‘Reasonable Doubt’ (excerpt)
By PETER
MANSO
Peter Manso
Introduction
The American murder trial as a metaphor
for the nation as a whole has become, in recent years, almost a cliché. Our
best writers have seized upon it as a vehicle of self-expression. Academics
argue over its myths and realities. The producers of TV series capitalize on
its imagery, earning the networks heady profits second only to those raked in
by Oprah. At some point or another, almost every American, rich or poor, white
or black, has confronted the American justice system and its complexities —
with pride, skepticism, awe, revulsion, or a combination of all these.
I began this project with the assumption
that the Christa Worthington murder would be the basis for my “trial book”
(every journalist wants to do a trial book), that it would take only eighteen
months to complete, and that my involvement as the author would be no different
from my involvement in the half-dozen other books I’ve written, even though I’d
known Christa Worthington, my neighbor in the town of Truro on the tip of Cape
Cod, Massachusetts, for more than a dozen years.
Like so many assumptions, these proved
false, largely because of what I found while digging into the crime, its
investigation by the Massachusetts State Police, and the trial I’d planned to
cover in the style of the late Dominick Dunne, notebook in hand, memorializing
courtroom events in a so‑called objective manner. Instead, I wound up lending assistance
to the defense team and soon found myself in a great deal of trouble —
specifically (not to say surreally), hauled into court, where I was indicted on
a series of felonies after voicing my belief, both in print and as a guest
commentator on Court TV, that the Cape and Islands district attorney in charge
of the case (and also the case against me) was an ambitious, racially
insensitive politico who’d cut corners in the courtroom and during the three
and a half years he’d supervised the police investigation. My run-in with the
lawman, however, is a story for another time.
I began the project in spring 2005,
shortly after the arrest of Christopher McCowen, thirty-four, a black trashman
with a borderline IQ. A layman, I lacked any close familiarity with the law or
the courts. It did not take long to learn that the typical criminal trial is a
deeply flawed process. Narrative and storytelling, not evidence, determine many
a trial’s outcome. The art of jury selection — voir dire, as it is called — is
also critical, more so than most people would imagine. Experienced
practitioners know that jurors, ordinary Americans of ordinary intelligence,
have a way, as Harper Lee put it, of “carrying their resentments right into the
jury box.”
The best trial lawyers also know that
judges, the vast majority of whom are white, must be educated as much as
possible, within the limits of protocol, when the defendant is black; the court
should never be allowed to sidestep the issue of race, although most judges
will try.
None of this should come as a surprise.
The principal figures in every jury trial are ego-driven mortals, each with his
own agenda: DAs want to win in order to get reelected (and perhaps slake a
native bloodlust); expert defense lawyers work out authority issues while
running high-profile, publicity-generating cases; and, again, jurors are not
self-sacrificing citizens driven by common sense most will vote in a way that
reinforces who they are, what they believe in, what they value the most. The jury
room is a stage, a pulpit, as the Oscar-nominated film 12 Angry Men illustrated
more than fifty years ago.
Even judges with tenured appointments are
part of this food chain. Bound by precedent, they rule on evidentiary questions
with the record ever in mind, and those who aspire to an appellate bench or to
political office have every reason to interpret the facts of the case narrowly,
to preserve the status quo. Even when their choices are blatant and obvious,
judges are the most protected element in our court system, rarely questioned.
There are, of course, dedicated lawyers
and truly disinterested jurists, just as there are prosecutors who can see
their way to dropping a case against a defendant wrongly charged. But recent
history has forced such folks to work overtime. The Vietnam War, the Wall
Street financial scandals originating in the early ’80s, the callow adventurism
of the Bushes, Sr. and Jr., at home and abroad (made worse by the mainstream
press’s failure to expose them), all have had a lasting effect. Lying, bending
the rules, and a growing readiness to abandon constitutional safeguards have
invaded the popular culture and courts alike, sanctioned by the events of
September 11, 2001, and their progeny.
