Transcript
I'm Alice. And I'm Brett. And this is the prosecutor's legal news. Hey, guys. This is Brett from the prosecutors legal briefs. Just me today. Alice is still recovering, still enjoying her little baby boy. Thank you guys so much for all your thoughts and prayers. I know she really appreciated it. Everybody's home. Everybody's healthy. Everybody's doing great. So we really appreciate you guys. It's just me today, which I know is a little weird, but I did wanna talk a little bit about the Daniel Penney case. I know a lot of you all have been following that today. As I'm recording, Daniel Penney was acquitted. Acquittals are interesting things because for good prosecutors, a not guilty verdict, it isn't something to necessarily be ashamed of. You guys know it. Juries are unpredictable and hard cases with real victims are often worth pursuing even if they end in a defeat. And prosecutors should decide whether to pursue a case based on the strength of the evidence and their reason belief the defendant is guilty beyond a reasonable doubt. And a prosecutor who decides not to bring a case because he's afraid he's going to lose it is not a good prosecutor still. When a prosecution fails, there are always lessons to be learned. And boy, is that true of the Daniel Penney case in New York City. I know there are probably some of you who don't know the background of this case. I'm going to give you a brief one. There's more to learn. But Penny, he was recently acquitted in the choke hold death of a man named Jordan Neely. Neely was 30 years old. He was homeless at the time of his death, and he had a history of suffering from mental illness. According to witnesses who testified, Neely entered a New York City subway car in the midst of some sort of mental break and possibly high on synthetic marijuana. I think the prosecution actually conceded that he did have synthetic marijuana in his system at the time. And he shouted about wanting to go to prison. He shouted about how he was ready to die. He supposedly threatened riders. Some of the witnesses reported that they feared for their lives. Now Penny was a 24 year old marine and he put Neely in a choke hold, and he eventually rendered him unconscious. Now Penny would later say that he was driven to act when Neely approached a mother and her son and told her, I will kill. And Neely subsequently died and Penny was charged with second degree manslaughter and criminally negligent homicide. There was a lot of things at issue in this case. One of them was whether or not Penny acted reasonably in sort of a self defense type situation. There were also questions about the cause of death for Neely. Was it really what Penny did or not? And given the close proximity between death and Penny's actions, I think we can probably say that there was a relationship there. But look, that was something that was contested at trial. I can't say. I didn't watch the whole trial. I went on the jury. But one thing I can say for certain is that there was a trial and the jury deadlocked at the end of it. On the second degree manslaughter charge, that was the more serious of the 2. And basically, because of the way the jury instructions were written in the law in New York, you could not convict on second degree manslaughter or you could not reach criminally negligent homicide until you had a decision on second degree manslaughter. So since they were deadlocked on that, they're essentially deadlocked on everything. The judge did what judges often do in situations like this, gave the jury an Allen charge. And this is a special charge intended to spur hung juries to a decision, but the jury remained at an impasse. Now ordinarily, a deadlock after an Allen charge leads to a mistrial. But the prosecution here, they took the highly unusual step of asking the Court to dismiss the 2nd degree manslaughter charge and instruct the jury to continue to deliberate on the lesser offense, criminally negligent homicide. This is not something you see every day. In fact, I don't know that I've ever seen it. Maybe it's more common in some jurisdictions, but this was a weird one for me. And, it's pretty obvious the prosecution hoped, believed that by dropping the most serious charge, it would spur the jury to action and that maybe non guilty jurors would side with them. But if that was what they hoped, they were mistaken. The jury acquitted Penny on the lesser charge. And that is the end of this case. You dismiss that one count, that first count. Jeopardy had already attached. The jury was in the box. That charge is gone forever. You can't now say, well, nevermind, we're going to bring it back. No, this case is over. And because he was tried, you couldn't bring other related charges. Anything that arises from this, this common nucleus of facts, as people often call it, is done. It's over, penny has been acquitted, He's going to go free. Now, like with most acquittals, as I said earlier, there are lessons to be learned here for everyone involved. Arguably, and this is one of those things that would be argued strenuously, This is a case that should never have been brought. Penny, obviously, I think this has been proven, I guess, by what the jury did, had a strong defense. Neely was threatening serious bodily injury or death to others. And that's a situation in which a bystander is allowed to step in and neutralize the threat. It's actually basic common law self defense. And in a lot of cases, I don't even