Jenna: Tonight, the case for and against Daniel Penny in the subway chokehold death of Jordan Neely.

A former Manhattan prosecutor and a detective break down the charges.

Was it manslaughter, murder, or self-defense?

MetroFocus starts right now.

♪ >> This is MetroFocus with Rafael Pi Roman own, Jack Ford, and Jenna Flanagan.

MetroFocus is made possible by Sue and Edgar Wachenheim III.

Filomen M. D'Agostino Foundation.

The Peter G. Peterson and Joan Ganz Cooney Fund.

Bernard and Denise Schwartz.

Barbara Hope Zuckerberg.

And by Jody and John Arnhold.

Dr. Robert C. and Tina Sohn Foundation.

The Ambrose Monell Foundation.

Estate of Roland Karlen.

Jenna: Good evening and welcome to MetroFocus.

I'm Diane Jenna Flanagan.

The interaction and the Manhattan subway car lasted only minutes but the aftermath of Daniel Penny putting Jordan Neely in a fatal chokehold is still unfolding.

Services are reportedly planned this Friday for Neely, the Michael Jackson impersonator with a documented history of mental illness and homelessness, who witnesses say was acting erratically on the subway.

Witnesses say Penny, a former Marine who claims he was acting in self-defense, put him in a chokehold to stop the attack, but there was no indication that Neely attacked anyone before that the it on Friday, Penny was arraigned on a second charge for it.

He was released after posting bail, and his attorneys maintain he will be fully absolved of any wrongdoing.

Tonight we are joined by Jeremy, a criminal defense attorney who served as a prosecutor in the Manhattan district attorney's office and Graham Weatherspoon, a retired NYPD detective and board member of the foundation which advocates for racial equity.

We should also note that Graham's nephew is serving as an attorney for the Neely family.

Gentlemen, I would like to welcome you both to MetroFocus.

>> Thank you.

Jenna: Jeremy, I want to start with you.

Often with these cases, there is what the public feels and what the letter of the law says when it comes to the man's letter charge, which the Neely family has already indicated they think should just be murder, can you explain, theoretically at least, because I do not think you have inside knowledge on the case, how we could arrive on the manslaughter charge instead of murder.

Jeremy: Certainly.

When we discuss murder, we have to recognize that homicide does not have to include murder, and the murder is an intentional crime.

In other words, you have to be proved beyond a reasonable doubt that Mr. Penny had the objective, the goal to take Mr. Neely's life.

On the flip, other things could apply, so that Mr. Penny was aware of the substantial risk of life to Mr. Neely, who disregarded that risk by behaving so recklessly, and ultimately Mr. Neely past due to that behavior.

So it was the reckless behavior and awareness beyond the standard of a reasonable person, and what I mean by that is, did he behave in a unreasonable way that resulted in the passing of Mr. Neely?

Jenna: As you describe it, I want to note for our audience that we at MetroFocus have made the decision not to show these civilian-made videotape of Mr. Penny Holding Mr. Neely in that fatal chokehold.

Graham, I want to turn to you and get your take on, first of all, the actions of the police department, or perhaps lack thereof.

One of the things that sparked the protests in the first place, obviously the murder but also the fact that NYPD officers apparently interviewed Mr. Penny initially and then let him go.

Can you help us understand what is police procedure in a situation like this?

Graham: Yes, I have worked homicide cases in the past, and this is what we call a ground ball case.

We have the victim, we have witnesses, and we have the perpetrator.

Upon arrival, you will have a first officer on the scene, generally, who will detain everybody, and then the detectives will come to conduct, if possible, an interview of the witnesses at the scene.

Mr. Penny was there.

Whether or not they gave him his Miranda, I do not know, but he, I am sure, made statements with regard to the fact that Jordan had made some statements, said he was hungry, did not care if he lived or died, as was reported, but they get into the fact that he said he did what he did to protect himself and others.

Mr. Penny should have been taken into custody.

We have a deceased human being here.

Once an arrest is made, the police cannot void the arrest.

That individual has to go downtown, and the district attorney, if the district attorney so chooses, Kent State, we are going to do a 343 Rita to decline to prosecute this case.

He never should have walked out of the commander out of the custody of the case once taken into custody.

That should not have happened.

This is why we have courts, the police cannot summarily say when a person dies, that it is, OK, you can go home.

That was not the proper thing to do.

I do not know who the detective supervisor was who made the call.

Jenna: Jeremy, again, going back to the letter of the law, your experience is with the District Attorney's office, correct?

Jeremy: Yes.

