“This is a disgrace!” – Andrew McCarthy weighs in on Judge allowing Bragg dismissal in Daniel Perry case…

Andrew McCarthy weighed in on the judge allowing dismissal of the manslaughter charge in the Daniel Perry case, calling it ‘unbelievable’ and saying what Bragg and the judge are doing “is a disgrace”.

McCarthy explains exactly what’s happening in the court and why it’s a travesty of justice.

Via NRO:

In Daniel Penny’s homicide trial, the jury has been deliberating on one charge, reckless homicide (second-degree manslaughter), for four days, over close to 30 hours. Today, the jurors have been Allen-charged to try to strong-arm them into deciding the count despite indicating, after three days, that they were deadlocked. Late this afternoon, after banging heads for a few more hours, the jurors reported that they are hung — they can’t unanimously agree on the charge.

So now, Manhattan DA Alvin Bragg’s strategy is to tell the jury, “Never mind.” And Judge Maxwell Wiley is accommodating him.

Judge Wiley has just granted the DA’s motion to dismiss Count One, as if it had never been in the case, as if the last four days never happened, in order to have the jury move on to Count Two, criminally negligent homicide.

Mind you, as I explained earlier today, the jurors were not supposed to consider Count Two unless they acquitted on Count One for some reason other than acceptance of Penny’s justification defense (i.e., that he was justified in using force because of the threat posed to himself and other train passengers by Jordan Neely). Moreover, the case was not presented to the jury as a one-count negligence case; it was presented, for many weeks, as a two-count case with emphasis on recklessness.

While this prosecution should never have happened, the case presents what is not even arguably more than a negligence question: Did Penny act unreasonably in holding the choke hold too long?

This was not remotely a recklessness case, where it could be said that Penny wantonly disregarded an obvious risk of death. There is evidence that Penny moved Neely into a position that would make breathing easier, waited for the police to come and fully cooperated with them, and did not even know Neely was dead when he voluntarily spoke to police and explained what happened — that he wasn’t trying to hurt Neely, just subdue him until the police arrived. Others who were not charged joined Penny in restraining Neely, and the other passengers on the train told police that Neely’s threatening words and menacing manner deeply frightened them, and that Penny had been heroic in intervening.

So what has happened here? As I have contended from the start, rather than bring a one-count criminally negligent homicide case, Bragg added a baseless recklessness charge to the indictment so the jury would have two counts, increasing the odds of conviction by giving the jury something to compromise on. Instead of deciding negligence as the central question, that count was treated as a fallback position for the jurors to have something to pin on Penny — i.e., they could feel good about convicting him of negligence, not because he was guilty but because they had already acquitted him of the more severe recklessness charge.

Now, after the jury could not find Penny guilty of recklessness after four days — and how disturbing it is that one or more jurors were apparently in favor of doing so — the judge is letting Bragg remove the recklessness count from the case. It will go down as an acquittal for Penny on that charge, so he is no longer facing a potential 15-year prison term. For the jury, however, it makes the hard work of the last four days pointless.

Wiley has now dismissed the jury for the weekend, with the news that they must come back to court Monday morning to start from scratch deliberating over Count Two, negligent homicide. The potential term on that charge is up to four years’ imprisonment.

This is a disgrace.