think that would be contested, but this case had a racial element. Penny is white, Neely was Black. And there were a number of civil rights organizations that demanded action in this case. They thought this did have a racial aspect. They thought, and perhaps they're correct about this, that if Neely had been white, the reaction would have not been as violent. It would not have led to his death. I don't know whether they're right about that or not, but it's certainly an argument that you can make and you can understand why they made it. And look, I have no problem with the public, with groups like this holding prosecutors accountable and demanding action when they think action is necessary and to take cases like this seriously and to look hard at them. But that's what that means. I mean, that's what she should be demanding, an open and honest evaluation of the evidence and of potential defenses and the prosecutors should not bring a bad case simply because the people demand it. Mob rule, I don't care why you have it, even if it's for a good cause, it is anathema to our system. It is a bad thing. And if prosecutors had taken a serious look at this case and decided not to pursue it, a detailed and reasoned accounting of why they took that course could have gone a long way to dousing simmering racial tensions in the city. Look, you may think this is Pollyanna of me and maybe it is, but I'm not saying that everyone would have agreed with that. I'm not saying that if the prosecutor in New York had looked at this case and said, look, there's there's not a case here, the evidence isn't there, the defense is too strong, maybe even the defense is justified, but this is a tragic case all the way around, but we can't say it's a criminal case. There would be people who would be angry about that. There would be people who projected that. There would be people who would take political action because of that. But there also would be people who would listen and would say, okay, there are people who would buy that. And certainly, I think it sets up a situation where at least people feel like this is not something that is purely racial. This is not something where a jury is rejecting a conviction solely because of the race of the defendant. I don't think that's what happened here, but there certainly are people who do. And if you had someone in a position, an elected prosecutor especially who is connected to the community, who came out and said, I've looked at this and I don't think there's a case here, I I think that goes a long way. And frankly, that is one of the responsibilities of a prosecutor. One of the responsibilities of a prosecutor is to say to the public, there's not a case here and I'm gonna take the hit for that. You know, you may be mad, but I'm gonna take the hit. You may be saying, well, maybe the state did perform that examination and just decided to go ahead anyway because they thought the case was there and they thought it was strong. Well, I think the problem with that argument is it is belied by their willingness to so quickly dismiss the most serious count, And that would indicate they didn't do that. I mean, there's a big difference between these two counts, between criminally negligent homicide, which is a very low level crime, which is basically just you kinda made a mistake and somebody died and you should have known better, Basically, you look down at your phone for a second and run a stop sign and hit somebody and they die. I mean, that might be criminally negligent homicide. You obviously had no criminal intent. You didn't mean to do anything. Just something went horribly wrong. You did something you shouldn't done. Somebody died. 2nd degree manslaughter is a lot worse. The sentence is a lot worse. 15 year sentence for that. And you would think if you took a hard look at this case, and you thought that was appropriate, that you wouldn't be so quick to dismiss it, particularly in circumstances such as this. And it seems like if they didn't have confidence in the case before, it was, it was pretty easily shaken. And I want to talk about that more. But I also think there is a more subtle lesson that's lurking in this case, and it's one for prosecutors around the country. Do not play games with juries. You know, the decision to attempt to break a deadlock by dismissing a count, it smacks of jury manipulation and coercion. The prosecution shouldn't have tried it, and the judge shouldn't have allowed it. This episode is brought to you by Progressive Insurance. Hey, guys. Whether you love true crime or comedy, celebrity interviews, news, or even motivational speakers, you call the shots on what's in your podcast queue. Right? And guess what? Now you can call the shots in your auto insurance too. Enter the name your price tool from Progressive. The name your price tool puts you in charge of auto insurance by working just the way it sounds. You tell Progressive how much you want to pay for car insurance, then they'll show you a variety of coverages that fit within your budget, giving you options. Now that's something you'll wanna press play on. It's easy to start a quote, and you'll be able to choose the best option for you fast. It's just one of the many ways you can save with Progressive Insurance. Quote today at progressive.com to try to name your price tool for yourself and join the over 28,000,000 drivers who trust progressive. Progressive Casualty Insurance Company and affiliates price and