In November of 2006, a Cape Cod jury returned a
guilty verdict in the
murder trial of Christopher McCowen. This was supposed to be the final chapter in a
murder drama that had captured attention regionally and nationally. But within days of the verdict, three different jurors came forward with
concerns about the jury's verdict as well as the process by which it was reached.
These concerns would serve as the impetus for an extraordinarily rare legal hearing in which the jurors from the case were called back to the courthouse more than one year after the verdict. One-by-one, they would take the stand and answer questions about what had transpired in the jury room.
Specifically, the hearing examined whether particular jurors had made racially biased statements during deliberations, and, if they had, whether such statements had influenced the trial's outcome. Though a variety of allegations and motions were considered, the hearing focused principally on the statements allegedly made by two White females, in both instances making incongruous reference to the defendant's size and race.
In these conversations, one of the jurors allegedly had reported feeling intimidated by the defendant's physical stature, explaining that she found it disconcerting to have this "big, Black guy" staring at her in the courtroom. Another juror, in the midst of an animated discussion about physical evidence, picked up a photo of the bruising on the victim and allegedly exclaimed that this is what happens "when a 200-pound Black guy beats on a small woman."
In short, this hearing was all about the science of small talk. The trial judge was faced with the question of whether these statements were indicative of racial bias, or whether race was merely being used a descriptor. The defense even produced an expert witness, yours truly, who took the stand in the effort to provide some psychological perspective on the origins and consequences of these juror conversations.
Testifying as an expert (left)–an experience I've now had twice more since my appearance in the McCowen case–is best described as an adrenaline-packed and surreal tug-of-war. While one side wants you to state definitively, with 100% certainty, that X is always true, the other side spares no effort to get you to admit that X is not always true and to discredit you as a fraud, a mercenary, or, in my case, a youngster in over his head. (First question from Mr. O'Keefe during my cross-examination: "Doctor, do you mind if I ask you how old you are?" My reply: "Sure, as long as I can ask you the same question in return.")
The catch is, when it comes to the study of human cognition and behavior, the responsible psychologist can almost never say "X is always true," or "If X happens, then Y will follow suit." The way people think and act is multiply determined. Unlike the proverbial chicken, for us, there isn't just one, clear reason why we cross the road. That's why psychologists speak in the language of probability and likelihood, but courts and the people who work in them prefer absolutes. Was I able to tell the court via testimony (or able to tell you right now via blog) that these jurors' statements were irrefutable indicators of racial bias, and that said bias certainly changed the outcome of the case? No.
But all that we know regarding communication and cognition leads to a pretty compelling conclusion: the statements made by these two jurors indicate that Christopher McCowen's race shaped how they were talking and thinking about the case. By no means was race a mere "descriptive element" in these utterances.
Can race be used as a simple descriptor? Sure, it can. If there are two defendants in a case, a juror who says, "it was the big, Black guy who did that" could simply be using race to disambiguate which defendant she means. So there is no hard and fast rule that the use of racial descriptors automatically indicates racial bias (or lack of bias for that matter). But this isn't what happened in the McCowen trial. There was only one defendant. He had been sitting in front of the jurors for weeks as the case proceeded. There was no disambiguation needed when these comments were made.
One of the core maxims of daily conversation is that of relevance: we only include in our conversations with others that information which we believe to be relevant. Given that race wasn't necessary to describe Christopher McCowen–after all, everyone already knew he was Black–why was it referenced? Because the speakers, whether or not they realized it and whether or not they chose to accept it after the fact, viewed his race as somehow relevant to the conclusions they were offering. Namely, the conclusion that he was intimidating. That he was dangerous.
They saw the fact that McCowen was "big" as being relevant to how much physical injury he could inflict. That's why they said "big." Same for "Black." Otherwise, they wouldn't have said it.
Truth be told, you don't have to be a psychologist or a linguist to arrive at this conclusion. Just think about the following hypothetical remark from a sports fan: "That's what happens when your starting frontcourt is three scrawny White guys." An indictment of one's favorite basketball team? Absolutely. The use of race as a mere descriptor? Of course not. That they're scrawny White guys is a relevant fact in the speaker's mind in support of the conclusion, in this case that the basketball team is hopeless. By stereotype, scrawny White guys aren't good at basketball. Similarly, by stereotype, big Black guys are dangerous.
So did the "big Black guy" statements simply include race as an innocuous descriptor? You can only answer yes to that question if you also think the same of the "scrawny White guy" remark. You'd also have to think that the jurors in the case would have been just as likely to say "big White guy" in discussing a lone White defendant. And you'd have to think that your friend who exclaims, "well, we are the same country that just elected a Black president" is only trying to clarify which president he's talking about.
There was more going on in these comments than the use of race as a descriptor. But what impact might these alleged remarks have had on the jury's deliberations and decision process? And, ultimately, how would the judge interpret these conversations?
TO BE CONTINUED ONE LAST TIME...
