If the Manhattan DA Thinks He Can Uphold The Rule of Law, Prosecuting Trump and Penny at the Same Time, Then He is an Idiot
Racial Justice Activist Pomposity to Remedy Inequities, or Rather Grievances, Shows how Incompatible Social Justice is with Constitutional Principle
“Was Mr. Penny wrong to intervene? The details of what happened will presumably be presented at trial, but it’s clear his intention wasn’t to kill Neely. It was to protect himself and others. As a 24-year-old veteran, he may have felt a particular responsibility to do so. We sometimes call such men good samaritans when they intervene to stop a shooter or step between a young woman and a harasser.” Editorial Board Wall Street Journal
But Mr. Bragg may be losing the narrative here. Even before Neely’s death, Mr. Bragg was notorious as a district attorney who would go easy on repeat offenders but throw the book at a bogeda worker defending himself against a thug—not to mention his political grandstanding in indicting Donald Trump. Now the American people see a prosecutor who can’t distinguish between a mentally disturbed man prone to violence and a law-abiding citizen who served his country in uniform. — “Free Daniel Penny” William McGurn Wall Street Journal
In most editorially right wing quarters like the Wall Street Journal and National Review, while taking the side of the marine, nonetheless submit that the incident that occurred was a tragedy or a tragic event, in any case. I don’t even think it was either.
That a former marine courageously took it upon himself to forcefully restrain the violently mentally ill ex con, with a warrant out for his institutional confinement, threatening passengers bellicosely—to be specific screaming, “I don’t mind going to jail and getting life in prison, I’m ready to die:” is a good thing, an infrequent highly positive development in Gotham of which all public-spirited, virtuous citizens should be proud.
Notwithstanding that Penny’s deadly chokehold killed Jordan Neely, we should congratulate Penny’s public service, and we should celebrate that in these otherwise appallingly self-indulgent, spineless, feckless, naval-gazing times, there are still some heroic individuals among us apparently who will defend the public good with overwhelming force if necessary; especially when because of progressive attitudes towards policing city streets, since George Floyd’s murder, have suffered historic levels of violent criminality.
If it disturbed you to hear that some guy on a subway choked another guy to death who threatened him (as it repulsed me when I first heard about it, not knowing the whole story—at first I was actually opposed to Penny’s use of force), and if you’re still unsure as to how to feel about it —let me put the incident into context.
Jordan Neely was a violently mentally ill man, literally deranged, who was on a watchlist as one of the city’s top 50 mentally ill people, most in need of psychiatric care, meaning commitment to a mental institution, because doubtless he was both a harm to himself and others. Moreover he had been arrested 40 times. He had done jail time in Riker’s Island. He was so unstable that his relatives couldn’t sustain sharing a roof with him. And in addition to attempting to abduct a child, as I didn’t know until I read Cathy Young’s article in The Bulwark— in one of his most recent episodes, he had punched an old lady in the face, breaking the bones. So Jordan Neely might have done a charming Michael Jackson impersonation—that’s the part of him on which the left prefers to fixate, why because he’s black, since we can imagine if he were white the public perception of the story would probably be drastically different—but he was far from a sweet, gentle soul.
Neely was malicious; whether he’s morally accountable for his actions, as a consequence of his psychotic mental illness or not (as a matter of epistemic debate)— to the extent that he sometimes inflicted violence with violent intent; that is whether his mind was sound in the moment or not. (Would you not consider one malicious who kills or rapes someone under the influence of a drug or alcoholic substance? —I choose not to think one’s mental state makes one less culpable.)
