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"Gunpoint Rape" Cop Mistrial Fallout: Juror Insists, "There’s No Law That Says A Jury Has To Reach A Verdict"
By
Ben Yakas
Published Mar 29, 2012
Modified Mar 29, 2012
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via NBC New York
By
Ben Yakas
Published Mar 29, 2012
Modified Mar 29, 2012
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For the better part of the last month, former police officer Michael Pena had been on trial for the alleged rape of a 25-year-old school teacher at gunpoint while off-duty in Manhattan last August. Jurors heard eyewitness accounts, doctors testimony, and the victim's first-hand account of being attacked—and ultimately, Pena was found guilty of three counts of predatory sexual assault. But the judge declared a mistrial on the rape charges because of a deadlocked jury. Today, everyone is trying to make sense of what happened—but one juror has vowed to not lose any sleep over the case: “This was not fun,” juror Lloyd Constantine told reporters. “This was hard work. It was difficult, painful work...There’s no law that says a jury has to reach a verdict.”
The trial took a strange turn this week because of revelations about Constantine, whose former law partner Richard Aborn had once run against Manhattan DA Cyrus Vance. Constantine was outed by another juror after he reportedly trashed the prosecution’s case against Pena. Constantine, who was also close friends with former Gov. Eliot Spitzer at one point (and wrote a book about him), was later asked why he never spoke up about those connections, and answered he wasn't biased and had passed "my own subjective test." But outside of those reports, it's unclear how influential Constantine was on the deadlocked jury.
Defense attorney Ephraim Savitt also chose an unusual tactic in his opening statements by admitting his client deserved to go to jail for "a terrible crime, an unforgivable crime." He ultimately successfully argued there was insufficient proof that Pena penetrated the victim, so the crime did "not rise to the level of the [rape] charges"—despite the fact the victim testified she had been penetrated ("It hurt"), despite the fact the forensics team had found Pena's semen on the woman's underwear, and despite the fact that several witnesses saw the attack taking place.
But prosecutors were able to get Pena convicted on three charges of predatory sexual assault, the most serious sex crime you can be charged with. Erin Duggan, communications director for the District Attorney’s Office, explained the distinctions to us:
These related to his use of a weapon during the attack. Because the jury found that he had assaulted her both orally and anally, while using a gun, we were able to ask them to convict on predatory sexual assault—it bumps the B-level sex crimes to an A. The oral and anal assaults were charged as Criminal Sexual Acts in the First Degree, which are B felonies, which is the same as rape. The rape charge was for the vaginal assault. Had he been convicted of that charge, the jury could have convicted on two additional Predatory Sexual Assaults. There was some confusion in the media over what the highest-level charges were in this case—it was Predatory Sexual Assault, which he was convicted of.
Prosecutors are leaving open the possibility of retrying Pena on the rape charges later, though nothing has been decided yet. Pena's sentencing will happen next month; he faces a minimum of 10 years to a maximum of 25 years to life for each count he was convicted of. Duggan added that the DAs frustration with the mistrial on the rape charges was assuaged by Pena's conviction: "It should not affect perception—at the end of the day, prosecutors presented a very strong case, and won a top-count conviction, in an office that has a strong record in prosecuting sex crimes cases."
Tagged
cop
gunpoint rape
inwood
lloyd constantine
manhattan
michael pena
mistrial
nypd
off-duty
rape
sexual assault
Ben Yakas
Ben Yakas is a former Gothamist reporter.
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Gothamist is funded by sponsors and member donations
Gothamist is funded by sponsors and member donations
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