Is Daniel Penny Criminally Liable for the Death of Jordan Neely?

Sweeping aside the conventional narrative and analyzing the real facts

Above: the lynching of a black man for the crime of being hungry, aided and abetted by . . . another black man? What? Why didn’t Big Media tell me about this??

EDITOR’S NOTE: It’s been a while since my last Substack newsletter. I’ve been out of town a lot lately. But in my defense, what you’re about to read is 9,000 words long (4,000 words of which are for paying subscribers), so you’re getting plenty of content—and much of it is material you’re unlikely to see anywhere else. It’s so long, in fact, that it’s too long to be rendered normally in most email clients. If you are reading this in your email, you will probably have to click on a link at the end of the email that says “View entire message” to read the whole thing. Or just click the link at the top of the email and read it on Substack. I hope you enjoy it.

Late last week, the New York Times reported that the Manhattan D.A. has brought charges in the killing of Jordan Neely on a New York subway:

Daniel Penny, who while riding the subway last week choked Jordan Neely, a homeless man, to death, was arraigned in Manhattan Criminal Court Friday on a charge of second-degree manslaughter, taking his first formal steps as a defendant in a case that has stunned New York City.

Mr. Penny, handcuffed and dressed in a dark gray suit and white dress shirt, stood straight and still before the judge, Kevin McGrath. He did not enter a plea to the charge, as he has yet to be indicted by a grand jury, and spoke only to answer the judge’s questions and acknowledge that he would next appear in court on July 17. He was released after posting bail.

The Manhattan district attorney, Alvin L. Bragg, said in a statement that the arrest of Mr. Penny, 24, a Marine veteran, had come after many witness interviews, a review of photos and video and discussions with the medical examiner’s office, which had ruled Mr. Neely’s death a homicide.

“Jordan Neely should still be alive today, and my thoughts continue to be with his family and loved ones as they mourn his loss,” Mr. Bragg said.

I’d like to share some thoughts about this case that I have not seen discussed in too many places. The narrative we have heard from many quarters is that this was a murder of a black man who was not threatening in any way, but simply said he was hungry and thirsty. He was then choked for 15 minutes by a white racist until he died, despite warnings of onlookers who tried to get the white racist to stop.

Nearly every aspect of that narrative is false.

I want to say up front that I’m not sure whether the charges are sound. Whether Bragg has a solid case depends on the evidence, and we’re not privy to all of the evidence the D.A. has collected. As a result, I don’t think it’s possible to know at this point whether the Manhattan D.A. was justified in bringing this charge, the elements of which I will analyze below.

The reason I tell you that early on in this piece is simple: I want you know right from the beginning that, while I have a lot to say to debunk aspects of the lazy narrative you’ve heard, that doesn’t mean that I have concluded that Penny’s actions were wholly justified in every respect. Put simply: if you’re someone who tends to see this killing is unjustified, I think you may well be right.

So if I tell you, for example, that the public narrative is wrong about Neely presenting no threat, or about this obviously being a race-based killing, please resist the urge to react instantaneously with the comment: “Oh, so you’re saying it’s OK to just choke this guy to death?” No, that is not what I am saying.

The Emergence of the Lazy Narrative

Unless you’ve been living under a rock—and, by the way, where is this rock we keep hearing about, and why don’t I get to live under it too?—you’ve presumably heard about this case. But because readers of this piece may have different levels of familiarity with the facts, I’ll quote from a story in the Washington Post—a story which, we will see, is very flawed and has contributed to the incorrect narrative out there. But they get these basic facts mostly right:

A 30-year-old man was killed on a New York subway train this week when a fellow rider confronted the man, who was screaming and behaving erratically, and placed him in a chokehold for several minutes, according to a witness’s account and video of the encounter. The fatal incident was ruled a homicide by the city’s medical examiner on Wednesday evening.

. . . .

Police say witnesses described Neely as acting in a “hostile and erratic manner.” The man was shouting on the F train that he was hungry and thirsty, Vazquez said, but did not attack anyone before he was placed in a chokehold.

