The case in New York City against Daniel Penny is a shambolic and, arguably, unconstitutional mess. Based on the nexus of the facts and New York self-defense law, the case should never have been filed. The trial has been conducted along unconstitutional racial lines, and the judge, faced with a hung jury, did something that was definitely unprecedented and is arguably unconstitutional.
New York allows people to use self-defense against perceived threats. However, in addition to requiring reasonable justification, it also requires “proportionality.” It’s that last that the prosecution is banging away at in the Daniel Penny trial, for it claims that Penny was reckless and/or negligently ignorant of the risk created by using a choke hold to subdue Jordan Neely.
The defense has countered that Penny used an appropriate method to subdue a violent and dangerous man and that when Neely stopped resisting, he immediately downgraded his hold simply to retain control over Neely. Instead, says the defense, Neely died from agitation, excitement, K2 intoxication (a potent intoxicant and stimulant), and a sickle cell trait, all of which led to sudden death from cardiac arrest. I agree.
Image: Daniel Penny. YouTube screen grab (cropped).
The prosecution initially charged Penny with a greater charge (second-degree manslaughter) and a lesser one (negligent homicide). The first carries a maximum 14-year prison sentence, and the second a maximum four-year prison sentence. The jury instructions were set up so that the jurors were to consider the negligent homicide charge only if they had first agreed to reject the manslaughter charge. That is, both decisions were their responsibility. The analysis was to have worked this way:
Last week, after three days of deliberation, the jury announced that it was deadlocked on the manslaughter charge and hadn’t even reached the negligent homicide charge. The prosecution responded by asking Judge Maxwell Wiley to dismiss the manslaughter charge and, instead, have the jury decide only the negligent homicide charge. This request violated the jury instructions, but Judge Wiley thought it was a great idea.
Then, without sequestering the jury over the weekend, he sent them out into a community in which the anti-Penny mob is rampant, including loudly protesting on the streets immediately outside the courthouse. The only thing he did was to honor the phony request by the prosecution that the jurors be anonymous based on claims that “both sides” had made threats. That’s unlikely because leftists have loudly made threats, and no Penny supporters have—and the judge and prosecution both know this.
Andrew McCarthy, a former federal prosecutor, is outraged by what the judge did:
As I have contended from the start, rather than bring a one-count criminally negligent homicide case, Bragg added a baseless recklessness charge to the indictment so the jury would have two counts, increasing the odds of conviction by giving the jury something to compromise on. Instead of deciding negligence as the central question, that count was treated as a fallback position for the jurors to have something to pin on Penny — i.e., they could feel good about convicting him of negligence, not because he was guilty but because they had already acquitted him of the more severe recklessness charge.
Now, after the jury could not find Penny guilty of recklessness after four days — and how disturbing it is that one or more jurors were apparently in favor of doing so — the judge is letting Bragg remove the recklessness count from the case. It will go down as an acquittal for Penny on that charge, so he is no longer facing a potential 15-year prison term. For the jury, however, it makes the hard work of the last four days pointless.
[snip]
This is a disgrace.
A disgrace—and a dangerous break with legal precedent.
Before New York City abandoned legal principles to attack Trump and turn the courts into racial circuses, the law on hung juries allowed prosecutors to retry the case (which means starting from scratch) or to request a dismissal. There’s a real question about whether retrying the case amounts to double jeopardy, but it’s still something prosecutors request and judges allow. Never before has a judge allowed the retrial to happen in the original case after the jury received instructions and began deliberations.
I would argue at a more fundamental level that the rule of unanimous juries in criminal trials combined with the prohibition against double jeopardy makes a good argument for discarding retrials altogether when there is a hung jury. The 1824 decision in United States v. Perez set the precedent for this practice, but it never addressed the constitutional prohibition on double jeopardy. Instead, since then, the only trigger for double jeopardy has been a verdict—which, of course, is something a hung jury, by definition, never reaches.
It's hard to know at this point whether the jury, having been relieved of the burden of manslaughter, will now become a hung jury as to the negligent homicide. Or will having a lesser charge assuage the conscience of the holdouts and see them agree to imprison Penny for only four, not 14 years? Will the screaming mobs they’ll see all weekend (despite the judge’s order that they put the case out of their minds) affect their decision now that they have an easier out? The jury is not protected and they are vulnerable, something that Judge Wiley finds acceptable.
And if they are again a hung jury, will Alvin Bragg, a fanatic racialist, retry the negligent homicide case? We know that race is a motivating factor in the case because Dafna Yoran, the prosecuting attorney, relentlessly referred to him as “the white man,” both during questioning and in her closing argument. The judge should have granted the defense’s motion for a mistrial but, reliably, did not.
As McCarthy says, this is disgraceful, but it’s also a dangerous precedent. A New York judge has abandoned even the pretense of impartial justice and has openly sided with the racist, baying mob.
John Dale Dunn MD JD is an emergency physician and attorney, both for more than 40 years who lives in Brownwood, Texas.