No matter what side you find yourself in terms of whether Jordan Neely’s homicide at the hands of Daniel Penny on a Manhattan subway was the result of a lawful response to an imminent threat, a violent overreaction by a fellow straphanger, or something in between, there is one undeniable fact – Neely’s passing was as unnecessary as it was tragic. Period. There is no other reasonable interpretation nor view. Setting aside this truth, along with the raw emotions of the incident and questions about race which permeate it, however, leaves us with an important question that needs answering: what crime(s), if any, did Penny commit.
Putting Facts First: Evidence is What Matters
Despite the magnitude of the sadness, frustration, and even anger, all reasonable responses to what occurred, we must steer clear of rhetoric and instead concentrate on facts born from evidence, not speculation. Calling Penny’s actions, a “murder” or “lynching”, as Congresswoman AOC and the Working Family Party’s Maurice Mitchell have done respectively, dangerously disregards the hallmark of our criminal justice system – the presumption of innocence we all deserve and they, like all of us, no doubt fight for and stand solidly behind. A presumption of innocence that doesn’t ebb and flow with public opinion no matter how terrible and sad an incident may be. Instead of relying on the totality of evidence, of which none of us are yet aware, inflammatory words fuel knee jerk reactions that in turn flame divisiveness and widen the divide between camps of people unwilling to hear one another out who should otherwise be working together both inside and outside the criminal justice system. As it pertains directly to both Neely and Penny, we all should want a thorough and honest investigative process where prosecutors, witnesses, and even possible jurors, are free from any outside pressure or taint that can compromise a potential criminal case.
While I could certainly continue to opine on many issues, from a mile-high view of how District Attorneys are enforcing the law in NYC to the availability of mental health resources for those desperately in need, and much more in between, I will not do so. Instead, the following blog entry is a cursory and brief factual, evidentiary, and legal analysis of the Manhattan District Attorney’s Office investigative process into the death of Neely and the potential crimes Penny may have committed.
Manhattan District Attorney Alvin Bragg: Law Enforcement Investigation
Penny’s Non-Arrest & Perceived Law Enforcement Delay
In circumstances where it is not clear cut whether a crime has been committed or where one did in fact occur but it’s not certain what offense, prosecutors often delay an arrest. Remember, “homicide” does not mean “murder”. Not every death warrants a prosecution, whether or not this case does. In situations requiring investigation, prosecutors may even decline to prosecute, or “DP”, a case after an arrest but before drafting a felony complaint for numerous reasons. They may want to try to speak to an accused or, even if they do not, make sure they have spoken with witnesses, retrieved videos, and even subpoenaed the evidence they need to support their decision. Further, post-discovery reform, prosecutors also do not want to run afoul of legal obligations where a failure to timely turn over evidence can result in a dismissal. Simply stated, it behooves the District Attorney’s Office to have their “homework” done and ready to share to ensure a just prosecution and compliance with the law. It should come as no shock to anyone familiar with the criminal justice system that Penny’s non-arrest was not akin to favoritism or inaction, but an effort by law enforcement to complete an investigation that may not be a marathon, but certainly is by no means a sprint.
How Prosecutors and the NYPD are Investigating Neely’s Death
As a preliminary matter, Manhattan prosecutors will undoubtedly obtain all 911 calls and review recordings from the subway platform and elsewhere to see how Neely was behaving before entering one of the cars and even identity witnesses. Law enforcement may also try to see who swiped in through the turnstiles as part of their efforts. While much of this can be done fairly administratively, detectives will have a far more difficult task. Not only must they identifying as many witnesses as possible who were actually in the subway car, but they must take statements from them and secure any personal videos from iPhones or similar devices. Though a witness need not cooperate, and prosecutors have no ability to force them to meet with detectives or come to the District Attorney’s Office, Manhattan District Attorney Alvin Bragg can open a Grand Jury investigation that will allow law enforcement to issue subpoenas for both personal appearances before that body as well as to obtain any physical and other evidence.
Must Prosecutors Present a Case to the Grand Jury to Pursue Charges
Though the District Attorney needn’t present evidence before a Grand Jury in every investigation, understand that without opening an investigation in the Grand Jury, prosecutors cannot merely subpoena evidence or “force” witnesses to come forward “just because”. To be clear, without a Grand Jury subpoena, though law enforcement can attempt to speak to witnesses and conduct their investigation, they would have far more difficulty obtaining evidence from sources that might not comply or voluntarily participate in the process. Obviously, its law enforcement’s hope that witnesses agree to speak and work with them.
