The Christa Worthington murder case has taken a surprising turn as jurors allege that racism played a role in the conviction of Christopher McCowen for the crime. The allegations are strikingly similar to those of a juror in the recent conviction of John White in New York. What is remarkable is that the judge in the Worthington murder case has decided to call the jurors to address the allegations in open court.

In Boston, jurors have alleged that a white female juror used racially insensitive remarks in arguing that Worthington was the victim had not consented to sex with the defendant, who is black.

A black juror recalled that the white juror said that bruises like those on Worthington occur “when a big black guy beats up on a small woman.”

Another juror, a black woman, took offense and accused her of racism. Things got so heated that the two women had to be separated.

The allegations surfaced more than a year after McCowen, a garbage man, was convicted of stabbing Worthington to death on Cape Cod. The case had strong racial elements.

While the jury was at first deadlocked, it finally voted unanimously to convict. However, before reaching that verdict, one jurors was removed for talking about the case in violation of court rules. That juror and two others contacted McCowen’s lawyer after the verdict to complain about comments by three jurors, including the white female who also allegedly referred to McCowen as a “big black guy.” They also claimed that a dark-skinned juror of Cape Verdean descent “said that he had been raised by white people and that he did not like blacks and ‘what they are capable of.'”

Judge Gary Nickerson’s decision to call a hearing for January 10-11 to question the jurors in open court is an extraordinary and questionable decision. There is no question that these are disturbing allegations and require inquiry. However, such inquiries are generally done in the judge’s chambers, not open court. The fear is that questioning in public under oath creates a chilling effect on deliberations in jury rooms. Jury deliberations often involve raw, passionate, and sometimes insensitive remarks. However, the value of the frank process, as captured on movies like Twelve Angry Men, is that other jurors can confront and sometimes convince a prejudiced juror to reexamine the case and their assumptions. If jurors believe that they can be pulled into open court for comments, they are going to be less likely to be honest about their views.

It is extremely rare for such allegations to lead to a reversal of a conviction. Jurors have an obligation to raise such matters to the court during deliberations. Indeed, jurors appear to have confronted the allegedly racist jurors on her comment in the jury room. They have a separate obligation to vote to acquit someone where there is any reasonable doubt of guilt. All of the jurors found MCowen guilty despite the racial animus in the room.

The case follows the same issue raised after the conviction of John White. Two jurors on the Long Island jury that found White guilty of manslaughter in Long Island has emerged to claim coercion or pressure in reaching the verdict. A white juror in a racially controversial murder case had gone public with a claim the day after the conviction that he felt pressured by the judge and fellow jurors to convict John White, a black man found guily of killing a white teen, Daniel Cicciaro.

Some glimpses into the jury room of the White case have been revealed, showing raw and immaterial statements by jurors. However, this is nothing new for criminal cases. Jurors are given great latitude in their discussions and courts are loathe to allow litigation over the content of those deliberations.

If the juror, Francois Larche, yielded to such pressure he failed to uphold his oath and will have little recourse in trying to take back his vote.

In reaching it verdict, jury rejected the claim of White that he was acting in self-defense when he shot the teen in the face. White could receive as much as 15 years for the crime after the jury came in with a guilty verdict after four days of deliberation. In his testimony, White raised the racial fears that he experienced growing up and hearing about how the Kl Klux Klan burned his grandfather’s home. He said that the teens had followed his son home from a party and that his son told him that they were shouting racial epithets. White said that he was pointed the gun at Cicciaro when it went off accidentally. The confrontation between the boys began with an internet hoax where a MySpace entry said White son, Aaron, wanted to rape a neighborhood girl.

Larche claims that he and another juror changed their votes after enduring “a lot of psychological tactics” from fellow jurors during an unusual weekend session ordered by the judge over jurors’ protests. He cited both pressure from the judge and a 12-hour session as wearing him down.

It is not uncommon for jurors to experience such morning after regrets. In some cases, true appealable issues can arise when there is evidence of tampering with or influencing of jurors. However, the claim by Larche that he got “heat” from jurors is not grounds for such a challenge.

After the jury found itself deadlocked the Friday before Christmas, the judge issued a standard instruction for the jurors to come to a verdict. They went back and reached a guilty verdict by the next day.

As jurors reportedly shouted “If we let him free, Mr. Cicciaro [Sr.] will kill John White himself” and added “If it was my son, I would do the same.” Allegedly the same juror said “If there is a hung jury, I will go over to Daniel Cicciaro [Sr.] and apologize to him,” according to another juror.

The lawyers are suggesting that Suffolk County Court Judge Barbara Kahn erred when she sent the jurors back without telling them that they would not be kept over Christmas Eve. One lawyer noted “she asked them, ‘Please give me a list of your Sunday religious obligations for purposes of handling the schedule.’ That indicated to them they were going to be kept there on Sunday, the day before Christmas Eve.”

Kahn could have down a better job on this point, but it does not seem enough to produce a reversal. One case that is being cited in support of a defense motion is that of Jose Fong, a suspected New York drug dealer. Fong received a new trial recently after a federal court ruled that a state trial judge erred when he told jurors that they had to reach a unanimous decision and would be kept there until they did.

Both of these cases raise difficult questions for the Court, but the response of Judge Nickerson may prove problematic. He was right to act, but it would have been wiser to conduct an informal inquiry first and then determine whether, even if true, such allegations could result in overturning the verdict. Only then would most judge move into an open court proceeding and sworn testimony. There is a valid concern as to whether jurors lied in jury selection when they testified that they could vote without bias. However, on these statements alone, most courts would not find a basis for overturning the verdict. Judges do not like attempts to make a cat walks backwards after a conviction. The odds are generally against the defense in such cases, particularly in the White case.

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