I have to say this verdict surprises me, and I’m happy about it. I thought the best Penny could possibly hope for would be that the jury would hang on the second count as well. Instead, they acquitted him. So now he’ll be a free man – although he may have to go into some equivalent of the witness protection program.
Then again, a great many people are on his side. And many of them even live in New York City.
I repeat: I’m surprised.
My hunch on what may have happened is that this: We only knew the jury was deadlocked on the first and most serious count. We never know whether the majority leaned towards acquitting him or convicting him. Now it seems fairly clear that that there were probably only one or two jurors willing to vote Penny guilty on that first count. Then the judge gave an Allen warning – basically, that the state had spent a lot of time and money on the case and the jurors really needed to go back and reach a unanimous verdict – but the holdout or holdouts remained.
They may have thought that would be the end of the case, based on the judge’s earlier instructions. But no, they were sent back to deliberate on the second count – the lesser one. At that point, the holdout or holdouts may have decided that enough was enough, and voted with the majority for acquittal rather than spend a lot of time and effort only to be deadlocked again. And they voted not guilty rather quickly, at that.
I believe that justice has prevailed here. But the case never should have been brought.
Back in the days when I did a lot more cooking, I used to make my own piecrust. It always was okay, but I never mastered the art of making it really really good. Oh, I got lots of tips that I tried to follow, about the proportions of this and that and how long to rest it or chill it or any number of other tricks of the trade that people swore by. But my piecrust remained merely passable.
So finally I decided I’d done my time in the piecrust saltmines and I started buying prepared crust. That was only marginally better (sometimes worse), and I tried a great many brands.
Over the years, I’ve come to the point where I cook much more simply and hardly ever make pies of any kind. But this past Thanksgiving I decided to make a pecan pie, because the prepared one I had bought at the grocery store was awful.
So this was the first time I’d looked at prepared piecrusts in many a year. I decided to go for the easiest type: frozen. There was a slightly cheaper type and a slightly more expensive type, and I decided to go for the latter. It was made by a company called Centerville Pie Company.
I didn’t have especially high hopes for all the aforementioned reasons. But this piecrust was absolutely delicious, the cadillac of piecrusts. It’s a New England company, though, so it might not be available outside of the area – the website says they’re at the following stores in the Northeast (whatever that means): Market Basket, Big Y, Harris Teeter, Schnucks, Publix, and some Walmarts.. I got mine at a Market Basket. It was everything a piecrust should be. It came in a package of two, so I still have one in the freezer. I’m planning to make a quiche.
They also ship nationwide, but as far as I can tell that refers to the pies rather than just the crust. I haven’t had a pie, but I bet they’re good. And I don’t even get a commission from this. Just the joy of spreading piecrust around.
It’s that time of year again: Christmas, Chanukah. If you’re like me, you’ve probably postponed your shopping – although this year I’ve mostly done it ahead of time and I’m up to the wrapping stage.
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There are no good guys among the factions vying for power in Syria. Here’s the situation at present, as best we can tell:
Syrian leader Bashar al-Assad is nowhere to be found in Damascus, according to a source, but Syria’s presidential office and Iranian officials maintain he has not departed the capital. US officials told CNN his regime could fall within days. A Damascus resident says the city is in “a state of tension and panic.”
In the south, a new uprising emerged along the Daraa province, with rebels there claiming to have seized a major military base as they charge toward the capital.
On the western edge of Syria, rebels are speeding toward the major city of Homs — where residents are fleeing ahead of potential hostilities between anti-regime and government forces.
Assad is a Russia- and Iran-backed dictator whose family has been in power for 53 years, and in the process has killed hundreds of thousands of people. The “rebels”? They seem to be an al Qaeda offshoot, perhaps affiliated with Turkey. Or are they more like the Muslim Brotherhood, or the Taliban?
It’s a pity they can’t both lose. Of course, in that neck of the woods, if they both lost something else equally awful might end up being the winner.
Perhaps – like me – you’ve been surprised at the amount of venom expressed online in reaction to the hit-style murder of United Healthcare executive Brian Thompson. The anger I’m talking about is against the victim, not the murderer. It seems to be coming more from left than right, although there’s quite a bit on both sides that takes the form of saying either that his death was deserved or that the person is indifferent to it because of some awful experience they report with health insurance coverage, or that they perceive is common with health care coverage.
Health insurance is a business, and like all insurance it’s geared to making money. And yet people need it when they are in a state of stress, and sometimes when their lives are at stake. That makes for a real love/hate relationship that I see as inevitable. The alternative to having the profit motive involved is having the government run the whole thing, and from what I’ve heard of Canada and the UK that’s not a solution with which most people would be happy.
As medical costs get higher and higher, the rules for coverage are going to become more strict. Don’t discount the role played by the uninsured (including in many cases illegal aliens) who can’t be refused at emergency rooms and who are subsidized by the paying customers. The health insurance industry wants pre-approval for certain kinds of reimbursement, and sometimes people simply don’t comply or the situation is such (an emergency) that they cannot comply, and that can cause reimbursement problems or at least delays. And of course there’s managed care, which can restrict choices. Health insurance companies also lose a lot of money to scams and frauds, and some of their scrutiny of claims represents an attempt to detect fraud and deny fraudulent claims.
