Three jurors each wrote to the judge, asking to be released from jury duty, while a fourth said the panel appeared to be deadlocked.
On Tuesday, the 12 jurors deliberating in the corruption trial of Joseph Percoco, a former senior aide to Gov. Andrew Cuomo, appeared on the verge of a meltdown.
Three jurors each wrote to the judge, asking to be released from jury duty, while a fourth said the panel appeared to be deadlocked.
“I physically and emotionally cannot do this anymore,” one juror said. Another, citing “fundamental differences” among the jurors, wrote, “I regret to say I can no longer continue after today.”
A third, Juror No. 7, declared: “I feel there is nothing else I can offer to this process.”
The jurors had been deliberating over four days, but never for a full day, starting late or ending early. In comments outside the jurors’ presence, Judge Valerie E. Caproni of U.S. District Court in Manhattan made it clear that she was skeptical of the jurors’ declared dead end.
She sent them back for further deliberations, reading them a version of an Allen charge, an instruction typically given to juries when they suggest that they have reached an impasse.
When they finished for the day, Caproni said the trial would not resume until Thursday, in anticipation of a snowstorm that, at least in New York City, was less severe than predicted.
On Thursday, the jurors seemed re-energized — and all in attendance, which was far from a sure thing.
Juror No. 7 had written that both of her children were sick and she needed to leave to care for them. “I really need to be excused,” she wrote.
Caproni had raised two possible options to the prosecutors and the lawyers for Percoco and his three co-defendants. One was to excuse Juror No. 7 and replace her with an alternate juror. But such a step would mean the newly constituted 12-member panel would need to restart deliberations, further slowing the trial.
Or, the judge could take the highly unusual step of excusing Juror No. 7 and not replacing her. “Are you prepared to proceed with 11?” Caproni asked.
Under the federal rules of criminal procedure, a judge may allow a jury of 11 persons to return a verdict, even over the objection of a party, if the judge finds “good cause,” said Stephen Gillers, a legal ethics expert at New York University School of Law.
Good cause may be a juror’s illness or refusal to deliberate, but it may not be because a juror is a holdout and disagrees with a majority of the panel, Gillers said.
“The Constitution’s guarantee of a jury trial does not require a jury of 12,” Gillers added. “The Constitution only guarantees a jury trial.”
The issue appeared to solve itself, however. Between Thursday and Friday, the jury sent a flurry of notes to Caproni and sat attentively in the courtroom as witness testimony was read back to them.
And there was no further talk of proceeding with 11 jurors in the trial, which has completed its seventh week.
Two notes sent to the judge Friday concerned a key character in the trial narrative: Lisa Toscano-Percoco, the wife of Percoco, and the teaching job she held for three years at a Maryland-based energy company, Competitive Power Ventures.
Prosecutors have charged that CPV paid Toscano-Percoco a yearly salary of $90,000 — a total of about $285,000 — for what they called a “low-show job,” in which she was to teach schoolchildren about energy. She was given the job by a CPV executive, Peter Galbraith Kelly Jr., one of Percoco’s co-defendants in the trial.
The government has said the job was actually a bribe for Percoco in exchange for his help with state business. Prosecutors have cast Toscano-Percoco as an absentee employee who would forget to take phone calls and shirked duties she found beneath her.
Yanina Daigle, a former supervisor of Toscano-Percoco, was unsparing in her criticism of her work ethic. “It was really subpar to what my expectations were and often sloppy,” Daigle testified.
The defense has portrayed the job given to Toscano-Percoco — part of a company program called CPV Educates — as a legitimate gesture of goodwill, not a bribe.
“Lisa was hired to do a real job, an important job, a job that had real value to the company,” Kelly’s lawyer, Daniel M. Gitner, said in his summation.
The jurors, in their notes Friday, suggested they were seeking corroboration for the defense’s argument. In one note, for example, they asked for one CPV executive’s testimony “saying that CPV Educates was a good project to have.”
One of the jurors in the case was able to escape jury duty last week — just not in the Percoco trial.
“Your Honor,” the juror wrote to Caproni on Thursday. “I am very popular with the justice system.”
The juror explained that she had been summonsed to another jury, for which she was to have reported that morning. “Is it possible to get a note to explain my absence?” she asked.
Later, when the jurors were called into the courtroom before being dismissed for the day, Caproni addressed the juror.
“I hope you weren’t supposed to be there at 9 this morning,” the judge said.
“I was,” the juror replied sheepishly. She had tried unsuccessfully to get a delay, she said. (Neither the court nor the case in which she had been summonsed was revealed publicly.)
She remained on the Percoco jury Friday, still doing her civic duty, apparently excused from the other case with a solid-gold get-out-of-jury-duty card: a letter from Caproni explaining that she was on the Percoco jury. Deliberations resume Monday.
This article originally appeared in The New York Times.