In January of this year and then in October, we discussed the case brought by Manhattan District Attorney Alvin Bragg against former Marine Daniel Penny. Bragg accused Penny of killing aggressive panhandler Jordan Neely by placing Neely in a chokehold. Penny asserted that he was acting in defense of himself and his fellow passengers – Neely had been in the process of threatening a group of passengers on a New York City subway car when Penny subdued him.
At that time, prior to the trial of this matter, we noted that Penny, who is white, was charged with criminally causing the death of Neely, who was black. At the same time, we reviewed a series of cases where Manhattan DA Bragg did not bring charges when the alleged perpetrator was black, even when the victim was of the same race. Bragg also dropped charges for agitators, so long as they were engaged in progressive protests.
We observed that “[s]ince his election, Alvin Bragg has used the power and authority of his office to prosecute people who have a strong self-defense claim, usually when that person is defending them self or others against someone who is African American. Bragg has also failed to prosecute individuals who engage in civil disorder, so long as those persons are acting in support of causes of which Bragg and his fellow progressives approve.”
Bragg indicted Penny for two charges; Manslaughter in the Second Degree, and Criminally Negligent Homicide. Under Penal Law Section 125.15, a person is guilty
of Manslaughter in the Second Degree when “he recklessly causes the death of another person.” Meanwhile, to be guilty of Criminally Negligent Homicide, under Penal Law Section 125.10, you must “cause the death of another person” while acting with “criminal negligence.” Both are felonies under New York law.
“Criminal Negligence” is defined at Penal Law Section 15.05, which states that “[a] person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
These statutes and definitions must be kept in mind as we discuss the arguments and evidence in the trial of Daniel Penny, which commenced in early November before Judge Maxwell Wiley in Manhattan Supreme Court (in New York, the District, or Superior Court, is called the Supreme Court).
As described by CNN, in her opening statement to the jury, the trial prosecutor, Dafna Yoran, stated that “Neely walked into a…subway car and began screaming threats. He talked about being hungry and thirsty. His voice was loud…[i]n response, ‘The defendant Daniel Penny took it upon himself to neutralize him. He wrapped his legs around Mr. Neely’s body and held him there…[h]e continued to choke Jordan Neely after Mr. Neely had lost consciousness.’”
The prosecutor also emphasized that “Penny has specialized training in chokeholds, ‘so he knew that continuing to choke Mr. Neely once he had already passed out could and would lead to his death’…[t]he prosecutor said Penny ‘went way too far.’”
CNN also detailed the opening statement made by defense attorney Thomas Kenniff, who told the jury that “Penny was responding to a threat on the subway when he moved to restrain Neely and put him in a chokehold. Kenniff said ‘seething, psychotic Jordan Neely’ displayed ‘unhinged rage,’ causing the passengers on the train – men, women and children – to cower in fear. As Neely screamed about being hungry and thirsty, Kenniff said, the environment changed when Neely took off his jacket, whipped it around his head and dropped it on the ground with such force the train fell silent. ‘At that moment Danny sees a mother barricading her son behind a stroller just as Mr. Neely appears to go for them,’ Kenniff said. ‘(Danny) hears the words, ‘I will kill.’ When Jordan Neely threatened to kill, there was only one thing Daniel Penny could do.’”
In essence, the defense presented a ‘justification” defense, which is described by the New York State Jury Instructions as follows: : “a person may use physical force upon another individual when, and to the extent that, he/she reasonably believes it to be necessary to defend himself/herself [or someone else] from what he/she reasonably believes to be the use or imminent use of [unlawful ] physical force by such individual.”
From the beginning, the weakness of the prosecution’s case, and the strength of the justification defense was obvious. ABC News described “[w]itnesses [who] testified they were scared for their lives and thanked Daniel Penny for intervening…’I heard the young man that’s on the floor saying, you know hey, I’m willing to die. You know, I’ll do anything. I’ll go to jail. I don’t care. I don’t care,’ Alethea Gittings said on body camera footage… A mother on the train with her 5-year-old told the court that Neely was ‘very erratic and unpredictable.’ She also said, ‘My son started asking me questions, ‘why did he want to go to prison,’ and also testified, ‘I actually took the stroller that I had and put it in front of my son to create a barrier.'”
The strongest evidence for the prosecution’s argument that Penny recklessly caused the death of Neely came from Medical Examiner Cynthia Harris, who claimed that Neely’s death was caused by compression of the neck. Yet, Harris made this determination without waiting for a toxicology report. . That report “revealed Neely had a synthetic cannabinoid otherwise known as K2 in his system,” yet the ME refused to acknowledge that either the drugs, or Neely’s sickle cell anemia had anything to do with his death. “Harris doubled down, telling the jury that Neely could have had enough fentanyl in his system to knock down an elephant and that still would not have changed her opinion.”
This testimony was challenged by Dr. Satish Chundru, a forensic pathologist, called to testify as an expert witness for the defense. “Chundru testified [that] it was his opinion that ‘the chokehold did not cause death’…Chundru explained [that] in order for it to be a chokehold death, you have to put enough consistent pressure to render someone unconscious and sustain that pressure for an extended period of time. Using diagrams and the video of Penny and Neely from the subway incident, he told the jury it did not appear Penny applied a proper air or blood choke…[Further,] Chundru told the jury he believed the cause of death was the ‘combined effect of sickle cell crisis, the schizophrenia, the struggle and restraint, and the synthetic marijuana.'”
Judge John Wilson’s (ret.) article concludes tomorrow.
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