Just a little while ago the judge in the Daniel Penny case dismissed the first count – manslaughter in the second degree – after the jury once again announced it was deadlocked. He instructed them to resume deliberations on Monday on the second count, negligent homicide, which carries a top penalty of four years in prison.
One of the comments at that article goes like this: “Acquitted should be the only verdict! Bringing these charges is a crime. How sad. Keeping praying for Penny’s freedom.” There are plenty others in the same vein.
But the fact that the jury was deadlocked on the greater charge indicates there is at least one person – and perhaps as many as eleven – who believed Penny guilty of manslaughter in the second degree. That – and the idea that they need to come to some sort of verdict – are the sort of things that often cause “not guilty” holdouts to cave on the lesser charge as a sort of compromise. That concerns me in this case.
I also think the hung jury on the first charge indicates that the best that can be hoped for on the second charge is another deadlocked jury.
In addition, even if Penny isn’t found guilty of either charge, he faces a civil lawsuit by Neely’s father for negligent assault and battery causing Neely’s death. The entire episode has a chilling effect on anyone who might try to protect innocent people on a subway – or anywhere, really, in NYC – from threats of assault from aggressive people such as Neely.
ADDENDUM:
I'm sorry, but I am finding it hard to believe this is proper. The jury has twice now said they are deadlocked. That's a hung jury on that count. The judge is effectively dismissing it (but can he?) so they can consider C2. I can't find a single case supporting this approach. https://t.co/gIAyslAkvf
Where I practice as a prosecutor, we can amend the indictment or move to dismiss counts up until the case is given to the jury. The requirement of unanimous verdict should apply to all counts given to the jury. I have never heard of what they are attempting to do here.
Biden’s pardon of his son has many very unusual characteristics. It’s one thing for a president to pardon his son – which is already unusual. It’s another to do it like this (the clip is about two minutes long):
The word “unprecedented” comes to mind.
And now there’s apparently talk of many more pardons of this preemptive type before Joe leaves the presidency or the symbolic presidency or the sham presidency or whatever you want to call it:
President Joe Biden’s senior aides are conducting a vigorous internal debate over whether to issue preemptive pardons to a range of current and former public officials who could be targeted with President-elect Donald Trump’s return to the White House, according to senior Democrats familiar with the discussions.
Biden’s aides are deeply concerned about a range of current and former officials who could find themselves facing inquiries and even indictments, a sense of alarm which has only accelerated since Trump last weekend announced the appointment of Kash Patel to lead the FBI. Patel has publicly vowed to pursue Trump’s critics.
The White House officials, however, are carefully weighing the extraordinary step of handing out blanket pardons to those who’ve committed no crimes, both because it could suggest impropriety, only fueling Trump’s criticisms, and because those offered preemptive pardons may reject them.
The deliberations touch on pardoning those currently in office, elected and appointed, as well as former officials who’ve angered Trump and his loyalists.
Those who could face exposure include such members of Congress’ Jan. 6 Committee as Sen.-elect Adam Schiff (D-Calif.) and former GOP Rep. Liz Cheney of Wyoming. Trump has previously said Cheney “should go to Jail along with the rest of the Unselect Committee!” Also mentioned by Biden’s aides for a pardon is Anthony Fauci, the former head of the National Institute of Allergy and Infectious Diseases who became a lightning rod for criticism from the right during the Covid-19 pandemic.
The West Wing deliberations have been organized by White House counsel Ed Siskel but include a range of other aides, including chief of staff Jeff Zients. The president himself, who was intensely focused on his son’s pardon, has not been brought into the broader pardon discussions yet, according to people familiar with the deliberations.
“Extraordinary step” all right. Hey, why not just issue pardons to any Democrat or NeverTrumper the DOJ might want to indict during Trump’s presidency? That should do the trick.
And it’s pretty rich that Biden, the so-called president who is the person with the power to issue federal pardons, “has not been brought into the broader pardon discussions yet.”
What a travesty.
But let’s go back in time to a moment in history when there was a great deal of discussion in the news about the issue or a president giving out preemptive pardons. That time was almost exactly four years ago, in the lame-duck period of Trump’s first administration. For example, we have this at NPR:
President Trump is being urged to use his remaining time in office to grant preemptive pardons to people close to him, including family members and maybe even himself. …
President-elect Joe Biden has said he’d let professionals within the Justice Department assess whether a case is merited against Trump, and that decision — which would be unprecedented — is one of the toughest facing the department in the new administration.
