As is well known, for a jury to find a defendant guilty of a crime, that jury must be convinced that the prosecution has proven their case beyond a reasonable doubt. According to the New York State Jury Instructions, “[a] reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.”
The fact that the Medical Examiner came to her conclusion without benefit of the toxicology report, and the fact that those drugs contributed to Neely’s death, would be enough to create a reasonable doubt that Penny had acted recklessly. The testimony from the DA’s own witnesses, attesting to their fear of Neely, would also serve to establish the justification defense.
Nevertheless, the jury deadlocked during deliberations on the top count, Manslaughter. They could not agree on whether or not Penny had acted in a reckless fashion in restraining Neely.
It was then that something strange and unprecedented happened.
As described by The New York Post, after the jury had sent out their second note reporting that they could not agree on the first count, “[t]he judge suggested that he might consider ordering a mistrial in the whole case rather than order one on just the top charge as jurors considered weighing the second. Wiley said he would have done this so as not to lead to a ‘compromise verdict, which New York state courts try to avoid’… Assistant District Attorney Dafna Yoran could then be seen pacing around the courtroom on her cell phone and talking to District Attorney Alvin Bragg’s office staff in the front row of the gallery. The veteran homicide prosecutor left the room, but returned minutes later alongside Steven Wu, the chief of the DA’s office’s appeals bureau. Wu then argued to the judge that axing the manslaughter charge would eliminate the threat of a compromised split verdict.”
Despite a strenuous objection from the defense, Judge Wiley agreed to dismiss the top count. “‘I’ll take a chance and grant the people’s application,’ Wiley said, instructing the jury to return Monday and deliberate the charge of criminally negligent homicide.”
Take a chance? With a man facing years of imprisonment?
The defense argued that dismissing the top count at this stage of the trial “presented a violation of state laws and could encourage a precedent where prosecutors overcharge from the start, knowing they can downgrade charges later on the fly if their case doesn’t stand up. ‘[There is a] risk here of a coercive verdict or a compromised verdict…New York is clear that compromised verdicts are discouraged,’ Penny’s lawyers told the judge. ‘It would force them into what we would submit would be manufactured, as to the lesser count of criminal negligence.'”
In other words, Penny’s lawyers believed that dismissing the Manslaughter charge just because the jury couldn’t agree on that charge, would signal to the jury that they should convict on the Criminal Negligence charge.
What Judge Wiley seems to have forgotten is that dismissal of the top count was unnecessary. Under New York Criminal Procedure Law Section 310.70, “[i]f the possibility of ultimate agreement with respect to the other submitted offenses…is so small…the court would be authorized to discharge the jury…the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict.”
This means that the Judge could have ordered the jury to bypass the Manslaughter charge, go ahead and deliberate on the Criminal Negligence charge, and if they could agree on that charge, either come back to the Manslaughter charge, or report their verdict on the Criminal Negligence charge.
Did Judge Wiley want to see a conviction so badly that he forgot this fundamental rule of trial? Was he on the side of the prosecution , and decided to tip the scales in their favor? Or did he just not care, and want the trial over with one way or another? In any of these scenarios, Judge Wiley created an appellate issue for Daniel Penny that would have certainly led to the reversal of any conviction.
If the Court meant to signal to the jury that they should convict on the Criminal Negligence charge, that hint backfired. When the jury returned to their deliberations, Penny was quickly acquitted of the remaining charge.
To “take a chance” and follow the advice of Alvin Bragg’s office, rather than research the law applicable to the situation points to a disturbing trend in the New York Courts. We have witnessed the unfair and frankly illegal trial conducted by Judge Juan Merchan in New York County Supreme Court. https://www.usagovpolicy.com/did-trump-receive-a-fair-trial/ Now we have witnessed a possibly inadvertent, but just as unfair, attempt to place a thumb on the scales of justice against a criminal defendant in a politically charged case.
At this stage, it is fair to ask if the judges who sit in New York County Supreme Court are fair and impartial, or if they are there to enforce the will of Alvin Bragg and his brand of racial and progressive injustice.
Judge John Wilson’s (ret.) served on the bench in NYC
Photo: Pixabay