The Memo: Right and left see 2 different stories in Daniel Penny case

A verdict in one of the most divisive criminal trials of recent times is imminent.

A jury in New York is deliberating after closing arguments concluded on Tuesday in the case of Daniel Penny, the ex-Marine on trial for second-degree manslaughter and criminally negligent homicide.

Penny, who is white, killed Jordan Neely, a homeless and mentally troubled Black man, on the New York City subway in May 2023.

Neely, according to witnesses, was being disruptive and shouting incoherently. The extent to which he posed an actual threat to passengers on the subway is hotly debated.

What is agreed is that Penny restrained Neely, placing him in a physical hold for around six minutes, and that Neely died.

The city medical examiner in New York has said that Neely died as a result of compression of the neck from Penny’s actions.

A pathologist who testified for the defense has contended he might have died from other issues, including drug use and a blood condition.

The medical examiner volleyed back that this idea was “so improbable that it stands shoulder-to-shoulder with impossibility.”

But the fates of Penny and Neely have, like so much else in American life, become sucked into the polarities of political debate.

Conservatives have cast Penny as a hero who is being unfairly scapegoated by progressives.

In this narrative, the former Marine was intervening, at risk to himself, in order to mitigate the danger posed by Neely to other passengers.

Further fueling conservative anger, the prosecution emanates from the office of Manhattan District Attorney Alvin Bragg (D), who has been a target of the right’s ire since he spearheaded the successful prosecution of President-elect Trump on hush money charges.

To many progressives, however, Penny deserves to be convicted.

The left’s narrative is that Penny exaggerated the threat posed by Neely and failed to respect the humanity of the person who died at his hands.

They note that at least one bystander on the train sought without success to get Penny to release Neely. They also point out that Penny apparently continued to restrain Neely after the latter’s body had gone limp.

Since the incident occurred, prominent politicians of both parties have weighed in.

Florida Gov. Ron DeSantis (R) posted on social media less than two weeks after the incident that the fight to defend Penny was part of a bigger quest to “stop the left’s pro-criminal agenda.” He also called on supporters to “show this Marine [that] America’s got his back.”

Former Rep. Matt Gaetz (R-Fla.) around the same time cast Penny as a “subway superman.”

More broadly, a Christian-oriented crowdfunding site raised more than $3 million for Penny’s legal defense, and conservative media figures asserted that his actions were justified.

Progressives took a diametrically different view.

Rep. Alexandria Ocasio-Cortez (D-N.Y.), two days after Neely’s death, wrote on social media that he had been “murdered.”

The New York congresswoman, writing before charges had been pressed against Penny, contended that because the dead man “was houseless and crying for food in a time when the city is raising rents and stripping services to militarize itself while many in power demonize the poor, the murderer gets protected w/ passive headlines + no charges.”

Ocasio-Cortez said this scenario was “disgusting.”

Democrats on the left of the party, such as New York City Public Advocate Jumaane Williams, have argued that the push to exculpate Penny is closely related to a racist view that too quickly sees Black people as a threat.

Other progressive voices beyond the political arena endorse that perspective.

“I think it breaks down, as it always has, between people who are afraid of Black people and people who are not,” Ron Kuby, a New York-based criminal defense and civil rights attorney, told this column.

Kuby was strongly critical of the admiration expressed in some quarters for Penny.

“It’s deeply disturbing to me to have the man lionized,” he said.

“It’s one thing to take the position of ‘look, this is all terrible, he didn’t set out to hurt anyone and it’s all very tragic.’ That’s a position you can take and reasonably defend. But to make the guy out as a hero, someone brave enough to do what others would not? Or as a good Samaritan? The good Samaritan didn’t come upon that person by the roadside and choke him to death.”

But even some Democrats acknowledged that rising public concerns about crime and antisocial behavior provide a backdrop to the case that may contribute to more lenient views of Penny’s actions.

New York-based Democratic strategist Hank Sheinkopf said that the public perceptions of the case were being driven by views of “disorder.”

Citing Trump’s better-than-expected performance in New York City in the recent presidential election, Sheinkopf said, “People are very concerned about disorder, which is why Trump did so well.” By contrast, he contended, “the extreme left doesn’t understand what disorder is.”

Even so, Sheinkopf made clear he was not arguing for Penny's innocence, or guilt.

“The fine line is, was Penny excessive or not? And what does it mean to defend another person — when do those actions go beyond defense?”

Those are the questions the jury in New York is now considering.

Whatever way they come down, they will face a storm of criticism from the opposite flank in the nation's culture wars.

The Memo is a reported column by Niall Stanage.

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