Daniel Penny: A Primer

Here's what you need to know as the case commences

On May 1, 2023, Jordan Neely entered the subway car on which Daniel Penny, Marine Corps veteran, was riding. After that… things are less agreed-upon.

Here’s what you need to know.

(Daniel Penny, on trial in New York for Manslaughter and Criminally Negligent Homicide)

The Fact Disputes

There are more fact disputes than many observers realize.

1. What exactly did Neely say/do? Was he shouting? Initial reports suggested that Neely said he “didn’t care” if he had to go to the hospital or died, and that he was yelling. Will these witness statements hold up? These are needed for the Defense to demonstrate that Neely was an imminent threat.

2. The Witness Statements. This goes to the statements made by the witnesses in the immediate aftermath. Reports at the time suggested that the witnesses present provided these facts, and that two of these witnesses were women (at least one being a “woman of color”). Will they stand by these statements? Did the transit detectives take good statements? Do fulsome paperwork? And were they able to find all the witnesses present in that subway car? (There were reports that this was proving difficult).

3. The Videos. While we are all familiar with the video that circulated online, there are reportedly other videos taken at the scene and even during the incident. What will these show? As observers, we have a tendency to default to what we have seen. Be prepared for other video, showing potentially a very different view of things.

4. Police Video. The unseen video will likely include body camera footage from the responding cops, as well as video of Penny’s interview immediately following the event.

5. The Uncharged Pair. Whether introduced or not, a fact which can’t be ignored is: Why weren’t the other two men who helped Penny — both visible in the infamous video — charged?

The Trial Strategies

1. Jury selection will be key. This will take longer than usual, because the jury is more key in this case than many others. This will be a Manhattan jury, firmly left-leaning. The Defense needs at least one holdout to hang the jury and cause a mistrial. So the selection process is crucial, and will probably take about two weeks. (And in my estimation: forget about an acquittal).

2. Penny’s legal defense strategy will be, “Justification.” That is, that he was justified in using force against Jordan Neely, as Neely presented an imminent threat to him and others nearby. Remember: The defense does not have the burden-of-proof; the Prosecution does. Penny is innocent until proven guilty.

3. Neely’s drug use. Defense will also cite that Neely was under the influence of K2 (a potent form of “synthetic marijuana”) and contend that this could have been the determinative factor in his death. Consider this video, in which Neely takes a deep breath at the 3:49 mark, well-after the struggle commenced. There’s also this video, reportedly taken “shortly before” Neely’s encounter with Daniel Penny, which shows Neely wearing the same sweats he died in while shaking and rambling incoherently as if he’s on something.

4. Neely’s past could come into play. The Defense will try to introduce evidence of Neely’s past life, which reportedly includes numerous mental health incidents, unprovoked attacks on others in the subways, etc. (Neely had over 40 prior arrests). Neely was in fact under a court order to seek mental health treatment — treatment he simply walked away from following a previous violent encounter. There was a warrant out for his arrest at the time of the Penny incident; it is unclear who was looking for him relative to this warrant, if anyone.

5. Penny’s mental state. The Prosecution has charged Manslaughter 2, which requires a mental state of “reckless,” and Criminally Negligent Homicide, which requires a mental state of negligence. “Reckless” is defined under the law as: “you saw the risk, but ignored it.” “Negligent” is defined as, “you should have seen the risk, but you did not.” The Prosecution will point themselves firmly at this aspect of the case; that is, not that Penny wanted to kill Neely, but that he was reckless/negligent in doing so.

6. Penny went too far. As part of showing recklessness and/or negligence, the Prosecution will contend that Penny went beyond the bounds of a Justification defense — that he held onto Neely too long, past the point where Neely posed an imminent threat. They will attempt to use the video to demonstrate that Neely was no longer seriously struggling, and that Penny should have felt that and released him.

7. The military witness. The Prosecution apparently plans to call a military expert who will testify that when the Marines teach the use of a chokehold, embedded in that training is that such a hold can be lethal. In other words, Penny should have known that holding onto Neely too long could result in Neely’s death.

8. Humanize Neely. The Prosecution will almost certainly do all they can to ensure the jury sees Neely not as a crazed homeless man who menaced subway riders, but a young man in mental crisis who didn’t get the help he so needed.

The Politics

1. This is a Manhattan jury — which by definition means heavily left. Manhattan is the NYC borough that is most reliably liberal in elections, and which elected Alvin Bragg (and likely will do so again). This is where Bragg got Trump convicted on a case nobody can truly understand. And Penny is former U.S. military — an outfit for which many Manhattanites have little feeling.

2. New York’s willingness to politicize the case was evident from the get-go. The case was proceeding to a grand jury for potential indictment when police officers were sent out to arrest Penny. This is not normally how this would be done — everyone would await the grand jury, because it offers cover (“hey, we presented to a grand jury, but they didn’t indict. Not our fault.”). In response to street protests, the Mayor likely made this call, as it was NYPD that made the arrests, not the DA’s Office (which does have arrest powers). Pure politics. And by the way, the demonstrators know this — so expect them to keep the pressure on.

3. Do not discount the Trump factor. It is no secret that Trump is surging in the polls — which has Manhattanites and the NYC media class infuriated. A white military man from the Trump-favoring suburbs is a handy surrogate for the man they want to see go down to ignominious defeat in two weeks.

   

   (Young Manhattanites doing what they do best — protesting)

4. Trump is coming here! To only exacerbate matters, in the middle of the upcoming two weeks of jury selection, Donald Trump will hold a rally in Madison Square Garden (this Sunday). Expect protests, screams of “white supremacy,” etc.

5. Our venal media. The cry of Jordan Neely being “another George Floyd” has already gone up. The media loves big events — they drive clicks and sales. It is in the interest of our media elites to make Jordan Neely the next George Floyd. Expect The New York Times to lead the charge.

6. BUT (and this is a big but): New York City is undeniably spiraling in the wrong direction. Violent felonies are up over a third since 2019, there are homeless and mentally ill all over the streets and in the subways, and the migrants have taken over the shelters. Women are increasingly fearful of riding the subways (see an excellent Free Press take on this, here), subway homicides are way up, and random attacks from the mentally ill are a daily feature of the city’s newspapers. Are New Yorkers fed up?

7. “The System” is also on trial. Even Neely’s relatives have called out “the system” for failing him. New Yorkers have learned to have a healthy disdain for our failing bureaucracy — our Mayor is under indictment, after all — and blaming “the system” could be a handy political surrogate for holding Penny accountable.

8. The “don’t get involved” factor. This is every-present in NYC cases of this sort, going back to the infamous Kitty Genovese case. Will a New York jury recognize that a conviction of Daniel Penny means nobody will want to step in for endangered fellow New Yorkers in the future?

There will be other factors developed at trial, of course (and note: this is New York State court. So: no cameras). We will follow them closely and report back.

In the end, it is important to remember something: one young man has had his life inexorably altered, and another young man is dead — a tragic fact that nothing can change.

Stay tuned.

(And for more on this case, here is our podcast teasing out the factors that will really determine this case!).

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