A judge declared a mistrial on the rape charges against Michael Pena, the 28-year-old police officer who was convicted of three counts of predatory sexual assault. Pena had been accused of raping a 25-year-old schoolteacher at gunpoint while off-duty in Manhattan last August, but the jury was hopelessly deadlocked on the two rape charges after five days of deliberation. Despite the mistrial on those charges, the predatory sexual assault conviction will stand—Pena faces a maximum prison sentence of 25 years to life.

It appears that defense attorney Ephraim Savitt's opening gambit worked: when the trial started, Savitt chose an unusual tactic in his opening statements by admitting his client deserved to go to jail for "a terrible crime, an unforgivable crime." But he argued there was insufficient proof that Pena penetrated the victim, so the crime did "not rise to the level of the [rape] charges."

Witnesses said they thought they saw the teacher being raped—and Pena "was caught at the scene still zipping up his pants." The victim testified that she had no doubt that he penetrated and raped her: "It hurt." Along with that testimony, prosecutors argued there was more than enough compelling circumstantial evidence—including the fact that forensic investigators found the woman's DNA on Pena's genitals and Pena's DNA on the woman's underwear.

The trial was mired in confusion when it was revealed that one of the jurors—Lloyd E. Constantine—was connected to Manhattan District Attorney Cyrus Vance and former Gov. Eliot Spitzer. Constantine, whose former law partner Richard Aborn had once run against Vance, was outed by another juror after he reportedly trashed the prosecution’s case against Pena—he later was asked why he never spoke up about those connections, and answered he wasn't biased and had passed "my own subjective test." Despite this, neither the defense nor prosecution called for a mistrial.

Manhattan DA Vance, Jr. gave this statement after the trial: “I want to first commend the victim for her bravery, and thank the jury for its service. In this brutal attack against an innocent young woman, the defendant showed no mercy. At sentencing, we will recommend that he receive none.”