coverage match limited by state law. Guys, we wanna talk about a podcast that we are so honored to have been a part of on multiple occasions, Silver Linings Handbook with Jason Blair. If you guys have listened to our episodes, we talk about so many things, and the thing about Jason is he is so good at interviewing. He is able to pull out thoughts and entire conversations that you didn't even know you had in you. And he does that not only when it comes to true crime and not only when it's with us, but with so many people from so many different walks of life. Areas of focus have included well-being, mental health, the law and criminal justice system, true crime, religion, society and culture, and people who are underrepresented in the mainstream media. And Jason is a former journalist who worked at the New York Times, the Boston Globe, the Washington Post, and other newspapers, and you will see it. He is a journalist at heart, and he has never lost that urge to find interesting things and to find the truth. What we feel makes the podcast difference is that it is truly not scripted. I can promise you that having appeared on this show multiple times, basically, we never talk about the things we're gonna talk about. It is not scripted at all, and he uses the same natural curiosity you would have sitting in the living room, and his focus is on making a difference. That's so true. I really love this podcast because no matter if you've heard this person speak before, Jason somehow is able to put everyone at ease and share some of their deepest, most inner thoughts, and you walk away learning more not only about the interviewee, about Jason, but about yourself and humanity. This podcast focuses on the big cases like the murder of Gabby Petito and the disappearance of Maura Murray and Brianna Maitland through interviews with their loved ones. But this year, Jason has also had a particular focus on indigenous people, including the missing and murdered indigenous women, violence against natives, and difficulties on reservations, a topic that you know is near and dear to the prosecutor's heart and we love that Jason has also put a particular focus on this vulnerable population. But Jason also looks at the bright side. In 2 upcoming episodes, Jason will take you to Alaska where indigenous communities have partnered with state and local officials to address the missing and murdered indigenous women crisis and to preserve native culture and their way of life. There is so much to be gleaned from this incredible podcast. Listen. You will not regret it. To subscribe, just go wherever you listen to your podcast and subscribe today, Silver Linings Handbook. The law tries quite hard to avoid even subtly coercing or manipulating juries into reaching a verdict. In the Allen charge, we've talked about that. It's right on the line. And there are a lot of defense attorneys who make some strong arguments that it's unduly coercive, that essentially it violates the due process rights of defendants. Think about it. If a juror after good faith deliberations cannot get to guilty, he can't get there, doesn't see the evidence, it's not there, can't get beyond a reasonable doubt, has all sorts of reasonable doubts, Doesn't an instruction that says, well, hey, that's great, but why don't you try harder? Why don't you work on that problem you got? Because, you know, we're all waiting to hear the verdict. Can't you see how that risks coercing them into agreeing to a verdict that they don't actually believe? Then I actually believe it's beyond a reasonable doubt. It's not like the instruction gave them more evidence. It just tells them, hey. You need to make a decision. And some jurisdictions only allow the judge to give an Allen charge once for that reason, because it's like you just keep on telling them, Hey man, make a decision, make a decision, make a decision. Eventually the jury is going to throw up their hands and say, Fine, I'll go along with what everybody else says. And a lot of people, a lot of courts say, Look, that's just too coercive. It's beyond due process. You can't do that. And so what we have here though is much worse. You know, in the Penny case you have the prosecution on the fly dismissing account in the face of a hung jury. And the message to the not guilty holdouts is clear. Be reasonable and compromise, just like we're being reasonable and compromise. Look, look how reasonable we are. You got problems with this? We'll dismiss that. That's fine. We're working together. We're trying to reach yes. We're trying to get to yes here. Right? It's almost like a negotiation. Let's compromise. Let's be reasonable. Imagine what a holdout not guilty jurors thinking in that circumstance. Now they've already been told by the judge that, hey, you need to work this out. Now they've been given the Allen charge that basically specifically instructs them that you need to reach a verdict. That's sort of your job here. It's important. Hung jury is wasteful. It's bad and all this other stuff. Now on top of that, you got the state giving up a charge that the state believed in, offering an olive branch, if you will. You know, if the state can be reasonable, why can't you? That's essentially what they're saying. And at that point, we've sort of lost the plot, right? So So we no longer have a jury working through the process, you know, designed to test the evidence against constitutional standard, figure out whether the state has produced