As you probably know, Daniel Penny is the retired Marine who allegedly killed Jordan Neely on the New York City subway. We have speculated from the beginning that Penny might claim self-defense or defense of others, and today some evidence came to light supporting such a defense:
Witness says she went back to ‘thank’ Daniel Penny after Jordan Neely chokehold death, is ‘praying’ for him – New York Post https://t.co/yGAVIx4Rti
— Grizzly Joe 🇺🇸🇮🇱@CPAC 2024 TBA 🤞🤞🤞🤞🇺🇸 (@GrizzlyJoeShow) May 12, 2023
In the New York Post article linked to in the Tweet we learn that a woman came forward anonymously to speak up for Mr. Penny (although she is apparently not anonymous to the police):
A straphanger who was on the subway when former Marine Daniel Penny placed Jordan Neely in a fatal chokehold said Thursday she’s ‘praying’ for Penny after it was revealed the 24-year-old would face charges tied to the high-profile case.
‘I hope he has a great lawyer, and I’m praying for him,’ the 66-year-old woman, who did not want to be identified, told The Post Thursday night. ‘And I pray that he gets treated fairly, I really do. Because after all of this ensued, I went back and made sure that I said ‘Thank you’ to him.’ …
The subway rider said Neely, who had a history of mental illness, was threatening passengers after he hopped on an F train in Manhattan.
‘He said, ‘I don’t care. I’ll take a bullet, I’ll go to jail’ because he would kill people on the train,’ the woman said of Neely. ‘He said, ‘I would kill a motherf—er. I don’t care. I’ll take a bullet. I’ll go to jail.’’
The retiree said Penny did not initially engage with Neely during the wild rant until things got out of hand and he felt the urge to step in.
‘This gentleman, Mr. Penny, did not stand up,’ the rider said. ‘Did not engage with the gentleman. He said not a word. It was all Mr. Neely that was … threatening the passengers. If he did not get what he wants.’
Previously, we said this on self-defense or defense of others:
Any competent lawyer recognizes there are several avenues of defense. First, was any force justified (as a matter of law)? Second, was deadly force justified? Certainly, if no force was justified then the video definitely shows a crime, but that’s the rub, isn’t it?
However, suppose force is justified, but not deadly force? First, his lawyer could argue that while the force he used caused death, it wasn’t technically ‘deadly force’ as defined by the law. Second, his lawyer could argue that even if it is deadly force, his client didn’t intend to use deadly force. Of course, then we might talk about whether his conduct is reckless, or criminal negligence.
However, we haven’t talked about the most crucial question, yet: What is the burden of proof? The short version is that like in the Zimmerman and Rittenhouse cases, it will be the government’s burden to prove it was not self-defense beyond a reasonable doubt.
Does this witness create a reasonable doubt? Assuming she ends up on the stand, not quite yet, but it is getting there. Recall what she said: ‘[Neely said] ‘I don’t care. I’ll take a bullet, I’ll go to jail’ because he would kill people on the train[.] He said, ‘I would kill a motherf—er. I don’t care. I’ll take a bullet. I’ll go to jail.’’
Then, later on, she says, ‘It was all Mr. Neely that was … threatening the passengers. If he did not get what he wants.’
The problem with this account is that it is clear that there are things she is leaving out—maybe even things Neely said. When hearsay comes in—and it would on this topic—the courts insist that you quote the person’s words as much as possible, and you can’t just give your summary or characterization of what they said. So, if she got on the stand, she would have to fill in some of that. And the threat has to be very immediate—you have to believe he is literally about to engage in the unlawful force—if it is straight defense of self or others.
However, there was another possibility we had been overlooking until now. She says Mr. Neely was ‘threatening the passengers. If he did not get what he wants.’ While we would like to hear Neely’s actual words, that sounds a bit like a robbery. One classic example of robbery under New York law is when a criminal says to a person ‘your money or your life’ to coerce that person into giving over their valuables. That might be what she is describing here, if she is pressed on details.