We all know now how the DOJ and Biden ended up deciding about that, and what the results were. Hubris, meet nemesis.
More:
In an email, Crouch, author of The Presidential Pardon Power, says that “someone must have committed a federal offense, but as soon as that happens, the president can grant them clemency. He does not need to wait until the alleged offender is charged, stands trial, and so on.”
Crouch continues: “These pardons are not common, but they do happen occasionally.”
Accordingly, Trump could “pardon his children, his aides, his supporters, and so on for federal offenses and be on firm legal ground,” Crouch says. “The really unclear scenario would be if he attempted to pardon himself.”
We also know that Trump did none of this – no preemptive pardons. The pardons he issued were for specific offenses and as far as I know they were limited to crimes for which people were already convicted and in many cases had served time – in other words, they were very conventional pardons despite all the speculation.
This article was also written back in the last days of Trump’s first administration, and it deals with the issue of the pardon for unspecified crimes:
But another source of possible constitutional defect for a presidential self-pardon would arise if it were granted before any charges had been brought against him and without specifying the conduct being pardoned. The same constitutional objections could be raised about such a preemptive pardon granted to anyone else.
The case for the effectiveness of a preemptive non-specific pardon usually relies on the precedent set by President Ford’s pardon of Richard Nixon for any federal crimes he might have committed during his presidency. But the constitutional validity of the Nixon pardon was never tested: special prosecutor Leon Jaworski was urged to do so at the time and was later vague in his Watergate memoir about why he decided not to.
With a handful of other exceptions, notably George H.W. Bush’s Iran-Contra pardons and Trump’s recent pardon of Michael Flynn, pardons historically have not been granted to preempt a prosecution for crimes that have not even been identified much less charged.
That indicates that the Hunter pardon could be tested in court, if the author is correct. It’s one thing to issue a preemptive pardon for a certain crime or a certain line of conduct that hasn’t yet been charged in the legal sense, as long as it is specified. It’s another to do what Biden has done, or what his aides are described as contemplating that he will do before he leaves office.
The jury is deadlocked on the charge of manslaughter in the second degree after three days of deliberation. Penny is facing a second lesser charge as well: criminally negligent homicide, which carries a maximum of four years.
The judge told the court that the jury can’t move on to that second charge unless it finds defendant Penny Not Guilty of the first count, and also gave the jury what’s known as an Allen charge, “which are instructions reminding the jurors of how much time and money has gone into the case and how imperative it is that they reach a decision.”
Deliberations have resumed.
It would be good to know if the holdouts are those saying Guilty or those saying Not Guilty. And the judge’s statement about not moving to the lesser charge without a Not Guilty on the first is interesting, in that it would prevent a deadlocked jury from a finding of Guilty on the lesser charge as a compromise verdict.
My personal opinion, from what I’ve read about this case, is that Penny should not spend a day in prison and should be found Not Guilty of both charges. I think it’s wrong that he was charged in the first place. I’ll add that I don’t like Allen charges; I don’t think jurors should change opinions to save the state money and time. At a certain point it’s a hung jury, and so be it. Would Bragg retry this case if that happened? He might just be the person to do it.
This also may be as good a place as any to mention a perception I’ve had from the start, which is that Penny reminds me of Billy Budd. When I first saw his photo (please click on that link), that’s what came to me.
From the movie:
If you’re familiar with the Melville story’s complex plot, you may see the relevance, which isn’t entirely cosmetic.
NOTE: By the way, I had to read “Billy Budd” as a high school sophomore, along with lots of other Melville. Not easy reading. And this was in a NYC public high school, albeit in an honors class. There was nothing special about my high school, either, at that time.
The body of hostage Ivay Svirsky has been found by the IDF. Svirsky was abducted alive on Oct 7, 2023, but was killed about four months later and it has been known for quite some time that he was dead:
IDF Spokesman Rear Adm. Daniel Hagari said at a press conference that Svirsky’s body was recovered “in operational activity, details of which cannot be expanded upon, in order not to endanger the operational efforts of the IDF and Shin Bet.” …
During his time in Gaza, he was held alongside hostages Yossi Sharabi and Noa Argamani. Sharabi was likely inadvertently killed as a result of an IDF strike, the military said in February, and Argamani was rescued in the summer.
