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Daniel Penny Is Not Guilty. Justice Wins In Spite Of New York’s Rigged Court System.
Big breaking news today. In the trial we’ve been following very closely, Daniel Penny, the man who stepped up to protect a subway car full of passengers from a violent, drug-addled vagrant, has been found not guilty. He is a free man. Justice has prevailed.
In spite of all that was stacked against him, in a trial that never should have happened, Daniel Penny will walk free. He should be awarded the Medal of Freedom for the courage he showed on that train that day — and maybe, with Trump coming in, that may still happen — but for now he will have to settle for, if not the Medal of Freedom, than freedom itself.
Here’s Newsmax breaking the news:
BREAKING NEWS: Jury finds Daniel Penny not guilty of negligent homicide. pic.twitter.com/AhaucyvGQz
— NEWSMAX (@NEWSMAX) December 9, 2024
This is, of course, a major victory for justice, fairness, and the rule of law. But we should not succumb to the temptation to just move on, let bygones be bygones, and forget about the injustice and persecution Penny suffered, as if the not guilty verdict means there is no harm and no foul. Penny’s acquittal is a credit to the jury, which ultimately made the right choice, in spite of the media pressure and violent threats from the crazed mob of BLM protesters outside and around the country. But justice is happening here in spite of the court system in New York. In spite of the corrupt, far-Left prosecutor. And in spite of the judge.
So, let’s go back and review what happened just in the last couple of days, before this verdict was decided. There was an attempt — a rather desperate one, at the last minute — to rig this trial once and for all against Penny. It failed. But we should remember it, and talk about it. And before we do, I want you to remember back to the trial of Kyle Rittenhouse, when one of the arguments we heard — over and over again — was that Rittenhouse had unlawfully carried a firearm across state lines. PolitiFact published a whole “fact check” asserting it was false to claim that Rittenhouse had any legal right to possess his AR-15 in Kenosha. Don Lemon, meanwhile, claimed that Rittenhouse was a “white teenager who crossed state lines with an AR-15-style rifle.” Joe Scarborough said, “He crossed state lines with an AR-15.”
Various members of Congress made the same claim, clearly implying that there was something sinister — even illegal — about Kyle Rittenhouse possessing and transporting his firearm.
Ultimately the entire narrative fell apart — and not just because Kyle Rittenhouse never actually crossed state lines with an AR-15. Shortly before jury deliberations began in Rittenhouse’s murder trial, the prosecution was forced to admit that, under Wisconsin law, Kyle Rittenhouse had every legal right to possess his rifle. That’s because the rifle barrel of Rittenhouse’s AR-15 was longer than 16 inches, which is the minimum barrel length that Wisconsin state law allowed. So with very little fanfare, after months of lying by the press, the judge dismissed the gun charge against Rittenhouse before the jury could even consider it.
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That’s the normal procedure that occurs in a criminal trial before the judge sends the jury to deliberate. It’s the kind of thing that happens when the judge is interested in a fair trial, as the Rittenhouse judge clearly was. Before the jury gets the case, there’s an effort to make sure that the jury is considering a specific slate of charges that are well-founded in the law. You want to clarify exactly what charges the defendant is facing, prior to sending the jury away to deliberate.
Otherwise — if you start removing or adding charges after deliberations have begun — then you risk confusing the jury and sending signals that are obviously unfair to the defendant. This is the kind of thing that fair prosecutors and fair judges do everything they can to avoid.
What happened in the Daniel Penny case on Friday, on the other hand, demonstrates once again that neither the judge nor the prosecutors were remotely concerned about basic principles of fairness. Fortunately the jury was, but they weren’t. So, after several days of deliberation in the Penny case, the jury announced that it was deadlocked on the second-degree manslaughter charge, which requires the prosecution to prove beyond a reasonable doubt that Penny deliberately disregarded a serious risk of causing death to Jordan Neely, and that Penny did not act in self-defense.
In response, the judge sent the jury back for some more deliberations to make sure they were deadlocked. This is called an “Allen charge” or a “dynamite charge,” and it’s normal in many jurisdictions when a jury says that it can’t reach a verdict, including New York. The idea is to remind jurors that it’s important that they try to reach a unanimous verdict if at all possible, without forcing them into finding one.
And then after receiving this “Allen charge,” the Penny jury confirmed that, indeed, they were deadlocked on the first count. The jury did not return any verdict on the lesser-included charge of criminally negligent homicide, which requires that the prosecution prove beyond a reasonable doubt that Penny should have known he was posing some deadly risk to Jordan Neely, even if he didn’t deliberately and consciously ignore that risk. It also requires that the prosecution prove, beyond a reasonable doubt, that Penny was not acting in self-defense.
At this point, the appropriate thing for the judge to do would be to declare a mistrial. That’s what should happen when a jury repeatedly says they can’t reach a verdict, after deliberating for several days, and after the judge does his best to remind them of the importance of finding a verdict. Any other result risks influencing the jury, and suggesting that they should reach a certain outcome. It also happens to be inconsistent with New York law.