Christa Worthington
This is no small matter, obviously. The
normally staid New York Times has pointed out that the Federal Bureau of
Investigation, the Office of Homeland Security, and other federal agencies have
improperly obtained more than 8,500 telephone accounts from 2003 to 2006
without following legal procedures. Next to the financial sector, local
representatives of the law-enforcement community have most taken this new value
system to heart. “Testilying,” for example, has become common, police officers
bending the truth while on the witness stand. Another form of police misconduct
is the withholding of exculpatory evidence; the ACLU, the Innocence Project in
New York City, the Center on Wrongful Convictions at Northwestern University,
and a rash of appellate court rulings across the country have shown that
hundreds of criminal defendants have been set up by less-than-honest cops.
Equally alarming, the local courts have been loath to blow the whistle during
this time of orange alerts and nationwide anxiety. Better we overlook the bad
apples than risk besmirching the much-needed good guys.
This is no small matter, obviously. The
normally staid New York Times has pointed out that the Federal Bureau of
Investigation, the Office of Homeland Security, and other federal agencies have
improperly obtained more than 8,500 telephone accounts from 2003 to 2006
without following legal procedures. Next to the financial sector, local
representatives of the law-enforcement community have most taken this new value
system to heart. “Testilying,” for example, has become common, police officers
bending the truth while on the witness stand. Another form of police misconduct
is the withholding of exculpatory evidence; the ACLU, the Innocence Project in
New York City, the Center on Wrongful Convictions at Northwestern University,
and a rash of appellate court rulings across the country have shown that
hundreds of criminal defendants have been set up by less-than-honest cops.
Equally alarming, the local courts have been loath to blow the whistle during
this time of orange alerts and nationwide anxiety. Better we overlook the bad
apples than risk besmirching the much-needed good guys.
Of course, there is another view.
Conservatives such as Sean Hannity will argue that there is nothing new here,
that what’s happening is just a Hobbist reassertion of the human condition,
and, yes, we should all feel the more blessed for it. But before jumping into
this little book of mine, I’d scarcely realized how bad, how dark, things had gotten on Cape
Cod, my childhood summer home of art openings and clam bakes, until I had read
through the Massachusetts State Police file, case number 02-102-0900-0007,
Comm. v. McCowen; consisting of forensics, criminalistics, and surveillance
reports, DNA screenings, polygraph results, police interviews, and internal
memos. The file was a journalistic gold mine, as were the minutes of the
grand-jury proceedings since what both showed was a miasma of lawenforcement
shortcuts running through the case like mold on a particularly smelly blue
cheese. The local legal community had become so ingrown, so incestuous, that
the courts looked upon the cops as family, and given the pressure on police to
find Christa’s killer, it seemed nobody and nothing was safe, least of all the
Constitution.
It took no genius to see
this ot ferret it out since much of what the DA and the cops did was right out
in the open. The official file showed, for example, that my own phone records
had been grabbed without a subpoena or court order the day after Christa’s body
was found; my wife, who is not a professional journalist protected as I am by
the First Amendment, had her records pried out of Verizon and during the
investigation the records of at least forty-five others were obtained via
demand letters to a compliant Verizon, as well. My DNA was snatched, along with
the DNA of a half-dozen other locals, swabbed from discarded cigarette butts
and cast-off water bottles. We were not suspects but, rather, “persons of
interest,” meaning that police felt no compunction about violating our privacy
even as they couldn’t determine that any one of us was materially relevant to
their probe, either.
If pressed, these investigators would
probably defend their actions on the grounds of thoroughness. But that argument
is limited. Time and again, while conducting my interviews, I heard locals
speak of being confronted by plainclothes detectives banging on their doors,
unannounced, at 9:30 p.m., which on off-season Cape Cod is the equivalent of
midnight. One suspect, Christa’s onetime boyfriend Tim Arnold, was grilled for
several hours while confined at a Cape-area psychiatric facility, in open
defiance of his lawyer’s insistence that interviews be cleared in advance.
Arnold was sedated at the time but that made no difference to detectives, who,
apparently failed to consider that the Effexor and amnesia-inducing lorazepam
Arnold was taking might render their truth-gathering efforts less than
reliable, at best.
