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THE PEOPLE OF THE STATE OF NEW YORK V. DANIEL PENNY—A STUDY IN PROSECUTORIAL LAWLESSNESS
OVERVIEW & INTRODUCTION
Alvin Bragg and Letitia James, the two most powerful law enforcement authorities in the increasingly woke and lawless state of New York, have continuously demonstrated that they will use political pledges and nods to their base to distort the proper role of a prosecutor in the American justice system. From the ridiculous cases targeting Trump and his business, critiqued in an earlier edition of this blog, to now putting a 25-year-old former Marine with no criminal record on trial determined to prove that this good Samaritan is in fact a criminal who belongs in prison, Bragg has shown he is unfit for this sacred office infused with the public trust. Seeking justice and using the appropriate discretion to decide what to prosecute and who to place in jeopardy of losing their freedom, their civil rights, and their reputation requires acumen and character in a chief prosecuting official. This slovenly, brainless coward has none of that. I am a member of the New York Bar, and I mourn the days when integrity in such an office was assumed. No more. But for the fact that it would disappoint my grandfather, I would surrender my license earned there through hard work decades ago.
SELF DEFENSE AND JUSTIFICATION ARE THE MOST ANCIENT OF LEGAL PRIVILEGES
Socrates and Cicero wrote about and taught the concept of self-defense as a basic civil right, and as a Roman statesman, Cicero called it a “natural moral right and privilege.” Depending upon your belief system, man has been on this earth for thousands of years, and in the gypsum sands of the New Mexico desert, there is evidence of man operating within family units over 20,000 years ago. It is certain that these rights and privileges were forged in the crucible of human development and evolution and found their way along the millennium to common law, which, as a result, has become the jurisprudence of scores of countries around the world. Not in Alvin Bragg’s New York City.
YOU WOULD BE SURPRISED TO KNOW THAT IN ENGLAND OR GERMANY DANIEL PENNY COULD NOT BE PROSECUTED OR IN THE ALTERNATIVE HIS ACQUITTAL WOULD BE CERTAIN IF HE WAS
In the unlikely venue of Germany, the law of self-defense has been the subject of volumes of scholarly work. There is a common theme in their law, and that is “The right does not yield to the wrong.” This predates the evil imprimatur Hitler placed on Germany’s civil and criminal codes. In a famous case known as the “Fruit Tree” case, a German fruit grove owner came upon a thief who had been in the process of stealing a bushel of his crops. The farmer was armed, apparently anticipating this, and he told the thief to drop the bushel. The thief ran and was shot and killed. He was either not charged or acquitted upon this principle, which goes much farther than the law here. We cannot use deadly force to protect property in the US. But the farmer was in the right and the thief was in the wrong. In England, an “honest” belief that deadly force is necessary, however “unreasonable” to the juror or judge, will nonetheless lead to acquittal if the trier of fact finds that the belief was honest and sincere. In our system, the belief must be “reasonable” and the force “proportionate.” I take this detour to establish that our laws of self-defense are not, as criticized in the media by AOC and her Marxist conspirators, a license to kill as in the “Wild West” or facilitating a vigilante’s playground. Far from it. We have a reasonable law that needs to be carried out and interpreted by ethical prosecutors. That brings us to Daniel Penny. I reiterate that he probably would not be tried in England or Germany. Go figure.
DANIEL PENNY MUST BE SHOWN TO HAVE NOT ACTED IN SELF DEFENSE ALSO KNOWN AS JUSTIFICATION UNDER NEW YORK LAW—HOPEFULLY BRAGG CANNOT OVERCOME THIS HURDLE
On a May day in 2023, Jordan Neely walked onto a New York subway car—a moving underground crime scene in recent years with no real escape—and announced that someone was going to die and that he was going “back to Riker’s.” He in fact had just been released from there after serving a sentence (perhaps reduced by Bragg) after striking a woman so hard she suffered eye damage. He had a long history of mental illness, threatening assaults and committing assaults. Bragg and the proper authorities in NYC failed to have him committed, and on several such previous occasions he could have been detained and hospitalized by the NYPD. On this last day of his life, Neely was menacing and desperate by all witness accounts. Also riding that car was Daniel Penny, a former Marine who looks like he stepped out of central casting. With no apparent criminal record, he immediately, and during Neely’s threats, took him to the floor of the subway car and restrained him with a “chokehold.” His intent was to incapacitate Neely and prevent him from making good on his promise until the police could arrive. The video establishes that this took six minutes. Neely, who was under the influence of a periodic table of drugs, went limp and could not be resuscitated. The Medical Examiners report has information that would question the conclusion that the cause of death was by airway restriction. Maybe Bragg got to him. Video and witness evidence establishes that at least one African American bystander helped Penny restrain the violent Neely, also black; however, this person received the benefit of Bragg’s discretion; Penny didn’t. In the aftermath, the NYPD did not seek charges because they felt Penny’s actions were justified. Enter AOC, who called it a “lynching,” George Floyd was invoked, and the cavalcade of NYC socialists, who saw this as a perfect opportunity to stir up race conflict, sung in chorus. Penny, who is white, acted in such a way that a black man died. A perfect scenario for political scum to fan the flames that Al Sharpton stoked years ago. Eleven days later, Bragg was determined to present to a grand jury, which is quite easy and secured indictments for both reckless and criminally negligent homicide. He doesn’t have to prove that Penny intended to kill Neely, just that his actions were either reckless or criminally negligent. Although both probably will not make it to the jury, combined, they place Penny in jeopardy of a 19-year sentence, and he will not survive confinement. People are waiting for him.
Jury selection has proved difficult for Bragg, who concedes a conviction will be “difficult.” Many questioned potential jurors have revealed that they have been threatened in the volatile confines of a speeding underground crime scene known as the subway. If that is so, why bring the charge to begin with? Well, it is because this shameless hack wishes to appease the extremes whose support he needs to keep power. No regard for the law or the practical hurdles to a conviction. The trial alone is his sop to these radicals. Who cares about Penny, who would certainly have to answer in civil court, but at least he would not face an uncertain fate in the penal system.
THE NEW YORK DEFENSE OF JUSTIFICATION
New York Penal Law 35.15 establishes the concept of justification, which incorporates the long-standing common-law principle of defense of self or others. New York’s highest appellate court, the Court of Appeals, has affirmed that this section codifies the natural inalienable right to self-defense or defense of others long recognized at common law. Daniel Penny was privileged to use physical force, even deadly force, which he did not intend to wield, to defend himself or the others threatened in the subway car, and the law would recognize his conduct as simply NOT CRIMINAL. MOST IMPORTANTLY, when this instruction is given, Bragg’s office must prove the ABSENCE of justification BEYOND A REASONABLE DOUBT, the same standard that he must prove to establish that at some point during those six minutes Daniel Penny became a criminal. A heavy burden. A courageous judge could take the case from the jury and dismiss the charge. In Manhattan? Don’t hold your breath.
CONCLUSION
This is where a reasonable, ethical, and competent prosecutor would have made the right decision. That he cannot prove beyond a reasonable doubt—a doubt that would give someone pause in making the most important decisions in their life—that a former Marine with a spotless record did not properly act with justification to protect himself and others from the violent threats of Jordan Neely. He would announce to the disappointment of the assembled Marxists that this is a civil matter and that he cannot secure a reliable conviction and expend significant resources. That would be the right decision. Alvin Bragg is incapable of that.
Mike Imprevento
October 2024
