Racial nuances led to Gorwell mistrial Black juror said whites mugged him

August 13, 1993|By Jay Apperson | Jay Apperson,Staff Writer

When the judge and the lawyers in Baltimore police Officer Edward T. Gorwell II's manslaughter trial met behind closed doors last Friday with the juror who had been AWOL all day, the discussion turned to the case's racial overtones.

More specifically, prosecutor Timothy J. Doory argued that the public would not accept the outcome of the case if it was affected by a black juror's claiming he was mugged by white teen-agers, according to a transcript of the closed hearing obtained by The Sun.

The transcript provides a glimpse of the back-room brainstorming that accompanied Baltimore Circuit Judge Ellen M. Heller's ultimately unsuccessful efforts to salvage a case that was on the brink of mistrial.

It chronicles not only the debate surrounding juror Malcolm Boykin's failure to show up for the second day of deliberations on a verdict, but also the strategies for maintaining a weekend news blackout of the reasons given by Mr. Boykin for his absence.

A mistrial was declared Monday after Mr. Boykin was dismissed from the panel and Mr. Doory refused to allow the case to be decided by the 11 remaining jurors. The transcript, however, shows that Mr. Doory believed a mistrial was unavoidable when the parties gathered late last Friday afternoon.

To Judge Heller's astonishment, Mr. Doory argued that the race and age of the muggers in Mr. Boykin's story had everything to do with whether the trial of a white police officer charged with manslaughter in the death of a black, 14-year-old suspected car thief should proceed with 11 jurors.

In fact, the prosecutor told the judge that he might be persuaded to allow Mr. Boykin to remain on the jury.

"But, with him off the jury because he was attacked, or claims to have been attacked, by three white youths, there is just no way we would consent" to proceed with 11 jurors, said the prosecutor, who added that he had consulted with his boss, State's Attorney Stuart O. Simms.

Judge Heller asked Mr. Doory why he did not want to go ahead with 11 jurors if he agreed that the robbery, as described by Mr. Boykin, had nothing to do with the Gorwell case.

Mr. Doory answered, "Because, your honor, if, in fact, this jury were to come back with a not guilty verdict, I don't see how it would be acceptable to the public or people of the state that criminal action by some people, who the public could view as interested in this case, would change the balance of this case.

"Think for a second if the racial component were the exact opposite, if a white juror had refused to come in because of being attacked by black teen-agers."

Judge Heller said, "If there was . . . a scintilla of anything other than the fact that the legs of the teen-agers were white, I would say let's look into it and we can't go forward. It might have something to do with it. But that's not what has happened."

Mr. Doory was on vacation this week and could not be reached for further comment.

During the trial, the racial aspects of the case were kept beneath the surface. In fact, defense attorney Henry L. Belsky made a point of telling the jury in his opening statement, "This case is not a racial case."

In the end -- that is, when the parties reconvened Monday in open court -- Mr. Boykin took the stand to explain his failure to show up for deliberations and was dismissed, Mr. Doory refused to proceed with 11 jurors, Judge Heller refused to render a verdict from the bench and a mistrial was declared.

The court transcript shows that all of those issues, except for the question of a verdict from the judge, were discussed Friday behind closed doors.

Those discussions, conducted in private while sheriff's deputies kept reporters at bay, began with Judge Heller recounting for the lawyers a telephone conversation in which Mr. Boykin sketched out to her his reasons for not coming to court last Friday.

Noting Mr. Boykin's scant description of his attackers -- he said he saw little more than their legs -- the judge told the lawyers: "The concern I have is obvious. I do not want a story to break, in all candor, that three white guys assaulted juror No. 2 because, forget the trial, I have no idea if that happened. . . . There are just a lot of unanswered questions.

"I do not want a juror who has told a story which has not been verified and who did not bother calling, knowing the significance of the case, and who has a drinking problem, by his own admission and his employer's, to sit on that jury further."

Mr. Belsky, the defense lawyer, agreed that Mr. Boykin "obviously" could not remain on the jury.

Mr. Doory did not immediately agree.

When Mr. Doory suggested that they might already have a mistrial on their hands, the judge did not immediately agree.

Based on the desire to prevent the juror's story from being exposed in the news media over the weekend -- and thereby, potentially, to the other 11 jurors -- everyone in the closed hearing immediately agreed.

Still pondering ways to minimize media coverage, the judge said it was just as well that the city sheriff's department had refused her request that it stand guard outside Mr. Boykin's house all weekend.

"If we actually put a sheriff outside his door, then that signals to the press and everybody else who is then going to be standing outside his door what's going on," Judge Heller said. "As I thought about that, I would like to play down what is happening and not create more of an interest in juror No. 2.

Judge Heller told Mr. Doory: "The thing that must have come off to you from his first account was that the teen-agers had white legs. If you say the state's attorney and your office can make a jump that that might be so significant that that might have something to do with the case, then I don't know what the press is going to do with it. I have no problem with everybody knowing it and it coming out in full Monday morning. I think it should."

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