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

PROGRAMMING ALERT: Watch author Andy McCarthy discuss this topic and more on "America's Newsroom" on Fox News Channel on Monday, December 9 at 9 am ET.

It is a travesty that Marine veteran Daniel Penny was charged with two homicide counts by Manhattan’s elected progressive-Democratic district attorney, Alvin Bragg, over the death of Jordan Neely – who was menacing frightened subway passengers when 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 mockery of justice as the rest of the proceedings have been.

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As I’ve explained a number of times, Bragg executed a couple of cynical stratagems to increase his chances of convicting Penny. 

The first involves the crude racialist politics of the progressive-Democratic base that got Bragg elected in 2021. This faction looks at life as if it were a Howard Zinn revisionist history textbook, in which the world is divided into oppressor and oppressed classes, with race as the full-field theory for interpreting all phenomena. 

In the real world, there wasn’t anything racist in Penny’s intervention as Neely threatened passengers. Yes, the happenstance is that Penny is white and Neely was black; but Neely was intimidating all the train passengers regardless of race. Penny was assisted in subduing him by non-white passengers. Some of the best witnesses in the case for Penny have been black passengers, who have described how scared they were and how heroic Penny was.

But that’s not how the progressive prosecutors see it. Shamefully, Judge Maxwell Wiley has allowed Bragg’s prosecutors to refer to Penny as "the white man" and "the white defendant," notwithstanding that Penny’s whiteness is irrelevant, there being not a scintilla of proof that he was bigoted. Bragg’s approach is transparently jaded: appeal to any Manhattan progressives on the jury with a race-based ideological pitch that social justice demands finding Penny guilty.

The second stratagem involves how the case was charged. While I don’t think Penny should have been indicted at all, this is not even arguably anything more than a negligence case. Penny was legally justified in using force to protect himself and other passengers. By law, such justification allows a person to subdue the aggressor until the police arrive. The question, then, is whether Penny was negligent in the duration and force of the chokehold he used. (Aside: there is a significant causation issue in the case; i.e., there could be reasonable doubt about whether the chokehold caused death because Neely had significant amounts of narcotics in his system, which could have exacerbated his preexisting physical maladies due to the anxiety he caused by threatening subway passengers.)

Yet, Bragg charged two counts, not one. Rather than leading with criminally negligent homicide, the indictment’s top count is second-degree manslaughter – i.e., reckless homicide. 

To prove recklessness, prosecutors must show beyond a reasonable doubt that the defendant knew he created a risk of death and took aggressive action in wanton disregard of that risk. Clearly, that’s not what Penny did. It was not he, but Neely, who caused the risk; and far from acting wantonly, Penny did not try to harm Neely. He rolled Neely into a position to make breathing easier. He waited until the police arrived and fully cooperated with them. And during the interview he voluntarily gave police, they did not tell him that Neely had died, and Penny plainly believed he was alive. 

When a trained Marine wants to kill a restrained person with a choke hold, he knows how to do it, and it doesn’t take long. That’s not what happened here.

Despite the lack of recklessness evidence, Bragg indicted a recklessness charge. He calculated that this could give the jury something to compromise on, improving the prosecution’s odds. Especially if the racializing strategy attracted some progressive jurors to the view that Penny had to be found guilty, jurors sympathetic to Penny might conclude that they could be reasonable by agreeing to find him guilty of negligent homicide as long as they acquitted him of the baseless manslaughter charge.

Sadly, it appears that this strategy could be playing out as Bragg hoped. Last Friday, we learned that the jury was deadlocked on the manslaughter charge – meaning one or more jurors want Penny convicted, while others have concluded (appropriately in my view) that this charge lacks supporting evidence. 

The jury was not permitted to consider negligence until the recklessness charge was resolved. Bragg has thus succeeded in exhausting the jury for four days of deliberations, including a so-called Allen charge – given over the defense’s vigorous objection – to try to strongarm jurors into putting aside their divisions and agreeing on a result (a conviction, the DA hopes). They’ve been at it for nearly 30 hours over this very straightforward, single-transaction, two-count case – but still they would not find Penny guilty.

Judge Wiley should have declared a mistrial. To continue at this point is to seek to browbeat the jury into a conviction. I further believe it would violate New York criminal-procedure law. 

Under Sections 310.60 and 310.70, which control, respectively, declaration of a mistrial 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. Other than those two situations, a judge may not declare a mistrial during jury deliberations unless both parties – the prosecution and the defendant – agree.

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Here, neither (a) nor (b) happened. Yet, 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 negligent-homicide offense. In essence, Bragg manufactured a partial verdict even though the jury did not reach one, and now wants the jury to continue deliberations as if this were only a negligence case – i.e., a case starkly different from the one prosecutors presented to the jury the last eight weeks. And this was done without the consent of the defendant.

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Judge Wiley had full authority to grant Penny’s mistrial motion under Section 310.60 on the ground that the jury had deliberated for an extensive period of time without reaching any verdict. Instead, the judge bowed to Bragg’s Rube Goldberg plan: bring an exhausted, divided, already Allen-charged jury back to court Monday, to start all over again. The jurors have to be thinking that the court will keep them at it for as long as it takes to get Penny convicted of something.

It's wrong … but it’s so Manhattan.

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