By now, most Americans have heard of Daniel Penny, the Marine Corps veteran being charged by Manhattan’s Democrat district attorney for defending his fellow citizens from an erratic Jordan Neely on the New York City subway. There’s also a good chance they’ve heard of Daniel Perry, the Army sergeant recently convicted in Austin, Texas, for protecting himself from an armed Black Lives Matter demonstrator.
On their own merits, both cases represent a seemingly growing trend of Democrat prosecutors allowing violent criminals to walk free while punishing law-abiding Americans for defending themselves from horrendous acts of violence. Case in point: Kevin Mackie, a Massachusetts resident charged for allegedly protecting himself from a violent, anti-Republican attacker.
What Happened
On July 8, 2022, Mackie was among several individuals to participate in a demonstration outside of Acton, Massachusetts’ Discovery Museum. The purported purpose of the gathering was to protest the facility’s role in giving Covid shots to children.
In a March 2022 “update,” Museum CEO Neil Gordon announced the organization had partnered with the Massachusetts Executive Office of Health and Human Services to “host six days of public COVID-19 vaccination clinics for kids ages 5 to 11.” According to Gordon, “[m]ore than 650 vaccine doses were administered,” with each jabbed child receiving “two free Museum admission passes as a sweetener.” Notably, the museum requires individuals seeking employment with the organization to show “proof of full COVID-19 vaccination.”
“We think that it’s just wrong for a museum to exchange services for vaccinations,” protestor Michelle Efendi told The Federalist. In addition to founding the Neighborhood Admins Resilience Network — a coalition of Facebook Groups supporting community preparedness and response — Efendi is a community organizer with experience in emergency management. It’s worth mentioning that Efendi does not describe herself as a Republican and has previously campaigned for Democrat presidential candidates such as Hillary Clinton and Bernie Sanders.
Upon arriving at the Discovery Museum, Efendi, Mackie, and their fellow demonstrators were confronted by several individuals — at least one of whom was a Discovery Museum faculty member — who wanted them to leave the area. Shortly after arriving, the protestors were confronted by local resident Frederick Smith, who, as documented in footage obtained by The Federalist, appears to assault Mackie and rip apart his protest sign. Mackie allegedly hit Smith with his megaphone “four times” in response.
Following this initial contact, videos reviewed by The Federalist show Smith pushing Mackie toward the ground into some nearby shrubs. After regaining his balance, Smith is documented grabbing the sign strapped over the front of Efendi’s shoulders, at which point Mackie discharged pepper spray into Smith’s face. Mackie sprayed Smith in the face again after the latter latched on to Efendi’s wrist and refused to let go.
Upon releasing Efendi, Smith proceeded towards Mackie’s broken sign, pulled out the sign’s four-foot-long PVC pipe, and used it to hit Mackie. Smith also swung at Efendi — barely missing her face — and another protestor before finally walking away. In pain from the pepper spray, Smith called 911 and was taken into police custody.
“I’ve never seen … or experienced anything like [that],” Efendi said. “It was actually really scary what he did.”
A deeper dive into Smith’s background reveals a history of animosity towards people with conservative viewpoints. Hours after the Jan. 6, 2021, riot at the U.S. Capitol, for example, Smith claimed on Facebook there “are no good [R]epublicans” and that “[w]e should not attempt to ‘bridge’ any division [because Republicans] are a virus that this country needs to expel.”
“We will never convince [Republicans] that they are better served by progressive policies — they are wholly irredeemable,” Smith wrote. Several days later, on Jan. 10, Smith equated the GOP to “Nazis” while celebrating Amazon Web Services’ decision to remove Parler —a free speech social media platform predominately used by conservatives — from its web hosting service.
Other posts by Smith suggest he was a strict adherent of the federal government’s Covid-era policies and recommendations.
The Charges and Ongoing Litigation
After reviewing the available evidence and conducting interviews with various witnesses, the Acton Police Department requested Mackie be charged with trespassing, assault and battery, and assault and battery with a dangerous weapon. The department additionally recommended Efendi and two other protestors be charged with trespassing.
A complaint was also sought against Smith on numerous counts, including assault and battery, assault with a dangerous weapon, assault and battery with a dangerous weapon, and disorderly conduct.
While the trespassing charges considered for Efendi and the two other demonstrators were ultimately not pursued following a magistrate hearing, Mackie is still facing prosecution from the office of Marian Ryan, the Democratic district attorney of Middlesex County. If convicted on the assault and battery charge alone, Mackie could face up to 10 years in state prison. Meanwhile, Smith cut a deal with Marian’s office to have all his charges dropped in exchange for several months of pretrial probation and participation in anger management classes. The judge presiding over the case approved the deal last February.
