O.J. Simpson and the Daniel Penny Case

"We have not yet achieved an America in which race cannot suspend the law."

Hi all,

I know some of you may be following the trial of Daniel Penny in New York City. For those of you who don’t know, Penny is a Marine veteran who was 24 years old at the time he allegedly choked Jordan Neely, a subway platform performer, to death.

In an interview, Penny recounted that Neely entered the train while saying, "I'm gonna kill everybody. I could go to prison forever, I don't care." He repeated this several times, including that he would “kill a motherfucker.” Nearby subway riders were scared. Penny also felt threatened and sprung into action. He pinned Neely to the floor with the help of two other passengers and held him in a chokehold for minutes.

Neely was later pronounced dead at a nearby hospital. Penny turned himself in. He was released a few hours later without charges. Days later, Manhattan District Attorney Alvin Bragg confirmed that his office was investigating Penny who was soon charged with manslaughter, which carries a penalty of five to 15 years in prison.

It was at this point that race entered the picture. Of course, the optics were there all along: Penny is white and Neely is black. But these optics took a sharper turn for the sinister when Bragg entered the picture.

During his campaign for district attorney, Bragg proudly proclaimed that pursuing racial equity would be his North Star. During his term, he established a controversial reputation for consistently favoring people of color, including criminals, above all other considerations, including his task to pursue justice.

Perhaps his most famous example was when he charged Jose Alba, a clerk at the Blue Moon bodega in Harlem, with stabbing ex-con Austin Smith to death during a fight. The video clearly revealed that Alba was defending himself from Austin who initiated the attack. But for Bragg, Alba was a light skinned latino, which meant that Austin’s blackness mattered more — achieving racial equity outweighed justice.

Alvin Bragg (inset) and Jose Alba (hat) being attacked by Austin Smith

Further, the lawyer that Bragg assigned to the Perry case, Manhattan prosecutor Dafna Yoran, has publicly made it a policy of hers to pursue racial equity through restorative justice. In 2109, she asked for and received a reduced sentence for Matthew Lee, a black man. He snuck up on former Lehman College professor Dr. Young Kun Kim, 87, who was withdrawing cash from an ATM, and killed him with a fatal blow to the head. All for $300.

Yoran later said on this case in an interview: “I had a murder case where the defendant did not intentionally kill the victim. I took the time to learn about the defendant.... I really felt incredibly sorry for him that he had gotten to that point in his life where he felt there was no choice but to commit this robbery.”

This same lawyer has not once offered the possibility of restorative justice to Penny who has shown contrition. Instead, Yoran has repeatedly referred to Penny during the trial as “the white man” and “murderer.” She also told the jury that Penny “didn't recognize that Jordan Neely was a person. He saw him as a person that needed to be eliminated.”

The prosecuting team placed race front and center in this case. The only reason to repeatedly refer to Penny as a white man is to link him to the sins of America’s racist past. This is a pure white guilt play, as my father would say it is. The prosecutor has made it her identity and esteem to pursue racial justice, not justice, but racial justice and putting a white man — not a human — in jail is her goal.

Playing this kind of a race card is as old as America. Here’s my father writing about the O.J. Simpson trial in his “White Guilt” book, which offers many striking insights to what is going on today:

In the O. J. Simpson murder trial, defense attorney Johnnie Cochran used the fact that Detective Mark Fuhrman lied on the witness stand about having ever used the N word to assert that the entire mountain of evidence pointing to Simpson's guilt was likely contaminated with racism. Here again was the disproportion that global racism always seeks. From a man who lied to conceal an embarrassment, Fuhrman was transformed into someone who could very likely be a craven racist, a person capable of malice aforethought who might prowl Simpson's property planting evidence against him everywhere. So powerful was global racism in the case that even the possibility that this implausible caricature might be true was given more weight than solid DNA evidence linking Simpson to the murders. The mere suggestion of racism proved the rule of virulent racism. What this meant in this court was that the bar for "reasonable doubt" was completely defined by global racism. And the court itself-like most American institutions in this age of white guilt-was so bereft of moral authority in racial matters that it could not restore proportionality to the proceedings. It could not stop the Fuhrman caricature from carrying the day. Racism was allowed to become a kind of contaminating ether that wafted through and dispelled even the hardest evidence.

Johnnie Cochran succeeded in making the trial a contest between the empirical evidence and global racism, between fact and the reputation of racism for distorting and manipulating fact. What he gambled on was that the court — on television before the world — would have to show itself, above all else, deferential to racism's distorting power. Though this black lawyer saw racism everywhere, he did not gamble his case on the court's being racist; he gambled it on the court's being obsessed with showing its utter freedom from racial bias, its determination to let even a hint of racism disqualify sound evidence. Johnnie Cochran instinctively understood that the court — an American institution in the age of white guilt — was infinitely more concerned with its own moral authority and legitimacy than with the truth. He knew the court would allow global racism to be the standard for "reasonable doubt" not because it was a reasonable standard but because it gave the court— in this trial of a famous black man-much-needed legitimacy where race was concerned. In sum, he knew that the court would essentially forgo the evidence against Simpson simply to prove that it was not biased against Simpson.

Of course, Cochran could not have invented global racism just for use in this trial. It had to have existed already in American culture, and it had to have a self-evident plausibility and power that he could pit against the plausibility of empirical fact. In the age of racism, racism itself had been such a power. White supremacy had been a higher and more sacred law than the law of the courtroom, so that whites who murdered blacks rarely even went to trial or, if they did, walked free no matter the evidence against them.

In 1955 the conviction of the white murderers of Emmet Till (the black teenager famously murdered for looking at a white woman in Mississippi) would have fractured the social order of the segregated South, so the facts in the case meant nothing and the murderers walked. White supremacy had to be served, just as white guilt was served in the Simpson case. Both Till's killers and Simpson enjoyed a "race card." Both invoked their race to gain immunity from the law. (Interestingly, in today's age of white guilt, there is even talk of reopening the Till case.)

Does the historical symmetry of all this amount to historical justice --Simpson's black race card evening the score with the Till killer’s white race card? I don't think so. It only makes the point that we have not yet achieved an America in which race cannot suspend the law.

Today, the Manhattan DA’s office is prosecuting Penny as a white man to uphold their ideology of global racism. Some call this the ideological capture of an institution and that’s not far off the mark. After all, within this ideological worldview, the whites and the light-skinned are the eternal oppressors of the oppressed people of color. This is what racial justice means.

My best,

Eli