Jurors can’t agree on whether a drunken, off-duty Manhattan cop raped a second-grade school teacher on her way to school last August, they announced in a note shortly after noon — an apparent impasse that brought the victim to tears.
Manhattan Supreme Court Justice Richard Carruthers ordered the panel to continue deliberations and try again; they have succeeded in reaching verdicts — which were not disclosed — on other counts involving the alleged Inwood sex attack, the panel said in its note.
The panel began deliberating the fate of the suspended Washington Heights officer, Michael Pena, 28, on Thursday afternoon; today is its third day of deliberations.
Regardless of the outcome on the rape counts — which carry up to 25-year prison terms — Pena still faces possible life in prison on any of the six top charges of predatory sexual assault.
Jurors have come to a unanimous decision on the four predatory sexual assault counts charging that Pena used a weapon in violating the victim orally and anally. They cannot come to an agreement on the remaining two predatory sexual assault counts charging that Pena used a weapon in violating the victim vaginally, they told the judge.
“We are at an impasse on counts one and two,” the jury told the judge in its note, referring to two counts of forcible intercourse.
“We do not believe that further deliberations on counts one and two would lead us to a verdict,” the note continued.
The 25-year-old victim, a petite, bespectacled brunette, began sobbing softly from her seat on a hallway bench when prosecutor Evan Krutoy broke the news of the impasse to her.
Still, she in effect had another chance to persuade the panel that she is a rape victim. Soon after being told to try again, jurors asked for a read-back of the victim’s 45 minutes of direct and cross testimony. Jurors listened intently as the court stenographer read the testimony aloud, then resumed deliberations at 1:30 p.m.
The woman had tearfully told jurors two weeks ago that she was certain she had been raped, because, “It hurt.”
Defense lawyer Ephraim Savitt has told jurors that Pena admits randomly pulling his service gun on the terrified woman and sexually attacking her in a backyard. He has argued that there are no direct forensics confirming that there was actual intercourse.
But one passerby testified that, from 12 feet away, it appeared that Pena was having intercourse with the woman. Forensic exams found the woman’s DNA on Pena’s genitals and Pena’s DNA on the woman’s under ware.
Jurors must find that prosecutors proved actual intercourse in order to convict on the forcible rape count. Intercourse is defined by state statute as any penetration, “however slight,” the judge instructed jurors in response to another of their questions prior to the lunch break.