Daniel Penny show trial: Judge allows prosecution to swap out charge in bid to secure a conviction
Judge Maxwell Wiley on Friday went along with a bizarre proposal from Manhattan Assistant District Attorney Dafna Yoran to avoid a mistrial by allowing her to drop a manslaughter charge against Daniel Penny to try and secure a conviction on a lesser charge of criminally negligent homicide.
‘I’ll take a chance and grant the people’s application,’ Judge Wiley said after the prosecution asked to dismiss the manslaughter charge against Penny because jurors could not agree on a verdict.
The judge added: ‘Normally the distinction between the two counts is very clear. The justification adds another element to it which is at play here.’
Jurors would now have to deliberate on the second charge against the veteran – negligent homicide, which has punishment up to four years.
Penny’s lawyer had opposed the prosecution motion, saying ‘This has never been done before. It would encourage prosecutors to over-charge in the grand jury, with the option of withdrawing if hung, under coercion.’
The judge told the jury: ‘Manslaughter is dismissed.
‘What that means is you’re now free to consider count two. Whether that makes any difference or not I have no idea. I’ll direct you to focus deliberations on count two. You’ll render verdict on that one. Count one is no longer for your consideration.’
“Manslaughter requires proving a defendant recklessly caused another person’s death, and carries up to 15 years,” the AP reports. “Criminally negligent homicide, which carries punishments ranging from probation to up to four years in prison, involves engaging in serious ‘blameworthy conduct’ while not perceiving such a risk.”
Penny could not “be convicted of both charges, according to the judge’s instructions to the jury,” CNN reports.
Jurors could only consider the criminally negligent homicide charge if they found Penny not guilty of second-degree manslaughter, CNN noted.
If the judge simply declared a mistrial there’s a good chance that District Attorney Alvin Bragg wouldn’t even bother charging him again due to the political backlash he has faced.
The whole idea that “it is better that ten guilty persons escape than that one innocent suffer” is being turned on its head just to find Penny guilty of something.
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