“I don’t have food, I don’t have a drink, I’m fed up,” the man screamed, according to Vazquez. “I don’t mind going to jail and getting life in prison. I’m ready to die.”

. . . .

The 24-year-old man [who put Neely into the chokehold], who has not been publicly identified, was taken in for questioning but released without charges, according to police. The 24-year-old is a Marine Corps veteran, according to the New York Daily News.

New York’s Office of the Chief Medical Examiner told The Washington Post that Neely’s death was ruled a homicide, and that the cause of death is “compression of neck” by a chokehold.

More about that “life in prison” quote I bolded later in the piece.

In our wonderful world of social media and polarized politics, the hot takes started flying quickly. Alexandria Ocasio-Cortez, displaying her usual circumspection and thoughtfulness, declared that the case is a “murder.”

(Thanks to the juvenile petulance of Elon Musk, I can no longer easily embed tweets on Substack, so I will provide links and screenshots.) AOC’s reaction was typical of the Extremely Online Left, as illustrated by a tweet from the equally thoughtful Marc Lamont Hill:

That is, of course, absurd. Whatever this case was, it was not a “murder” or a “lynching,” and anyone who says so discredits themselves (to the extent they have not already long since discredited themselves in the minds of rational people). The term “murder” does not legally mean “a homicide that makes me really mad.” It has certain legal elements, as does the charged crime of second degree manslaughter, which I will discuss below in the section of the law. For now, it’s enough to note that Manhattan D.A. Alvin Bragg doesn’t think this is a murder.

Now that we have discussed the background and the lefty overreaction, let’s pick apart some of aspects of the narrative that has developed.

No, a Witness to the Choking Did Not Say on Facebook That Penny Choked Neely for 15 Minutes

One thing you will see repeated over and over is that a freelance journalist named Juan Alberto Vazquez witnessed the killing and wrote on Facebook that Penny had Neely in the chokehold for 15 minutes.

He did not. But that has not stopped media outlets from saying so, over and over and over.

The Notion That Vazquez Said This on Facebook Is Blatantly False

For example, the Washington Post article I linked above purports to quote Vazquez to that effect, citing Vazquez’s Facebook article as the source:

Video taken by freelance journalist Juan Alberto Vazquez shows the 30-year-old Black man, identified by city officials as Jordan Neely, flailing his arms, kicking his legs and struggling to free himself as a White passenger, 24, held him in a chokehold on the floor of the train. Two other passengers are shown helping to restrain Neely during the chokehold. The rider releases the hold and helps place the man, who appears unconscious, on his side, video shows.

While the video shows Neely in the chokehold for roughly three minutes, Vazquez wrote on Facebook that men were in that position “for about 15 minutes while other passengers and the train operator called the police.” Authorities have not released details on how long the man was in the chokehold.

I have been baffled by this ever since I first read it. You’re welcome to actually click the hyperlink to Facebook provided by the Washington Post in the quote above, and look for that quoted material anywhere in the post. It ain’t there. This is such an oft-repeated claim that I think it’s worth taking a few moments to analyze it in some detail.

If you click that link, you’ll find an English-language passage in which Vazquez describes the timing of the incident in this curiously inarticulate way (more on that inarticulateness in a moment). Here’s the relevant part of the Facebook post:

Before the show will go on, and although so far Jordan didn't seem to want to attack anyone, a young man with brown hair and gray cloak grabbed him by the neck and laid him on the floor as he tied him with his legs.

Upon arriving to Broadway Lafayette, the doors opened and people exited the wagon. Jordan and Marine held that pose for at least 5 minutes. While other passengers (myself included) and the operator of the train called the police (as heard in the video).

Upon returning to the scene and as Neely struggled to get away from the key, other Samaritans swooped in to the aid of the Marine allegedly looking to keep the other from escaping. One of them, who had recently tackled with a woman, seemed to mediate between the two fighting on the floor. The second one if he was trying to help Jordan not get away.

Suddenly decided to hop on the new account bandwagon. It's a very dramatic final minute and a half. Jordan gives his final kicks and then when he stops moving, they release him. At that moment I interrupted the recording. As I pulled up and looked for the ferry to line 6, I heard the police legacy. it had been at least 15 minutes since he Marine tied Jordan.