Neely’s criminal record abundantly demonstrates he’s a guy who hurts people and intends to harm, and certainly has the capacity to kill people, who presents a serious if not mortal danger to public safety. This is what matters. In a word, Jordan Neely is one of those innumerable guys in NYC who pushes people onto the subway tracks and kills people for no apparent reason, obviously. It’s also because of people like him—that some anxiety sufferers and agoraphobes like me dread the idea of having to encounter Jordan Neely so acutely it forbids one’s even venturing into Gotham for any reason, let alone to take the god awful subway, even if you live just a 35 minute train ride out of Penn Station. (Perhaps my fears are a little irrational, and it’s silly I guess, but I think, because I have clinical depression, OCD and anxiety, whenever I go to NYC I’m overwhelmed with my own unstoppable facility for catastrophizing Woody-Allenlike, so I’m always half-expecting to get stabbed, shot, mugged, run over, stampeded, etc. At the prospect of having to go in, every time frankly, I think absurdly to myself morbid thoughts like, I might not come back alive. But maybe it’s not my depression that makes me like this. Perhaps you’re a progressive, and any fear I might have of the city, as a white guy, can only be my unconscious racism and/or white privilege.)
Now Daniel Penny on the other hand, was a marine without any mental issues, or none that I read about, no criminal record, and he is currently a student. Do we really think Daniel Penny intended to murder this horribly sick, dangerous guy? Did he use force that was out of proportion to the threat Neely posed? Well… He did not stab Neely. He did not shoot Neely. He sought to restrain him so he couldn’t hurt anybody, using a chokehold, evidenced by the other, I imagine, grateful, 2 passengers who helped him (one of whom was black).
Chokeholds are reportedly lethal; I read in the New York Times that cops are advised against using them. And you may reasonably wonder whether Penny should have killed Neely with a chokehold if he intended only to restrain him. And you might think especially given that Penny is a marine, he should have known some other way, and he should have been able to avoid killing Neely. But you may also reasonably surmise that since he’s a marine trained for combat, he’s wired to respond to threats with possibly, likely more than enough strength to contain a physical threat.
Positively Penny went into survival mode on that train. Because he is a combat-trained veteran, that was and is the only reason he didn’t waste time exercising caution not to kill Neely, and, unfortunately ended up killing him. This is certainly what his trial will find, I hope. If Penny overdid it to subdue Neely, then in self-defense he overreacted. And one can’t blame him, because as a marine, not James Bond, he’s trained to respond to threats with force sufficient to quell them, and without regard for the aggressor’s welfare. Unfortunate as it were that Neely died, Penny’s actions still may plausibly have saved lives on that subway car, or at least preserved body parts like the bone-structure of old lady’s faces intact— for that, we should commend his noble actions.
Now though Penny intended only to restrain Neely, who after the cops were called, happened to die before law enforcement could intervene, as National Review’s Andy Mccarthy writes, legally, “a manslaughter charge is on the table.” I acknowledge that, and though I consider Penny obviously innocent, and if I were Alvin Brag I myself would have exercised discretion not to prosecute, (especially when the real issue is that a violent mentally ill man was allowed on the subway like countless others terrorizing people, and as Bragg became DA, John Yoo of the Hoover Institution notes on a podcast with Richard Epstein, in NYC prosecuting felonies declined by 25% while violent crime spiked 50%)— I think it would be one thing if Brag prosecuted without having already indicted Donald Trump. Since he indicted Trump though, in anticipation of Brag’s decision to prosecute Penny or not, I was expecting or rather hoping Brag would not be so stupid and recklessly imprudent as to twist the law again to force reality to conform to his progressive ideological inclinations, not least because it would undermine his indictment of a former president. Well he chose to go after a young kid, a law abiding former marine, and college student who acted in self-defense to save a subway car anyway.
I can still hardly fathom the selfishness and the recklessness for the rule of law’s sake, regarding this decision to charge Penny with second degree manslaughter after, combined with, choosing to indict a former president just for falsifying business records in paying hush money to a pornstar, in theory not only a misdemeanor but also a violation of federal campaign finance law, if it can all be proved. In Brag’s narcissistic zealousness to follow the letter of the law, because no one is above the law, and all that fine sentimental blah blah blah, his irrational exuberance to garner progressive validation—more a progressive social climber than a DA—involves prosecuting individuals one simply personally doesn’t like on a whim, if there’s any room in the realm of legal theory to do so, while forgoing to prosecute countless common criminals who blatantly commit actual felonies.
