Today's cover of the Daily News boasts the exclamatory word "Rage!" and an ensuing story about the reason a New York jury only convicted Michael Pena, the NYPD cop who attacked a school teacher on her way to work, of predatory sexual assault instead of rape, which would have carried a possible life in prison sentence instead of the 10 years that Pena now faces. Why would the jury stop just short of levelling the harshest possible verdict on Pena? Because, according to the News story, the victim could not remember the color of a car parked across the street where she was forced to her knees.
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In her recap of the News story,The Atlantic Wire's Jen Doll wonders how such a middling detail as the color of a car could have possibly introduced enough doubt among jurymembers for their certainty of Pena's guilt to waver in the face of a rape conviction. She writes,
But if Pena was convicted of the highest charge possible, predatory sexual assault, and that did not involve the apparent correct identification of a car's color, why would a charge of rape require that?
Though the Daily News and the New York Post point sensational tabloid fingers at the jury for the tempered conviction, Doll points out that in the follow-up to the Pena case, Manhattan lawyer Lloyd Constantine was identified as one of the trial's "meddlers" who kept turning the jury's attention back to strangely irrelevant points, such as the car. According to the Post's Laura Italiano, Constantine (a one-time adviser to ex-Governor Eliot Spitzer) led a holdout faction, holding it "against the schoolteacher victim that she couldn't remember the color of a car parked near the Inwood back yard where now-fired cop Michael Pena violated her last August, the source said." Constantine, who Doll notes is an "apparent friend" of DA Cy Vance, would seemingly have had little motivation to insist on such details, especially considering the preponderance of evidence that led at least to Pena's sexual assault conviction.
Pena also continued (and has continued) to insist that his DNA was not found "inside of the woman," this despite the fact that his semen was found in her underwear. And even though New York law requires proof of penetration for a rape conviction, former chief of the Manhattan DA's sex crimes Linda Fairstein told the News, "The office has tried hundreds and hundreds of cases in which there is no ejaculate in the vagina and won. It's not a required element of the crime to find semen."
There's a precedent — "hundreds and hundreds" of precedents, according to Fairstein — for Pena to have been convicted of rape. The jury convicted him, in fact, of sexually assaulting a woman and Pena hasn't denied this fact, only that little bit about penetration, which accounts for the difference between a temporary or permanent term in the jailhouse for a police officer who exploited his authority to carry a loaded gun around in public. Doubt over the color of a car, a trifling detail, something that flits in and of a person's head, was enough for the jury to hesitate over a rape conviction.
Such doubts have been a running current in NYPD rape trials, as they were in last May's acquittal of NYPD officers Kenneth Moreno and Frank Mata for "lack of forensic evidence." In fact, juror Patrick Kirkland was so skeptical about their apparent guilt, that he wrote a whole internal monlogue about it in which he ponders whether the victim might have "hit it off" with her alleged rapists.
Yes, let's all wonder about the shine a rape victim might have taken to her alleged attacker and not, say, that in a little less than a year, three NYPD officers — men authorized to carry guns, to write tickets, to protect and serve and all that fun cop stuff — have been accused and tried for rape, and have subsequently avoided a rape charge. Is anyone looking forward to the longform by the jury member who wonders, "What if Pena's victim not remembering the color of that car meant that she'd possibly been momentarily teleported to another dimension and thus avoided penetration?" Seriously, these doubts are getting a little unreasonable.
A Jury's Strange Reason for Refusing to Convict on Rape Charges [Atlantic Wire]
Correction & Amplification: The judge declared a mistrial on the remaining four counts, meaning Pena won't necessarily be getting off free with a conviction on three counts of predatory sexual assault — he's still facing 10 years to life in prison for those charges about which the jury was able to agree (though rape was not among them).