“When it comes to dissent or any kind of protesting that’s not for leftist causes, they will arrest you, and they will prosecute you no matter what,” Mackie’s lawyer, Ilya Feoktistov, told The Federalist. “There is a major … double standard of criminal justice when it comes to protesting in Massachusetts. If you protest for the wrong cause … there will be a case manufactured against you.”
While Feoktistov criticized all the charges against Mackie, he specifically noted how the trespassing charge falls flat, given that the location of the protest was on public grounds.
“There’s an easement that was signed in 2016 by the museum in [Acton] that allows the town to use the sidewalk outside their building,” Feoktistov said. A copy of the easement provided to The Federalist indicates that this is true.
Legal Shenanigans
In their attempt to prosecute Mackie, Ryan’s prosecutorial team has purportedly engaged in several legal shenanigans. Feoktistov claims Ryan’s office violated the pretrial conference report, which includes, for example, a list of witnesses both parties agree to ahead of trial. This is done to allow both parties time to prepare for cross-examination.
Ryan’s office allegedly violated the pretrial agreement by “calling an additional witness to testify” after “consistently represent[ing] to the Court and Mr. Mackie that the Commonwealth’s only evidence at trial would be testimony from the cross-complaint defendant, who would be exercising his Fifth Amendment right not to testify.”
“The Commonwealth did not serve any witness list on Mr. Mackie. On January 23, 2023, however, the Commonwealth informed Mr. Mackie’s attorney that an eyewitness who had originally declined to testify for the Commonwealth will be testifying after all,” an emergency motion to continue trial filed by Mackie’s attorneys reads. “As a result, Attorney Feoktistov has not had sufficient time to investigate and prepare Mr. Mackie’s case to go forward on January 26, 2023.”
In a memo filed in opposition to Feoktistov’s motion to dismiss the charges against Mackie, Ryan’s office attempted to make it appear as if Mackie was the aggressor in the situation and not Smith. In their memo, the prosecutors claim Mackie was the one who “escalated the altercation by discharging his pepper spray directly into Mr. Smith’s face” and that the “level of aggression between [the] two parties differs drastically, which renders the claim that they are similarly situated Defendants invalid.”
Feoktistov’s motion to dismiss was denied seemingly without reason by the Concord District Court last month.
Ryan’s History of Prosecutorial Misconduct
Mackie’s case is hardly the only one where Ryan’s legal team has seemingly engaged in unethical behavior. In fact, the Middlesex DA’s office has a documented history of withholding exculpatory evidence in several notable cases.
The first of such instances involved Aisling Brady McCarthy, a nanny accused in 2013 of murdering the 1-year-old for whom she provided care. According to The Boston Globe, McCarthy was charged by Ryan’s office after Alice Newton, a prosecution medical expert, “concluded … the 1-year-old had suffered injuries, including severe bleeding in the back of the eyes, which indicated abusive head trauma, also known as shaken baby syndrome.” This resulted in McCarthy being placed in jail without bail.
In August 2013, Ryan’s office consulted with eye specialist Dr. Alex Levin on whether injuries to the baby’s eyes indicated some form of abuse. According to the Globe, Levin was “hesitant” to conclude the baby was abused, telling prosecutors he “found less severe retinal hemorrhaging, and repeatedly raised the possibility that the baby’s injuries might have been caused by something other than abuse.” Despite prosecutors’ obligation to share such information with McCarthy’s legal team, Ryan’s office sat on it for over a year, even after defense attorneys, “who learned of Levin’s work by happenstance, asked for it repeatedly.”
It wasn’t until the judge presiding over the case ordered Ryan’s office in January 2015 to turn over notes taken during their conversations with Levin was the information then disclosed to the defense. McCarthy, who had been in jail for over two years, had her sentence reduced and was released in May that same year. Charges were ultimately dropped on August 31, 2015.
A similar instance occurred in the case of Geoffrey Wilson, a father charged by Ryan’s office with shaking his infant son to death. While initially ruled a homicide, the case’s medical examiner reportedly told prosecutor Katharine Folger in a September 2013 email that he “wanted to change his homicide finding.” While the examiner would not officially do so until August 2014, he claimed Ryan’s office “attempted to pressure him into sticking with his original homicide finding.” The charges were eventually dropped after it was disclosed the baby died from natural causes.
It’s worth mentioning that Ryan’s office has been criticized by the U.S. Supreme Court for its reckless prosecutions, specifically by Justice Samuel Alito in the court’s 2016 Caetano v. Massachusetts decision.