The above aside, District Attorney Bragg can also use the Grand Jury to present charges or allow Grand Jurors to determine whether there is reasonable cause to believe Penny committed a particular crime. While the NYPD can make an arrest based on probable cause and prosecutors can draft a felony complaint to charge Penny, a Grand Jury can somewhat “skip” this process by directly hearing evidence in any form, from witness testimony to video recordings. In such a case, the Grand Jury, consisting of 23 people where a quorum of 12 is needed to hear the evidence, can vote out and indictment or “true bill”. The benefit to this approach from the District Attorney’s perspective, is that prosecutors can put the decision making in the hands of Grand Jurors and point to that body of people as the arbiters at this initial stage.
Can Penny Tell His Version of Events to the Grand Jury
Before the Grand Jury votes, should it reach that point, Penny, like any accused, could exercise his right to testify, though his attorney, who would be present, would be unable to object or speak. After telling his story, both prosecutors and Grand Jurors would be able to ask Penny questions.
What Happens Before and After the Grand Jury Votes
Before a Grand Jury presentation concludes, prosecutors will instruct jurors on the Penal Law, and very likely the legal definition of some of the following: “intentional”, “depraved indifference”, “reckless”, “criminally negligent”, and, presumably, “justification”.
If there is an indictment, called an “NA” or non-arrest indictment, it will be filed with the court and a warrant issued. Should that happen, prosecutors and the defense would likely arrange a surrender, and Penny would be brought before a judge for his arraignment.
Will Penny Meet with Prosecutors to Tell His Story
Assuming Penny did not speak to the NYPD when he was first taken into custody or interviewed, he likely did himself a favor. Why? Penny can still avail himself of this opportunity by way of a proffer or “Queen for a Day” before or after his case is presented to a Grand Jury, assuming it is. In doing so, Penny, along with his counsel, can meet with prosecutors and speak with them pursuant to an agreement that disallows the District Attorney from using the statements shared during that meeting against him. As long as those statements do not lead to additional evidence, are not the basis of perjury, or are consistent with Penny’s testimony in a Grand Jury or at trial, Penny potentially has a path to be as forthright as he can without the concern of damaging his defense.
The Crimes: Murder, Manslaughter, and Criminally Negligent Homicide
Second Degree Intentional Murder: Penal Law 125.25(1)
No, I don’t know what would or will be presented before the Grand Jury because it is a secret proceeding. However, it is fair to say that based on the evidence that has been publicly shared, prosecutors would not seek, nor would a Grand Jury indict, for Second Degree Murder, Penal Law 125.25(1). In order to prove this offense beyond a reasonable doubt, the District Attorney must establish that Penny intentionally caused Neely’s death. In other words, it was Penny’s conscious objective and purpose to kill Neely.
Second Degree Depraved Indifference Murder: Penal Law 125.25(2)
Another potential theory for Second Degree Murder is found in Penal Law 125.25(2). In lieu of acting intentionally, Penny must have recklessly engaged in conduct, the choke hold, which created a grave and unjustifiable risk of death to Neely, and in fact caused his death. Here, of central import, prosecutors would need to establish that Penny engaged in conduct that created an unjustifiable risk that Neely would pass, he knew or was aware of that risk, and consciously disregarded that danger. Moreover, even if these elements are satisfied, a jury must then conclude that the risk was of such a nature and degree that disregarding it was a gross deviation from a reasonable person’s standard of conduct.
Keep in mind that the law is clear as to Second Degree Murder: recklessness that results in the death of another, no matter how substantial, is not by default Second Degree Murder. For this statute, the recklessness must demonstrate that the circumstances evinced a depraved indifference to human life. To be clear, while subjectively one could argue that it is depraved to take another’s life, that alone does not make the case for Second Degree Murder. What is needed is an utter disregard for the value of that person’s life, i.e., that Penny just didn’t care whether Neely suffered grievous harm or even death as a result of the chokehold. To double down for clarity purposes, and to understand the magnitude of the burden, depraved indifference to human life is one that is steeped in wickedness and an evil state of mind that is morally deficient in concern, devoid of regard for another, and is so blameworthy that it is the functional equivalent in the eyes of the law of an intentional killing.