Then, too, on the third anniversary of
Christa Worthington’s death, the frustrated investigators, after going to the
FBI for pointers, conducted a DNA sweep of our sleepy little town of Truro
wherein they intimidated reluctant donors by threatening to record licenseplate
numbers on a “special list.” The ACLU and the Boston Globe called the sweep
something just short of a fascist outrage; the story made USA Today and the New
York Times, but what the public never learned was that the majority of the
150-odd swabs collected were never even turned in for analysis. Rather, the
samples languished in DA Michael O’Keefe’s office until Christopher McCowen was
arrested in April 2005, four months after the sweep, more than a year after McCowen’s DNA was
collected. It, too, had sat on the shelf in O’Keefe’s corner office while Truro
trembled.
In addition, the director of the
Massachusetts State Police (MSP) crime lab was discharged after more than
twenty-five DNA samples were misfiled, while five of the thirteen fingerprints
lifted from the Truro murder scene turned out to belong to local police and
EMTs. Inexplicably, key evidence, including fibers and vaginal combings, were
never tested.
But disorganization, incompetence, and a
corrupted crime scene were business as usual. An MSP report dated December 10,
2002, “Blood Sample of Anthony R. Smith for Comparison in Worthington,”
documented the nadir of police misconduct. Here, lead detective Christopher
Mason reported that he’d requisitioned two vials of Smith’s blood from the
coroner’s office and delivered it to the crime lab for analysis, without, it
appears, a court order or family permission. Anthony Smith was the son of a
stubborn defense witness who would insist to the end that he’d seen a truck or
van speeding out of Christa’s driveway the day before her body was found; the
driver was white, not black like Christopher McCowen. Mason was covering all
bases, as he usually did, sine he is a very thorough man. But he ran roughshod
over the Fourth Amendment in the process, displaying utter insensitivity to a
parent’s grief. Smith, who lived with his father, the witness, had recently
taken his own life.
Christopher McCowen
The rationale for this official act of
quasi-vampirism made it worse, however, for the cops were relying on an
unverified telephone hotline tip that Smith “lived in the area of the murder
and perhaps committed suicide after committing the murder,” according to Mason’s
report of May 16, 2003.
Nothing tied the young man to the murder.
Nothing.
But beyond the blindness of such efforts,
the file also revealed a world of drug-dealer snitches protected by police, and
a particularly self-invested DA. The new off-season Cape Cod was made up of
single welfare mothers, wild-eyed alcoholic wife abusers, “wash-ashore”
laborers living on food stamps while waiting for the tourist restaurants to
reopen in May, and an ever-growing horde of teenagers dragged into court up and
down the Cape, their OxyContin-fueled lifestyles combining with post-9/11
jitters to empower the cops like nothing anyone had ever seen before.
It was after plowing through the official
file that I began interviewing people on both sides of the law. Almost all
interviews were face-to-face, not on the telephone, and often the drama that
accompanied these encounters were as illuminating as the words, for once again
I found myself on a Cape Cod I’d only heard about. The former director of the
Cape NAACP, for example, insisted on coming to my house for our meeting, then
excused himself when it was only midafternoon, apologizing that it wasn’t wise
for a lone black man to drive the Truro-Orleans stretch of Route 6, the
“gauntlet,” as he put it, after dark. Soon, a white drug dealer, a
Truro-Wellfleet townie with deep local connections, told me that at night he
always drove with his interior lights on. Why? So the “federales,” he explained, would know who was behind
the wheel, not pull him over. Combined witht the NAACP man’s behavior, this was
enough to remind me that the Cape is only an hour and a half’s drive from
Charlestown, home of Boston’s infamous busing crisis, and that the situation
wasn’t helped any by the fact that African-Americans make up only 1.6 percent
of the Cape’s population, but a miniscule fraction of the 13.5 percent national
average.
My interviews continued right through the
trial, which was a David-and-Goliath proposition from the start. The DA threw
his full staff onto the case the way Rommel used his tanks to overrun France.
Day after day, a dozen or more of his lawyers, researchers, interns, and
secretaries filled the lawyers’ dock on the left side of the courtroom, just as
the commonwealth had the resources of the State Police and state crime lab.
Attorney Robert George, by contrast, was flying solo. George fought the good
fight, but in the end, he lost. Most reporters covering the trial felt his
client deserved a hung jury, at least; according to nearly 40 percent of those
responding to a Cape Cod Times poll conducted after the verdict, the
defendant’s color made the difference.
It is an open question whether any defense
lawyer — even Clarence Darrow or Perry Mason — could have won the case in that
courtroom, with that judge, that jury.
