A (4:16)

Yeah, I mean, it was such a important case for many reasons. And obviously, if you are a New Yorker and you live in New York and you ride the subway as you do, and what are we seeing now since Daniel Penney is. The subway is getting scarier and scarier. There's more and more, you know, crime happening. But also, I think it's just this mental health crisis that we have and the amount of people on the trains that are just very much not mentally. Not mentally there. And you're watching some of these behaviors. I mean, I watched a video the other day of somebody just taking their pants down and urinating right in the middle of the train car. And, And I'm going, you know, we. We really should not, as citizens have to put up with this on public transportation. These are things that we pay for directly or indirectly. And, you know, that's one portion of it. But the safety aspect of it is really something that is front and center in terms of the way people commute or the way people commute and navigate around New York every single day. So the safety of it is so paramount to just quality of people's lives.

B (5:27)

Yeah, absolutely. I mean, I think, you know, you can go back probably to the 1970s where, you know, you mentioned the mental health crisis. Right. I mean, we've always had mental illness. The difference is that in the 1970s, we really embarked nationally on a policy of deinstitutionalization. There were a lot of scandals. You know, Geraldo broke. Broke the Willowbrook case out in Staten island in New York City to show the, you know, just how horrible the conditions were in those places. And that was certainly something that we needed to deal with as a people. But unfortunately, government is inherently reactionary. Right. The pendulum goes one way, it goes the other. So, you know, either you're deinstitutionalizing people maybe too liberally, certainly not providing them the right care and not providing them legal mechanisms to maybe better their situation, or, you know, you're letting everybody out. And unfortunately, that's where that was the reaction to that crisis. So you have people that, you know, in. In prior generations would have been institutionalized or certainly cared for more aggressively than we're doing today. And, you know, they're out and about now. That problem was compounded by the homicidal bail reform policies that swept the country in the progressive criminal justice reform era. Part of what I was at least trying to fight against when I ran against Alvin Bragg for Manhattan DA in 2021.

A (7:12)

Can't wait to talk about that, given what happened in Chicago. So we'll get into that for sure.

B (7:18)

And so now you can't put people in a mental institution when that's clearly where they need to or it's incredibly difficult to do so. To involuntarily commit someone, almost impossible. And even when that person then comes to the crosshairs of the criminal justice system, you've divested judges in a vast swath of cases from setting bail. Or you have leftist mayors who have appointed judges. We see this in New York City. I'm sure it's not any different Chicago, that even when the law allows them to set bail, they are unwilling to do so because they believe in. I don't want to be repetitive, but what I. I would submit cases like this one, most recent one Chicago show, is, is a homicidal policy based on, you know, decarceration at any cost. You know, obviously

A (8:20)

they're not jurists. Right. They're now activists. And it's not about following the law. It's about following what they think society should look like. And it's, it's getting scarier and scarier every day. And that's why people don't understand the importance of these higher courts and doing the right thing. And so it's just, it's really. The state level courthouses, especially in large cities, have, have really taken a nosedive in terms of the quality of the judiciary.

B (8:49)

Oh, yeah. I mean, absolutely. And look, we, we're seeing that every year in New York City, because what happens is each year, more and more of the Bloomberg appointees retire, whatever is left of the Giuliani appointees and more of the de Blasio appointees graduate from. In New York City, we start you out in criminal court, where you mostly tried handling misdemeanor cases, doing felony arraignments, and then you're eventually graduate up to Supreme Court. So more of those de Blasio appointees, and now God knows what's coming down the pipe with our current mayor, are moving the ladder up the Supreme Court, where they're actually overseeing felony trials and so forth. And I don't want to disparage anybody who's a. I'm sure Bill de Blasio has appointed some good judges, but the bench has been filled with liberal activist judges that have been grown out of the legal aid system society in New York City and, and New York county and Bronx Defenders, which, I mean, are left of left organizations, and they just unwilling to recognize crime for what it is.

