Editors at National Review Online assess the outcome of a high-profile trial.
Daniel Penny’s nightmare is over.
On the fifth day of deliberations, with Manhattan’s elected progressive Democratic district attorney Alvin Bragg taking desperate measures in his crusade to nail him, the Marine veteran was acquitted of homicide by the jury in the trial over the death of Jordan Neely.
Penny was a subway passenger on the F train in May 2023 when Neely, a deranged criminal and drug addict recently released from Rikers Island after a prison stint for breaking bones in the face of a 67-year-old woman he’d punched, began menacing passengers. As trial witnesses testified, they were frightened as Neely ranted that “someone is going to die today” and that he was “willing to die and go to jail.” Penny courageously intervened, restraining Neely, including applying a choke hold, until police arrived at a station stop and took Neely away.
Penny’s actions were not cruel. To the contrary, witnesses described them as heroic. He appeared to be subduing a threat, not trying to harm — let alone kill — Neely. He was helped by other passengers, and rolled Neely into a position to make breathing easier.
Penny and others believed that Neely was still alive when the police came. The veteran was completely cooperative with officers, voluntarily providing a statement under circumstances in which he clearly did not believe he was a suspect, and police did not tell him that Neely had died. Moreover, given the presence of the potent synthetic cannabinoid K2 in Neely’s system, coupled with other maladies, there was a plausible question about the cause of death.
As a strict matter of law, Penny’s actions were permissible under the doctrine of justification, which recognizes that people under a threat of force have the right to defend themselves and others. Yet, because of the happenstance that Penny is white and Neely was black, Bragg decided that social justice demanded a scalp, regardless of what actual justice might say about the matter.
