On Day Two of testimony, Daniel Penny was merely known as "the white man." That's what Manhattan DA Alvin Bragg's deputy reduced him to in front of the jury, as part of the prosecution's latest attempts to racially charge the New York City subway case.
The race-based label began when witness Ivette Rosario took the stand. Rosario, then a 17-year-old high school student, was trapped on the train with Jordan Neely that day he had threatened to kill other commuters, which in turn prompted Penny to step in and subdue him.
A visibly shy and nervous Rosario, whose voice was barely audible at times, did not know Penny's name so she simply referred to him as "the white guy," according to The New York Post.
However, assistant district attorney Jillian Shartrand, who's prosecuting Penny on behalf of Bragg, did not correct the soft-spoken teen. Instead of informing her of the accused's name, Bragg's underling adopted the epithet as her own, calling Penny "the white man" again and again.
As she continued to question Rasario, Shartrand reportedly used that description more than half a dozen times before the jury, drilling it into their minds.
In response, when Penny's defense attorney, Thomas Kenniff, cross-examined Rosario, he clarified that "the white man" was his client and insisted that they respectfully refer to the defendant as "Danny" and Neely as "Jordan."
Previously, another bystander, Moriela Sanchez, an 18-year-old Harlem student who was taking the train home from school, was asked, "Did it look like the white man was squeezing the black man's neck?"
"No, he [Penny] was holding him [Neely] down so he wouldn't attack nobody," she said in grand jury testimony read to the court, Fox News reported.
The prosecution's tactic of injecting race into the case coincides with Black Lives Matter activists rallying outside the courthouse every day of the trial and accusing Penny of "Racist Vigilantism," "White Supremacist Violence," and carrying out a "Modern Lynching." One protest sign labeled him "The Subway Strangler."
"Stop calling him a damn Marine! He's a cold-blooded killer," one agitator yelled into a bullhorn Thursday, the third day of trial, per The Post.
Following the jury's dismissal Thursday afternoon, Kenniff asked New York Supreme Court Justice Maxwell Wiley, the judge presiding over the proceedings, to declare a mistrial.
Kenniff said that the prosecution delivered "incendiary" opening remarks and elicited testimony that peddled this "white vigilante" narrative.
In opening statements, prosecutors claimed Penny disregarded "Mr. Neely's humanity." (Although that's exactly what they're doing during his high-stakes trial that will decide his fate for the next two decades: depersonalizing Penny, repeatedly reducing him to his race and sex.)
"Now the DA has put that right in front of them to reinforce a narrative […] that this architecture student who served his country admirably that was on the train with an unhinged nut job — according to witnesses […] is a vigilante," Kenniff said.
Kenniff also pointed to the prosecution's witness Johnny Grima point-blank calling Penny a "murderer." Grima, a Bronx homeless activist who has been homeless himself in the past, was commuting after checking on homeless people in Tompkins Square Park when he witnessed the aftermath of Penny's chokehold.
"I already felt some way about him. I didn't like him," Grima said of Penny. "It's something like, you know, when you have like an abuser abusing someone and they're not trying to let anyone near the abused?"
Grima chastised Penny over his handling of Neely's limp body post-restraint, claiming he "flung his limbs around a bunch of times" as he positioned Neely prior to the police's arrival.
"I'll be honest with you: He played with his dead body a bunch of times," Grima alleged, according to Courthouse News Service.
"There's no longer any way that my client can get anything resembling a fair trial at this point given what has happened over the last few days," Kenniff argued.
Wiley denied the defense's motion for a mistrial, but conceded, "I see what you're getting at."
On Friday, Kenniff asked the judge to strike Grima's entire testimony on grounds that it was prejudicial, particularly for making the U.S. Marine veteran out to be a murderer.
"Allowing that testimony to stand where the prosecution witness [...] repeatedly referred to my client as a murderer and so much more — it's not appropriate," the defense lawyer argued.
Wiley again denied Kenniff's request.
Ahead of trial, Bragg's office wanted to control how witnesses portrayed Penny in the courtroom by specifically prohibiting them from calling him a "good Samaritan" or a "hero."
The prosecution expressed concerns that the defense would prompt witnesses to assess whether Penny's actions were warranted, arguing that such terms were subjective phrasing based on opinion.
"A witness's characterization of the defendant [as] a hero, for example, is the equivalent of a determination that the [defendant] was justified," Shartrand's colleague, assistant DA Dafna Yoran, argued.
Rather, she said, it should be up to the jury to decide whether Penny was justified — not the witnesses testifying about the facts.
The prosecution's race-baiting strategy stretches back to jury selection when Bragg's underlings accused the defense of a racially motivated picking process that intentionally dismissed "people of color."
"If you look at the entirety of their behavior, race is playing a huge part of it," Yoran insisted.
Prosecutors are arguing that Penny went "way too far" when restraining Neely and negligently caused his death.
Penny, a 25-year-old college student majoring in architecture, faces up to 19 years in prison if convicted of the manslaughter and criminally negligent homicide charges.
The trial is expected to run through Thanksgiving into mid-December.
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