GREGG JARRETT: Daniel Penny is not guilty but DA Bragg has done lasting damage

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Now and again, justice is vindicated and right triumphs over wrong.   

With its “not guilty” verdict on Monday, a Manhattan jury unanimously sent a resounding message to District Attorney Alvin Bragg that he wrongfully prosecuted a good Samaritan. A man who courageously came to the aid of subway passengers who were threatened with imminent death.  Not that Bragg will pay any heed.  

The case against Marine veteran Daniel Penny should never have been brought.  It was a gross injustice.  By law, he was justified in using reasonable force —even lethal force— to subdue a maniac who vowed to murder riders the moment he entered a subway car.  That man, Jordan Neely, initiated the confrontation and died as a result of his own menacing and illegal actions.

DANIEL PENNY FOUND NOT GUILTY IN SUBWAY CHOKEHOLD TRIAL

Instead of being commended, Penny was pilloried as a bigoted vigilante by the usual crowd of racial justice warriors who yearned to turn Neely’s death into another George Floyd outrage.  Bragg, who sees everything through the prism of race and politics, was more than happy to do their bidding.  At trial, his lead prosecutor referred to Penny as “the white man.”  It was reprehensible.

But in the end, 12 diverse jurors refused to abide the blatant race-baiting.  They were well acquainted with the perils of New York’s treacherous subway system, which has experienced a 60% increase in murders this year, according to police statistics.  Stabbings, shootings, beatings, and robberies now seem commonplace as criminals roam freely in the underground transit system searching out their next victims.

Jurors accepted as true the testimony of passengers —some of whom are Black— that they were grateful when Penny came to their rescue.  Neely terrorized them.  They were panicked and stricken with fear that their lives were about to end.  Far from a rogue criminal, the former marine was perceived by those in danger as their beneficent and heroic figure.

Bragg didn’t care about the innocent sufferers who were threatened with death.  His idea of “restorative justice” has always been centered on protecting criminals.  During trial, his prosecutors contemptuously dismissed passenger accounts of what happened that terrible day while manipulating evidence to transform Neely from villain to victim.

ANDREW MCCARTHY: PROSECUTOR, JUDGE MAKE MOCKERY OF JUSTICE IN TRIAL OF SUBWAY HERO DANIEL PENNY

Errant rulings from the bench made Penny’s defense all the more difficult.  When jurors were deadlocked on the most serious count of manslaughter after almost 30 hours of deliberations, Judge Maxwell Wiley went along with the D.A.’s request to withdraw the charge even though prosecutors spent weeks telling the jury that the accused was guilty of it.       

The judge’s ruling was improper.  He contradicted his own earlier ruling that the jury could only consider the lesser count of criminally negligent homicide if they first found Penny “not guilty” of the top count.  That didn’t happen.  The judge appeared to acknowledge that a dismissal was impermissible, but then did it anyway.  

Indeed, the rules that govern criminal procedure require a mistrial in the event of a hung jury unless the defense agrees to a dismissal.  Penny’s lawyers did not.  

It may seem anomalous or inconsistent that a jury could be deadlocked on the more serious crime but acquit the defendant on the lesser charge.  But jurors are allowed to change their minds during deliberations as they reconsider the evidence and absorb counterarguments behind closed doors.   

Although he may be foolish enough to try, Bragg can not re-charge Penny on the manslaughter charge that he voluntarily dismissed amid deliberations.  Jeopardy attaches when a trial jury is empaneled and sworn in.  Hence, a second prosecution would be prohibited under the constitutional doctrine of double-jeopardy in the Fifth Amendment.     

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Inevitably, social justice activists promptly decried Penny’s acquittal and ramped up their protests.  Demonstrators outside the New York courthouse took up chants of “no justice, no peace,” the implicit threat of violent unrest that became a raucous symbol of the Black Lives Matter movement.  The mob is, if nothing else, unrelenting.  

Within minutes of the verdict, BLM-connected provocateurs unleashed incendiary threats by calling for “black vigilantes” and “retaliation.”  Their goal is to gin up racial hatred under the guise of egalitarian justice.  They condemned the trial outcome as a victory for white supremacy and the Ku Klux Klan.  

It is a sad measure of our times that such despicable demagoguery has a dedicated audience of witless disciples.      

For Daniel Penny, the jury’s correct decision offers immediate relief to the criminal ordeal that he has endured with dignity for the last 18 months.  He is absolved, but unfairly stained.  He still faces a civil lawsuit filed late last week by Neely’s absentee father. 

I would not handicap the plaintiff’s case as having a prosperous future.  It is true that the standard of proof is lower in a civil action, but any recoverable damages would be speculative and minimal.  

Typically, a parent will sue for loss of companionship or future financial support.  Here, there is none.  An indigent and estranged son with little or no contact with his father would not net a meaningful windfall.  

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Unfortunately, the larger societal damage that Bragg’s unwarranted case has wrought may be borne by future crime victims in New York and perhaps elsewhere.  Knowing that an elected district attorney is eager to prosecute well-meaning Samaritans will likely deter them from defending others who are preyed upon.  The weak and the vulnerable among us may become easier targets.  

That is the tragic epitaph of the Daniel Penny trial. 

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