evidence of guilt beyond a reasonable doubt. That's not the question anymore. That's not what we're talking about. Instead, you get the state engaged in this pressure campaign to break the will of the holdout. And preventing that kind of compromise is so important that it is written into most jury instructions, which urge jurors not to surrender their honestly held beliefs due to pressure or have a simple desire to end the process. And that's why, you know, some people were were surprised by this, who were sort of lay people who don't really know the score on this kind of thing. They were surprised that Penny's defense team actually opposed the prosecution's very unusual move to dismiss this charge, and they did it for this very reason, but the judge allowed it to happen anyway. But in this case, it backfired. The deadlock was broken, but it resulted in an acquittal. And this was surprising. I think it surprised most people. I think most people when they heard very quickly after this happened, the next day of deliberations, actually, there was a verdict. They thought it worked. They're gonna get to guilty. I mean, obviously at least 1 juror believed Penny was guilty of the more serious charge. If that weren't true, they would have acquitted. And yet with that charge dismissed, you got the jury turning around, and they're quickly reaching a verdict of not guilty. But why? Why did that happen? And so quickly, and we can't know, of course, unless the jurors tell us, and they may do that in the days to come. But there seem to be two possibilities to me at least, and if there are more that you guys can think of, I'd love to hear them. The first is that the jurors themselves recognized the attempt to manipulate them and they sort of acted accordingly. You know, they this was almost like a jury nullification thing where you're gonna do that? Well, I'm not gonna be a part of that. And I'm gonna vote to acquit. In my mind, that's entirely appropriate. Jurors and juries, as we've said before, they are a bulwark against tyranny. That is one of the roles of juries. That's one of the reasons we have them. Yes, they find facts, but they're also protecting our rights. So if they did that here, I have no problem with it. But the second option, which I think might actually be more likely, is that the state's move was disheartening and it was coercive, but not the way the state thought it would be. If you think about it, think about most cases, you think about what what do defense attorneys say. Defense attorneys will often say things like it only takes 1. And the idea is we only need to convince 1 juror and if we can convince 1 juror, we can get a mistrial, get a hung jury, maybe we get a better deal afterwards, maybe the state decides not even to prosecute. Worst case, we get another bite at the apple, right? And the thinking there is ordinarily holdouts tend to be 1 or 2 or 3 or 4. Really, probably doesn't get beyond that, but it can. It can be evenly divided. But usually 1 or 2 not guilty jurors. That's what we've got. We've got a couple people, got 10 guys and gals who want to convict and we got 2 people who are saying, no, it's not guilty. I'm not gonna do it. And already outnumbered without much hope of convincing their fellow jurors to acquit. You know, they're hearing the Allen charge, they're seeing this dismissal and and they are susceptible to the kind of coercion that I think the state intended here. But in this case, it appears that actually the holdouts were guilty voters, however many of them there were. And what did they see? They saw a prosecution who was unwilling to stand by the charges before them. And they may simply have lost heart. If the state thought their case was weak, shouldn't the jury feel the same way? Isn't this almost reasonable doubt in of itself the fact that the state is saying, hey, we don't even know about this prosecution. We're so unsure of this. We're willing to dismiss the main count, the one that we've been arguing this entire time. It's not hard to see why a jury would logically conclude there's a problem here. And if that was the reaction of the jury, they were entirely right. And I think it reveals something frankly that's rotten at the heart of this prosecution. You know, we had 2 men's lives that were at stake here. 1 was Jordan Neely and behind him was a family and a community who was eager for justice. Justice that the state through its actions had signaled could only be accomplished through a second degree manslaughter conviction. They are telling everyone, this is what should happen here. That's why we're bringing this charge. We believe in this case. We believe the evidence says this, this man committed second degree manslaughter and we're gonna try and convict him. And who was that other man? It's Daniel Penney. He's facing up to 15 years in prison because the state exercised its solemn obligation to determine that justice demanded a conviction for second degree manslaughter. And yet with the case not even over, the prosecution dropped the charge. Now look, I totally get it. Conserving prosecutorial resources, it has to be consideration after a mistrial is declared. But after is the key here. That's when that decision is ordinarily made. It comes after some circumspection, some thinking, some talking amongst the lawyers, talking with their bosses, talking with the police officers investigated, consulting with the victim or their family with the added