So Israel is being tight-lipped about the details of finding Svirsky.
As if that story isn’t tragic enough, if you read the article you will learn the following:
Svirsky, 38, was visiting his parents, Orit Svirsky and Rafi Svirsky, in their Kibbutz Be’eri homes for the Simhat Torah holiday weekend when Hamas terrorists launched a massacre in the community on October 7, 2023.
Svirsky was with his mother in the sealed room of her house. She lived next door to her ex-husband, Rafi, his father.
Svirsky, who was single and lived in Tel Aviv, was known as the quintessential “uncle” to his nieces and nephews and his friends’ children. He was the only one of his parents’ four children in Be’eri at the time.
The family’s last communication with Svirsky and his mother was around 10 a.m.
The bodies of his parents, Orit and Rafi, were later found. They were buried on October 20, 2023.
So his parents were murdered at the outset, and Svisky was taken hostage and killed months later. I hope his surviving siblings and nieces and nephews find some comfort in the fact that at least his body has been recovered. RIP.
And France’s Macron is saying – hey, let’s reward those Palestinians with a state! What could possibly go wrong?:
French President Emanuel Macron and Saudi Arabia’s Crown Prince Mohammed bin Salman announced they would co-chair a conference for the establishment of a Palestinian state, according to a Wednesday AFP report.
The conference is expected to take place in June.
“In the coming months, together we will multiply and combine our diplomatic initiatives to bring everyone along this path,” AFP quoted Macron as saying.
“We want to involve several other partners and allies, both European and non-European, who are ready to move in this direction but who are waiting for France,” the French president added.
Here’s a very interesting discussion that’s relevant to some of these issues:
This guy discusses something that seemed mysterious shortly after the 2024 election – so many fewer votes than in 2020. It seemed to point to evidence that fraud had occurred in 2020. But it no longer seems that way, for reasons that will be explained in the clip.
That actually doesn’t mean that election fraud did not occur in 2020. It merely means that the missing votes – and where they are missing – don’t offer any proof or even any strong indication that it did. I have claimed from the start, and I continue to claim, that because of the relaxation of the security rules for voting in 2020 and the overwhelming number of mail-in ballots, it is impossible to tell and I don’t think we will ever know. But the number of fraudulent votes wouldn’t have had to have been in the millions – just enough to account for some of the swing state margins.
I was talking recently to the only person I’m close to who is also on the right, and the topic of Trump-hatred came up. I said that I thought a huge part of the intensity of that hatred was snobbery.
In other words, Trump is déclassé. He may have been born with a silver – or golden – spoon in his mouth, but his personality “reads” differently. He’s not an intellectual, which makes a lot of intellectuals think he’s dumb. He doesn’t speak in polite euphemisms, which makes them think – correctly – that he’s crass. He’s a braggart. He’s sometimes a bully.
Now you either find those things so repellent that you can see nothing else, or you don’t care all that much. I don’t care all that much, and I see a lot else that’s been good for the country and the world. Sometimes it pays to be a bully in the international arena.
Of course, it’s not as simple as that. But I think that snobbery is at the heart of the intense distaste so many people feel for Trump – including some on the right.
But this post isn’t really about Trump. It’s about snobbery, something I’ve never quite understood.
When I was a child my family was financially comfortable. We had a nice house, not big by today’s standards but more than adequate. Same for our food – unfancy but plentiful enough and tasty enough. Clothes? Again, their numbers fit quite nicely in my old-fashioned closet that was about three feet wide, but it seemed like an abundance to me.
I had friends who were richer and friends who were poorer. My parents – both of whom had been to college, and a father who was a lawyer – had friends who had college degrees and friends who had dropped out of high school because of the Depression. I found it merely sort of interesting to hear my mother tell stories of their personal histories – she’d known almost all of them since childhood – but it had no bearing whatsoever on whether I liked them or not.
In childhood I was envious of those friends who had more harmonious home lives than mine, not friends who had more money. I spent a lot of time in the homes of friends – observing, observing, observing, like some infant anthropologist.
And I had certain déclassé interests myself, although I didn’t think of them that way because I didn’t have the concept back then. When I was about eleven years old, for example, I wanted to grow up to be a hairdresser. My mother at first thought it amusing but then thought it needed to be discouraged as not a proper ambition.
