ANDREW MCCARTHY: Prosecutor, judge make mockery of justice in trial of subway hero Daniel Penny

It is a travesty that Marine Corps veteran Daniel Penny was indicted on two counts of murder by Manhattan's progressive Democratic District Attorney Alvin Bragg for the death of Jordan Neely. Neely was threatening the frightened subway passengers when Penny subdued him.

How fitting, then, that the conclusion of the jury trial that began eight weeks ago proved to be as much a mockery of justice as the rest of the trial.

Daniel Penny's lawyer claims he was 'overcharged' by prosecutors in 'manifestly unfair' case

As explained many times, Bragg carried out several cynical ploys to increase his chances of convicting Penny.

The first concerns the crude racist politics of the Progressive Democratic Party that helped elect Mr. Bragg in 2021. This sect views life as if it were a Howard Zinn revisionist history textbook, in which the world is divided by race into oppressor and oppressed classes. As a total field theory to interpret all phenomena.

In the real world, there was nothing racist about Penny's intervention, as Neely threatened the passengers. Yes, coincidentally, Penny was white and Neely was black. However, Neely intimidated everyone on the train, regardless of race. Penny subdued the incident with the help of non-white passengers. Some of the best witnesses to Penny's case were black passengers, who told how scared they were and how heroic Penny was.

But progressive prosecutors don't think so. Shamefully, Judge Maxwell Wiley ruled that Bragg's prosecutors labeled Penny as “white” and “white,” even though Penny's whiteness was irrelevant and there was no evidence that Penny was biased. allowed to be referred to as the defendant. Mr. Bragg's approach is clearly weary. They appeal to the Manhattan progressives on the jury with a race-based ideological pitch that social justice requires convicting Penny.

The second strategy involves how the case is prosecuted. I don't think Penny should have been prosecuted, but this is definitely nothing more than a case of negligence. Penny was legally justified in using force to protect herself and other passengers. By law, such a justification allows a person to subdue an aggressor until the police arrive. The question then is whether Penny was negligent in the duration and strength of the chokehold she used. (Side note: There is a significant causality issue in this case, namely that Neely had significant amounts of narcotics in his system, which caused his pre-existing physical ailments to worsen due to anxiety.) There may be reasonable doubt as to whether the strangulation caused the death.

Manhattan District Attorney Alvin Bragg appears at the trial of Daniel Penny after a lunch break at the Manhattan Supreme Criminal Court building on Monday, December 2, 2024 in New York City. Closing arguments in Penny's trial for the 2023 Jordan subway death are scheduled to begin today. Neely. (Julia Bonavita/Fox News Digital) (Julia Bonavita/Fox News Digital)

Still, Bragg charged two counts instead of one. The highest level of the indictment is not manslaughter, but second-degree manslaughter. reckless murder.

To prove recklessness, prosecutors must prove beyond a reasonable doubt that the defendant knew he was creating a risk of death and acted in an aggressive manner with unreasonable disregard for that risk. Must do. Obviously, that's not what Penny did. It was Neely, not him, who caused the danger. And Penny didn't act recklessly or even try to harm Neely. He rolled Neely into a position where she could breathe easier. He waited until police arrived and cooperated fully with them. And during his voluntary interview with the police, the police did not tell him that Neely was dead, and Penny clearly believed that Neely was alive.

A trained Marine knows how to kill a restrained person in a chokehold, and it doesn't take long. That's not what happened here.

NEW YORK, NY – MAY 24: Supporters of NYPD Officer Jordan Neely protest a rally in support of Daniel Penny at Collect Pond Park on May 24, 2023 in New York City. Nassau County Executive Bruce A. Blakeman organized a rally in support of Daniel Penny with veterans, but supporters of Jordan Neely protested and three people were arrested. Neely's funeral was held on May 19th, and on May 1st, she was strangled to death by Penny at the Broadway-Lafayette subway station. Penny was charged with second-degree manslaughter in Neely's death. (Michael M. Santiago/Getty Images)

Bragg charged him with recklessness even though there was no evidence of recklessness. He calculated that this could give the jury more room to compromise and improve the prosecution's chances of success. In particular, if this racialization strategy drew some progressive jurors to the view that Penny should be found guilty, jurors sympathetic to Penny might be more concerned about the unfounded manslaughter. One might conclude that it is reasonable to agree to convict Penny of manslaughter as long as it acquits Penny of the crime. charging.

Unfortunately, it looks like this strategy may play out exactly as Mr. Bragg hopes. Last Friday, we learned the jury was deadlocked on the manslaughter charge. This means that while one or more jurors want to convict Penny, others (rightly so, in my opinion) think the charge lacks supporting evidence. I am concluding.

The jury was not allowed to consider negligence until the recklessness charge was resolved. Mr. Bragg thus succeeded in exhausting the jury during the four days of deliberations that included the so-called trial. Allen The charge, which was granted against the defense's fierce opposition, was that of trying to force the jurors to put aside their differences and agree to the outcome (a guilty verdict). There is). They had been working for nearly 30 hours on this very simple, single-transaction, two-count case, and they still couldn't convict Penny.

Judge Wiley should have declared a mistrial. To continue at this point would be the same as trying to bulldoze the jury into a guilty verdict. Additionally, we believe it violates the New York State Code of Criminal Procedure.

under Sections 310.60 and 310.70which govern declarations of mistrials and partial verdicts, respectively, but a judge may (a) declare a mistrial if the jury is deadlocked and the judge believes that a verdict is unlikely; can be declared. or (b) accept a partial verdict if the jury announces that it has reached a verdict on one count but deadlocks on any other count. Outside of these two situations, a judge cannot declare a mistrial during jury deliberations unless both parties, prosecutor and defendant, agree.

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Neither (a) nor (b) happened here. However, Wiley allowed Bragg to dismiss the reckless homicide charge in order to proceed with the trial and have the jury consider a lesser charge of negligent homicide. In essence, Bragg fabricated a partial verdict even though the jury could not reach a conclusion, and now wants the jury to continue deliberating as if this were just a case of negligence – ie. , eight weeks as if it were a completely different case than the one prosecutors last presented to the jury. And this was done without the defendant's consent.

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Judge Wiley had full authority to grant Penny's motion for a mistrial under § 310.60 because the jury deliberated for a long time without reaching any verdict. Instead, the judges succumbed to Bragg's Rube Goldberg plan. Allen-Jurors were returned to court Monday to start over. The jurors must be thinking that the court will continue to hold them back for as long as it takes to convict Penny. something.

That's wrong…but it's So Manhattan.

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