Most criminal cases are unambiguous.  Evidence of guilt is strong, the defendant knows he can’t win at trial, a plea agreement is negotiated, and that’s that.  Between 95 and 97% of criminal cases end this way.  When a case proceeds to a jury trial it is either because a guilty defendant decides to roll the dice with the jury or because the authorities got the wrong guy.

But how is a jury supposed to know which of these scenarios is playing out in the courtroom?

A recent string of DNA exonerations suggests that innocent defendants are convicted far more often than most people imagine.  Low-status black defendants are particularly susceptible.

Juries like to convict; especially when the defendant is black and looks dangerous.  And if you are poor and black you will look dangerous to most white jurors, and there ain’t a damn thing you (or the jurors) can do about it. 

In the face of ambiguous evidence, jurors are faced with an agonizing dilemma: convict, and an innocent man might be going to prison for decades; acquit, and a dangerous man may be unleashed on society.  When due process goes one-on-one with public safety, public safey wins every time.  This is especially true when the defendant, by virtue of being poor and black, looks dangerous.

This is why I argue that at least a third of the jurors selected in every trial should be of the same ethnic group as the defendant. 

Consider the case of Christopher McCowen.  McCowen’s DNA was found on the body of a female murder victim.  McCowen claims he had consensual sex with the victim but didn’t kill her.  That’s the kind of case that ends up in the courtroom.  The story below has appeared in newspapers across the country, and the case was featured on NPR’s Morning Edition this morning.

Mr. McCowen is a black garbageman.  He is physically imposing.  Several jurors felt intimidated by the defendant and said so.  A black juror accused her white counterparts of racism.  At one point the tension in the jury room became was so palpable the foreman called a break to give jurors time to cool off.

This sort of tension is common when racially mixed juries hold the fate of a black defendant in their hands, but the issues rarely spill out into the open because jurors generally keep their feelings to themselves.  If Mr. McCowen gets a new trial he will almost certainly be convicted, his protestations of innocence notwithstanding.  When you are big, black and poor you must prove your innocence beyond a reasonable doubt or you will be convicted. 

Call it racism or call it a simple concern for public safety?  In America, the two issues can hardly be separated.

Jury in Cape Cod Murder Queried on Race

By DENISE LAVOIE

BARNSTABLE, Mass. (AP) — Some jurors who convicted a black garbage man in the murder of a white fashion writer traded allegations of racism Thursday in an unusual hearing called by the judge to determine whether their verdict was tainted by racial bias.

Lawyers for Christopher McCowen sought the hearing after three jurors accused three others of making racially derogatory remarks while deliberating whether McCowen raped and fatally stabbed Christa Worthington in her home in January 2002.

Judge Gary Nickerson could order a new trial if he finds racial bias affected the verdict in November 2006.

The judge questioned the jurors individually in open court, but out of earshot of the other panelists. Each of the first four questioned by midday described racially charged deliberations.

Roshena Bohanna, who is black, told the judge that two women on the panel referred to the defendant as a “big black guy” and said they were afraid of him.

Bohanna said Marlo George, who is white, tried to convince fellow jurors that McCowen had caused the bruises on Worthington’s body and said: “If a big black man hits a woman, then she gets those bruises.”

Bohanna said she and George became confrontational when she asked what McCowen’s race had to do with the bruises and accused her of racism. The jury foreman had to call for a break.

George denied referring to McCowen’s race during that discussion but acknowledged describing McCowen as a “200-pound black man” while arguing that McCowen went to Worthington’s house looking for sex the night she was killed. She said she referred to his race “merely as a descriptive element.”

After Bohanna took offense, she told her she didn’t mean anything derogatory by it.

Bohanna also told the judge she overheard juror Eric Gomes, a dark-skinned man of Cape Verdean descent, tell a white female juror that he does not consider himself black. When Bohanna later had the confrontation with the white juror, she said she heard Gomes say: “That’s the reason why I don’t like black people. Look at the way they act.”

On Thursday, Gomes denied ever saying he did not like black people. “Absolutely not,” he said.

Carol Cahill, who is white, said Bohanna accused all the jurors of being racist during deliberations and herself used a slur toward a white female juror.

“She said, ‘You’re just a ‘cracker from the South,’ or ‘a southern cracker,'” Cahill said.

When the judge asked Cahill if she ever said she was afraid of “a big black guy,” she said: “I did say that I felt ‘intimidated’ … the fact that I was making a decision for his life,” Cahill said. She denied ever referring to his race.

McCowen claimed he had consensual sex with Worthington but that his friend killed her. His defense maintains authorities wrongly focused on him as a suspect because they did not believe Worthington, a 46-year-old writer who had covered fashion in New York and Paris before moving to the small town of Truro, would have a consensual relationship with a black garbage man.

The judge interviewed seven jurors Thursday and ordered all 14 back to court Friday. He told them not to talk about the case with anyone.

McCowen’s attorney, Bob George, said the hearing so far proved McCowen did not get a fair trial.

“There is no doubt in my mind that the jury deliberations in this case have been tainted by racial bias,” he said.

District Attorney Michael O’Keefe left court without commenting.