POLITICS: Daniel Penny jurors’ duty now: Reject kangaroo-court injustice

Jurors in the Daniel Penny trial now have a clear duty to refuse to convict, because this is now a kangaroo courtroom.

Justice Maxwell Wiley handed the prosecution an outrageous gift Friday by granting its request to drop the count of manslaughter in the second-degree, on which jurors were deadlocked, and telling the jury to now consider only the lesser charge of criminally negligent homicide.

Frankly, it’s obscene that Manhattan District Attorney Alvin Bragg even asked for this favor, since it destroys the last shreds of his claims to care about making the justice system more fair.

This move tells you that his issue isn’t really that past prosecutors abused their powers, but only that they were going after the wrong people. He’s actually seeking, and getting, more (and clearly unfair) power to persecute his targets.

Look: Under clear New York law, DAs must choose the charges before trial; they don’t get to change their minds once they learn what the jury will buy.

That law aims to avoid “compromise verdicts,” wherein jurors split the difference so they can finish up and go on with their lives, rather than reaching a true agreement on the facts of the case and how the law applies.

Hence Wiley’s initial instructions to the jury: Come to a 12-0 consensus on the more serious charge, then consider the lesser one.

They didn’t get to that agreement, meaning some jurors were adamant that Penny was guilty of manslaughter even as others refused to go along.

The law clearly indicates that this requires a mistrial — meaning Penny goes free but the prosecution can try for an all-new trial.

Instead, Bragg’s crew is gaming the system: Using information gained from deliberations so far to try for a more limited win.

That is, they know some jurors will be votes for “guilty” on the lesser charge, and hope that the rest will go along now that the greater one is off the table.

In other words, a compromise verdict.  

And the judge granted that do-over, claiming that “DA’s proposal would eliminate the issue” as he rejected the defense’s objections to this blatant miscarriage of justice.

It doesn’t remotely eliminate the issue, because this jury has already been considering the greater charge and can’t possibly forget that fact, which inevitably colors its future deliberations.

If Bragg wants a jury to consider only negligent homicide, his duty is to file for a whole new trial with only that charge on the table from the start.

This is a risk he knowingly took by filing both charges in this trial; it blew up in his face but he wants to escape the consequences.

In other words, Bragg was going for a touchdown with the greater charge, hoping he’d at least get a field-goal with the lesser one.

Then he fell short on fourth down — but the judge just gave him another down in the same field position.

And not by calling any penalty on the defense.

This gift to the prosecution is a huge violation of the defendant’s right to a fair trial; if it leads to a guilty verdict it should be tossed on appeal.

Then again, the appellate courts could be as biased as the trial one: Jurors’ duty isn’t to comply with this outrageous pressure on the assumption everything comes out OK in the end, but to rapidly announce they won’t convict on negligent homicide, either.

The judge should have sent them home permanently on Friday; they should waste no time Monday in telling him this stunt won’t fly.