‘Mockery of Justice’: Andrew McCarthy Blasts Trial of Subway Hero Daniel Penny, Calls It a Travesty

An attorney for Marine Daniel Penny accused the prosecution of intentionally “overcharging” the subway hero in the Jordan Neely chokehold case, knowing the move would ultimately come down to the jury weighing on the “easier-to-prove” lesser charge. 

As RedState reported on Friday, the judge in the high-profile case granted the prosecution’s motion to dismiss the top charge of second-degree manslaughter before the jury broke for the weekend, leaving the jurists to weigh the lesser charge of criminally negligent homicide when court deliberations resume on Monday.

Jurors had failed to reach a unanimous decision twice, prompting the dismissal. 

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Judge in Penny Case Dismisses Top Charge, Lesser Charge Still in Play

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Attorney and National Review columnist Andrew McCarthy blasted the Manhattan District Attorney Alvin Bragg and Manhattan Supreme Court Justice Maxwell Wiley in a Sunday op-ed, accusing both of intentionally making the trial a mockery of justice.

It is a travesty that Marine veteran Daniel Penny was charged with two homicide counts by Manhattan’s elected progressive-Democratic district attorney, Alvin Bragg, over the death of Jordan Neely – who was menacing frightened subway passengers when Penny subdued him. 

How fitting, then, that the conclusion of the jury trial, which began eight weeks ago, is proving to be as much a mockery of justice as the rest of the proceedings have been.

Bragg, of course, became infamous for his aggressive use of lawfare in his criminal case against now-President-elect Donald Trump for falsifying business records. 

McCarthy wrote in his op-ed that Bragg “executed a couple of cynical stratagems to increase his chances of convicting Penny” (emphasis, mine).

The first involves the crude racialist politics of the progressive-Democratic base that got Bragg elected in 2021. This faction looks at life as if it were a Howard Zinn revisionist history textbook, in which the world is divided into oppressor and oppressed classes, with race as the full-field theory for interpreting all phenomena. 

In the real world, there wasn’t anything racist in Penny’s intervention as Neely threatened passengers. Yes, the happenstance is that Penny is white and Neely was black; but Neely was intimidating all the train passengers regardless of race. 

Penny was assisted in subduing him by non-white passengers. Some of the best witnesses in the case for Penny have been black passengers, who have described how scared they were and how heroic Penny was.

Yet Wiley allowed Bragg’s office to consistently refer to Penny as “the white man” and “the white defendant” in the trial. 

McCarthy described the injustice perfectly:

Whiteness is irrelevant, there being not a scintilla of proof that [Penny] was bigoted. Bragg’s approach is transparently jaded: appeal to any Manhattan progressives on the jury with a race-based ideological pitch that social justice demands finding Penny guilty.

Ahh, “social justice.” Social justice belongs on the trash heap of history, right next to DEI (diversity, equity, and inclusion).

McCarthy described Bragg’s second stratagem thusly:

The second stratagem involves how the case was charged. While I don’t think Penny should have been indicted at all, this is not even arguably anything more than a negligence case. Penny was legally justified in using force to protect himself and other passengers. By law, such justification allows a person to subdue the aggressor until the police arrive. 

The question, then, is whether Penny was negligent in the duration and force of the chokehold he used. (Aside: there is a significant causation issue in the case; i.e., there could be reasonable doubt about whether the chokehold caused death because Neely had significant amounts of narcotics in his system, which could have exacerbated his preexisting physical maladies due to the anxiety he caused by threatening subway passengers.)

“Yet, Bragg charged two counts, not one,” McCarthy noted, adding: “Rather than leading with criminally negligent homicide, the indictment’s top count is second-degree manslaughter – i.e., reckless homicide.”

Moreover, Wiley wouldn’t allow the jury to consider negligence until the reckless charge was resolved, which resulted in four days of deliberation and a deadlocked jury. McCarthy said that at that point, the judge should have declared a mistrial. “To continue at this point is to seek to browbeat the jury into a conviction,” McCarthy wrote, “I further believe it would violate New York criminal-procedure law.” 

So, How Bad Is It?

Even the satire site The Babylon Bee couldn’t resist the mockery of justice.

Judge Maxwell Wiley has ordered the jury in Daniel Penny’s trial to go back and keep on deliberating until they come back with a different verdict.

After four days of deliberation, the jury announced that Penny could not be found guilty of manslaughter. Judge Wiley asked if maybe the jury could just pretend that never happened, and instructed them to think of some new charge to deliberate about until they changed their minds.

Perfect example of good satire: more truth than not.

Daniel Penny Judge Tells Jury To Go Back And Deliberate Again Until They Come Back With The Correct Verdict https://t.co/YVmK2Rfnlx pic.twitter.com/plv2AsqyaF

— The Babylon Bee (@TheBabylonBee) December 7, 2024

So, the band of the unjust plays on.

Yet, as RedState also reported on Friday, Arizona Republican Rep. Eli Crane is planning to introduce a resolution to award Daniel Penny the Congressional Gold Medal, Congress’ highest civilian honor. 

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This Is the Way: Lawmaker Wants to Award Daniel Penny With Congress’ Highest Civilian Honor

Even if Daniel Penny is ultimately found guilty on the lesser charge, America will be reminded once again about the unjust ways of the left.

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