A (10:09)

Yeah, I agree. Let's get into Danny Penny now. So obviously he went through the criminal trial. We know how grueling that is for any one of our clients at any point in time. I mean, you know, being, being on trial, having to pick a jury, having to wait for a juror to determine your fate, especially in a case where the facts themselves are not really much up for debate. But it's whether or not you acted appropriately and why you did what you did, and the fact that you have to get up on the witness stand and explain yourself. And so all of these factors obviously weigh extremely heavily, not only on the lawyers, but much more so on the clients themselves. I mean, his entire life is in the balance. And it's in the balance for people that probably wouldn't agree with them on a lot of other topics. And so it's just a really difficult position to find yourself in. So he gets through that. He gets through that. He wins the criminal case. His name is everywhere, his picture is plastered everywhere. And you have this unbelievably polarizing circumstance where some people feel one way and some people feel the other. Not much different than everything else in our world today. But he now has to go out in the world. And what does he do now that the case is over? Where is he? What's he facing? What's going on on the civil side? Kind of walk us through that. Because I think it's really. People don't understand. They think, oh, not guilty. You go on about your life and everything's okay. And that's, that's not the case.

B (11:38)

No, you know, I think it was. Remember Roy Donovan, Ronald Reagan's guy, said, you know, look, where do I go to get my reputation back? After he was acquitted on, I think federal tax related charges, you know, you just don't go back to normal. I mean, it is a traumatic experience, you know, even if you charge with a crime and maybe it never gets any media attention, but when it's, it becomes a local, national, international story. I mean, I had people, I had friends that were in Russia, England, saying, hey, I, you know, I've seen this case on the news. Vladimir Putin's talking about this case. I mean, it was just wild, you know, and for us as the lawyers, sure, you know, this is what we do. We're built for this fight. It's exciting. We're in the arena. But you know, in this case, what was so tragic about it, even though we got this fantastic result, is you have a, you had a, you know, a kid in his early 20s. I mean, I don't maybe the word kid. He'd already served his country in so many ways. He was a man. But, you know, someone who, by virtue of his age, we still look at as a youth in our culture.

A (12:50)

Young to us.

B (12:51)

Yeah, young to us. Right. And you know, was just going through this and then, you know, being prejudged too. I mean, this is something I find so offensive. You know, we had the politicians right up to the governor of the state before he'd even been arraigned, pre prejudging his guilt. These are people who take an oath to defend the constitution of the United States, which embodies the presumption of innocence, by the way. And you're going out there doing violence to, to somebody's presumption of innocence. It's just. But Danny is a very special guy. I mean, you and I have both represented people that are in positions of power that are twice three times Danny's age, have been around the block, former detectives, politicians, you name it. And none of them I've Never seen anyone carry themselves with the sort of grace under fire that he, I think, is a credit to the type of people that our Marine Corps is producing, frankly, and to his parents and just to his DNA. DNA. And I say that I can sort of savor it now, but at the time, it makes it even more difficult as a lawyer in this sense. People always ask us right down at cocktail parties, how do you defend those people? Well, the hardest thing is defending someone who's actually innocent. Right. No doubt, goes red. You'll live with that the rest of your life. And let alone someone who is just a good, decent person. So to answer the question I think you asked, I mean, he came through all that better than I think any other human being could. He's doing well. He's at this powerhouse, Andreessen Horowitz private equity world. I don't understand, but I know there's a lot of potential for advancement there. So he's doing great. And I saw him about a week and a half ago at dinner. He's doing wonderfully.

A (14:47)

So good to hear. So now he's facing this civil battle because he has been sued for wrongful death civilly. And so kind of walk us through what that looks like, how those charges can come if somebody is found not guilty in criminal court. So kind of explain that to people so they understand. I usually use the OJ Example.

