Daniel Penny is escorted from the NYPD 5th Precinct station house in Manhattan on Friday, May 12, 2023.

Daniel Penny is escorted from the NYPD 5th Precinct station house in Manhattan on Friday, May 12, 2023. (Barry Williams, New York Daily News/TNS)

Americans are split over this question: Is Daniel Penny a criminal who murdered Jordan Neely, or is he a man who legally protected his fellow passengers on a New York subway? To many conservatives, Penny is a U.S. Marine Corps veteran and a hero who saw a threatening situation and acted in a manner Teddy Roosevelt himself would admire. To many liberals, Penny is a murderer, and the fact that he wasn’t arrested sooner is more evidence of a racially unjust legal system.

One thing is certain, and this one thing is devastating — a man lost his life. Jordan Neely will never sing “Billie Jean” again in the subway, he’ll never drink another good cup of coffee, and he’ll never receive the mental health treatment he so desperately needed. Both political parties must work harder to ensure that the structural deficiencies that failed to address Neely’s mental health problems, no doubt exacerbated by the brutal death of his mother when he was 14, are addressed.

But the purpose of this column is not political or even moral. It is legal. What does the law say about Penny’s actions? Do we have the right, as Americans, to defend others when we think they’re in danger? Based on what we know right now, what will happen to Penny?

Last week, Penny, a former Marine, was indicted by a grand jury with second-degree manslaughter and criminally negligent homicide charges. This means the majority of the jurors were convinced there’s reason to believe Penny committed a crime. It’s a low burden of proof, to say the least. Anyone who’s ever spent a minute practicing law in the criminal justice system knows the United States of America can indict a ham sandwich if it really wants to. Apparently, after being criticized as weak on crime, Manhattan District Attorney Alvin Bragg really wanted Penny to be indicted.

For Penny to be found guilty of second-degree manslaughter, Bragg’s office must prove beyond a reasonable doubt that he engaged in reckless conduct that created an unjustifiable risk of death, and that he consciously disregarded that risk.

For Penny to be found guilty of criminally negligent homicide, Bragg must prove beyond a reasonable doubt that Penny negligently caused Neely’s death. This means proving that Penny engaged in conduct so serious it created or contributed to a substantial and unjustifiable risk of another person’s death.

Self-defense and defense of others is a complete defense, which means if the jury believes Penny’s version of events, he’s not guilty of committing a crime. For self-defense to work when deadly force is involved, as in this case, the defendant must have had a reasonable fear that death or grievous bodily harm was about to be inflicted on himself or others. Penny will have to prove that he truly believed a rear-naked chokehold was necessary to prevent death or grievous bodily harm to himself or others.

That’s the law in a nutshell. Now let’s talk the facts. I’m going to argue first as a prosecutor who wants a conviction, and then as a defense attorney who believes there’s reasonable doubt in the case.

Government counsel, are you ready for your closing argument?

“There’s no doubt Mr. Neely was a troubled young man who suffered from mental health challenges. Most of those challenges stem from the gruesome murder of his mother when Mr. Neely was only a child. Since that moment, Mr. Neely has felt lost and confused. When he walked onto Manhattan’s F train, he was hungry, not angry. He was thirsty, not violent. He was lonely, not dangerous.

“When Mr. Neely boarded that train, he was unarmed and malnourished. He didn’t want to hurt anyone, and he certainly never presented a threat of death or bodily harm to anyone. Mr. Penny looked at Mr. Neely and saw a black man — a black man who was yelling and acting a bit unruly. But, members of the jury, at no time did Mr. Neely ever present a real threat to anyone on that train. If he made any threats, they were the rumblings of a hungry man, not a violent one. If force was required to subdue Mr. Neely, it certainly did not need to be a rear-naked chokehold administered by a trained Marine.

“We must not forget that Mr. Penny did not strangle Mr. Neely for five minutes or even 10 minutes. Mr. Penny strangled him for 15 minutes. You heard from the other people on the train; you heard them plead with Mr. Penny to stop. You heard them tell Mr. Penny that he was going to kill Mr. Neely. But Mr. Penny did not care. He continued to choke the life out of an unarmed man until that hungry, thirsty, unhappy man was dead. That, ladies and gentlemen, is reckless conduct. It must not be tolerated by the good people of this city. I ask that you find Mr. Penny guilty.”

Defense counsel, are you ready for your closing argument?

“Mr. Penny didn’t want to kill Mr. Neely. But he did what he needed to do to protect his fellow passengers. Mr. Neely’s death, while tragic, was justified under the circumstances. He walked onto that train intending to hurt someone. Yelling, he threatened to kill people if he did not get food and water. He was aggressive and he made it known he would become violent if he didn’t get what he wanted.

“Mr. Penny is a Marine. He stood up for himself and the other people on that train when their lives were in danger. Mr. Penny saw the threat that Mr. Neely presented and was scared for himself and his fellow passengers. He tried to reason with Mr. Neely, but Mr. Neely did not see reason. In the end, Mr. Penny acted. His intent was to subdue Mr. Neely, not to kill him. And he did not act alone. Two other men on the train also felt compelled to subdue Mr. Neely. Those men, like Mr. Penny, felt they had to act to protect themselves and each other. Their actions were the very definition of reasonableness. Mr. Penny did not act recklessly or negligently; he acted heroically and protected his fellow citizens from a man who threatened to kill them. As such, we ask that you find Mr. Penny not guilty.”

If the two arguments are equally compelling, the trial will result in a hung jury and mistrial. Additional plea negotiations will follow. My best guess is that District Attorney Bragg won’t want to again risk a not-guilty verdict, and Mr. Penny won’t want to risk 15 years in jail for a second time. The two sides will eventually reach a deal that allows both to save face. And Mr. Neely will still be dead — another lost soul who could not find solace in this world, and another victim of a system that failed to help him when he was in need.

Robert Capovilla is a founding partner of the law firm of Capovilla & Williams. He was an Army judge advocate and now focuses on military law and defending military members who are accused of misconduct. He is not involved in the Daniel Penny case.

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