Jenna: So you worked under the previous administration, not the current one.

With that understanding, I'm now wondering how much does public outcry influence what that office does, for example, there was another case where a bodega click, if I remember correctly, had stabbed an attacker and was charged with murder, but the charge was dropped after weeks of outcry.

I'm wondering, how much does public outrage and protest influence what goes on in the D.A.

's office, or is, you know, you know, it just a matter of attorneys having the time to go through all the facts of the case and perhaps come to a different understanding than the initially dead?

Jeremy: It is a very emotionally driven issue, and I can understand that sometimes perhaps -- perception becomes reality.

I don't know why we are so quick to fault the DAs office for not initially pursuing in that case.

To Graham's point, which is a valid one, is an arrest, and that needs to be to some capacity.

I'm sure that the NYPD was in conversation potentially with a homicide assistant, potentially working that night with the DAs office, or even higher brass, if you will, to determine what to do next.

I think the difference between the case you just cited and this case is there is a clear action of what resulted in the death of this bodega situation, whereas -- and it was more of a violent scene -- whereas here, there were more witnesses, which I don't believe, if I recall correctly, was in the initial part, we do not know what the witnesses saw.

And I think law enforcement collectively had to determine what actually happened, because there can be a homicide, but we heard stories of one hundred homicides, that was not the intent, someone struck and hit their head on the ground and they pass.

Here, I think it was critical, because there's always a presumption of innocence, and there's always proof beyond a reasonable doubt, and the DAs office does not want to chastise, they want to make sure they get it right out of the gate, because if they do something wrong, again, perception becomes reality, and that is the whole case.

I don't fault them, same with NYPD's role, in not pursuing an initial arrest.

Jenna: Graham, does that sound correct, to your knowledge, as a former police officer?

Graham: I know, and working homicide, you work with the ADA, and that ADA, assistant district attorney, is assigned to work with the district attorney on the case to make sure everything is done properly and in order, so that there is going to be a grand jury, if there's going to be a trial, and you want to placate any possibility of an appeal, so the police and district attorney should be working closely together, as a result of homicide.

I don't know when the writing ADA came in.

They should have been aware of the incident, and an ADA should have responded.

We are led to believe that the police released him.

I do not know that intricacy, whether it was the assistant DA or the police who released Mr. Penny.

And as a result, as you said, perception can become reality at times, but it is very disturbing to have seen what I saw on video, and we have seen this in repetition.

We have seen it since Rodney King.

That is almost 30 years ago.

And the lack of respect for human rights, where we are at a point now where people just shoot videos as opposed to taking some type of additional action, to bring a cessation to what is going on, but I do not know, as I said before, I don't know at what point the ADA arrived and whether he was released as a result of the ADA's assessment.

We don't know.

Jenna: Well, I am wondering now, does it make a difference, not from what we understand, we know, Penny Turning himself in versus being arrested.

Like, for example, Jeremy, I'm wondering in a trial case, does that make a difference, that the defendant turned himself in versus when the defendant was arrested?

Jeremy: There's no consequence.

That's not coming out in the trial.

It is not coming in the hearing.

Makes sense, been doing it the other way, meaning the police coming to you.

So once there is an investigation, there is a communication, generally speaking, and I'm sure there was here, between Penny's Council and the DA's office, so it was done in a relatively easy, voluntary manner.

To Graham's point, neither one of us know what happened or transpired.

But I want to play out one other thing.

I don't know, none of us know, someone who planned out the video, people said and flipping things, so in an arrest, we have to decide, as law enforcement, what is the crime that is involved to charge?

So there is a lot of homework to do, and it can be absolutely frustrating, and Mr. Neely unequivocally should not have died, period.

Period!

There is no asterisk there, he should not have died.

What I would like to know, and what the jury would like to find out, was Mr. Penny justified, was their imminent fear of danger or serious physical injury or death?

I think it is going to be tough, from the evidence that we have heard so far, and I think Mr. Penny is in real danger himself now of a conviction from what we have learned.

Jenna: Well -- Graham: Also -- Jenna: I'm sorry, Graham, what were you going to say?

Graham: The first thing they tell you is that Mr. Penny is a former Marine, a decorated Marine.

There's always what I call the poisoning of the jury pool.

A person's criminal background will be released, and, in this case, the backgrounds of both gentlemen have been released.

Jordan with 30 or 40 prior arrests and Mr. Penny, who is a decorated Marine.

But that, in my opinion, creates a problem for Mr. Penny.

I was in the reserve officers' training corps at City College.