B (15:07)

Yeah, I mean, look, that's. And I, and I don't want to compare Danny or any of my clients to OJ since, although we did use the same jury consultant. Demetrius is wonderful. But that's where the comparisons end. But look, that is the sort of, you know, real world pop culture, I guess, example. And, and what it really, really boils down to is, first of all, double jeopardy doesn't attach. Criminal civil proceeding, different things. The greatest difference is probably the standard of proof that in a, in a criminal case, they have to prove. The prosecution has to prove guilt beyond a reasonable doubt in a civil proceeding is preponderance of the evidence, which we sometimes equate to 51 to 49%. So there is a lesser standard of proof. There's less juries. The verdict could be 5, 6. Doesn't have to be unanimous like in a criminal case. So there's no question there is typically more headwind in defending a civil case than a criminal case. But each situation is different. I mean, a lot of people said, well, you're never going to get a fair trial in Manhattan. Manhattan is the politically, the most liberal borough, and it's already Very liberal city. And you have a situation. And this wasn't 2026, it was 2023. We have a white man accused of killing a black person and a choking death. And people were saying we should get a change of venue, we should do this, we should do that. And Steve Razer and I said, no, look, we believe in that. The evidence here is on our client's side. When this comes to light, people will see that was he justified? But he didn't. He didn't cause anyone's death. Jordan Neely did not die via fixation through a chokehold. It's just not what happened. And that's not going to change in a civil case as far as we're concerned.

A (17:08)

Yeah. And just so the audience understands, you know, this charge of. Of murder, basically, that he was. He was charged with or negligent. What was the exact. Exact count? Negligent deaths.

B (17:20)

Yeah. Manslaughter. And. And then the lesser charge of criminally negligent homicide.

A (17:25)

And so, you know, the intent obviously has to be there to kill. I think it was pretty clear that the intent was to just keep people safe and there was no intent to kill. And now you end up in a civil courtroom, like you said, where the burden is lower. But at the end of the day, don't you think the idea of whether or not someone was justified is very different to qualify in a beyond a reasonable doubt versus a lower standard, like a sort of is or it isn't. It's almost like a strict liability rather than this concept of preponderance of the evidence versus beyond a reasonable doubt. It's almost like it is or it isn't.

B (18:03)

Yeah, no, I agree. And. And, you know, and in the criminal case, I mean, you know, the. The justification was. Was a big deal. Right? Because. Yeah, I mean, if the law says, you know, look, if it's justified, justified doesn't make a crime legal. If it's justified, it wasn't a crime to begin with.

A (18:21)

Correct.

B (18:22)

It's a Hallmark case. So we, we cite. But, you know, the jury had a path to acquittal not just via the justification, but also the, you know, the intent or the idea that Danny didn't consciously disregard the fact that he could kill you and say, oh, yeah, I really don't care if I kill him, I'm going to do it anyway. In fact, if you really watch the video and you break it down, you know, second by second, frame by frame, Danny is doing all sorts of things. And as a corroborated by eyewitness testimony, to, you know, use the minimal amount of force he can use to restrain this individual who's in it, by the way, is in a psychotic drug induced state and, you know, trying to restrain someone that is in psychosis, that is under the influence of a drug like K2 is a big guy too. Jordan Neely and Danny, they, they weighed about the same, they were around the same height. Jordan Neely was muscled. That is an incredibly hard thing for anyone to do. Yet Danny was very deliberate. And then you just did not have evidence that he compressed his neck for the length of time that would be necessary to cause death, which is a quantifiable amount of time. 12 to 15 seconds, or, I'm sorry, 8 to 13 seconds to unconsciousness. And then you need continuous pressure for another minute. In a clinical type setting, that's the earliest death could occur. It's really between one and three minutes, one being the minimum. And you can break down that video. We did it in the courtroom repeatedly and it's just not there.

A (19:55)

Right.

B (19:56)

So, you know, again, my point is that, yes, you know, a civil case, lower standard, some people would say harder to defend. But facts are sticky little things and I think the facts are on our side.

