Wednesday, June 28, 2023

Daniel Penny Arraigned & Jordan Williams' Charges Dropped

Today was a day that will hopefully educate people who do not understand what self-defense means in the legal context. 

However, we still see nonsensical rants and tweets being posted online mainly by Caucasian conservatives who think that people can attack each other or kill each other and then claim self-defense.  This is not how American society operates. We cannot kill someone who taps us on the shoulder or shouts in our ears and then call it self-defense. 

Daniel Penny, a former Marine was arraigned this morning and entered a "Not Guilty" plea. His charges remain of Manslaughter in the second degree and negligent homicide.  He remains out on a $100,000 bond. A few hours later in a case similar to Penny's, Jordan Williams was exonerated from all charges. Williams was clear of all charges after he killed a man who entered a subway car he and his girlfriend were in and began to physically attack riders, including Williams' girlfriend. Williams jumped to defend her and others and during the struggle pulled out a knife stabbing the assailant who later died. Williams was arrested and charged with manslaughter in the second degree and criminal possession of a weapon. These are the charges which were dropped. 

You can read more about these cases in these previous posts and see the sources for each story:

Let us focus on the differences between these cases and why one person was cleared and the other was not.  Both Penny and Williams were charged with manslaughter in the second degree. This is what the law says in New York State:

Section 125.15 - Manslaughter in the second degree

A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person; or

2. [Repealed]

3. He intentionally causes or aids another person to commit suicide.

Manslaughter in the second degree is a class C felony.

N.Y. Penal Law § 125.15

Amended by New York Laws 2019, ch. 1,Sec. 8, eff. 1/22/2019.

Notice the word "recklessly." This is the keyword that differentiates between the Penny case and Williams' case.  In the Penny case, the deceased Jordan Neely, a homeless black male with mental illness enters the subway car where Daniel Penny, a former Marine is present. According to the videos and eyewitnesses that the grand jury processed, Neely enters in an agitated state and slams his jacket on the ground. He shouts and screams crying out for food and water and claims he is not afraid to die. The scene is obviously disturbing and puts everyone at ease. However, Penny comes from behind and grabs Neely by the neck in a chokehold bringing him to the ground on the subway car.  This chokehold is placed on Neely for an extended period of time which leads to the death of Neely. 

In the case of Williams, a man, possibly like Neely, homeless and mentally ill enters the subway where Williams and his girlfriend are present. However, this man begins to berate and physically attack riders including Williams' girlfriend.  Therein lies the huge difference between Penny's case and Williams' case: physical attack. While Neely was making a scene yelling and slamming his jacket, the assailant in Williams' case was actually physically attacking people including Williams' girlfriend.  This is what prompted Williams to defend himself, his girlfriend, and other passengers by engaging the assailant to the point of using a knife and killing the assailant. However, Penny had no reason to grab a man who was simply disturbing the peace by the neck choke holding him to death. There is absolutely no justification for them. Surely a screaming person on a subway is something that can be scary, but it is not a reason to kill the screaming person. 

This is why the case of Penny continues while the case of Williams was dropped and he was clear of charges.  Now about the criminal possession charge, it is not clear why it was dropped but in New York, possessing a knife less than 3'' is legal. If the knife Williams used fits this description then this is probably why the criminal possession charge was dropped.  Penny did not use a weapon but did chokehold someone to death. These actions were "reckless" as the law states. This is because he knew what would happen when applying a chokehold on a person. A chokehold is something that is illegal for police officers to use. This is because it kills people. It cuts off blood and oxygen supply to the brain and other vital organs. As a Marine, Penny would know this. It is a move meant to kill, not to restrain. Therefore, he acted recklessly causing the death of Neely. 

Penny had a duty to retreat.  In New York State, citizens have a duty to retreat if there is an option to do so. The law is clear and makes an exception in the case of the assailant attacking you in your home and so on. Here is the law:

In New York state, Article 35 of the penal code states:

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor; or

(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or

(b) He or she reasonably believes that such other person is committing

or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or

(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

In light of this, Penny had to retreat while Neely was shouting. There was no reason for him to grab him or even confront him. He is not law enforcement or security personnel. People online can claim all they want that he is a hero and protected people, but he really was not. He was the violent aggressor in this case, not Jordan Neely. The facts, video evidence, and eyewitness accounts demonstrate this.  Some are claiming he is being persecuted because he is Caucasian and Williams was exonerated because he is Black and the Black Lives Matter movement created an atmosphere of sensitivity towards African Americans. This is very far from the truth! Both Williams and Penny faced the same laws and court system and were judged by their peers in a grand jury. The evidence and law spoke and they decided accordingly. 

Some argue that there was no way to retreat on a moving subway. While this claim may sound rational, it is not.  Subways have ways to evacuate from. The MTA has specific instructions on how to evacuate, and stop a moving train which was provided in this post: There are brakes, removable windows, and end doors which one can use to move about train cars. Moreover, after the arrest of Penny, we learned that the train was entering a station when the incident occurred. They were not in a deep long tunnel moving. Moreover, in a statement recorded on video Penny admitted that other passengers retreated see:  He says in the 2.22-24 mark "people were too afraid getting away from him" so he admits that people were getting away from Neely, yet he did not. He took it upon himself to grab Neely from behind and chokehold him. 

Screenshot of video statement showing transcript of Penny's words.

Penny may have thought he was doing the right thing, but it was not the legal thing. All he had to do was ignore Neely and leave just like the other riders did as he describes in the video. Had Neely attacked physically, then he could have used force to defend himself and others. But this did not happen.  He simply killed a man who was disturbing the peace in a non-physical way.  We cannot have vigilantism in NYC. Penny must face charges and must be penalized for his reckless behavior.  However, the blame is not his. NYC has failed to help people like Neely. Until NYC steps up and helps these people, we will continue to see these cases and worse ones.  

My advice to Penny and his lawyers is to use PTSD as a defense. He was a Marine and their training does affect the human brain and emotional maturity. The shouting and actions of Neely may have triggered Penny to become a "soldier" in battle, so to speak. This is why he reacted. There is no evidence that Penny woke up that day on a mission to kill a black man. None whatsoever. People making this about race are purely ridiculous and are race-baiting.  

If I were Penny, I would have told people to leave and speak to Neely by myself calming him down. I would have offered to get him food and drink like he wanted. There was no need to kill this man.  This was NOT self-defense and we must not sympathize with Penny just because he is only 24, was a Marine, or is Caucasian without a criminal record. These are irrelevant. Similarly, we must not attack Neely because of his criminal past, his mental illness or situation. In a court of law, one's life is not a trial, only the acts being charged in the case. This is not a black vs white event nor should it ever become this. 

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