Justice for Daniel Penny

National Review Online

Monday, December 09, 2024

 

Daniel Penny’s nightmare is over.

 

On the fifth day of deliberations, with Manhattan’s elected progressive Democratic district attorney Alvin Bragg taking desperate measures in his crusade to nail him, the Marine veteran was acquitted of homicide by the jury in the trial over the death of Jordan Neely.

 

Penny was a subway passenger on the F train in May 2023 when Neely, a deranged criminal and drug addict recently released from Rikers Island after a prison stint for breaking bones in the face of a 67-year-old woman he’d punched, began menacing passengers. As trial witnesses testified, they were frightened as Neely ranted that “someone is going to die today” and that he was “willing to die and go to jail.” Penny courageously intervened, restraining Neely, including applying a choke hold, until police arrived at a station stop and took Neely away.

 

Penny’s actions were not cruel. To the contrary, witnesses described them as heroic. He appeared to be subduing a threat, not trying to harm — let alone kill — Neely. He was helped by other passengers, and rolled Neely into a position to make breathing easier. Penny and others believed that Neely was still alive when the police came. The veteran was completely cooperative with officers, voluntarily providing a statement under circumstances in which he clearly did not believe he was a suspect, and police did not tell him that Neely had died. Moreover, given the presence of the potent synthetic cannabinoid K2 in Neely’s system, coupled with other maladies, there was a plausible question about the cause of death.

 

As a strict matter of law, Penny’s actions were permissible under the doctrine of justification, which recognizes that people under a threat of force have the right to defend themselves and others. Yet, because of the happenstance that Penny is white and Neely was black, Bragg decided that social justice demanded a scalp, regardless of what actual justice might say about the matter. A cynic might wonder if Bragg was also embarrassed that Penny did what the law, under Bragg, would not — serve and protect.

 

It was obvious that Penny should not be charged. Apart from the legal reasonableness of his actions, prosecuting him set a terrible precedent. In a city of about 9 million people with fewer than 34,000 cops (as retirements have surged with progressive politicians and prosecutors making policing more difficult and risky), the vast majority of violent crime occurs without police on the scene. If capable, valorous civilians are unwilling to intervene, others are more vulnerable to attack. Even with Penny’s acquittal, Bragg’s prosecution will make good people think twice before coming to the aid of helpless people.

 

If a prosecutor were inclined to file charges, the only question in the case was negligence — i.e., even if Penny’s use of force was justified, did he go further than a reasonable person would have, facing the same threat? Yet, Bragg cynically indicted two counts, charging second-degree manslaughter (i.e., reckless homicide) as the lead charge, with criminally negligent homicide as a backup.

 

This was a ploy. To establish recklessness in this context, prosecutors must prove beyond a reasonable doubt that someone has created an obvious risk of death and then acted in wanton disregard of the risk. Penny did not do this: Neely created the risk by menacing passengers on the train, and Penny’s actions were not wanton. But Bragg calculated that the two counts would give jurors something on which to compromise in order to get to a guilty verdict. It’s exactly the sort of prosecutorial hardball that Bragg refuses to use against actual criminals.

 

This stratagem was exacerbated by prosecutors’ racializing of the case. There was no evidence that Penny was racially motivated. In fact, many of the passengers he protected — including some who gave testimony helpful to him at trial — were black and just as frightened of Neely as any reasonable person would be. The passengers who provided Penny with some assistance in subduing Neely were also non-white. Bragg’s prosecutors nevertheless shamefully referred to Penny during the trial as “the white defendant” and “the white man,” as if that were relevant. And to his discredit, Judge Maxwell Wiley indulged them.

 

The prosecutors’ plan was transparent: Use race to establish solidarity with one or more progressives sure to be seated on a jury of twelve Manhattanites; convince them that a black man’s death required a guilty verdict regardless of the circumstances; and figure that jurors more sympathetic to Penny might convict him on one count if they could feel good about acquitting him on the other.

 

Last Friday, it looked like the plan might work. After four days, nearly 30 hours of deliberations, and a so-called Allen charge (in which a judge tries to induce a divided jury into agreeing on a verdict), the jurors reported that they were deadlocked on the manslaughter charge. That was a bad sign for Penny, suggesting that at least one juror was willing to convict him of reckless homicide despite the dearth of evidence. Penny’s lawyers moved for a mistrial, but Judge Wiley again sided with Bragg’s next novel maneuver: He abruptly dismissed the manslaughter count — after it had been the centerpiece of the eight-week trial and shaped the defense strategy — and asked Wiley to bring the jury back on Monday, hoping the exhausted panel would convict Penny on the negligence count.

 

The jury appears to have seen through the ruse. Reconvening Monday, and despite whatever hesitance one or more of the jurors may have had on the recklessness issue last week, the jury quickly acquitted Penny on the negligent homicide charge.

 

Justice has been done. The disgrace is that it was necessary for justice to be done in a courtroom. This case should never have been charged. New York City needs more Daniel Pennys, and it needs to rid itself of Alvin Bragg.