We train to kill people.

That is what we do.

That is what Marines do.

And I cannot speak for Mr. Penny, but his actions, that is not a restraint.

A citizen has the right to make a citizen's arrest when something occurs and detains an individual until the arrival of police.

That hold that he put on Jordan was not a hold to detain somebody.

That was a chokehold, which I do know how to do, all right?

He executed it to the point where he took a man's life.

He did not render him unconscious, which is a crime.

There were other charges that could and should have been preferred, in addition to the manslaughter charge.

Strangling somebody in New York State is a crime.

Cutting off their air supply, the blood to the brain, it is a crime, and it has been a crime.

People talk about Eric Garner.

There is no Eric Garner bill.

These statutes were on the books before Eric Garner was murdered.

It is a crime to cut off a person's breathing capacity or the blood to the brain, and when you get to the point that they are rendered unconscious, and now we go to the point where the individual is dead, you are in felony statute territory for those crimes, and, under the penal code, it makes mention of a hate crime.

It talks about the agony that you are putting a person through.

It goes to the state of mind now if Mr. Penny, in terms of what he was doing.

Yeah, he is a decorated Marine.

We know he is taught to kill people, and that was a death hold.

There are problems for his defense, in my opinion.

Jeremy: If I could follow-up.

Jenna: Absolutely.

Jeremy: Most of what he says, I agree with.

To me, the issue is not whether he committed a crime or not.

The crime was committed.

We can disagree maybe on the acts of the crime.

I think the big issue for Mr. Penny is, was it justified?

And from what we have seen, there is nothing that strikes me as the justification for that chokehold, that restraint on Mr. Neely.

There was nothing that was so imminent, so threatening that we have heard from or seeing that said Mr. Penny should react as he did and taken action that took someone's life.

Restrain him a little bit different, maybe even punch him as a little bit different.

It is vastly different.

But what I would also add is that we are operating a bit in a bubble.

We all want to, you know, mention the hate crime.

We need to look at the evidence.

We need to look at the evidence, and as important as it is for us, when we are accused of a crime, to have that presumption of innocence, and make sure people have that burden of proof, we have to extract the emotional piece -- I'm not minimizing what happened at all.

I am more making a statement that we can all speculate, we can all have emotion, anger, frustration, sadness, and many other feelings, but we need to let the process play itself out.

And I do believe that, unless something different comes out, Mr. Penny is in a real risk of being convicted of a crime, because it does not matter that Mr. Neely had a criminal history.

That is irrelevant.

It is not even part of the conversation.

It is just a distraction.

I know I keep saying, "I agree, I agree," I do believe as a former Marine who is trained in these skills, that actually does cause a problem for Mr. Penny.

It is not someone who does not know that, who accidentally did it.

He should have or could have reasonably seen that the risk, it is a misapplied risk that could take someone's life.

This means trouble.

Jenna: So when you speak especially of the emotional aspect of it, and, Graham, I believe you were addressing that, what it is that people do and do not have the right to do, what has been made a lot of is the fact that so many New Yorkers are now finding themselves feeling either unsafe or perhaps afraid, definitely uncomfortable, on New York City subways, and so, I guess the question becomes, and, again, this is not to make light of what has taken place between Mr. Penny and Mr. Neely, but what are people's rights when they are confronted with someone who is acting at least erratically?

Not laying hands on anyone, but acting erratically on a subway train, which, again, is a metal tube underground.

What is the advice for best practice to keep yourself safe and not cause harm to anyone else?

Graham: I would say, having been a transit police officer and worked on train patrol back in the 1970s, when crime was through the roof, where it is now is a smidgen compared to what it was then.

I would say when you are on the subway, be well aware of who is around you.

In a case where someone is loud and boisterous, and, again, the folks are in a train.

It is a moving vehicle.

Is not stationary.

You cannot get out of the car, so the best thing you might want to do is avoid eye contact with that individual.

Look around, look somewhere else.

Do not engage that person visually.

At the next stop, I would get up, summons the conductor, let the conductor know there is a problem.

This is another problem we have presently.

I don't know what the current staffing is of the transit bureau within NYPD, but when we had the transit police department, prior to the merger in 1995, we had 3600 men and women in New York City transit police.

You don't have those numbers today working in the transit bureau.

We also had train patrol, and officers were up and down the trains, but that was primarily in the evening.

I ride the subways at least once a week.

I tell you, I have a hard time finding a police officer, and the conductor will make an announcement, for instance, if you have a problem, the police are at this station, we can get off the train.

