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A Witness Comes Forward to Support Daniel Penny’s Defense

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.

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.

  • Jerry says:

    What about the “Black guy” who helped the Marine subdue,the cretin ??????????

  • so the question is what kind of drugs this scum bag was on at the time? If the court system had done its job this wouldn’t have taken place because this criminal would have been in jail where he belonged, Let’s go Brandon

  • mari says:

    I don’t know about NY but most states have good Samaritan act that shelters people who do good for strangers from any prosecution or being sued. Maybe NY won’t consider this an act of protection of many other people, I think he’s a friggin hero.

  • Jimmimac says:

    Bragg is going to hang himself, he has taken the law into his own hands to many times and needs to be charged with criminal negligence!

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