ALBANY – For the second time in a week, members of the jury in the Joseph Percoco trial said Monday morning they are deadlocked, and despite keeping “open minds” about the evidence and testimony, they are unable to reach a unanimous verdict in the corruption trial of the longtime confidante to Gov. Andrew Cuomo.
The jury met until mid-afternoon before Caproni released them for the day. They are due back Tuesday morning, though the possibility of a mistrial looms large over the closely watched bribery case.
The judge in the trial indicated Monday that she will not make a third request to the jury to keep deliberating if they again say they are deadlocked -- raising the possibility of a mistrial as early as Tuesday, unless jurors start coming together.
The note from the jury foreperson to U.S. District Court Judge Valerie Caproni came at 9:30 a.m., soon after the jury began deliberations at the start of the eighth week of the trial of Percoco and three business executives accused of bribing him in return for official acts before the Cuomo administration.
A week ago Tuesday, jurors sent the same deadlocked message to Caproni, but she urged them to try harder to reach a consensus. She then gave them the next day off for a snow day, and deliberations last Thursday and Friday appeared to take a more measured approach with various notes seeking testimony from the trial to be sent to them.
"After considering the facts and the evidence with open minds, and using your instructions as a roadmap, we remain unable to reach a unanimous verdict,'' the jury foreperson wrote Monday morning in a note to the judge less than a half hour after deliberations started for the day.
Shortly after 11 a.m., Caproni, with the jury back in the courtroom, told jurors to again go back in a nearby room and continue deliberations. Two of the four defendants in the trial asked for a mistrial, which Caproni denied.
But the judge also did not go along with prosecutors who asked her to advise the jury that they could reach a "partial verdict" on the 10 different felony counts against the four defendants. Lawyers for defendants argue such an explicit instruction could be coercive and prod some jurors to vote for a conviction. A unanimous vote is required for conviction, but the jury can convict on some counts and acquit on others.
“Your final vote must reflect your conscience belief as to how the issues should be decided,’’ she said in written remarks. Caproni told the jurors she appreciated the personal burdens facing some jurors, but reminded them they took an oath to try the case.
"This was a long case and it involved considerable effort to everyone involved. The case is very important to the government and it's very important to the defense. The parties are entitled to your continued best efforts to reach a verdict as long as you can do so without violating your individual judgment and conscience,'' Caproni told the jury.
The jury got the case March 1, but Caproni noted Monday morning they had really only been deliberating the equivalent of three-and-a-half days; besides the snow day last week, jurors, citing personal scheduling conflicts, have knocked off for more than a week at 2 p.m. each day.