge would have reached a different conclusion concerning whether Juror Y was actually biased. I do think that more inquiry concerning whether any other jurors were asked questions about their level of education and hairstyle would have given context and insight into whether the questions put to Juror A were simply small talk or indicative of implicit bias.
To support her statement, Justice O’Connor cited Developments in the Law — Race and the Criminal Process, 101 Harv. L. Rev. 1472, 1559-1560 (1988); Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition against the Racial Use of Peremptory Challenges, 76 Cornell L. Rev. 1, 100-112 (1990). A more recent study concluded that judges and jurors unknowingly “misremember” facts in a case in racially biased ways. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345, 373-374 (2007).
Although, as the judge pointed out, judges are free to reject expert testimony, I note that the role of experts in assisting the court in understanding unconscious racism in all its forms could be critical. Although Samuel Sommers testified that, for obvious reasons, research about juror behavior and attitudes has been conducted with mock juries and trials, he conducted at least one study in which he chose his test subjects from a “jury-eligible community.” See Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. Personality & Soc. Psychol. 597, 601-602 (2006).
The judge stated that the case involved an allegation that the defendant, who is black, raped and killed a white woman and asked whether this information about race would affect the juror’s ability to be fair and impartial. He also asked whether the juror would believe the testimony of a white person
According to one study, “racially diverse juries deliberated longer, discussed more trial evidence, and made fewer factually inaccurate statements in discussing the evidence than did all-White juries. Interestingly, these effects, too, cannot be explained solely in terms of the performance of Black jurors, as White jurors were more thorough and accurate during deliberations on diverse vs. all-White juries. A potential implication of these findings is that one process through which a diverse jury composition exerts its effects is by leading White jurors to process evidence more thoroughly.” Sommers, Race and the Decision Making of Juries, Legal & Criminological Psychol. 171, 181 (2007), citing Sommers, 90 J. Personality & Soc. Psychol., supra at 612.
Defense counsel argued in his opening, during examination of witnesses, and in closing that jurors needed to put aside hasty conclusions and consider the possibility that the defendant and the victim had a consensual relationship and that she was killed by a third party. In his articles about race salience, see note 3, supra, the defense expert Sommers found that when the issue of race is brought to the attention of mock jurors, white jurors were less likely to demonstrate bias in their decision making. Sommers, 7 Psychol., Pub. Pol’y & L., supra at 220, 225.
Here, as the judge found, several jurors, including juror A and the foreperson, more than once reminded jurors that race should play no role in deliberations that should be focused on the evidence. See note 4, supra, discussing that racially diverse mock jurors were more thorough in their deliberations than all white mock juries.
In fact, Juror Y testified that she was using the phrase because defense counsel did, and another juror testified that race was mentioned in the context of argument by defense counsel.
Juror A’s reaction is not unusual. Studies show that blacks and whites perceive incidents of discrimination differently. Whites expect discrimination to be explicit, whereas blacks are more aware of implicit discrimination. See Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1127-1128 (2008) (Robinson), quoting Sommers, Lay Theories About White Racists: What Constitutes Racism (and What Doesn’t), 9 Group Processes & Intergroup Rel. 117, 132 (2006) (“white and nonwhite respondents [were asked] to review a list of behaviors and report whether the behavior was typical of white racism. [Researchers] found that ‘non-Whites are more likely to consider subtle forms of bias to be indicative of racism than are Whites’ ”); Chew, Judicial Decisions, Pitt Law Magazine 8, 9 (2010) (race of judge affected likelihood that plaintiff would prevail in employment discrimination claim and that most successful claims involved supervisors and coworkers “using racial slurs or by ‘ganging up’ on the plaintiff”).
According to Chester Pierce, a graduate of Harvard College and Harvard Medical School, and Emeritus Professor of Education and Psychiatry at the medical school, Graduate School of Education, and School of Public Health at Harvard University, a psychiatrist at Massachusetts General Hospital, and author of over 200 articles, who has served as president, chairperson, advisor, and consultant to numerous organizations, the interactions between white and black individuals in the larger society is marked by what he calls “offensive mechanisms” which are made automatic by the culture and “stem[] from the need of whites to reaffirm and reassert feelings and ideas of racial superiority.”
“I notice in a class I teach that after each session a white, not a black, will come up to me and tell me how the class should be structured or how the chairs should be placed or how there should be extra meetings outside the classroom, etc. [It is possible that I am hypersensitive.] What I cannot explain ... is that it is not what the student says in this dialogue, it is how he approaches me, how he talks to me, how he seems to regard me. ... I was told . . . that although I am a full professor on two faculties at a prestigious university, to him ... I had to be instructed and directed as to how to render him more pleasure!”
Id. at 277.
Two studies have demonstrated that white test subjects minimize charges of racial discrimination. In sum, in each test, one concerning employment and one concerning grading a college student’s essay, whites were informed that the person who could have evaluated a mock black subject was prejudiced. Nevertheless, they were more likely to call the black subject who asserted discrimination a “complainer” or “troublemaker.” See Robinson, supra at 1148-1151.
Reference
- Full Case Name
- Commonwealth vs. Christopher M. McCowen
- Cited By
- 91 cases
- Status
- Published