And then there was my love for the roller derby. I suppose that’s where this essay was going from the start. From about the age of seven to ten, I was a huge roller derby fan. I watched it on TV every week – I think on Sunday afternoons? – and looked forward to it immensely. I knew the names of all the skaters, and their numbers. For my favorites, I even knew their birthdays. It was something, I suppose, like pro wrestling – which of course is part of Trump’s world, although I’ve never been keen on wrestling and lost my taste for roller derby in adolescence.
But for a while I found roller derby thrilling. It had that element of real athleticism and of good-versus-evil pageantry and showmanship. And even the women in the roller derby had to be aggressive and sometimes fought. My childhood had involved a certain amount of physical battling, as well, and so I was no stranger to the need to defend myself against more powerful forces (an older brother, for example).
I was not repelled by the roller derby. I was inspired.
I started nagging my parents to take me to see a roller derby game in person. That involved going to Manhattan’s 14th Street Armory. They refused, but our kindly housekeeper volunteered to be my escort, and that’s how I ended up having that wish fulfilled. It was a huge place with a huge crowd. I already knew that the roller derby tracks were banked, but in person the angle of the bank seemed far far greater than on TV. I was astounded that anyone could skate on that steep a track. But one thing was disappointing – the entire room was shrouded in a thick cloud of cigarette smoke. In those days, smoking seemed not only allowed but required.
And suddenly I wonder whether the vastness of YouTube includes some clips of the roller derby of my youth. Sure enough, it does. And although this is taken a few years earlier than my time, I recognize some of these players:
The CEO of UnitedHealth’s insurance division was gunned down Wednesday morning outside the Hilton hotel in Midtown in what police called a “brazen, targeted” attack.
Brian Thompson, 50, was repeatedly shot by a masked gunman about 6:46 a.m. who had been lying in wait outside the Sixth Avenue hotel, said NYPD Commissioner Jessica Tisch.
“Many people passed the suspect, but he appeared to wait for his intended target,” she said. …
When Thompson – who had been staying at the nearby Marriott, according to sources – walked up to the hotel, the masked suspect struck, Kenny said.
“The shooter steps onto the sidewalk from behind the car, he ignores numerous other pedestrians, approaches the victim from behind and shoots him in the back,” Kenny said. “The shooter then walks toward the victim and continues to shoot.”
The shooter was a white man wearing a mask, and he escaped on a bicycle and is at large. It’s also reported that the Thompson family had received unspecified death threats.
(2) Pete Hegseth, Trump’s pick for Defense Secretary, has been under attack and it’s unclear whether his confirmation will go through. Meanwhile, all sorts of rumors swirl about who might replace him, and Hegseth himself says he’s not backing out:
“I spoke to the president-elect this morning. He said, ‘Keep going, keep fighting. I’m behind you all the way.’” Hegseth told CBS News in the Capitol Wednesday. “Why would I back down? I’ve always been a fighter. I’m here for the fighters. This is personal and passionate for me.”
Time will tell.
(3) SCOTUS is hearing arguments on a Tennessee law banning medical transition of kids. At that link, Ace does not mince words. For example:
The ACLU and the corrupt liar Biden are arguing that “gender identity” is an “immutable” characteristic, which would then protect it at the highest level (“strict scrutiny”) under equal protection analysis.
Alito points out that “gender fluid” pyrsyns may change their gender rapidly from one day to the next.
Kind of the exact opposite of an “immutable” characteristic then, right?
(4) This author contends that Trump is already the de facto president. I think that’s the case – for a few things. However, it doesn’t matter that Joe is mostly nodding off and Kamala is in lala land as well; a lot of damage can still be done by the people running the show behind the scenes. They are in power for about six more weeks.
(5) So far, Argentina’s Milei seems to be doing pretty darn well against inflation.
He suggested that he planned to work with Tom Homan, who Trump recently nominated to become his new border czar.
“Those who are here committing crimes, robberies, shooting at police officers, raping innocent people, have been a harm to our country, I want to sit down and hear the plan on how we’re going to address them,” Adams said. “Those are the people I am talking about, and I would love to sit down with the border czar to hear his thoughts on how we’re going to address those who are harming our citizens.”
A reporter asked about Adams’ stance on Trump’s plan to carry out mass deportations after taking office. The mayor brought up how previous Democratic presidents handled illegal immigration.
“I want you to all go back and Google Hillary Clinton and Barack Obama. Google what they said about those who commit crimes in our city and what they said in our country,” Adams responded. “They said, ‘Those who commit crimes need to get out right away.’ That was their position.”