That does not help you if you cannot get off the train.

The police officers are not on the train.

It is hard to find them on stations, and I'm saying this as a rider.

I'm not saying this as someone who is afraid to ride, but I can imagine the concern that people have, because of the lack of police presence.

The uniform police officer's job is to deter crime.

That is the uniform officer's job.

People do not generally rob a bank if the police officer is standing in front of a bank.

People do not act out in these ways when police officers are present.

No, we cannot have a cop on every station, on every train, but you should be able to see a police officer at some point during your journey on the subway.

Jenna: Well, another question also is, and Jeremy, this will be directed to you, there was another gentleman, I believe, another passenger on that car who was saying that he actually tried to intervene and help but was not quite sure what to do.

You can correct me if I'm wrong, I'm fairly certain New York State has a good Samaritan law.

When it comes to people seeing something that they, in their gut, know is wrong, is there a responsibility to step in?

Are there, again, best practices, for the good Samaritan law, if it exists?

Jeremy: Is it someone's responsibility to step in?

It is not their responsibility.

It is not their responsibility to put them something to age are.

What is a bigger concern is I am grateful we have a video of what transpired, so we have some insight into what happened.

Instead of filming, take action.

Take action that does not hurt you or harm you or put other people in danger.

There may be, if there is cell service between stations, call 911.

That action may be to use your voice.

This looks serious, that is problematic for Mr. Penny, again, but be involved.

It is OK to put your head down, it is OK to walk away.

We all do that all the time, you know, if you're in the subway, someone is loud, cantankerous, you look down and walk away.

Don't hurt someone else.

Just take action.

That voice, as Graham said moments ago, if you can deter, use your voice and just react, don't just film and look away.

Jenna: In addition, we did speak about Mr. Penny, but there were, at least, from the video, two other individuals who I will just say laid hands on Mr. Neely, with him assuming the intent to restrain, but, again, do they face any possible legal action as well?

Jeremy: Graham, do you want to jump in?

Graham: There is a phrase that we use, "acting in concert," in the question is, did to what degree did those individuals engage?

I remember seeing, I recall seeing, I think they were holding his arms at some point.

Jenna: Correct.

Graham: The thing is, I think one of the guys who was holding his hand said, you don't want to catch a murder, because holding a hand, you can tell that a person is resisting if you are holding a hand.

If the hand goes limp, it is evident the person is not struggling for it in addition, Mr. Penny wrapped his legs around Jordan's legs, so his movement was totally restricted.

And it was at that point that somebody should have said, all right, he's out, you know, he's out.

Let him go.

We've got them.

But that did not occur.

And I do not know if they know who those two gentlemen are at this point.

That I don't know.

Jeremy: To follow-up on what Graham just said about liability, I think, but I've seen, it would be difficult, in terms of a prosecution, to prove beyond a reasonable doubt that they were accomplices who shared that same recklessness or share that same intent.

But the actions were shared in part with Mr. Penny, so I think it would be difficult, especially because these two people as well as a reasonable standard, you do not know if they are trained to use restraints, they are just regular folks, for lack of a better term.

So I think, you know, they subjectively thought they were doing the right thing or maybe he got caught in the moment, that does not necessarily rise to criminality.

Jenna: All right, final question.

Jeremy, I'm just wondering, we understand that Penny's defense, at least, has raised about $2 million for this.

Does that guarantee anything, or is that just $2 million that have been raised, and it does not have any impact?

Jeremy: You know, at the end of the day, your counsel has the ability to introduce evidence, preclude evidence.

It is not always about the truth or the facts.

And if he has competent skilled counsel, whether it is $2 million or two dollars, there are great phenomenal private attorneys and public attorneys, $2 million is $2 million.

A source of social support for him but not necessarily changing the outcome of the case, no.

♪ Jack: Thanks for tuning into MetroFocus.

You can take our award-winning program with you wherever you go to with MetroFocus the podcast.

Listen and subscribe wherever you get your podcasts so you never miss an episode or ask your smart speaker to play MetroFocus the podcast, also available on the NPR 1 app.

♪ >> MetroFocus is made possible by Sue and Edgar Wachenheim III.

Filomen M. D'Agostino Foundation.

The Peter G. Peterson and Joan Ganz Cooney Fund.

Bernard and Denise Schwartz.

Barbara Hope Zuckerberg.

And by Jody and John Arnhold.

Dr. Robert C. and Tina Sohn Foundation.

The Ambrose Monell Foundation.

Estate of Roland Karlen.

♪