Andrew Schwartz / SplashNews.com
The acquittal last Monday of former Marine Daniel Penny is a blow to Manhattan District Attorney Alvin Bragg: The jury came to the common-sense judgment that Penny was justified in subduing a threatening vagrant, Jordan Neely, on a subway last May.
Worse for Bragg is that his office’s own bizarre actions may have tipped the jury in Penny’s favor.
The jury of seven women and five men heard almost five weeks’ worth of arguments and evidence and deliberated for almost a week. And it ultimately came to a sound verdict on one of two charges: Penny had not acted in a criminally negligent way that led to Neely’s death.
But a puzzle remains: Why did the jury deadlock on the stronger count — manslaughter, with its potential 15-year-sentence — before acquitting on the weaker count, with its four-year possible sentence?
Logic dictates that if Penny wasn’t guilty of the weaker count, he must not be guilty of the stronger count.
So what changed the jury’s thinking, between the Friday deadlock and a Monday acquittal?
One answer: Bragg’s office made it clear before the intervening weekend that the trial was a sham.
Put yourself in a juror’s position. Counting two weeks of jury selection, you’ve been in court seven weeks, and you’ve endured autopsy photos and complex medical testimony.
You’ve done this because you’ve been told, since Day 1, how important this case is.
During voir dire, the prosecutor, ADA Dafna Yoran, asked you, personally: Can you, if the evidence leads you to do so, convict this man of manslaughter?
And during her closing argument, Yoran reminded you of this responsibility: “I told you it would not be easy,” she said. “But you each said that you could find someone guilty of recklessly killing another person.”
Now, though, you’ve pored over this testimony in days of deliberations, asking for a readback of the medical examiner’s testimony, asking to review videos, and asking the judge what “reasonable” means in the context of Penny’s mindset.
And you tell the judge you’re deadlocked on this critical manslaughter charge.
Per the law, you can’t consider a verdict on the lower charge until you come up with a verdict on the higher charge.
The judge sends you back to try again. He warns: “If you cannot reach a unanimous agreement . . . a new trial will have to be scheduled before a different jury.”
You return and say you’re stuck.
The judge sends you back into the jury room — then brings you back into the courtroom to tell you: The manslaughter charge is “dismissed.” You’re to go home, rest, and deliberate the lower charge on Monday.
Because you’re not in the room when the lawyers argue with each other, you don’t know that the manslaughter charge was dismissed at the request of the prosecutor, and over the objections of the defense.
The defense is worried that dismissing the higher charge and re-submitting the lower charge signals to jurors that they should compromise, finding Penny guilty.
But you, the juror, do know that this dismissal makes no sense. You don’t have to be a lawyer to know the basic fact: If a jury can’t reach a verdict on the main count, the case is a mistrial.
That’s to allow the prosecutor to try the case again, which makes sense: If the case is that important — as manslaughter is — the district attorney doesn’t . . . give up and go home.
But in this case, though, the judge has said, effectively, never mind.
How important, then, really, is this case, if what you have devoted the last two months to can instantly vanish, no explanation?
Plus: During her closing argument, Yoran had told you that Penny might not go to prison: “it is the judge . . . who decides . . . whether or not jail is warranted.”
You don’t know that it’s improper for her to say such a thing.
But you might well wonder: What the heck are we here for, if the punishment might be a slap on the wrist?
Are we here just for show?
After returning to court last Monday, it only took about an hour for the jury to render its “not guilty” verdict on the remaining count.
Everything jurors presumably had deadlocked on — cause of death, Penny’s state of mind — was magically fixed.
One explanation is that jurors concluded: If the court isn’t taking the top charge against Penny seriously, why should we weigh the bottom charge?
The jury decided on acquittal based on the evidence — but it sure didn’t hurt the defense that Bragg’s office self-sabotaged a major trial in its last moments.
Nicole Gelinas is a contributing editor to the Manhattan Institute’s City Journal.