I openly sided with the defense —
supplying research, feedback, and editorial contributions to briefs and motions
— out of the belief that the trial’s racist subtext was substantive and real.
As I told the Boston Globe, it would
take moral impotence to miss prosecutor Robert Welsh’s strategy: playing to
jurors’ biases while simultaneously insisting that race had nothing to do with
the proceedings. A black garbageman charged with the rape and murder of a white
Vassar grad? And on traditionally conservative Cape Cod where even JFK had not
gotten the local vote? Whom did Welsh think he was fooling?
Republican governor Mitt Romney’s
announcement of prosecutor Welsh’s appointment to a district court judgeship at
the start of deliberations was another not so small outrage. Few people on Cape
Cod, white or black, did not know that during the past century, local
judgeships had been held by the prosecutor’s great-grandfather, grandfather,
and father. Still another Welsh ran the court clerk’s office in the Cape’s
outermost district court. The nepotism was offensive, but Romney’s timing was
worse. Welsh, with his Plain Jane suits and humorless, rubbery face, was a
Babbitt ready-made for skewering, a smug Tea Party Republican who thought he
could get away with anything. I do not exaggerate. Halfway through trial, our
prosecutor cum newly appointed judge had the audacity to claim he did not to
have the probation file on one of his major witnesses. He did have that file;
he had to. Yet he got away with his lie, as has been documented in the
defense’s brief to the Supreme Judicial Court, the state’s highest tribunal.
Given the importance of injecting some
balance into all of this, I also made it a point to share all research with the
court and the prosecution. This was de rigueur. One of George’s motions,
charging the prosecution with withholding exculpatory evidence, announced my
contributions in its opening pages in order to send the message that nothing
underhanded was going on. Even so, a Harvard journalism professor queried by
the Boston Globe alleged that my “loss
of objectivity” called into question anything I might write about the trial,
which, then as now, I answer by taying that the prof didn’t recognize
alternative reportorial strategies. Aside from the access it got me, my
alignment with the defense became so widely known that even a year after the
verdict I was sought out by one juror’s relative, a black woman in her
seventies, who claimed that her nephew had been racist since the age of fifteen
and lied during the jury-selection process meant to sift out bias. On this, I
notified the court, and the woman was called as a witness at a postverdict
hearing.
The disparity between the prosecution and
defense arsenals was a constant, and if my participation would help level the
playing field, so be it. Black people too often get screwed in America, and on
that issue I have never been, nor will I ever be, prepared to brook debate even
when it’s coming from Harvard.
Did all of this affect my ability to
report the trial fairly? Unlikely. My involvement provided a unique vantage
point, not to say access to materials that I would not otherwise have had.
Robert George and I talked daily during the trial process and then throughout
three years of postverdict motions and appeals.
Did I talk to the other side? After
speaking with Michael O’Keefe before trial, I then approached the DA, Welsh,
and lead detectives on multiple occasions; I was rebuffed, orally and in
writing, as were all other reporters I know of who requested one-on-ones with
the prosecutor. This is the DA who storms out of press conferences, snapping,
“You must be kidding” or “Grow up,” when he doesn’t like reporters’ questions.
Some will fault George’s
defense as understaffed, sometimes underresearched, and underfunded, and
perhaps worse yet for my involvement. I say that without Robert George’s energy
and commitment, the sheer loudness of his pugnaciousness, Chris McCowen would
have disappeared like so many other uneducated, marginally functioning
defendants in courts across the country. McCowen would have been swept through
the process with no one the wiser, another casualty of our lopsided justice
system. Innocent or guilty, the vast majority of indigent defendants do suffer that fate. The
corridors of local courthouses across the country are filled with attorneys
looking for cases, ready to be court-appointed and step in at a moment’s
notice. Their prep work is nil. They cop plea bargains. They neither test the
system nor challenge prosecutors nor protect the rights of the individuals they
claim to defend.
McCowen’s trial was expected to take two
weeks, not five. Day to day, George stuck, a high-priced criminal defense
lawyer stepping into William Kunstler or Charlie Garry country. He didn’t have
the politics (perhaps a plus), but he had something out of the ordinary,
something genuine, even if he overly enjoyed being surrounded by reporters.
