ALBANY – Seven weeks after the Joseph Percoco corruption trial began, and in the midst of day four of deliberations, some of the jurors want out and indicated Tuesday morning they are deadlocked.
Three jurors sent notes Tuesday to U.S. District Court Judge Valerie Caproni saying they want to be dismissed from the trial. “I physically and emotionally cannot do this anymore,'' wrote one.
The tone and timing of the notes appear to raise the prospect of a mistrial as a very real possible outcome to the closely watched trial that has given jurors, and the public, a not-so-pretty look into how their state government and the Cuomo administration does its work in Albany.
The judge Tuesday afternoon offered her sympathies, but rejected calls by several jurors to be dismissed. She sent them home for the day, as scheduled, in mid-afternoon, gave them the day off Wednesday in anticipation of a snow storm, and told them all to return again Thursday morning to continue deliberations.
"I appreciate that you're working hard (but) you've actually only been deliberating two days. And two days for a trial that had seven or eight weeks of testimony is not unreasonable and it's not excessive,'' the judge told jurors. Caproni told them she recognized the personal burdens, but that the prosecution and defense "are entitled to the jury's best efforts to reach a verdict in this case, and that requires all 12 of our jurors.''
After the jury left for the day, Caproni told lawyers that "hopefully" all 12 jurors will show up Thursday. "If not, we will assess at that point next steps,'' the judge said.
Earlier in the day, also without the jury present, she told lawyers there could be two choices if some jurors don't come to court Thursday morning: "It's either everybody consents to 11 (jurors) or we bring in an alternate ... Or we mis-try the case,'' she said.
The jury began deliberations Thursday afternoon, but this week are scheduled to break each day at 2 p.m. under a timetable the jury asked the judge to approve. In all, deliberations have lasted a bit more than 21 hours since Thursday.
Even with the part-time deliberations, some jurors said enough is enough for a trial they've been involved with since its Jan. 22 start.
“I can no longer continue after today,’’ juror number seven wrote, telling the judge both her children are sick. “At this point I feel there is nothing else I can offer to this process. I really apologize and please know that I tried my best to do the right thing and see this case to the end."
At 11:42 a.m. this morning, the jury foreperson wrote Caproni: “We cannot come to unanimous consent. … The only thing we seem to agree on is we cannot agree.’’
A couple of jurors reminded the judge of her claim that trial would last, at most, six weeks. "We are almost 8 weeks in. My children need their mother back,'' wrote the juror who told Caproni she was no longer emotionally able to continue. The juror lamented her inability to keep paying for a babysitter, missed cardiologist visits and being forced to cut short a family vacation.
Juror number two raised concerns about missing too much time off from work, the impending snow storm, the continued loss of electricity at home -- presumably from last week's Nor'easter -- and scheduled business meetings that need preparation work in advance. The juror wrote that the Percoco panel has some "very fundamental differences and nobody wants to compromise" on their positions in the case.
Stephen Coffey, a lawyer for defendant Steven Aiello, moved for a mistrial, saying that jurors indicated they want out of the trial because of personal issues. "A verdict that was rendered now, in the light of those statements from the jurors, I believe would be a coerced verdict at this point,'' he told the judge Tuesday. Caproni denied his request.
Percoco, along with three business executives, have been charged in a corruption scheme in which prosecutors allege Percoco, the longtime personal friend and former government advisor to Gov. Andrew M. Cuomo, took bribes totaling more than $300,000 from the executives in return for helping their companies with matters pending before the Cuomo administration.
During a conference call about a winter storm hitting parts of New York State Tuesday night and well into Wednesday, Cuomo, who has declined since January to comment on the matter, was asked Tuesday afternoon about the deadlocked jury. Cuomo said “it will be a matter for the judge to handle."