A (20:08)

Yeah, I think you're right. Let me ask you this. How do you think or why do you think that case was ever charged in the first place? Do you think it was solely political? Do you think it was racial? Do you think it was pressure? Do you think, you know, because really, if you really, you're right, if you really look at the facts, the facts are very, very clear, crystal clear. And there was a time in this country where we would have patted Daniel Penny on the back and said, thanks a lot, you saved a lot of people, we appreciate it. And the mayor would be giving you a key to the city. And those days are gone. So what, what do you think was actually the, the final decision that they came to and why? What do you think did it?

B (20:49)

Well, you can't, you can't remove the politics from it, of course, you know, and look, I, I, you know, that that's not to, you know, be real easy up here just to, you know, dump on Alvin Bragg non stop. I mean, look, politicians have to sometimes, you know, deal with politics. It's, it's part of the job description. But, you know, the reality here that this was cross racial. That shouldn't mean anything. You know, Danny Penny didn't make Jordan Neely black and any more than he did made himself white. Could have been anybody who walked on the subway and carrying on like this, but that was the reality of. Was certainly, you know, it may have only been three years ago, but three years is a long time. And, and where the world was back in 2023 versus 2026. You know, I think people have started to take a real second look on how we reacted to George Floyd. And, you know, every death is tragic, no question about that. But I think the situation people realize now is a lot more nuanced than maybe it was viewed back then.

A (21:57)

And other people, like, just, you know, if you see somebody doing something on the subway and you want to protect somebody, it stops you from doing so. Guy get, get brought into courtrooms and charged and lawyer fees. I mean, it's just, it's absolutely.

B (22:12)

I think that, that, you know, I, I said that in my first press conference when we got this case and many times after, and it, it was 100 accurate. This case and other prosecutions like it, you know, make people less willing to act. And can you blame them? I mean, look, you know, we all want to help people and so and so forth, right? But. But when you're, you know, faced with a dilemma of one, you know, putting yourself between a madman, which is what Jordan Neely was, and Strangers in the Subway is heroic as it is. I mean, you know, Danny had no idea whether this guy had weapons on him. In fact, the evidence at trial showed that that's exactly what most people believe, including the responding police officers. You know, the calls went out, knife, gun, and, and that again, that requires enough courage. But then when you add an equation, gee, look, even if I succeed, I may find myself succeed in intervening, subduing someone, and I don't get hurt. I'm very possible I'm going to find myself on the working end of a criminal indictment. You're really asking a lot of people. And I think as a result of that, we've seen case after case in New York City and beyond where, you know, people don't get involved. I remember being, you know, in, in junior high school learning about Kitty Genovese, which was the example of, well, how could all these people, you know, not react to hearing the screams of this woman and so forth. And in that case has been subject to a lot of debate and so forth, but the premise is still real.

A (23:57)

And well, now what do we see? Everybody with their phones out, right? People just take videos of what goes on and they don't, don't interject or involved and they're afraid to do so. They post it, but they don't. They don't get involved.

B (24:07)

Yeah, and there were a lot of, you know, sometimes it's just fear and I can't, you know, judge people for that. I mean, there were, there were men who, you know, testified and pretty much favorably for the defense in this case, you know, you know, someone called as prosecution witnesses and saying, you know, yeah, I was terrified. I, I was afraid to act. And, and this guy, meaning Danny Penny, steps up and look what happened. So sure it was political. In fact, I know in my first conversations with the DA's office, it was, yeah, I'd been litigating the Manhattan DA's office for 20 years and it was, look, we're going to take this slow. Maybe we'll meet in a few weeks and we'll kind of do a thorough investigation here. And then it hit that you had protestors on the tracks and this politician and this so called activist was turning up the heat. And then we get a call a day later and they're sheepishly saying, oh, sorry, you know, you guys got to surrender tomorrow for arrest. And what are you going to do at that point? Say no.

A (25:08)

Did the police take him into custody that day for no.