Adams already has been the object of lawfare from the left (I submit that the charges would never have been brought had Adams been better at toeing the party line on illegal aliens), so I think that Adams feels he has nothing to lose by telling some hard truths. Plus, although the population of NYC voted strongly for Harris a month ago, it wasn’t quite as strongly as they did for Biden in 2020.
And Adams has never had any love for DA Alvin Bragg. For example, here’s an article from February of 2022:
New York City Mayor Eric Adams and Manhattan District Attorney Alvin Bragg were elected to their respective positions in November after running on radically different messages about policing.
Adams, the former NYPD captain, argued police officers should resume enforcing quality of life crimes such as graffiti and pushed a tough-on-crime message that helped him connect with voters in the outer boroughs. In Manhattan, home to progressive elites, Bragg vowed to pull back on prosecutions — even reducing some felony charges, including commercial robberies. …
Bragg, pressured by Adams in public and private, has now walked back some of his most controversial campaign plans.
So it may come as no surprise that Adams has expressed support for Daniel Penny, the man being tried in NY for murder for subduing a man threatening the passengers on a subway train with death, a man who died either from the effects of being held down by Penny and others or by the drugs he’d ingested:
“We’re now on the subway where we’re hearing someone talking about hurting people, killing people,” Adams said on the Nov. 30 episode of “The Rob Astorino Show.” “You have someone [Penny] on that subway who was responding, doing what we should have done as a city.”
“Based on all the facts that’s laid out, a jury of his peers will make the right decision. I don’t want to prejudge that,” Adams said of whether Penny should be found guilty of manslaughter and criminally negligent homicide.
“That could have easily been a case where you saw three innocent people murdered on our street two weeks ago,” he added, referring to a recent deadly stabbing spree in Manhattan on Nov 18.
“We have to recognize we have a mental health crisis, and we’re not doing enough to solve it.”
Actually, people like Bragg – and Biden and Harris, with their border policy – have been adding to it. And Adams knows that.
I’m sorry to have to announce the death of commenter “Mike K” on October 25, 2024. Mike K began commenting here in 2007 but only very intermittently at that point, and became a regular and prolific part of the commenting community at this blog in 2016. I will miss him, and I know a lot of you share that sentiment.
In the real world as opposed to the virtual one, “Mike K” was Dr. Michael Thomas Kennedy of Mission Viejo and Tucson. He was 86 years old, and the author of a book about his years of practicing medicine called War Stories: 50 Years in Medicine. I’ve never read it, but Mike K had a way with words, and I bet it’s well worth the journey.
Mike K had a blog for many years, and it still can be found here. I don’t think I even knew it existed until now, but it has a wealth of information about Mike’s life and work. He seems to have also been an avid sailor, at least until recent years. And from his blog I also learned that in 2004 he had written another book entitled A Brief History of Disease, Science and Medicine: From the Ice Age to the Genome Project. It seems to have sold pretty well and gets good reviews on Amazon.
One of Mike K’s last comments here was about some books by Samuel Eliot Morrison that he owned:
I have both, including another volume. We are having to move to a smaller place and I will have to give them away. Golden Years, my ass.
The “Golden Years, my ass” comment got several approving dittos.
I have five kids. Two are conservative and two are lefties. One, a daughter, is a reasonable lefty. She and I have had conversations about politics. The other lefties just agree to disagree. Both are lawyers, of course. We don’t argue as we all know it would be uinseless. My moderate daughter has a child, now 5, and she says it has changed her life. Maybe she is saying what I want to hear, but I think it has had a huge effect on her.
I operated on a 1 pound 10 ounce baby in 1969. She survived and thrived. I did not write it up. Too busy. Two guys in FL operated on a 2 pound 2 ounce baby the next year and got credit for youngest to survive.
And ah yes; it was Mike K who had a mother who lived in three centuries. He wrote this in July of 2024:
I am still a kid compared to my mother but I will be 87 next February. She died at 103 having lived in three centuries, 1898 to 2001. She kept all her marbles until the last 6 months. Speaking of hair, she never fixed her own after childhood. She had an unfrocked priest who lived in her building drive her to the beauty parlor every 2 weeks til she gave up her apartment at 100.
RIP Mike K, and all the commenters here who may have died but all we know is that they disappeared never to return.
