NEW YORK -- A police officer was convicted on Tuesday of grabbing a schoolteacher off a street and sexually assaulting her at gunpoint while he was off duty, but jurors were told to keep deliberating on some unresolved counts, including rape.
UPDATE: After days of deliberations, the jury said it was deadlocked on the issue of whether or not Pena's assault constituted 'rape'. The judge declared a mistrial on the remaining charges Wednesday.
While there was no direct forensic evidence of rape, there was plenty of circumstantial evidence mounted against him. The New York Post reports:
A passerby testified that, from 12 feet away, it appeared that Pena was having intercourse with the woman. Forensic investigators found the woman's DNA on Pena's genitals and Pena's DNA on the woman's underwear.
The verdict came during a day of jury tension in an unusual trial in which the defendant admitted a repugnant attack but said he wasn't guilty of the charges against him.
Jurors, however, found Michael Pena, 28, guilty of committing a criminal sex act and some counts of predatory sexual assault, an offense that involves wielding a weapon during certain sex crimes. It was the top charge in the case and carries the potential for life in prison. Pena, suspended since his August arrest, was fired shortly after the partial verdict.
The victim gasped tearfully as it was read. The defendant's relatives sat tensely, but he displayed no visible reaction.
"He's stoic about it" and eying avenues to appeal, said his lawyer, Ephraim Savitt.
But, the lawyer added, "he's been remorseful from the day I met him, eight months ago."
Manhattan District Attorney's Cyrus R. Vance Jr.'s office declined to comment on the case while the deliberations continued.
The woman testified that Pena grabbed her off the street, forced her into an Upper Manhattan apartment building courtyard and raped her and forced her into other sexual acts last August, threatening to shoot her in the face if she resisted. She was on her way to her first day of work at a teaching job; he was wrapping up a drunken night of trying to pick up women, according to evidence at the trial.
"I was scared for my life," the victim told jurors earlier this month.
Pena, who joined the New York Police Department in 2008, didn't testify. Through his lawyer, he admitted attacking the woman but said he never had intercourse, a requirement of the rape charge. The defense said the victim was in such "abject terror" that she was mistaken about the extent of what had happened.
The criminal sex act law involves other forms of sexual contact; Savitt called it "very nebulous" and said Pena may challenge its constitutionality in an appeal.
A resident of the building heard the woman repeatedly scream "no," saw what was happening and called police to say there appeared to be "sex going on that is not consensual" in the courtyard, according to the witness' testimony and a recording of her 911 call.
Officers didn't realize that Pena was a colleague until the handcuffed suspect told them there was no need for backup.
"My shield is in my back pocket," he said, according to trial evidence.
One of the responding officers threw the shield to the ground in disgust, that officer said at a pretrial hearing in December.
Jurors had told a judge on Monday that they'd reached the partial verdict but were at a standstill on the rape charges. The judge told them then not to announce the verdict and to continue deliberations.
By late Tuesday morning, jurors sent another note saying they remained stuck on the rape charges, and deliberations were becoming very contentious, Savitt said.
"There's just a lot of bitterness going on," he said.
Meanwhile, it emerged that one juror is socially acquainted with Vance and is a law partner of one of Vance's election opponents from 2009. The juror made $5,000 campaign donations to both; his wife donated another $4,500 to the opponent, state records show.
The juror didn't disclose those connections during jury selection. They came to light only after another juror complained to the judge Tuesday that the first juror had criticized the investigation, Savitt said.
When questioned by the judge on Tuesday, the man said he hadn't mentioned knowing Vance or the opponent during jury selection partly because he didn't want to be seen as trying to shirk jury duty, Savitt said.
Both sides and the judge came away convinced "he was fully fair and impartial," Savitt said.
State Supreme Court Justice Richard Carruthers decided not to replace that juror and told the full panel to press on after rendering the partial verdict.
"I understand there has been some discord that has developed in the course of your deliberations," the judge said. "That's natural in any difficult situation where difficult decisions must be made. Please, be respectful of one another."
Jurors went home for the day without resolving the remaining charges. They were to return Wednesday.
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