Here are examples of people’s complaints about their health insurance:
In one stark example, a Facebook post by UnitedHealth Group expressing sadness about UnitedHealthcare CEO Brian Thompson’s death received 62,000 reactions – 57,000 of them laughing emojis. UnitedHealth Group is the parent company of UnitedHealthcare, the division that Thompson ran. …
Almost immediately after news broke that Thompson had been killed, social media users began posting about their frustrations with UnitedHealthcare and other insurance companies.
UnitedHealthcare “denied my surgery two days before it was scheduled. I was in the hospital finance office in tears (when I was supposed to be at the hospital doing pre-op stuff),” one user wrote in an X post that received more than 70,000 likes. “My mother was flying out to see me. My surgeon spent a day and a half pleading my case to United when she probably should have been taking care of her other patients,” she added, before saying the surgery ended up going ahead but calling the process “torture.”
“My breast cancer surgery was denied” by a different insurance company, another X user posted. “Breast cancer. She asked me ‘well, is it an emergency?’ I don’t know- it’s (f***ing) cancer. What do you think? I had to appeal and luckily it went through. Evil to do that to people,” she said.
Their stories could not be independently verified by CNN.
Are these cases of failure to notify the insurer and get pre-approval, or are they some sort of arbitrary denial? Often people don’t say – and that’s an important fact left out.
More:
Restricting access to health care through tools like claim denials and prior authorization, which requires that insurers approve the care in advance, are among the ways that health insurers try to weed out care that’s not medically necessary or not backed by scientific evidence – but it can also increase their profit margins. The practices, which increasingly rely on technology, including artificial intelligence, can infuriate patients and providers alike.
A class action lawsuit filed last year in US District Court in Minnesota argued that UnitedHealthcare uses AI “in place of real medical professionals to wrongfully deny elderly patients care,” according to the complaint. More than 90% of the denials are reversed …
So it often does work out in the end, but people are stressed by the process when they are already mega-stressed by the illness or accident. And AI? If it’s anything like the “chat” help functions I often encounter online when trying to deal with computer glitches and the like, it can be deeply infuriating.
But to go from there to applauding the killing of Thomspson is heinous. And it seems to be quite widespread. People think healthcare coverage should be an absolute right, but whether that coverage is by insurer or by government, health care costs are so high that coverage refusal is inevitable, and rage seems to be inevitable as well.
[NOTE: This is a revised and expanded edition of a post first published in 2006.]
Eighty-three years ago today Pearl Harbor was attacked.
That’s long enough ago that only a vanishing few remember the day and its aftermath with any clarity. Many generations—including my own tiresome one, the baby boomers—have come up since then, and the world has indeed changed.
Prior to 9/11, the Pearl Harbor attack of December 7, 1941 was the closest thing America had to 9/11. The differences between the two are profound, however: at Pearl Harbor we knew the culprit. It was clearly and unequivocally an act of war by the nation of Japan, which was already at war in the Pacific.
But it was, like 9/11, a sneak attack that killed roughly the same number of Americans – in the case of Pearl Harbor mostly (although not exclusively) those in the armed forces. And the Pearl Harbor attack, in the reported (but disputed) words of Japanese Admiral Yamamoto, awakened the “sleeping giant” of the US and filled it with a “terrible resolve.”
In the case of Pearl Harbor, that resolve lasted the duration of the war, an all-out conflagration that required far more sacrifice of the US (and the world) in money, comfort, and the all-important cost of human lives. The scale of such a loss is not even remotely comparable to that of our present conflicts. In addition, the first years of World War II featured many losses and much peril. It was a different world, however, and failure was not considered an option.
Yes, mistakes were made in World War II and in the war that began on 9/11 and has not ended yet. Mistakes always will be made in war. The tactics and even the strategies of World War II don’t fit today’s wars. But tactics and strategies aren’t the issue – although they are extremely important. The overarching issue is will. Without that, a war cannot be won. And, in that respect as in many others, current generations don’t compare to the one known as “The Greatest Generation.”
For some contrast, go back to FDR’s “Day of Infamy” speech (a misquote, it turns out: he actually said “date which will live in infamy”). Following are some of the less famous quotes from the speech; I have selected them because they speak to the question of will. FDR was assisted in mustering that will by the relative clarity of the enemy and its intent in World War II. But it still seems to me, on reading these words, that such unequivocal determination could not be summoned today in the US, even if given the exact circumstances of the infamous attack of December 7, 1941. It may, however, be present in Israel at the moment, but I’m not completely sure:
…No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might will win through to absolute victory.
I believe that I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the uttermost but will make it very certain that this form of treachery shall never again endanger us.
Hostilities exist. There is no blinking at the fact that our people, our territory and our interests are in grave danger.
With confidence in our armed forces – with the unbounding determination of our people – we will gain the inevitable triumph – so help us God.
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.
