by Matthew Huisman
“What should we do if we cannot come to an agreement on a specific count?” That was one of three notes jurors passed to Judge Patricia Di Mango during day three of deliberations in the murder trial of Keith Phoenix. The defendant is accused of killing Ecuadorian immigrant and businessman Jose Sucuzhanay. Phoenix faces 10 separate charges including second-degree murder as a hate crime.
Judge Di Mango did not directly respond to the jury’s question. Instead she asked them to keep an “open mind” when reviewing the facts of the case. “Start with a fresh slate,” Di Mango said to the jury a little before 4 p.m. “Any verdict you return on any count must be unanimous. It is not uncommon to disagree.”
As Di Mango spoke, one of the male jurors sitting on the far side of the front row became increasingly more fidgety. The juror, who has short brown hair with gray streaks, bobs slowly back and forth in his seat. Unlike the rest of his fellow jurors who nod and listen attentively to Judge Di Mango, the visibly frustrated juror sat with his head bowed. The juror’s impatience was representative of the mood among the courtroom.
“Make certain that the decision you reach is based solely on the evidence or the law,” Di Mango said in conclusion before sending the jury back to work on reaching a verdict. During deliberation, judges and juries pass notes between each other like grade school friends. But instead of that kid from math class, a court officer passes the note between parties. The law requires that any communication between judges and juries take place in open court with both sides’ attorneys present.
It wasn’t until right before lunch break about 2 p.m. that Judge Di Mango announced she had received two notes from the jury. Compare that to last Friday when Di Mango received 13 notes from the jury in the span of about five hours. “We have two notes everyone,” Di Mango said from behind the bench.
The first asked if it could be proven that Phoenix acted with an unknown person but the identity of the other person could not be determined, would it make a difference? No. A second note asked for the judge to clarify the definition of intent and the role it served in the charges. “Intent means conscious intent or purpose,” Di Mango said. “All 10 counts require the element of intent. None of these 10 counts require the people to prove motive.”
Diego, Romel and Marcelo – brothers and real estate partners to the late Jose – sat two rows behind the prosecution. The three brothers waited for eleven and a half hours only to be disappointed. There would be no verdict Monday.
“It’s been a long day,” Diego said to reporters after the jury failed to produce a verdict. “The evidence is clear and I hope they see that way. For our family, it’s important that justice is served.”