Foreman in Percoco trial: Unanimity cannot be reached

Three jurors asked to be excused and the foreman said unanimity couldn’t be reached in a flurry of notes Tuesday as prospects of a verdict dimmed at the federal bribery trial of former Gov. Andrew M. Cuomo top aide Joe Percoco, whose legal troubles have threatened to stain his ex-boss.

“We cannot come to a unanimous consent,” foreman Andrew Swartz wrote to Manhattan U.S. District Judge Valerie Caproni. “We are largely divided in opposing views. The only thing we seem to agree on is that we cannot agree.”

The notes came on a chaotic fourth day of deliberations after a 5-week trial. Caproni gave the jury Wednesday off due to an anticipated storm, but denied a defense mistrial motion and refused to excuse anyone, telling the 12 jurors they should all be back on Thursday to deliberate.

“I am incredibly sympathetic,” she said, addressing jurors who had complained about both child care and work problems. “I recognize it may be hard. The parties are entitled to the jury’s best efforts, however, to reach a verdict.”

Percoco, 48, of South Salem, once Cuomo’s closest adviser, is charged with doing official favors for more than $300,000 in bribes from energy executive Peter Galbraith Kelly and Syracuse developers Steve Aiello and Joe Gerardi, who are also charged.

The hotly contested trial included heavy blows to the credibility of star government witness Todd Howe, the ex-lobbyist who said he set up the bribes, and defense efforts to convince jurors that neither the energy scheme or the Syracuse payments involved a corrupt quid-pro-quo agreement.

Although deliberations began on March 1, Caproni said, because of partial days and delays in getting evidence they requested the jurors had only deliberated for two full days, too early to pull the plug on trying to reach agreement.

When she told them to come back Thursday, several jurors reacted with negative body language. In their notes, they had expressed frustration with the combination of life pressures and the prospect of a difficult, lengthy deliberation.

One juror had told Caproni that the trial was stretching beyond the four-to-six-week time frame originally estimated and a “full discussion will be more time than I can personally and professionally afford.”

“We have some very fundamental differences and nobody wants to compromise our own beliefs,” he wrote. “ . . . We are all very invested in this case.”

Another juror said she was working almost around the clock to keep up with work. “I completely respect this process and this court,” she wrote, “but need to have my life back.”

A third, whose child care issues had led Caproni to order an end to deliberations every day at 2:30, said her kids were sick and she couldn’t arrange a doctor appointment around deliberations. “I believe I cannot do this anymore!” she wrote.

Called into court separately to discuss the difficulties, she told the judge, “I need to be there. My mind is not here anymore.” Caproni told her to try to see a doctor during the day off on Wednesday.

The only lawyer who sought an immediate mistrial was Aiello defense attorney Steve Coffey, who said jurors were “at the end of their rope,” almost in “rebellion,” and should not be forced to continue. “This has all the elements of a coerced verdict,” he told the judge.

Caproni said it was premature to call it quits, but even she seemed less than confident. After releasing the jurors with orders to return on Thursday, she told the lawyers to work on a “decision tree” for what to do if fewer than 12 show up.

The alternatives, she said, could include continuing with eleven, beginning deliberations anew by calling three remaining alternates in to court, or declaring a mistrial.