Murder in the Second Degree is a class “A-1” violent felony punishable by fifteen years and as much as twenty-five years to life in prison.
Second Degree Manslaughter: Penal Law 125.15(1)
In the most basic terms, Penny is guilty of Second Degree Manslaughter if he recklessly caused Neely’s death. Unlike “reckless” as defined in Depraved Indifference Murder, a person acts recklessly under this statute when he engages in behavior that creates and contributes to a substantial and unjustifiable risk that another person’s death will occur. When doing so, Penny must have not only been aware of and consciously disregarded the risk of death, but this risk was of such a nature that his indifference constituted a gross deviation from that of a reasonable person’s standard of conduct in the particular situation.
A class “C” non-violent felony, Manslaughter in the Second Degree is punishable by no mandatory minimum but as much as five to fifteen years in prison.
Criminally Negligent Homicide: Penal Law 125.10
Penny is guilty of Criminally Negligent Homicide if, with criminal negligence, he caused Neely’s death. In order for Penny to have behaved criminally negligent in the eyes of the law, his conduct would have had to have been so serious that it created or contributed to a substantial and unjustifiable risk that Neely would die. Moreover, when behaving as he did, Penny must have failed to perceive that risk – a risk that was of such a type that his failure to recognize it constituted a gross deviation from a reasonable person’s standard of care in the same situation.
Criminal negligence, unlike civil negligence, requires that the carelessness exhibited is so serious and significant that it would be apparent to anyone who shares the community’s general sense of right and wrong.
A class “E” non-violent felony, Criminally Negligent Homicide is punishable by no requirement that Penny be imprisoned, but he would face as much as one and one third to four years incarceration.
Other Relevant Factors: Justification
New York Penal Law 35.15(1) defines what some people refer to as “self-defense”. With the burden on the prosecution to prove justification did not exist, Penny’s actions would be considered legal if he used the degree of physical force he believed necessary to defend either himself or other people from what he reasonably believed to be imminent use of physical force by Neely against any one of them.
In making the above determination, Penny must have actually believed that Neely was using or about to use physical force, and that Penny needed to put Neely in a chokehold for a period of time to defend himself or his fellow riders. Further, it matters not that Neely had a criminal record, a history of violence, a warrant, or was a mentally unstable person, true or not, because the standard to judge Penny’s actions is a “reasonable person” one. That is, would a reasonable person, knowing what Penny knew at that moment in time and in those circumstances, would have had his same belief to defend himself or other people. A wrongful belief does not preclude justification, as long as it was honest and reasonable.
Separately, while physical force may be used against another in certain circumstances, Penal Law 31.15(2) allows for the use of deadly physical force as well. Relevant to Penny and Neely, deadly physical force, defined as force that is readily capable of causing death or serious physical injury, is justified if Penny reasonably believed that deadly physical force was imminent from Neely against himself or others.
The Bottom Line: A Tragedy with No Winners
There are many words to describe what transpired on the northbound F train last week – tragic, sad, horrific, and terrible, to name but a few. One man lost his life, and another’s life will forever be altered in ways he could not have fathomed when he hopped on the subway. Whether Neely had a criminal history, is really just a distraction to justify or rationalize his death and Penny’s actions. But just as Neely’s past brushes with law are not relevant, merely because Penny was not arrested and very likely will not be charged with murder barring something exceptional, does not mean he is getting a pass.
An injustice is an injustice, and we should not willingly advocate for one wrong cure or fix another. For that matter, it serves no greater good to compare the injustice of Neely’s life taken too soon, and unnecessarily so, with the injustice of condemning Penny with presumption of guilt instead of innocence. Instead, we should allow the NYPD and Manhattan District Attorney’s Office to do their respective jobs without bias and pressure. None of this will bring Neely back nor ease his family’s pain due to this tragedy, but if we allow law enforcement to do their job, we in turn will provide them with the greatest opportunity to ensure the criminal justice system, as imperfect as it may be, works as best it can.
Jeremy Saland is a criminal defense and trial attorney who served as a prosecutor in Robert Morgenthau’s Manhattan District Attorney’s Office.