Daniel Penny Is On Trial, But So Are Blue States

New York, New York, it’s a helluva town!  No, literally. The Bronx may be up, but under Alvin Bragg’s District Attorney’s office, the whole city is down. The “Frankenstein case” Bragg’s office cooked up against Trump this past year, as CNN contributor Elie Honig called the absurd 34-count felony conviction against Donald Trump, was a case of prosecutors who “contorted the law in an unprecedented manner in their quest to snare their prey.” Now, that same office is attempting to put behind bars a 26-year-old Marine veteran and current college student named Daniel Penny. On May 1, 2023, Penny subdued a frenzied homeless man apparently high on drugs who was slamming into people and threatening to murder riders on the New York Subway. Because the man died, Penny was later charged.

Ladies and gentlemen of America, I submit to you that it’s not Mr. Penny who is ultimately on trial. It is Alvin Bragg’s office on trial. It is New York City on trial. It is the blue city and blue state model that is on trial. Democrats’ loss this fall included losing ground even in traditionally blue cities because more Americans grew tired of paying the price of supposedly “socially just” criminal policies that result in more injustice and danger. How this trial turns out may well be a harbinger of further losses.

Bragg’s office has been vigilant about prosecuting Penny despite witnesses’ testimony to Neely’s menacing behavior and his saying that he was not afraid to go back to prison and even, “I will kill.” As Andrew C. McCarthy summed up, there was never any serious case that Penny was attempting to kill Neely. Nor was there even a case for recklessness on Penny’s part since the jury has “evidence that Penny moved Neely into a position that would make breathing easier, waited for the police to come and fully cooperated with them, and did not even know Neely was dead when he voluntarily spoke to police and explained what happened—that he wasn’t trying to hurt Neely, just subdue him until the police arrived.”

Yet despite this narrative having not been proven false at all, and despite the jury’s inability to come to a unanimous verdict on the more serious charge, Judge Maxwell Wiley accepted on Friday a motion from prosecutors to drop the most serious charge of second-degree manslaughter after jurors deadlocked on it twice, while allowing the jury to come back this coming Monday to consider the second count of criminally negligent homicide. While Penny’s lawyers objected that allowing the jurors to consider this second count is unprecedented and asked for a mistrial, the judge granted the prosecution’s request anyway because he said the two counts were closely related.

Penny attorney Thomas Kenniff stated that he is worried the judge’s actions amount to “elbowing the jury,” meaning nudging them to come to some sort of “coercive or compromised verdict.” In other words, that the jury is being urged to convict on something, even if not the higher count. After all, the jurors were not supposed to consider the second count unless they acquitted Penny on the first charge. As a New York Sun editorial put it, “such an all-fired push for a verdict in the Penny case risks trampling on the due process that makes verdicts sturdy in the first place. Already the 11^th hour decision to pull the top charge appears ready-made for appeal. Were the government as convinced of its case as it purported to be, why say ‘never mind.’?”

Indeed, with this unprecedented move, it looks as if the DA’s office wants to prosecute Penny at any cost. And the fact that the prosecutor, Assistant District Attorney Dafna Yoran, is a left-wing activist who consistently referred to Penny during the trial as “the white man” makes it look as if the question isn’t justice but the destructive notion of “social justice” that holds that race is a determining factor in whether one has committed a crime or not—not the facts. As those following the trial have since learned, Yoran prosecuted Matthew Lee, a black man who killed an elderly Asian professor while robbing him at an ATM, for a lesser charge because she “felt sorry” for Lee due to his troubled background.

While this trial has been going on, New Yorkers have discovered that Ramon Rivera, the 51-year-old suspect in a deadly Manhattan stabbing spree that left three New Yorkers dead on November 18, had been released from Rikers Island on October 17. “Manhattan prosecutors successfully pushed for a supervised release” for the chronically mentally ill man with a long history of crimes, including an assault of a corrections officer in May while he was still in custody.

These three stories—Trump, Penny, and Rivera—stand in for the entire blue state model in which justice has been politicized. The image of Justice as a woman with a scale and a blindfold over her eyes has been replaced in places run by Democrats. You can still use the image of a woman such as Dafna Yoran, but the eyes must be open and pondering the politics and the race of those involved. It’s not actually Justice; it’s Social Justice. And, as in the joke about the Holy Roman Empire, Social Justice is neither social nor justice.

Americans found out shortly before the elections that, as John Lott reported at RealClearInvestigations, the long-running Democratic claim that crime in America had dropped precipitously with Joe Biden (nominally) in charge was a falsehood. The FBI’s 2022 data indicating a 2.1% drop in violent crime was quietly revised to show a rise of 4.5%. “The updated data for 2022 report that there were 80,029 more violent crimes than in 2021. There were an additional 1,699 murders, 7,780 rapes, 33,459 robberies, and 37,091 aggravated assaults.” We will no doubt find out that 2023 data was similarly mistaken. (Why did mistakes in government data from 2021-2024 always happen in a direction that benefited Democrats?) We will also likely find out that much of the violent crime was committed in blue cities where DAs such as Alvin Bragg or Los Angeles’s George Gascoigne were in charge.

One doesn’t want to have to be unduly optimic about California, where Gavin Newsom and company seem determined to make the worst decisions possible. But it is heartening that George Gascoigne was voted out in November. California Democrats will want more of these figures are voted out or removed from office if they don’t want to see more of their tax base fleeing to other states and more of their reliable voters pulling the lever for others.

It is the Democrats’ embrace of politicized and racialized justice that is really on trial these days. Americans would like to see Lady Justice with that blindfold again. They are continuing to learn that the alternative version is one that leads to the innocent being punished, the guilty being coddled, and the streets being unsafe. Their verdict will be harsh if that alternative is not abandoned.

David P. Deavel teaches at the University of St. Thomas in Houston, Texas. A past Lincoln Fellow at the Claremont Institute, he is a Senior Contributor at The Imaginative Conservative. Follow him on X @davidpdeavel.