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Judge Seals Jury Record Detailing Drama That Led to Inwood Rape Mistrial

By DNAinfo Staff on March 30, 2012 8:03am

MANHATTAN SUPREME COURT — The court record that details contentious jury discussions in the rape and sexual assault trial of fired cop Michael Pena was sealed by a Manhattan judge who declared a partial mistrial this week.

The record — including minutes from jury selection and sidebar conversations with jurors during deliberations — may provide insight into the drama that unfolded among jurors who could not reach a consensus on two counts of rape.

A mistrial was declared Wednesday on the rape charges after deliberations spanned five days. Pena, 27, was convicted of the top charge against him, predatory sexual assault, which carries between 10 and 25 years to life in prison.

Prosecutors said Pena raped and sodomized a 25-year-old school teacher that he randomly approached and followed in Inwood at about 6:15 a.m. on Aug. 19, 2011.

He also held the barrel of his NYPD-issued gun to her head and forced her to perform oral sex, the jury decided.

But the entire jury was not unanimously convinced "beyond a reasonable doubt" as required by law that Pena had penetrated the woman. The hold outs included Lloyd Constantine, one of four attorneys on the jury who, it was later discovered, had a personal relationship with Manhattan's DIstrict Attorney.

The victim appeared devastated that the jury did not believe her as the partially deadlocked jury was dismissed on Wednesday, a conclusion to a trial that opened March 15.

Constantine failed to disclose that he was law partners with 2009 DA  candidate Richard Aborn and that he's acquainted socially with Manhattan DA Cy Vance Jr. He told the judge, in a sidebar discussion that was sealed but audible in the courtroom, that he has played tennis with Vance and had attended events with him.

Vance was in the courtroom for portions of the trial but a spokesperson said he did not know until Tuesday — when the issue about Constantine was raised — that his acquaintance was on the jury.

Manhattan Supreme Court Judge Richard Carruthers sealed the jury selection records and notes from another juror raising the issue of Contantine's ability to be impartial.

It is not clear why he decided to do so and and Pena's attorney, Ephraim Savitt, said he did not know why the material would continue to be under seal after the verdict and mistrial. 

All jury notes, including the one from Juror No. 8 regarding the Constantine (Juror No. 2) issue, were part of the case file that was sealed on Tuesday when the issues came to light.

"My sense was he didn't want in any way to potentially reveal anything that might come back to interfere with the continued dleiberations," Savitt said, adding he was not sure why the judge would have them remain sealed.

DNAinfo and other media outlets plan to appeal the record's sealing in an application to the judge on Friday.

Pena faces 25 years to life in prison when he's sentenced on May 7.