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It’s a travesty that Marine veteran Daniel Penny was charged with two murder counts by Manhattan’s elected progressive-Democratic district legal professional, Alvin Bragg, over the demise of Jordan Neely – who was menacing frightened subway passengers when Penny subdued him.
How becoming, then, that the conclusion of the jury trial, which started eight weeks in the past, is proving to be as a lot a mockery of justice as the remainder of the proceedings have been.
DANIEL PENNY ‘OVERCHARGED’ BY PROSECUTION IN ‘PATENTLY UNFAIR’ MOVE, ATTORNEY ARGUES
As I’ve defined plenty of occasions, Bragg executed a few cynical stratagems to extend his probabilities of convicting Penny.
The primary includes the crude racialist politics of the progressive-Democratic base that acquired Bragg elected in 2021. This faction appears at life as if it have been a Howard Zinn revisionist historical past textbook, through which the world is split into oppressor and oppressed lessons, with race because the full-field concept for deciphering all phenomena.
In the actual world, there wasn’t something racist in Penny’s intervention as Neely threatened passengers. Sure, the happenstance is that Penny is white and Neely was black; however Neely was intimidating all of the prepare passengers no matter race. Penny was assisted in subduing him by non-white passengers. A few of the finest witnesses within the case for Penny have been black passengers, who’ve described how scared they have been and the way heroic Penny was.
Daniel Penny arrives at Manhattan Legal Courtroom in New York Metropolis on Friday, December 6, 2024. The jury is getting into a fourth day of deliberations in Daniel Penny’s trial for the 2023 demise of Neely on the Manhattan subway. (Rashid Umar Abbasi for Fox Information Digital)
However that’s not how the progressive prosecutors see it. Shamefully, Choose Maxwell Wiley has allowed Bragg’s prosecutors to check with Penny as “the white man” and “the white defendant,” however that Penny’s whiteness is irrelevant, there being not a scintilla of proof that he was bigoted. Bragg’s method is transparently jaded: attraction to any Manhattan progressives on the jury with a race-based ideological pitch that social justice calls for discovering Penny responsible.
The second stratagem includes how the case was charged. Whereas I don’t suppose Penny ought to have been indicted in any respect, this isn’t even arguably something greater than a negligence case. Penny was legally justified in utilizing pressure to guard himself and different passengers. By legislation, such justification permits an individual to subdue the aggressor till the police arrive. The query, then, is whether or not Penny was negligent within the period and pressure of the chokehold he used. (Apart: there’s a vital causation difficulty within the case; i.e., there may very well be affordable doubt about whether or not the chokehold brought about demise as a result of Neely had vital quantities of narcotics in his system, which might have exacerbated his preexisting bodily maladies as a result of anxiousness he brought on by threatening subway passengers.)
Manhattan District Lawyer Alvin Bragg arrives at Daniel Penny’s trial following a lunch break on the Manhattan Supreme Legal Courtroom constructing in New York Metropolis on Monday, December 2, 2024. Closing arguments are set to start at present in Penny’s trial for the 2023 subway demise of Jordan Neely. (Julia Bonavita/Fox Information Digital) (Julia Bonavita/Fox Information Digital)
But, Bragg charged two counts, not one. Reasonably than main with criminally negligent murder, the indictment’s prime depend is second-degree manslaughter – i.e., reckless murder.
To show recklessness, prosecutors should present past an inexpensive doubt that the defendant knew he created a threat of demise and took aggressive motion in wanton disregard of that threat. Clearly, that’s not what Penny did. It was not he, however Neely, who brought about the chance; and much from performing wantonly, Penny didn’t attempt to hurt Neely. He rolled Neely right into a place to make respiratory simpler. He waited till the police arrived and totally cooperated with them. And throughout the interview he voluntarily gave police, they didn’t inform him that Neely had died, and Penny plainly believed he was alive.
When a skilled Marine needs to kill a restrained individual with a choke maintain, he is aware of how you can do it, and it doesn’t take lengthy. That’s not what occurred right here.
NEW YORK, NEW YORK – MAY 24: NYPD Supporters of Jordan Neely protest a rally in assist of Daniel Penny at Acquire Pond Park on Might 24, 2023 in New York Metropolis. Nassau County Govt Bruce A Blakeman was joined by army veterans as he organized a rally in assist of Daniel Penny that was protested by supporters of Jordan Neely, main to 3 arrest. Neely, whose funeral was held on Might 19, was killed on Might 1st after being positioned in a chokehold by Penny on the Broadway-Lafayette subway station. Penny has been charged with 2nd Diploma Manslaughter in Neely’s demise. (Michael M. Santiago/Getty Photographs)
Regardless of the dearth of recklessness proof, Bragg indicted a recklessness cost. He calculated that this might give the jury one thing to compromise on, bettering the prosecution’s odds. Particularly if the racializing technique attracted some progressive jurors to the view that Penny needed to be discovered responsible, jurors sympathetic to Penny would possibly conclude that they may very well be affordable by agreeing to seek out him responsible of negligent murder so long as they acquitted him of the baseless manslaughter cost.
Sadly, it seems that this technique may very well be enjoying out as Bragg hoped. Final Friday, we realized that the jury was deadlocked on the manslaughter cost – which means a number of jurors need Penny convicted, whereas others have concluded (appropriately for my part) that this cost lacks supporting proof.
The jury was not permitted to contemplate negligence till the recklessness cost was resolved. Bragg has thus succeeded in exhausting the jury for 4 days of deliberations, together with a so-called Allen cost – given over the protection’s vigorous objection – to attempt to strongarm jurors into placing apart their divisions and agreeing on a end result (a conviction, the DA hopes). They’ve been at it for practically 30 hours over this very easy, single-transaction, two-count case – however nonetheless they might not discover Penny responsible.
Choose Wiley ought to have declared a mistrial. To proceed at this level is to hunt to browbeat the jury right into a conviction. I additional consider it might violate New York criminal-procedure legislation.
Underneath Sections 310.60 and 310.70, which management, respectively, declaration of a mistrial and partial verdicts, a decide could (a) declare a mistrial if the jury is deadlocked and the decide determines that no verdict is probably going; or (b) settle for a partial verdict if the jury publicizes that it has reached a verdict on one depend however is deadlocked on the opposite depend or counts. Apart from these two conditions, a decide could not declare a mistrial throughout jury deliberations until each events – the prosecution and the defendant – agree.
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Right here, neither (a) nor (b) occurred. But, Wiley allowed Bragg to dismiss the reckless murder cost for the aim of continuous the trial and forcing the jury to deliberate on the lesser negligent-homicide offense. In essence, Bragg manufactured a partial verdict although the jury didn’t attain one, and now needs the jury to proceed deliberations as if this have been solely a negligence case – i.e., a case starkly completely different from the one prosecutors offered to the jury the final eight weeks. And this was completed with out the consent of the defendant.
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Choose Wiley had full authority to grant Penny’s mistrial movement underneath Part 310.60 on the bottom that the jury had deliberated for an intensive time period with out reaching any verdict. As an alternative, the decide bowed to Bragg’s Rube Goldberg plan: deliver an exhausted, divided, already Allen-charged jury again to court docket Monday, to start out once more. The jurors must be pondering that the court docket will hold them at it for so long as it takes to get Penny convicted of one thing.
It is flawed … nevertheless it’s so Manhattan.
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