A Compromised Verdict for Daniel Penny?

The decision by New York prosecutors to drop the most serious charge against criminal defendant Daniel Penny in order to avoid a mistrial underscores the power of prosecutors. The retreat — it lets the jury consider a lesser charge — throws into relief that though defendants are entitled to the presumption of innocence, it is the government that holds the advantage. In other words: Tails District Attorney Alvin Bragg wins, heads Mr. Penny loses.Mr. Penny’s attorney, Thomas Kenniff, opposed the prosecution’s motion to dismiss the count against him of second-degree manslaughter after a jury twice said it was deadlocked. He called it “elbowing the jury.” Mr. Penny, whose fatal encounter with Jordan Neely aboard a New York subway train precipitated this case, wants a mistrial. Mr. Kenniff is worried that the jury could be cooking up a “coercive or a compromised verdict.”That appears to be a well-founded fear. The Legal Information Institute explains that a compromised verdict can take the form of “an agreement to meet-in-the-middle” and thereby avoid a mistrial, which would send the parties back to square one. Judge Maxwell Wiley, not exactly projecting judicial brio, ventured that whether the dismissal “makes any difference or not I have no idea.” He has been exhorting the jury to reach a verdict. Is any verdict, though, better than none? We understand that judges are loath to preside over mistrials. Yet 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 11th 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”? Mr. Kenniff calls the prosecution of Mr. Penny, a Marine veteran, “a factually uncomplicated case,” and contends that because the events in dispute are all captured on video, differences between jurors are unlikely to be resolved by further deliberations. Our Marie Pohl reports that as the sun set on Friday the defense grew increasingly worried that the judge’s insistence on a verdict despite the deadlock was becoming “coercive.” One veteran trial lawyer, Ron Kuby, told Ms. Pohl that “the law is fairly clear. Procedurally we don’t want juries compromising if it can be avoided.” Judge Wiley’s decision, by banishing the more serious charge, appears to invite that outcome. Mr. Kuby ventures that the case has now achieved “an unusual procedural posture,” where the prosecution achieved dismissal of its most ambitious charge — over the objections of the defense.The shenanigans of the assistant district attorney prosecuting the case, Dafna Yoran, stand in contrast to the ideals of the prosecutor laid out by FDR’s attorney general, Robert Jackson, later a supreme court justice. Jackson explained that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” He was attuned to the choices a prosecutor makes — and how those decisions can affect lives and liberty.It’s not our intention here to speak for or against an acquittal. It is, rather, to address due process. Mr. Kenniff opposed the dismissal of the manslaughter charge not only out of his zealous advocacy for Mr. Penny but also out of concern for the “policy standpoint,” lest prosecutors be induced to “overcharge.” The more spaghetti that is thrown against the wall, after all, the greater the likelihood a strand sticks. No verdict at all is superior to a compromised one.

A Compromised Verdict for Daniel Penny?

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