by Marty Hayes, J.D.
I spent the morning watching YouTube videos about the Daniel Penny trial, and in case you have already forgotten about it, it is the New York subway case where Marine veteran Penny was riding the subway when a mentally ill individual, a 30-year-old black man named Jordan Neely came into the subway car where Penny was and started threatening the riders. He was threatening to kill, and stating he did not care if he went to jail. Browse to this link for a good overview of the incident EXCLUSIVE: What Really Happened Between Daniel Penny and Jordan Neely and a narrative about how commentators immediately portrayed the incident as a racially-motivated murder.
Penny, as confirmed by his Not Guilty verdict on manslaughter and criminally negligent homicide charges, reasonably believed that Neely was an immediate threat to the bystanders.
Another video which I found educational is The BLACK Daniel Penny | Similar Story, Different Outcome. It details a very similar event, but this time the roles were reversed. A black man used force in defense of someone making threats against others.
My Thoughts
I have a couple of comments regarding Daniel Penny’s defense, but first, if he had been a member of the Network, he would have received a more complete defense. The glaring issue I saw was that the forensic pathologist was, as far as I could tell, uneducated about the phenomenon of sudden death due to excited delirium. You can browse to the following link for a pretty good explanation https://pmc.ncbi.nlm.nih.gov/articles/PMC3088378/ .
My education in this area came from a law enforcement Sudden In-Custody Death Instructor course I took a couple of decades ago when I was still active law enforcement. There are many law enforcement experts available who could have testified as to this alternate theory of the cause of death, as opposed to the forensic pathologist’s theory of suffocation as the cause of death.
Then, I would have also used the many experts available to discuss the “choke hold” theory. If properly applied, Lateral Vascular Neck Restraint, also known as a “sleeper hold” would have rendered Neely unconscious in 5-10 seconds, after which he could have been restrained before he came to. As it was, Neely struggled for over five minutes, before finally passing out. Good expert testimony on the part of the defense would have clarified these issues for the jury.
Lastly, as seen with the George Zimmerman prosecution and subsequent acquittal, Daniel Penny did not testify at this trial. The good news is that apparently his recorded statement to police detectives was sufficient to convince the jury that he reasonably believed he had to act to protect innocent life in that subway car.
By not putting him on the stand, the defense did not expose him to cross examination, but from what I saw, I think Penny would have easily handled the prosecution’s cross examination, especially if he would have been properly prepared ahead of time. Most of the time, the defense’s preparation of witnesses is lacking, probably due to the time required to do it, and lack of funds for the defense. Fortunately, with several million dollars in our Legal Defense Fund, this will not be an issue if one of our members is in the same predicament.
Another thing that would work in favor of our members is the educational package sent to our members. From pre-attack indictors, to understanding that excessive use of force is not justified, members who take our member education offerings seriously would be able to explain this to the jury. That will work wonders.
As welcome as the acquittal was, let’s not forget that Daniel Penny is not out of the woods. He is facing a civil suit for wrongful death. I sincerely hope he has the resources to fully defend himself.