Daniel Penny’s Acquittal Is a Win for Civilization

When Daniel Penny turned himself over to police on May 12, 2023, after the Manhattan district attorney’s office announced its decision to charge him with manslaughter, photographs of his perp walk showed Penny looming like a giant over the two New York Police Department detectives who escorted him down the steps of the 5th Precinct to his arraignment. Even in handcuffs, Penny was a foot taller than either of the cops and stood erect while they seemed to scurry. He looked like a Roman statue.

The more you looked at him, the more you realized he looked like a specific Roman statue: the Dying Gaul. Same curly hair, sharp nose, prominent chin, mustache, jawline, everything.

The Dying Gaul is famous as a representation of dignity in defeat. The curly-haired warrior has a mortal wound, but his face is serene. For a while it looked like Daniel Penny would come to symbolize the same thing. His people, the legacy Americans who still believe in old-fashioned virtues like law and order, were a defeated people no less than the barbarian Gauls. White Marines who physically subdue erratic vagrants belong to yesterday’s America, it was thought. Tomorrow’s America belongs to the Jordan Neelys of the world and their sponsors in the Democratic party.

Then Donald Trump won the presidency. Suddenly, Daniel Penny’s tribe was a defeated people no more. 

Personally I believe that if Kamala Harris had won, Penny would have been convicted. Momentum matters in a jury trial, and until November 5, the momentum was all with the prosecution. One of the eyewitnesses on the subway car, Morielyn Sanchez, made a 911 call in which she stated that Neely was “trying to attack everybody” and that Penny seemed to be holding Neely with the intention of restraining him, “not to hurt him.” Sanchez changed her story at trial, testifying that, actually, Neely’s verbal threats were aimed at no one in particular and Penny’s chokehold was clearly “too tight.” The defense attorney asked Sanchez, regarding this discrepancy, “You met with these prosecutors, about what you would say here?” Sanchez nodded.

Thankfully Sanchez’s 911 call could be played for the jury as a record of her uncoached thoughts. The point is that Sanchez, an eighteen-year-old girl, was in a position to choose which side she wanted to support with her testimony. In the run-up to her taking the stand on November 7, the prosecution looked like the winning team.

Not anymore. One of the most outrageous moments in the trial came when Judge Maxwell Wiley instructed the jury to consider count two of the charges against Penny (negligent homicide, maximum sentence four years) after they had declared themselves deadlocked on count one (manslaughter, maximum sentence fifteen years). This seemed to be a way of pressuring the jury to return at least one conviction even though the prosecution had failed to make its case, when the judge should have declared a mistrial as Penny’s lawyers requested.

Whatever the reasoning, the ploy failed. The jury took less time to acquit on the second charge than they took to deliberate on the first, even though the second charge should have been a closer call logically. Without knowing for sure, it looks like one juror really, really wanted to convict but then gave up and acquiesced to the majority when it became clear how long he or she would have to hold out.

That is what momentum means. It’s about whose side digs in confidently and whose side starts to ask why they should bother.

The forces of wokeness were always less impressive than they appeared. Even for the true believers in the prosecutor’s office, their deep convictions frequently melted away into half-remembered memes. Penny’s defense lawyers tried to get into the record the fact that Neely had the sickle cell trait, a genetic disorder of the red blood cells that affects nearly one in ten black Americans. With a huff of indignation, Assistant District Attorney Dafna Yoran objected: “Isn’t it a fact that sickle cell was being used as a way to cover up the death of African Americans in custody?”

Apparently, back in 2021 the New York Times did a five-thousand-word exposé on the racist conspiracy to cite sickle cell in police medical reports. The ADA thought she could neutralize a legitimate medical point—that a disorder of the red blood cells can interfere with the flow of oxygen—by writing it off as a racist trope. 

This was the entire basis of the prosecution’s case. In her opening statement, the ADA said, “Jordan Neely was homeless and mentally ill. On May 1, 2023, he demanded to be seen. He walked in. He talked about being hungry.” Only prejudice prevented Daniel Penny from seeing Neely’s true harmlessness, the implication went. It is only thanks to modern recording technology that we have proof, in the form of video clips of the encounter and eyewitness statements in the immediate aftermath, that Neely did a lot more than ask to be seen.

Is the era of Black Lives Matter over? It is too soon to say for sure. Activists gathered for a press conference after the verdict to threaten retribution. Neely’s father, who has filed a civil suit against Penny, said, “What are we gonna do, people? . . . The system is rigged. Come on, people. Let’s do something about this.” 

Despite their loud talk, I expect few riots—but the reason has more to do with internal dynamics on the left. The October 7 attacks by Hamas opened up a rift between the Democratic party’s donors and its activist class. Protests like those of 2020 cost money, and the people who bankrolled that summer are less willing to write checks now that the recipients of their largesse have, in many cases, cheered on the massacre of Israeli civilians. But that intra-party rift could be repaired, in which case the flow of money to rioters could start up again. The fact that a silent majority of Americans oppose their cause would not matter any more than it did the first time around.

Still, Daniel Penny’s acquittal is cause for cautious optimism. Donald Trump’s presidential win was a victory for the forces of civilization and a defeat for the forces of chaos and entropy. This is another. 

Helen Andrews is a former senior editor at The American Conservative, and the author of Boomers: The Men and Women Who Promised Freedom and Delivered Disaster.