Capozzi to be retried next month after jury deadlocks in escape trial

After deliberating for more than five hours Thursday, a federal jury in Lexington could not reach a verdict in the Derek Capozzi escape trial, prompting Special U.S. District Judge Joseph Hood to declare a mistrial.

The trial lasted three days — longer than expected — and included the startling scene of the defendant writhing on the floor while being shocked by an electronic device.

Capozzi escaped from a van carrying prisoners in Woodford County on April 15. Police spent three days searching for him; he was captured behind a Versailles stair factory.

Prosecutors and Capozzi's attorney had told jurors before they began deliberating that there was no question Capozzi had left the van.

But one issue that both sides disagreed on was just whose custody Capozzi was in when the escape occurred.

Defense attorney Stephen Milner told the jurors in his closing argument that the case being put before them was a state case, not a federal case, because Capozzi was in the custody of state authorities at the time of the incident.

But Assistant U.S. Attorney Pat Molloy said in his closing argument that Capozzi was in the custody of federal authorities.

"He was in federal custody. He saw an opportunity to escape and he took it," Molloy said.

Capozzi, who is serving a decades-long prison sentence for federal crimes, was accused of escaping from a van operated by Grayson County Detention Center officials. Capozzi was being taken from the Grayson County jail to Blue Grass Airport, with a stop to pick up another prisoner at the Woodford County jail. The Grayson County jail houses, feeds and transports federal prisoners for the U.S. Marshals Service.

The prisoners were to catch what federal authorities call a "Con Air" flight out of Kentucky on a U.S. Marshals Service plane.

Early in Thursday's proceedings, as attorneys and the judge were discussing finer points of law out of the jury's presence, Capozzi suddenly cried out, fell out of his chair at the defense table and began writhing on the courtroom floor.

Deputy U.S. marshals swarmed around him.

A device Capozzi had been wearing beneath his clothing to keep him from escaping had started shocking him.

"I was just sitting here," Capozzi said. "It started electrocuting me."

Capozzi was taken out of the courtroom and brought back a few minutes later.

A deputy marshal told Hood that the compliance equipment had malfunctioned, that it had been removed from Capozzi's body and that it was not going to be used again.

"Just to be sure, are you OK?" Hood asked Capozzi.

"Yeah," Capozzi replied.

Jurors ate sandwiches from George's Deli after closing arguments ended about 11:30 a.m. After 2 p.m., they notified Hood that they were deadlocked. They said they wanted a transcript of the last witness's testimony and that without it, they would not be able to reach a decision. But there was no transcript of the testimony of the witness, who works for the U.S. Marshals Service.

The judge asked the jury to deliberate more. But about 4:45 p.m. jurors sent word that they were still deadlocked.

"I'm of the opinion that the jury is hopelessly deadlocked," Hood said.

Milner expressed concern about possible double jeopardy in the case.

"I don't know what to do," Hood said. "I've got to ask them (the jury) whether further deliberations would be useful ... This is not a really complicated case."

The jurors were led back into the courtroom, and the judge asked them one by one whether they agreed there was no hope of reaching a decision. All indicated that a verdict was impossible. The judge sent them home and set a retrial date of Nov. 30.

Capozzi, 37, had been moved from a Maryland prison to the Grayson County facility because he was a witness in a federal case in London. He is serving a prison sentence for several crimes, including helping to hack the body of a Medford, Mass., woman into pieces after a fellow mobster killed her, according to news reports.

Capozzi, who has had a heart problem since he was stabbed at a California prison, is being held at the Federal Medical Center in Lexington.

This story was originally published October 22, 2010 at 12:00 AM with the headline "Capozzi to be retried next month after jury deadlocks in escape trial."