RUTHFULLY YOURS

Tragically, the homicide trial of former Marine Daniel Penny, in connection with the choking death of Jordan Neely, a violent, mentally disturbed vagrant who was menacing passengers on a New York City subway train, is underway. Jury selection began on Monday.

Last spring, Penny, who happens to be white, was indicted by Manhattan’s elected progressive, Democratic district attorney, Alvin Bragg — not long after Bragg indicted Donald Trump in the farcical case that was tried earlier this year. There is a symmetry here.

The Progressive Prosecutor Project is mainly about two things: using government’s law-enforcement apparatus against the political enemies of progressive Democrats and converting the justice system into a racialized morality play — not law and order but oppressors and oppressed. Just as Bragg would never have charged Trump if the former president hadn’t been the Democrats’ political nemesis and likely opponent in the 2024 election, Bragg would never have charged Penny had Penny been a black former Marine who intervened to protect himself and other passengers from Jordan Neely — particularly if Neely, who was black, had happened to be white.

I wrote about the Penny case following the fatal incident that led to the indictment. (See, e.g., here, here, and here.) To summarize, Neely was a predatory, mentally unstable career criminal with over 40 arrests to his name. At the time of his confrontation with Penny on the F train on May 1, 2023, he was fresh off a stretch in the Rikers Island detention center for punching an old woman in the face, breaking her nose and eye socket. He habitually harassed and threatened subway riders. He was doing precisely that on the F train that fateful day, ranting that “someone is going to die today” and that he was “ready to go to Rikers.” Penny intervened along with other passengers. Only Penny was charged. In subduing Neely, Penny allegedly kept him in a chokehold for about six minutes.

The law permits a person acting in self-defense to continue detaining a threatening person, even after that person has been subdued, until the police arrive. Penny and other passengers did that. Unlike the Minneapolis police officers’ detention of George Floyd in the infamous 2020 case, Penny and others rolled Neely into a position that would enable breathing. Prosecutors contend that this was done too late.

There are additional similarities between Bragg’s prosecution of Penny and Minnesota prosecutors’ case against Derek Chauvin, the main police officer implicated in Floyd’s death. First, there is a video of the altercation, which prosecutors will present in a tantalizingly slow, frame-by-frame manner designed to elongate the chokehold in the minds of jurors — i.e., to suggest that even if Penny was in the right when the physical confrontation began, his actions at some point crossed the line into lawlessness. Second, there is an ambiguous medical-examiner report — defense lawyers argue that the medical examiner did not provide specific evidence that Neely died directly or solely due to the chokehold. Finally, there are also causation questions due to Neely’s drug abuse and overall health issues — the toxicology report confirmed that Neely had the synthetic cannabinoid “K-2,” an illegal narcotic, in his body, though the report fails to quantify an amount; K-2, which can trigger hallucinations and violent behavior (making a person more difficult to subdue), can also prompt rapid heart rate, high blood pressure, seizures, and death.

Penny is not charged with murder. No one claims he intentionally killed Neely. Rather, Bragg has brought two lower homicide charges: second-degree manslaughter and criminally negligent homicide. To repeat what I explained after the indictment was filed:

The difference between these charges is essentially the difference between recklessness and mere negligence.

Under Section 125.15 of the Empire State’s penal code, second-degree manslaughter occurs when a person “recklessly causes the death of another person.” The statute says that a person acts recklessly, in this context, when he “is aware of and consciously disregards a substantial and unjustifiable risk that [death] will occur.” The risk involved must be of such a nature and degree that this conscious disregard of it “constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” Second-degree manslaughter carries a potential sentence of up to 15 years in prison.

By contrast, Section 125.10 provides that criminally negligent homicide occurs when “with criminal negligence, [a person] causes the death of another person.” The statute says that a person acts with criminal negligence, in this context, “when he fails to perceive a substantial and unjustifiable risk that [death] will occur.” The act is deemed negligent, rather than reckless, because the actor fails to perceive the risk of death, rather than perceiving but consciously disregarding it. Criminally negligent homicide carries a potential sentence of up to four years in prison.

I also elaborated on Bragg’s strategy in charging the case this way:

In light of Neely’s menacing behavior on the subway car before Penny intervened, the prosecutor grasps that a jury could easily conclude that Penny was justifiably acting in self-defense (which legally extends to the defense of other people as well). If Bragg had charged just one count, the issue would come down to “guilty or not guilty?” — and the jury could find that not guilty was the fairer result.

Bragg’s adding a second count changes the calculation. Sure, he’d love to convict Penny on both counts, but to be seen as “winning” the case, he needs to get Penny on one count. Bragg no doubt figures that, if the jurors were to find that the recklessness charge is overblown, they could see the negligence charge as more reasonable. That is, they might well decide that convicting Penny of negligence, while acquitting him of recklessness, is a fairer result than acquitting him entirely. The DA may also believe that Penny could be persuaded to plead guilty to the negligent-homicide charge, capped at four years’ imprisonment, in order to avoid the possibility of a 15-year sentence for second-degree manslaughter.

Penny, of course, has not pled guilty and does not believe he is guilty. To my mind, the technicalities are beside the point: The proper exercise of prosecutorial discretion would have been to decline charges because there was (a) no criminal intent and (b) a very real possibility that a violent career criminal might badly hurt innocent people had Penny not intervened. If Neely’s estate decided to bring a wrongful-death suit, fine; the civil-justice system is the right forum for sorting out tragic deaths in which the central issue is negligence and the decedent was contributorily negligent — indeed, was the main culprit.

The main problem with the prosecution of Penny is that right and wrong in this situation should not come down to niceties about reasonable force and duty-of-care. The subways became a hellscape in the Covid era. At the Free Press, Kat Rosenfeld provides a harrowing portrait of the three-year period in which 27 people were murdered by shooting, stabbing, or shoving in front of oncoming trains, and in which an unknown number of others were sprayed with gunfire, assaulted, menaced, and otherwise terrorized.

Bragg and his fellow progressives who run Democrat-controlled cities where crime has surged since 2019 play a cynical game: Even as they make it harder for police to respond to violent threats, they want police to be the exclusive means of response — notwithstanding that, as the adage goes, when every second counts the police are minutes away. That’s why earlier this year, Democratic governor Kathy Hochul — ever weaving between the security needs of New Yorkers and the diktats of New York progressives — deployed the National Guard and State Police into the subway to combat violent crime.

Most of the time, though, there won’t be a cop or a soldier on hand. There will be a sociopath and a carload of frightened passengers hoping that someone among them has the courage and strength to come to the rescue. On the F train that day, there was a good guy and a bad guy. Daniel Penny was the good guy. Alvin Bragg, who makes a habit of not prosecuting bad guys, indicted him. And now Penny’s fate will be decided by a jury of twelve Manhattanites, most if not all of whom will know what it’s like to ride the subway these days.