information of just how many jurors didn't buy the state's theory. For all we knew, there was one not guilty holdout on the most serious charge. The charge that the state told us was necessary for justice, and yet they decided to drop that charge. And no matter what, if they hadn't done that, they can always decide to try again with a new jury. No matter what they found out, even if they found out that there was only one guilty person, if they believed in the charge and maybe they thought they could beef up their evidence some, they could have gone again. But not now. Here, the state on the fly blows up the process To get a conviction, any conviction, the state dismissed their most serious charge without even knowing the final vote count. They did so even though they knew that this charge could never be brought again. As I said earlier, jeopardy had attached. This case is over and you got to ask yourself if the state truly believed that penny was guilty of second degree manslaughter, why would it do this? If justice demanded it, why not at least consider trying the case again? The new jury and perhaps a new strategy. And look, if they had done that the state could always decide later to only pursue a lesser charge in your trial. They always could have done that And perhaps with a focus on that charge, the lesser charge, but nevertheless fully focused on that, maybe they avoid a future deadlock. Maybe they get justice for their victim. Instead, they threw away that chance and they got nothing in return for it, nothing but an acquittal. And I think that the state's decision smacks of a desire just to get a win, any win, whether it was for political gain or out of pure hubris and pride. They just wanted to get some sort of win. It wasn't about justice, wasn't about what justice required. That was no longer the primary consideration. And I think if that's true, and I think it is, the state failed in many ways and losing the case was the very least of them. It failed Daniel Penney who was branded a murderer and was forced to endure a lengthy process before his name was cleared. It failed Jordan Neely who depending on who you ask has alternatively been held up as either sort of an innocent angel, the guy who was, you know, he was a Michael Jackson impersonator. He just, he just wanted to live his life and then demonized by others as this incredibly violent person who was a threat to everyone, you know, and had all these issues. While the lost truth, the real truth is that Neely suffered from mental illness and that that mental illness and his struggles were basically ignored by society that left him out there on the street with no help to vent for himself until the inevitable occurred. The inevitable that occurs for so many people in his circumstance. And the state also failed the community. They reinforced this idea with these charges that this was a criminal act, that it was in fact a racist attack that demanded the harshest justice that they could manage. And then at the last minute, they pulled the rug out from underneath them. What does that say to them? What does that say to the community about whether or not they can trust the justice system or they can trust the prosecutors? Now, if you think the prosecution coming out and the state coming out and saying there's not enough evidence here, we don't have a case here or the defense is too strong. If you think that would have undermined their faith in the system, what does this do? What does handling it like this do? And look, people are going to continue to debate this case and we've barely scratched the surface of the facts. I'm sure people have a lot of opinions. I'm sure people on both sides are going to come and offer those opinions and offer all the evidence about why I'm generally wrong or specifically wrong about certain things. And that's fine. Go ahead. These kind of cases get debated. But I think there is one thing that should not be debated and that's that the state of New York and the prosecutors in this office failed across the board. And frankly, someone should be held to account for it. I don't know that that will happen. Don't have a whole lot of faith that will happen, but it should. Love to hear you guys thoughts in this case. Like I said, I know this one's divisive. You all handled these cases so well. Your discussions are always so respectful. I hope that you'll do that here. I really think that most people want to get to justice. I truly believe that. Like I said, maybe I'm a Pollyanna, but that's what I think. Shoot us an email, prosecutorspod@gmail.com with your thoughts at prosecutorspod for all your social media. Love to hear from you guys. You know, consider joining our Patreon. You've got these episodes early and ad free. And if you do wanna discuss this case, head head over to the gallery on Facebook. I'm sure there are great discussions going on even as we speak. Well, thank you so much for joining for these quick thoughts on this case, and we will be back next week. But until then, I'm Brett. Don't have Alice here today. Maybe she'll be back soon. And this is the prosecutor's legal case. We try to tie them to specific cases. They prefer specific cases to general legal principles. Okay. The nerdier, the better. Okay. We're hearing both sides of this. This is great. Thank you, Melissa, for saying that I have nice tea. I appreciate it. Spent a lot of money on these tea. That's right. My parents did. Oh, yeah. Probably.
Comments