Inside Daniel Penny’s Indictment In The Subway Chokehold Case

Daniel Penny pleaded not guilty in a Manhattan court in a case that has captured national attention. The former marine was caught on camera choking Jordan Neely, a Black unhoused man, to death on a Manhattan subway car. While many news stories have focused on Penny pleading not guilty, there was a separate development in the case.

On Wednesday, Manhattan District Attorney Alvin Bragg officially announced Neely’s indictment, ending any speculation about the current charges. So what does the information inside of the grand jury indictment tell us about the case?

Although the indictment is only two pages (which is standard), former San Francisco Prosecutor Paul Henderson says there are things we can learn from it about the case. Namely, Henderson points to the grand jury’s decision to charge Penny with manslaughter in the second degree and criminally negligent homicide, which carry sentences of up to 15 and 4 years, respectively.

“You typically get charges like that with an imperfect self-defense,” explains Henderson. “So in self-defense cases, you’re allowed to defend yourself, but you’re only allowed to defend yourself to meet the aggression or the action of the [other] party, and you cannot exceed it.”

In a public statement announcing the indictment, the Manhattan District Attorney’s Office contends (based on court documents and on-the record statements) that Penny continued to choke Neely minutes after he passed out. In New York criminal law, there is no stand-your-ground law when it comes to self-defense, which means that Penny had a duty to retreat, he says. From all accounts, there’s no evidence that Neely actually physically assaulted anyone on the train. The notion that he posed a threat is still an open question. But even if Neely was a threat, Henderson says what really matters is what Penny, an ex-marine trained in lethal force, did after Neely passed out.

“At some point, Jordan passes out. In the moment that he passed out, he is no longer a threat, presuming that the threat was real in the first place,” says Henderson. “What happened between then and the time that Jordan [died] is an imperfect defense to self-defense, and that’s the [second-degree] manslaughter.”