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It’s a travesty that Navy veteran Daniel Penny was charged with two counts of murder by Manhattan’s elected progressive Democratic district attorney, Alvin Bragg, over the death of Jordan Neely – who then threatened frightened subway passengers Penny subdued him.
How fitting, then, that the conclusion of the jury trial, which began eight weeks ago, is proving to be as much a travesty of justice as the rest of the proceedings.
DANIEL PENY ‘OVERBURDENED’ BY PROSECUTION IN ‘PUBLICLY UNFAIR’ MOTION, LAWYER ARGUES
As I’ve explained a number of times, Bragg employed some cynical strategies to increase his chances of convicting Penny.
The first concerns the grossly racist politics of the progressive Democratic base that got Bragg elected in 2021. This faction views life as if it were a revisionist history book by Howard Zinn, in which the world is divided into oppressors and oppressed classes, with race as the full-field theory for interpreting all phenomena.
In the real world, there was nothing racist about Penny’s intervention when Neely threatened passengers. Yes, it’s a coincidence that Penny is white and Neely is black; but Neely intimidated all train passengers, regardless of race. Penny was assisted by non-white passengers to subdue him. Some of the best witnesses in the case against Penny were black passengers, who described how scared they were and how heroic Penny was.
Daniel Penny arrives at Manhattan Criminal Court in New York City on Friday, December 6, 2024. The jury is entering a fourth day of deliberations in Daniel Penny’s trial over Neely’s 2023 death on the Manhattan subway. (Rashid Umar Abbasi for Fox News Digital)
But progressive prosecutors don’t see it that way. It’s a shame that Judge Maxwell Wiley allowed Bragg’s prosecutors to call Penny “the white man” and “the white defendant” despite the fact that Penny’s whiteness is irrelevant because there is no evidence whatsoever that he was intolerant. Bragg’s approach is transparently jaded: appeal to all Manhattan progressives on the jury with a race-based ideological pitch that requires social justice to find Penny guilty.
The second strategy concerns the manner in which the case was charged. While I don’t think Penny should have been charged at all, this isn’t even more than a case of negligence. Penny had the legal right to use force to protect herself and other passengers. Under the law, such a justification allows someone to restrain the aggressor until the police arrive. So the question is whether Penny was negligent in the duration and strength of the chokehold he used. (As an aside, there is significant causation in this case; that is, there may be reasonable doubt as to whether the chokehold caused death because Neely had significant amounts of narcotics in his system, which is his pre-existing physical ailments due to the fear caused by threatening subway passengers.)
Manhattan District Attorney Alvin Bragg arrives at Daniel Penny’s trial after a lunch break at the Manhattan Supreme Criminal Court building on Monday, December 2, 2024, in New York City. Closing arguments begin today in Penny’s trial for Jordan’s 2023 Neely subway death. (Julia Bonavita/Fox News Digital) (Julia Bonavita/Fox News Digital)
Yet Bragg charged two charges, not one. Instead of leading to criminally negligent homicide, the top count of the indictment is second-degree manslaughter – that is: reckless murder.
To prove recklessness, prosecutors must prove beyond a reasonable doubt that the defendant knew he was creating a risk of death and took aggressive action, willfully ignoring that risk. That’s clearly not what Penny did. It wasn’t him, but Neely who caused the risk; and far from acting wantonly, Penny did not attempt to harm Neely. He rolled Neely into a position that made breathing easier. He waited for the police to arrive and cooperated fully with them. And during the interview he voluntarily gave to the police, they didn’t tell him that Neely had died, and Penny clearly believed he was still alive.
When a trained Marine wants to kill a bound person with a chokehold, he knows how to do it, and it doesn’t take long. That’s not what happened here.
NEW YORK, NEW YORK – MAY 24: NYPD supporters of 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 was joined by military veterans as he organized a rally in support of Daniel Penny, which was protested by supporters of Jordan Neely, leading to three arrests. Neely, whose funeral was held on May 19, was killed on May 1 after being placed in a chokehold by Penny at the Broadway-Lafayette subway station. Penny has been charged with second-degree manslaughter in Neely’s death. (Michael M. Santiago/Getty Images)
Despite the lack of evidence of recklessness, Bragg filed a misdemeanor charge of recklessness. He calculated that this might give the jury something to compromise on, improving the prosecution’s chances. Particularly if the racializing strategy were to lead some progressive jurors to find Penny guilty, jurors who sympathize with Penny might conclude that they could be reasonable in agreeing to find him guilty of negligent homicide, as long as they acquitted him of the unjustified manslaughter. attack.
Unfortunately, it appears that this strategy could turn out as Bragg had hoped. Last Friday, we learned that the jury was deadlocked on the manslaughter charge – meaning one or more jurors want to convict Penny, while others have concluded (appropriately, in my opinion) that this charge lacks corroborating evidence.
The jury was not allowed to consider negligence until the recklessness charge was resolved. Bragg has thus managed to exhaust the jury for four days of deliberation, including a so-called All order – given over the defense’s strong objection – to try to arm jurors to put aside their divisions and agree on an outcome (a conviction, the prosecutor hopes). They’ve been working on this very simple, one-transaction, two-case case for almost 30 hours, but they still won’t find Penny guilty.
Judge Wiley should have declared a mistrial. If we continue at this point, we are trying to force the jury to convict. I further believe that it would violate New York criminal law.
Below Sections 310.60 and 310.70which respectively control the declaration of mistrials and partial verdicts, a judge may (a) declare a mistrial if the jury is deadlocked and the judge determines that no verdict is likely; or (b) accept a partial verdict if the jury announces that it has reached a verdict on one count but is deadlocked on the other count or counts. Except for these two situations, a judge may not declare a mistrial during jury deliberations unless both parties – the prosecutor and the suspect – agree.
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Here neither (a) nor (b) happened. Still, Wiley allowed Bragg to dismiss the reckless homicide charge for the purpose of continuing the trial and forcing the jury to deliberate on the lesser offense of negligent homicide. In essence, Bragg reached a partial verdict even though the jury did not reach a single verdict, and he now wants the jury to continue deliberations as if this were merely a case of negligence – that is, a case very different from the case that prosecutors last presented to the jury. eight weeks. And this happened without the suspect’s consent.
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Judge Wiley had full authority to grant Penny’s motion to dismiss under Article 310.60 on the grounds that the jury had deliberated for an extended period of time without reaching a verdict. Instead, the judge bowed to Bragg’s Rube Goldberg plan: bring in an exhausted, divided man already Allen-The jury returned to court Monday to start all over again. The jurors must think that the court will keep them busy for as long as it takes to get Penny convicted of something.
It’s wrong… but it’s true So Manhattan.
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