But instead of declaring a mistrial, the judge — whose name is Maxwell Wiley — decided to do something that, by his own admission, doesn’t have any precedent in his state. He dismissed the manslaughter charge entirely and left the criminally negligent homicide charge intact. And then he told the jurors to come back for more deliberations on Monday. Watch:
What’s not captured in that CNN segment is that, by the judge’s own admission, what he was doing in the Penny case has no precedent. It’s not just lawyers and CNN commentators who are saying this. As the judge put it, “I’ll take a chance and grant the prosecution’s application.”
Yes, the judge actually said that. He said he’ll “take a chance” and implement a novel application of criminal law by dismissing the manslaughter charge while retaining a “lesser-included” offense. He’s conducting a little legal experiment in the middle of a homicide trial. He’s throwing out the established rules, and effectively allowing the prosecution to change their strategy, after jury deliberations have already begun.
This was clearly a violation of Daniel Penny’s constitutional rights. He has the right to be treated like every other criminal defendant, under the Due Process Clause of the Constitution. But the prosecution and the judge abandoned that principle for the most flagrantly political reasons imaginable. Instead of the jury getting an “Allen charge,” they’re now being told to conduct a whole new set of deliberations, with new rules.
To give you a sense of why this was such a significant ruling, take a look at the verdict form that the jury was considering. Here it is:
It begins by stating that, if the jurors find Daniel Penny guilty of manslaughter, then they’re done. They don’t have to consider the “lesser-included” charge of criminally negligent homicide.
But then the form goes on to state that:
If you find the defendant not guilty of count 1, manslaughter in the second degree, for the reason that the People have failed to prove beyond a reasonable doubt that the defendant was not justified, then you must not consider count 2, criminally negligent homicide, and you must also find the defendant not guilty of that count.
The form continues:
If you find the defendant not guilty of count 1, manslaughter in the second degree, for some reason other than the lack of justification, then proceed to, consider, and render a verdict on count 2, criminally negligent homicide.
What this is saying is that, if the jurors found that Penny was justified and acted in self-defense — to protect himself or others on that subway car — then a “not guilty” verdict on the manslaughter charge means that there also should be a “not guilty” verdict on the criminally negligent homicide charge. And that’s a pretty clear logical progression. Self-defense is a total defense to both charges, not just one of them.
Now, very abruptly, the jury is being asked to throw out this whole logical progression. These instructions have basically been revised after-the-fact. Now they’re being asked to consider the charge for criminally negligent homicide in isolation.
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Again, it’s impossible to ignore the natural effect this was meant to have on the jury. The message was very clear. The judge was essentially telling the jury to compromise and convict on something.
Officially, the judge’s reasoning was that, in most other cases, there’s a, “very clear” difference between the primary charge, and the “lesser-included charge.” But he said that’s not the case in this trial. So that’s why he says he allowed the prosecution to dismiss one of the charges while keeping the other, after the jury had already deliberated.
This is a move that can politely be described as “novel,” as the defense attorney’s put it. More accurately, it’s a sleight of hand that undermines the legitimacy of the entire criminal court system. But the state of New York is evidently willing to sacrifice the legitimacy of its judicial system — whatever’s left of it, anyway — in order to punish Daniel Penny by any means necessary. And yet they still failed, because God is good, and truth wins in the end.
Not that it really needs to be said, but the point of laws — especially criminal laws — is not to be “novel.” It’s to establish rules that apply to everyone, so that they can be enforced fairly, without regard to politics. Once prosecutors start bending the rules and coming up with “creative” ways to imprison American citizens, it’s clear that they’re not actually concerned with justice. They’re activists who want to punish their political enemies. And in New York, the judges are activists too, so they go along with it.
Last week, we talked about the prosecutor in this case, Assistant Manhattan District Attorney Dafna Yoran. Just a few years ago, she dramatically reduced the sentence of a black man who brutally killed an Asian man during an ATM robbery, because she said she felt sorry for the “trauma” in his life. She didn’t want to apply the law — which clearly applied to the assailant’s conduct — because she wanted to try out a novel concept called “restorative justice.”
In the Penny case, this same prosecutor was using a “novel approach” for a very different purpose. She decided, this time around, to go out of her way to punish a defendant in a homicide case. She employed every legal technicality in the book to throw him in prison. In fact, she came up with new technicalities that have never been attempted before. And it’s not hard to see why that is. Sure, Daniel Penny acted in self-defense, unlike the ATM robber. Sure, Jordan Neely was a menace to society, unlike the professor who was murdered while he was withdrawing $300.
But also unlike the ATM robber, Daniel Penny is white. And for that reason — and that reason alone — the jury in this case was forced to continue deliberations. The judge and the prosecutors refused to drop this case, long after it’s clear that they’re legally obligated to do so.
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Ultimately, they failed in their scheme. The whole thing backfired. Now they can’t retry Penny for the charge that was dismissed, because they dismissed after deliberations began, so double jeopardy protections apply. And obviously they can’t try again on the charge he was just acquitted of. If they’d taken the mistrial last week, they could have kept trying to throw Penny in prison. But they gambled that this maneuver would result at least in a conviction on a lesser charge, and they’d still be able to throw Penny in prison for four years and ruin his life.
That was the calculation. It didn’t pay off. They failed. They tried to railroad him, but they failed. We should never forget that. Daniel Penny surely won’t. But for now, what matters most is that he won. Justice won. And justice won in spite of the very people who are supposed to ensure that it wins.
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