This is the perverse Alvin Brag moral universe: If it’s possible, technically to prosecute Trump or Penny, one may or perhaps one must, do so. However, because of “disparate impact,” the tenets of which theory necessitate black people who commit violent crimes are just an overrepresented minority of the population who are not conscious agents of criminality, but hapless victims of “structural racism”—if it’s possible then that black felons are innocent by that reasoning, one is licensed or perhaps one even has the moral obligation to Hegelian teleological dialectical interpretations of history, where history is supposed to move in a single progressive direction, not to prosecute those whose ethnicity alone makes them historically oppressed, and thus not morally responsible as individuals for crimes committed in the present.
The problem with going after Penny after Trump is that one is already risking going after the former president on perhaps Trumped-up charges (Trump, who committed bigger more serious crimes for which there is better evidence), that will be very hard to prove—even if they can be proved. And now you’re going after a kid with the presumption that he may have murdered somebody because of what the loose construction of the events permits one imaginatively though extremely cynically, self-servingly to wield the law—especially when you factor in progressives jeering that Neely’s death was a “lynching,” pressuring him. When you consider how much of a racist Trump actually is, when you presume the maliciousness of Daniel Penny in addition, you run the risk of completely undermining your case against Trump and throwing the rule of law out the window. Because if Penny is a racist, then everyone is a racist, so now Trump is less of one. Hence conservatives denouncing that these are political prosecutions that are not to be taken seriously. This is how following the letter of the law can be corrosive to democracy. — It absolutely kills me that Brag and his progressive followers flatter themselves that they’re attempting to deliver authentic justice this way.
Philip Vukelich Redux Pictures
(Does he look like a bad ass, or a pompous self-aggrandizing narcissist to you?)
While progressives have through the years stoked the fires of racial divisions in the US by accusing cops of being racist and accusing white people of their white privilege, microaggressions, and unconscious bias, it has led to a destructive “fed-up ness” between the races as my friend Thomas Gregg mentioned on his UnwokeinIndiana Substack in a reply-comment to me. Take the outrageous case of the pregnant nurse, “CitiBike Karen” suspended from that hospital, because progressives accused her of trying to steal a bike that she lawfully rented, from a group of black men who went up and started harassing her)
Now Brag has taken this progressive antiracist racial incitement to a new level risking the rule of law, and the principle of equal protection before the law in the process with his antiracism-laden legal bias. Now depending on how both these prosecutions go, conservatives are liable to view the rule of law and the American legal system as perpetuating Critical Race Theory, so they will have incentives to twist the law too, in retaliation. Here’s an ominous example.
In Texas some months ago, there was a guy named Daniel Perry—in amazing contrast to Penny as if the fates wanted us to make the comparison—who after a bunch of text messages and social media posts, literally saying he might have to kill protesters, one day ran a red light, shot and killed a Black Lives Matter protester who was carrying one, but hadn’t in the moment even pulled a gun on him—just like he was saying he might, prior. Afterward Perry defended himself, saying that he was only afraid the guy might turn around and shoot him. Texas has pretty strict stand your ground self-defense legal protections with a high burden of proof, that is to prove an action taken in self-defense on the outset was in fact a homicide. Anyway, a Texas jury found this psychopath guilty of homicide. But after Tucker Carlson insinuated the guy was innocent and only defending himself against the radical left, Governor Greg Abbott was motivated to try and pardon Perry. So he perversely made a request to the pardoning board.
It was illadvised and distasteful enough to go after Trump for the hush money, and it would have been one thing to prosecute Penny if he had not already indicted Trump, but to do both is for Brag to slander and undermine the rule of law and betray constitutional democracy. And depending on how it all plays out, don’t be surprised if conservatives—and right wing judges and prosecutors— start to wonder if the legal system now is structurally rigged against white people and Trump supporters.
— Jay