B (25:11)

So what happened was, I know they didn't. And you know, they had, they had, they interviewed him, interrogated him for almost an hour. He did incredibly well. In fact, that was a big part of our decision not to have Danny testify in the criminal trial. I had no doubt he'd make a great witness, but the jury saw 45 minutes of him being questioned in the immediate aftermath, an hour after the incident by two seasoned homicide detectives who had district attorneys in the Hatton DA's office behind the two way glass, sort of feeding them questions. You squeezed like this, didn't you? Right? All that nonsense that you and I are all too familiar with. And he voluntarily did.

A (26:02)

I mean, he voluntarily did that. He went in, he made, well, and

B (26:05)

look, that, that's, that's one of the points, you know, we made a trial that, you know, this is, you know, you want to hear what he's, what he has to say, you know, watch that video, you know, as you deliberate again or, or think of what you heard in that video. No lawyers, nobody scripting anything, you know, just, just him recounting the incident. And then of course that was all buttress by the accounts of so many of the bystanders, many of which were also played on video because they were on body worn camera. And we're able to get them admitted as excited utterances, you know, so it was just, it was Just all, all right there. But

A (26:45)

yeah, well, we need more people like Daniel Penny for sure. And we just saw in Chicago as we were talking earlier about no cash bail and what that does and all of this release with conditions. And what do we see happen in Chicago over the weekend? A suspect who was allegedly robbing a dollar store in Chicago, who threatened and actually beat the store clerk really within inches of his life, ends up getting arrested, ends up at a hospital in Chicago somehow and asks to go to the hospital because apparently he ingested a whole lot of drugs that he had on him and then ends up in the hospital and apparently had a weapon on him. And the police somehow did not find this weapon when he was taken into custody. And while he was lying on a gurney at the hospital, ends up retrieving this gun and shooting and killing one officer and hurting another one critically. And so now we have a 38 year old Chicago police officer with three children who is no longer with us. And we come to find out that the suspect in that case has had multiple felony convictions for a large portion of his life and was fighting multiple felony convictions at the time of this arrest and was released without really many conditions at all, had no electronic monitoring, had no conditions that were associated. And now of course, that judge is under fire. And how do we deal with these situations where we have laws that change. Right. And you have judges that are kind of saying to the politicians and I'm going to be very, very transparent here. I know this judge, I know John, like extremely well who's under this major scrutiny now. And I feel bad about it because I know and like him. And he, his own child was a victim of gun violence. He lost a child. So the fact that, you know, he's normally pretty strict and pretty tough. And so I don't know what happened specifically in this case. It really is out of character for him. And so, you know, in looking at this, there's part of me that wonders if the judges are now saying, you know, what legislature, you're going to do this and you're going to put these stupid laws in place and now let's, let's see what happens. And so part of me wonders if there's a little bit of that going on where judges say, fine, you want to take away my ability to keep people for certain reasons, then let's see how that plays out.

B (29:18)

Yeah, I mean, that may be the case. Look, I don't know the jurists. You do, but you know, it is a, it is a story that is just playing itself Out. I mean, we've seen so many variations of what you're describing in New York City just within the last year. And, you know, it's. It's just absolute madness. And I'll tell you, you know, it is not the minority communities that support this crap.

A (29:48)

Correct.

B (29:49)

It's just not. I, you know, it's very difficult to succeed as a Republican in Manhattan, but just probably the understatement of this same in Chicago. But, you know, look, campaigning, you know, I took my race very seriously. I went out and, you know, pounded the pavement every day. And the biggest, you know, the most positive receptions I received were in, were in black communities in places like Harlem and Inwood and what have you, because they're the most impacted by this.

A (30:24)

You know, the prosecutor's job is to keep people safe. That's their job.

