To signal solidarity with his political base, the Manhattan DA filed an unnecessary complaint against Daniel Penny, rather than seeking his indictment.
I will have more to say over the weekend about the progressive-prosecutor project in New York City, and how what passes for its racialized logic dictated the filing of a manslaughter charge against Marine veteran Daniel Penny in the death of the mentally unstable career criminal Jordan Neely, who was harassing and intimidating subway passengers. For now, I just want to draw attention to the manner in which Penny was charged by Manhattan District Attorney Alvin Bragg.
After the May 1 incident on the F train, in which Neely died, allegedly of suffocation after Penny placed him in a headlock and efforts to revive him were unsuccessful, Penny was questioned but not arrested or charged. The DA’s office and the NYPD know where Penny is. They know he has retained counsel who’ve made it clear that Penny and they believe he is innocent. He’s not going anywhere; he intends to fight the case if it comes to that.
In New York, second-degree manslaughter is a Class C felony. Consequently, under the federal and state constitutions, a defendant may not be tried on such a charge absent indictment by a grand jury. Under the circumstances, then, if Bragg wanted to charge Penny with manslaughter, he should have brought the case to the grand jury.
If Bragg had done that, the grand jury would have seen video that we’ve all seen and would have heard from witnesses. The grand jurors would have learned that Neely menaced passengers on the train, that Penny was not the only passenger to intervene, that there is no reason to believe the incident was racially motivated just because Penny and Neely were of different races (at least one black passenger helped Penny subdue Neely), and that efforts were made to assist Neely once he was subdued. Under New York criminal practice, moreover, Penny would have had the option to testify before the grand jury and explain why he should not have been charged. He may not have availed himself of that option (most subjects of grand jury investigations do not), but he may be the rare subject who believes that a properly informed grand jury would not indict him.
If the grand jury had chosen not to indict, that would effectively have ended the case, absent the emergence of some new incriminating evidence.
But Bragg did not go to the grand jury. When he decided to charge Penny, he did it on a complaint. This was entirely unnecessary from a law-enforcement perspective. It doesn’t change the constitutional bottom line: Bragg may not bring Penny to trial on the charge unless he is first indicted. If Bragg wants to pursue this case, he still has to persuade a grand jury.
So why file a complaint? Because Bragg wants the progressive Democrats who elected him to know that he is with them, especially the radicals who have been aggressively protesting and disrupting subway service. The gratuitous complaint against Penny is an exercise in political signaling. If Bragg had gone to the grand jury first, and the grand jurors had declined to indict, it would have been much more difficult for Bragg to show solidarity with his political base.
As I observed a number of times in connection with his dubious charging of the Democrats’ nemesis, Donald Trump, Bragg should be seen as an elected progressive Democrat who is putting the powers of his office in the service of a partisan agenda. With the progressive-prosecutor project, evenhanded enforcement of the law is not the objective.