That is important because under New York law, one can also use deadly force if one reasonably believes the other person is committing or attempting to commit a robbery (among other crimes). If there is a reasonable doubt as to whether or not Mr. Penny had such a reasonable belief, the law says he must be acquitted.
(By the way, we are assuming you, dear reader, are smart enough to know this isn’t legal advice. But we will give you this life advice: Take some time to learn your local laws when it comes to self-defense.)
In any case, we are still withholding judgement, but it is tantalizing evidence supporting the claim that Mr. Penny acted lawfully.
But some people have already made up their minds:
MURDERER!!!
— Mike (@murica0) May 12, 2023
Murderer 🦨
— Loretta Brooks (@been57) May 12, 2023
Give marine medal
— Hank (@sal_scardi79355) May 12, 2023
This Marine should be praised not condemned. The odds of him getting a fair trial in NY are astronomically high. I, too, am praying for him.
— Erin Maplehoff (@EMaplehoff) May 13, 2023
this is ridiculous! He stood up and protected himself and present subway riders from a man who previously harassed/hurt others. Sometimes you have to act to prevent potential danger. Thank you for being the brave leader there.
— rose bennett (@roseben76204390) May 13, 2023
Jury nullification!!!!!! Let him off! All we need is one juror.
— We’re Led By “C” Students (@FixItIn2023) May 12, 2023
With video evidence and witnesses, it’s a miscarriage of Justice to charge the Marine, just like that Bodega owner who was charged with murder for clear self defense
— Lying KJP (@LyingKJP) May 12, 2023
Yeah, he’s going need lots of prayers that he makes it through his 15 years in Sing Sing peacefully.
Common sense says you can’t strangle a person to death and expect to go without punishment.
— Shawn Coleman (@Shawn4Coleman) May 12, 2023
Others had more measured reactions:
That’s odd that most of the mainstream media neglected to report that Neely was threatening to kill people on the train before the marine put him in the chokehold
— Kevin Robot (@KevintheRobot) May 12, 2023
It’s scary when you have to ride on public transit and someone goes ape crap crazy, what do you do to protect yourself and others.
— Toya Baker (@grandmatoytoy) May 14, 2023
And yet Alvin Bragg lets convicted felons out of jail. This marine was a hero. He saved, he protected, and he is the one getting prosecuted. Our judicial system sucks!
— Sandra Larkin (@SandraL11517290) May 13, 2023
We now have prosecution by protest: DA Bragg changes mind on criminal charges against Marine who tried to help fellow passengers. #JordanNeely https://t.co/QBpwvvDSdD
— Bearzus (@bearzus) May 12, 2023
We will also note that the last time we discussed the Penny/Neely issue, we wrote: ‘Indeed, there might be video we haven’t seen yet. Not everyone immediately runs to the press or to social media with this kind of thing.’
Well, it turns out that according to the woman quoted by the New York Post, our speculation has aged very well:
The woman said she and another rider gave their account of the incident to authorities at the precinct because Penny asked them to. Other subway riders took videos of the encounter between Penny and Neely, she said.
‘So I believe that those videos are going to come forward, maybe people will do it anonymously,’ she said.
We would hope everyone with footage before, during or after the confrontation between Penny and Neely comes forward and provides it to the police and Mr. Penny’s attorneys. Let the truth come out and the chips fall where they may.
Still, we will re-post the link to Mr. Penny’s legal defense fund:
We must defeat the Soros-Funded DAs, stop the Left's pro-criminal agenda, and take back the streets for law abiding citizens. We stand with Good Samaritans like Daniel Penny. Let’s show this Marine… America’s got his back.
https://t.co/uQXZuT19Mo— Ron DeSantis (@RonDeSantisFL) May 13, 2023
We are not sure Mr. Penny is innocent or guilty (so we presume innocence, naturally), but we have no doubt Mr. Penny deserves a robust defense.
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