B (30:29)

Right. You know, and this is, I know I've said it a couple of times already, I'm going to keep using it. It's a homicidal agenda that is baked up, up by radical liberal majority white activists just the way it is. That really just traffic in chaos. I mean, that is what they are inflicting upon these communities. One of my legal heroes was Thurgood Marshall, and just the first black Supreme Court justice, obviously, and just a maverick defense attorney. And when Thurgood Marshall had a legal defense fund for the naacp, would go into the Jim Crow south as a black lawyer defending black accused in front of all white juries. And you can't conjure up a more hostile environment. But he had a criteria. Before the NAACP would take a case, he had to believe, or they had to believe in the actual innocence of the person they were defending. Right. And I'm not saying, look, everyone deserves a defense, obviously, but it was just such a different mentality that even in fighting for the civil rights appeal, they weren't going to go defend just some miscreant, somebody who was obviously clearly guilty, inflicted harm. And now we fast forward now to a time where these activist groups goes well beyond the naacp are, you know, taking people who are admitted criminals, convicted criminals, recidivist criminals, determined to put them back onto the streets in these communities where, you know, minorities are disproportionately so much more likely to be the ones terrorized by these very policies that they're advocating.

A (32:32)

Yes, no question about it. And that's why those are not the people you want on your jury, if you are, are representing someone charged with a violent crime. Because they're saying, I don't want this in my neighborhood.

B (32:42)

Yeah, absolutely.

A (32:44)

Nor would any grandmother says, no, I don't want you in my neighborhood doing this 100%. Well, I will say this, Tom. We are so supportive of Daniel Penny. We need more people like Daniel Penny. And I know as well as you do how expensive the defense of these types of cases are. I know that, that many people donated and continue to donate to Daniel's GoFundMe page for his legal fees. I really encourage people to continue to do so. The fact that anyone is giving any money to Luigi Mangione makes my stomach hurt. And we should really be supporting Daniel Penny and his fight that continues in his civil case.

B (33:25)

Yeah, no, I, I appreciate that. Give, send, go. By the way, good crowdsourcing.

A (33:30)

Okay, good. Give, send, go.

B (33:31)

Yeah, no, the fundraiser's still up there, and there's, there's still work to. And we're a long way, I think, from trial.

A (33:39)

Cases are expensive.

B (33:40)

Yes, it's expensive. You know, it's not just lawyers, you know, I mean, you know as much as anyone, consultants, experts, all that is involved in defending a case like that.

A (33:53)

And you. And you need those people so jurors can understand what really went on and then give them the tools to make the right decision. And that's our job as lawyers to do that. And tell me before we go, Tom, tell me about your book.

B (34:06)

Yeah, no, thank you so much. Tuxedo park, it's my first novel. It's a legal political thriller. It's currently, it's currently in pre sales on Amazon and many other places, but I'm told by the publisher that Amazon is. Is the place to direct people to, so it's doing really well in pre sales. And you know, I, I always enjoyed writing. I learned that I enjoy fiction writing a lot more than legal writing writing. Unlike in legal writing, where you have to qualify every sentence, if you're writing a work of fiction, you could just go on and rift. And that's what I did. I basically borrowed from my exposure to the political world in my many years as a civilian prosecutor, a military attorney, and a criminal defense attorney, and, and took little lessons from all those different worlds and put them together into what I think is a pretty, pretty exciting read.

A (35:11)

Well, as a former prosecutor and a defense attorney, I cannot wait to read it. You and Dana Perino are inspiring me with your fiction books. I just finished hers. And so now I'm going. The minute we get off, I'm going to go on Amazon, I'm going to order it, and I can't wait to read it and once we do that, we'll have you back on and we'll talk about about it.

B (35:30)

Yeah, I'd love that. You'll so certainly some of a good, a good, good amount. It'll be relatable to you. And I've heard, I've heard about Dana's book. I got to check that out as well.

A (35:39)

Oh, it's really fun. It's, it's a, it's a political sort of rom com and there's, it just, it's, it's a fun book. She did a great job and I really enjoyed it. So I can't wait to. I just finished her so I can't wait to start yours when it comes out.

B (35:51)

That's awesome. I appreciate that.

A (35:53)

Tom. Thank you so much for your time. You've been great. Thank you for joining me for another episode of Crime and Justice. Remember, we want to hear from you. Send us your thoughts, questions or theories and we will answer them on air.