Lawyers for former marine Daniel Penny have asked a judge in New York City to throw out the criminal charges against him over the death of subway musician Jordan Neely, citing the terror of fellow passengers who felt threatened by the latter’s aggressive behavior.
Mr. Penny, a 24-year-old former infantry squad leader, is facing charges of second-degree manslaughter and criminally negligent homicide after his attempts to subdue an out-of-control Mr. Neely on a subway train led to his death.
“The fact that [the examiner] did not testify that he did, in fact, die from asphyxiation, can only be explained by a lack of evidence to support such a conclusion,” Mr. Penny’s attorneys wrote.
His defense team also sought to emphasize the threat felt by passengers on the subway train and their gratitude at Mr. Penny’s decision to tackle Mr. Neely, who had a long history of mental illness and had a past litany of arrests and criminal cases against him.
“As the car doors were closing, an irate Jordan Neely entered the subway car and immediately made his presence felt,” the 52-page motion read.
“Multiple eyewitnesses recounted Mr. Neely forcefully throwing his jacket either across the train or to the ground while complaining about his lack of food, money, and homelessness.
“Mr. Neely’s behavior quickly escalated. Witnesses describe him taking on a fighting stance while shouting threats such as: ‘Someone is going to die today’; he ‘would kill anyone’ and ’take a bullet‘; he was ’ready to go to Rikers’ and ’ready to do life’ and passengers started scattering.”
They also cited testimony from one witness in front of the grand jury that Mr. Neely’s behavior was “insanely threatening” and said in a ”sickening“ and ”satanic” tone.
“[The witness] believed he was going to die as Mr. Neely began approaching him,” the motion read. ”He described the moment as ‘absolutely traumatizing’ beyond anything he had ever experienced in six years riding the subway.”
Another witness also described how she had “encountered many things, but nothing that put fear into me like that.”
“There’s a common misconception that Marines don’t get scared. We’re actually taught, one of our core values is courage, and courage is not the absence of fear but how you handle fear,” he said back in June.
“I was scared for myself, but I looked around, I saw women and children. He was yelling in their faces saying these threats. I just couldn’t sit still.”
Mr. Penny currently remains free on a $100,000 bond and faces a maximum of 19 years in prison if convicted. He will next appear in court on Oct. 25.