Maybe he realized that this was the case of his career, that rare shot that lawyers,
like athletes, get but once or twice in a lifetime. Or maybe it was nothing
more than the sentiment he expressed after the verdict, while wrestling with
whether he could afford to take on the appeal. “Now my kids won’t think I just
represent bad guys,” he said. “Maybe they’ll understand that defense lawyers
can do something that’s useful and important.”
His work was useful. The system I’d
observed over the previous months was too ready to do what it shouldn’t. George
challenged that, stamped his foot. His resolve had as much to do with
prosecutorial irregularities and bad calls from the bench as with McCowen’s
innocence or guilt, as well it should. That’s what we have defense lawyers for.
Readers will draw their own conclusions.
My account of the trial relies on the official transcript of 3,878 pages. I’ve
condensed that record, using ellipses and paraphrasing, ever mindful of
remaining faithful to the content of all testimony, sidebar exchanges, and
rulings from the bench. Readability was a major consideration, but I
consciously erred on the side of inclusiveness and accuracy.
Much of the information in this book is
based on my interviews, many done “on background” for reasons already
acknowledged. Granted, this is not the best arrangement. But such
confidentiality was necessary to secure the subjects’ cooperation, in some
instances because of the menacing air surrounding the case. In verifying key
matters, especially criminal activities or persons and events impinging
directly on the murder, I insisted on at least two, preferably three, sources,
as well as confirming documents. Material gleaned from MSP interviews and
incident reports was always checked.
Some potential sources repeatedly refused
to talk even after a year or two of my nagging, worried that the murderer was
still “out there.” But many also feared local police in Truro, Wellfleet, and
Eastham, who wield the power to inflict a drunk-driving bust or do a pot search
at two a.m. So real was the fear factor that several sources even called me
after interviews, wanting to retract their comments. Not once in my career have
I had to fall back on anonymous sourcing as I have for this narrative.
On the other hand not all
was so grim. A number of individuals stepped forward unsolicited, among them, a
former assistant district attorney, now in private practice, who introduced
himself on the checkout line at a local supermarket; his information proved
invaluable to my understanding of the personalities and social world of the
Cape’s court system and law-enforcement agencies. Another ex‑prosecutor
explained District Attorney Michael O’Keefe’s foibles — his heavy drinking,
priapic tendencies, blind ambition, and racial insensitivity. Not so surprising
was the help I received from McCowen’s girlfriend, Catherine Cisneros, and from
his father and stepmother, who provided the defendant’s childhood medical
records and other documents, in addition to explaining what life was like for a
black child growing up in rural southwestern Oklahoma.
Other
sources were people whose trust stemmed from my book Ptown: Art, Sex, and Money
on the Outer Cape, which does not shy away from discussing the ongoing class
war between locals and wealthy summer visitors. Happily, a number of these
individuals worked in local town offices and in district and superior courts;
they guided me to records buried in dusty files and offered sub-rosa tips about
local officials. One Truro selectman, for example, was quietly shouldering two
OUI convictions; a third would land him in jail, my tipster pointed out,
explaining “why the bastard keeps backing the police.”
By the time I finished writing, the core
documentation for this project filled sixteen three-ring binders and seven file
boxes, not counting interview transcript and the trial record. Unlike the
Massachusetts State Police and the FBI, I used a cassette recorder to
memorialize my 200 or so interviews. I also filled nine of my beloved French
Rhodia notepads inside the courtroom.
In the end, I still
remained puzzled, and called several out-of-town friends, well-known lawyers
and one of the most celebrated PIs in the country, a man who’d worked with the
defense for the Oklahoma bomber and John Walker Lindh, the California youth who
joined the Taliban. I did this for a reality check. Was I exaggerating about
the cops, who were, after all, trying to nab a killer? Was the misconduct of
the prosecution really as egregious as I was saying? The collective reply was,
“It’s very bad. These guys were out of control. Had your man been tried in
Boston, even Dayton, Ohio, it probably would have turned out differently.”
None felt it necessary to belabor the fact
of race, though all alluded to it. Again, readers will draw their own
conclusions. New developments in the McCowen case will unfold within the year.
The account that follows is based on the best information and documentation
available now.
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