Justice is a Bigger Gamble Than a Lottery

With juries like rape-cop Michael Pena's and prosecutors like Trayvon's, justice is a bigger gamble than a lottery
The New York Daily News by Mike Lupica - April 2, 2012
The case against cop Michael Pena was a 'rockcrusher,' a prosecutor says, but jurors still refused to convict him of rape.

You start to hear that George Zimmerman, a wanna-be cop who shot and killed an unarmed 17-year-old kid five weeks ago, might finally be arrested and charged in the next couple of days. It would be a positive message for Florida, the capital of OK Corral America, telling the rest of the country that shooting an unarmed teenager, even in Florida, is still against the law.  But that will only be the beginning of the process with Zimmerman, who still wants to be a victim in this case, at least according to the hustlers who keep going out to a friendly media and trying to defend what he did on the night Trayvon Martin died.  Because if an off-duty cop like Michael Pena can get away with rape in New York City, if Pena can walk after dragging a young schoolteacher down an alley in Inwood at gunpoint and then forcing her to have sex with him in front of witnesses, then perhaps actual justice in this country is the biggest lottery we have.  If Pena, even facing serious time on other charges, can get enough people who couldn’t win a battle of wits against the Lohans on his jury, then there is great hope that Zimmerman could beat his rap, if he finally does have to convince a jury in Florida that he was only defending himself when he shot Trayvon Martin dead.  Are you kidding? They had the victim’s DNA on Pena’s genitals and they had Pena’s DNA in the woman's underwear and they had witnesses, Only now we’re supposed to believe that the holdouts on the jury couldn’t get past the fact that the victim couldn’t remember the color of a car on the morning that Pena did what he did to her.  There has been the notion, at least since the tragedy of Trayvon Martin came to the attention of the country, that we need to try Zimmerman in court and not in the media. But why should anybody believe that a jury, if it comes to that, will ever get it right with Zimmerman if the boneheads on the Pena jury can’t get it right with him?

Sometimes you start to think that the legal system in this country works about as well as the political system. Maybe it is no accident that it was a lawyer on the Pena jury who became the king of the holdouts.  This is what you heard afterward from a woman named Ann Bishop, who called 911 twice to report the sexual assault she said she was witnessing against a 25-year-old woman who had spent all this time believing she was raped until a jury in Manhattan Criminal Court told her she was wrong. Pena was convicted of six sexual assault charges and of predatory sexual assault. Just not rape.  “When common sense can be so easily swayed, in a big picture, it disturbs me,” Bishop said to Kerry Wills and Jonathan Lemire of the Daily News.  And we had the voice of the victim in this case. Had her account of what happened. We have more than the screams of a 911 tape in Florida, a voice that experts now are saying does not belong to the shooter, Zimmerman. We will never hear from Trayvon Martin, never hear his voice, because the last two people in this world to hear that voice are a girlfriend and George Zimmerman, shooter.  On Sunday I asked Linda Fairstein, who ran the Sex Crimes Prosecution Unit of the Manhattan DA’s office for 26 years, about the Pena case.  “This case was what we call ‘rock crusher,’  ” Fairstein said. “A very intelligent ‘victim’/complaining witness, one smart and courageous and forthcoming, and very lucky to be alive. Neighbors saw something wrong going on and called 911, cops arrived to actually take Pena off the victim. Rockcrusher.”  Fairstein continued:  “(One juror) faulted (the victim) for not recognizing that she walked past a car in the alleyway down which Pena walked her. Well, perhaps that’s because she was concentrating on where he had the gun and where he was taking her and what she could do to live through this terror. Trust me, if she had described in detail a white Chevy Camaro with a convertible top, these same rogues would have said she was much too observant and interested in her surroundings to have been in fear for her life.  “This verdict was not about the law. It was thoroughly bizarre and inexcusable behavior by jurors in the face of a strong case, a great witness, a smart judge and prosecutor -- and a thorough absence of common sense.”  Maybe that is the common sense the rest of us should apply to the notion that the bad guys always get what’s coming to them. If an off-duty cop Michael Pena can get away with rape, why shouldn’t we believe that a wanna-be like George Zimmerman will eventually get away with worse?