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Friday, March 30, 2012

Jury Deadlocked on Canned NYPD Rape Cop

Mistrial declared after Manhattan jury deadlocked on rape charge against newly canned NYPD cop Michael Pena
The New York Daily News by Melissa Grace, Barbara Ross, Jennifer H. Cunningham and Corky Siemaszko - March 29, 2012
Panel had earlier convicted Pena of predatory sexual assault, leading to his firing

The jury could not reach a verdict on whether Officer Michael Pena sexually assaulted a 25-year-old Bronx schoolteacher. She insisted she was raped. A witness testified she was raped. A doctor told the court it appeared she was raped. Police found the suspect’s semen on her panties. And even the cop accused of brutalizing the Bronx school teacher admitted assaulting her. Despite that, an eight-man, four-woman jury that included several big-time Manhattan lawyers would not convict disgraced Officer Michael Pena of rape Wednesday. Their refusal forced Manhattan Supreme Court Justice Richard Carruthers to settle for a partial verdict that could still send Pena to prison for life. It also left the victim and others wondering what it takes to convict somebody of rape in this town. Black-clad and surrounded by her parents and friends, the woman burst into tears and doubled over as if in pain when Carruthers declared a mistrial. Her parents tried to comfort her. But she was inconsolable. Pena did not look at them and sat silently beside his lawyer, Ephraim Savitt. “He had deep regret for what he did to her . . . he violated her,” Savitt said. “It didn’t rise to the level of rape, but he violated her. There was never a denial about that.” In a statement, Manhattan District Attorney Cy Vance commended the victim “for her bravery.” “In this brutal attack against an innocent young woman, the defendant showed no mercy,” he said. “At sentencing, we will recommend that he receive none.” Pena, who was convicted by the same jury Tuesday on six counts of predatory sexual assault and first-degree criminal sexual act for sodomizing her, will be sentenced on May 7. He has been fired by the NYPD. Savitt has not said if he will appeal Pena’s convictions. No explanation for the failure to reach a rape verdict was forthcoming from the jurors, including the one who threw the trial into chaos when it was revealed he played tennis with Vance. “I am not going to reveal how I voted or how anybody else voted,” said Lloyd Constantine, who is also a lawyer. “This was the product of a very serious sober process by intelligent serious people.” “There is no law that says a jury has to reach a verdict.” The other jurors said even less and appeared to be unanimous in their relief that the trial was over. “It’s a very disturbing case,” said a female juror who left the courtroom with Constantine and declined to give her name. “No comment,” juror Cary Hollander added. Juror Scott Warren, the attorney whose report that Constantine was dissing the prosecutors’ case led to the revelations of the relationship with Vance, praised his fellow jurors. “It was a very hardworking, intelligent, diligent group, but I don’t want to say anything beyond that,” he said. The 27-year-old ex-cop attacked the woman last August after a night spent striking out with bartenders and drunkenly calling escort services. It was supposed to be the New Hampshire transplant’s first day teaching second grade and she was waiting for her ride to school. In graphic testimony, she described how Pena accosted her on an Inwood street, took her into a courtyard, and forced her at gunpoint to her knees. “He told me to close my eyes or he would f------ shoot me,” she said while Pena sat stone-faced a few feet away. Asked how she could be certain that Pena raped her, she answered, “It hurt.” Prosecutors presented testimony from an emergency room doctor who found redness on her genitals consistent with rape and from a witness who said he was 12 feet away when he saw Pena penetrate her. They also heard from a woman who said she heard the victim cry out “No! No! No!” and saw “joyless sex” when she looked from her window. Prosecutors also presented DNA evidence tying the sperm found in the victim’s panties to Pena. Pena, who was with the NYPD for three years and assigned to the 33rd Precinct in Washington Heights, did not testify. Savitt, however, insisted Pena never raped her vaginally. He gently questioned the victim’s account and suggested the witnesses were too far away to see any rape. He got the doctor to admit he couldn’t tell from the redness when a possible rape could have happened. The jury quickly decided that Pena sodomized the woman, but cleaved into warring camps over whether prosecutors could prove there was a rape. Under New York law, rape requires proof of penetration. The bar is lower for pinning a charge of forced anal or oral sex on a suspect. “It’s a bizarre twist in the law that mere contact, orally or anally, is punished as harshly as penetration,” said defense attorney Eric Franz, who got actor Christian Slater’s misdemeanor sex abuse charge dismissed in 2005. Franz said he could only speculate on why the jury didn’t convict Pena of rape. “They may not be trying to give him a break — they may just not be convinced it was penetration,” he said. Savitt said there wasn’t a single hold-out on the panel.“There were two factions,” he said. Twice the jury notified Carruthers that they were deadlocked on the rape charges and getting nowhere. Each time, the judge sent them back to work. Carruthers relented after the jury raised thewhite flag a third time Wednesday after deliberating on the four rape countsfor just a couple of hours. “No verdict,” the jury forewoman told court. That’s when the tears began to flow. With Edgar Sandoval -

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