Prosecutors typically lament having to try someone twice — saying their task gets tougher the second time they go to trial.
Not this time.
After a Douglas County jury deadlocked Friday over whether Robert Wagner was guilty of assaulting an Omaha police officer, a judge declared a mistrial and prosecutors readied to retry him in August.
Next time, attorneys for both sides expect that prosecutors Jim Masteller and Chad Brown will be able to use Wagner's words to try to buttress officers' accounts that Wagner punched an Omaha police officer May 29 outside Creighton University Medical Center.
Wagner, 36, had been kicked out of the hospital after visiting cousin Jimmy Levering, an Omaha gang member who was dying of gunshot wounds.
In a jailhouse phone call hours after his controversial arrest — during which a hospital surveillance video showed officers punching, kicking and shocking Wagner with a Taser — a friend asked Wagner why he had been charged with assault on an officer.
“I got mad and swung,” Wagner said on the phone call.
That kind of comment was “exactly the type of evidence” jurors were looking for in the case, said one juror who spoke on condition of anonymity.
However, jurors weren't presented with the jailhouse recording because prosecutors didn't discover it until this week. District Judge Duane Dougherty ruled that it was too late for prosecutors to introduce the recording.
Both prosecutors and Wagner's attorney, Glenn Shapiro, agreed that the phone call likely would be allowed at the next trial.
The juror was visibly shaken up when told of Wagner's words.
“Had that been presented to us, it would have changed everything — for me anyway,” the woman said.
Without Wagner's comment, this is how the jury vote went: Seven voted not guilty and five voted guilty for attempted assault on an officer, a misdemeanor.
Over the course of the jury's eight hours of deliberations, those numbers fluctuated a little bit between guilty and not guilty, the woman said.
Here's what didn't change: No one on the jury of two men and 10 women wanted Wagner convicted of the original charge of felony assault, the juror said.
“There just wasn't enough evidence, that's all,” another juror told The World-Herald.
The female juror said they spent little time discussing officers' actions in arresting Wagner — “though we all agreed it was excessive.” The police chief fired Officers Jackie Dolinsky and Aaron Pennington after reviewing the videotape of the melee.
As jurors began their deliberations Thursday, Shapiro had remarked several times to Wagner's supporters that they needed a verdict this week — so prosecutors wouldn't be able to add his jailhouse comment to their case.
But on Friday, Shapiro said he wasn't convinced that the addition of Wagner's comment hurts his defense. Shapiro emphasized that Wagner only said he “swung” — he didn't say he connected.
And, Shapiro said, he still isn't convinced that Wagner — who stands about 6-foot-4 and weighs 300 pounds — landed a punch on Officer Scott Zymball.
Ten witnesses — including two state troopers and a hospital security guard — testified that they saw Wagner hit Zymball in the face or head.
Before the jury reached an impasse, Wagner said no one should read too much into his words on that jailhouse phone call. All he meant was that he swung away from the officer by pulling his arm back when the officer reached for his left hand, Wagner said.
After the jury left without a verdict, Wagner declined to comment, except to add some levity.
He quipped that Shapiro, his attorney, had given the prosecution a “good beating.”
“Even better than the one I got,” he said.
World-Herald staff writer Sam Womack contributed to this report.
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