Two hours later through the New York Post I find out that minutes after the paramedics arrived, nothing could be done for him

I’ve bolded the parts relevant to the timing of the participants’ actions.

It’s a bit of a word salad, isn’t it? Part of the reason for that is that we are looking at Facebook’s AI-generated translation of the post, which was originally written in Spanish (and not always with complete literacy, the alleged “freelance journalist” status of Vazquez notwithstanding). So let’s click through to the relevant language of the original Spanish-language post:

Jordan y el Marine siguieron en esa postura al menos 5 minutos. Mientras otros pasajeros (me incluyo) y el operador del tren llamaba a la policía (como se escucha en el video).

. . . .

De repente decidi ingresar al vagon de nueva cuenta. Es un minuto y medio final muy dramatico. Jordan da sus últimos pataleo y luego, cuando deja de moverse, lo sueltan. En ese momento interrumpí la grabación. Al retirarme y buscar el transbordo hacia la línea 6, escuché la legada de la policía.habian pasado al menos 15 minutos desde que él Marine atenazó a Jordan.

I speak some Spanish, and (with the help of online tools) I have prepared the following rough translation of these relevant parts.

Jordan and the Marine continued in this posture for at least five minutes. Meanwhile other passengers (myself included) and the train operator called the police (as can be heard in the video).

. . . .

Suddenly I decided to enter the subway car again. It’s a very dramatic final minute and a half. Jordan gives his final kick and then, when he stops moving, they let go. At that moment I stopped the recording. As I left and looked for the transfer to line 6, I heard the arrival of the police. At least 15 minutes had passed since the Marine grabbed Jordan.

The “15 minutes” refers to the “arrival” of the police and not of their “legacy.” (“Legacy” is a Facebook AI translation error, compounded by the fact that Vazquez wrote the word “legada” when he should have written “llegada.”) So when you put it all together, you have Vazquez saying Penny and Neely held the “pose” or “posture” for at least five (not fifteen) minutes while people called the police. His only mention of a period of “15 minutes” was to say that when the police finally arrived, it had been 15 minutes since Penny had initially grabbed Neely. But Penny had released Neely some time before the police arrived. You can watch the video (about which more below) and see Penny release Neely. As the video begins, Penny already has Neely in a headlock. But in the portion of their interaction depicted on Vazquez’s video, Penny holds Neely in the headlock for less than three minutes, releases him, and almost a minute passes before the video ends. No police have arrived.

So when Washington Post reporter Timothy Bella writes:

Vazquez wrote on Facebook that men were in that position “for about 15 minutes while other passengers and the train operator called the police.”

Bella is misquoting a passage that actually says they were in that position for five minutes:

Jordan and the Marine continued in this posture for at least five minutes. Meanwhile other passengers (myself included) and the train operator called the police (as can be heard in the video).

This reminds me of when Bono opened the song “Vertigo” with the words “uno, dos, tres, CATORCE!” (one, two, three, FOURTEEN!).

Washington Post reporter Bella appears to count as follows: uno, dos, tres, cuatro, QUINCE! (one, two, three, four, FIFTEEN!).

Bono, when asked to explain the opening lines of “Vertigo,” said: “There might have been some alcohol involved.” What’s Bella’s excuse?

This distortion of Vazquez’s Facebook post has circled around the world several times, while the truth is just getting its shoes tied in this here Substack post. The 15-minute claim can even be found in the Wikipedia article on the killing of Jordan Neely, in a passage which states: “According to Vázquez the chokehold lasted for 15 minutes, three minutes of which he recorded on video.” The Wikipedia sourcing traces back to Vazquez’s Facebook post. Wikipedia cites an Associated Press article and a Guardian article that do not mention the alleged 15-minute interval, and an article from The Cut which does mention that interval, citing the Facebook post as its evidence: “On Facebook, Vázquez said the choke hold lasted 15 minutes and that the situation reminded him of George Floyd’s murder.” (I don’t see any mention of George Floyd in the Facebook link either, which I have to admit gives me pause. What am I missing???)

But it’s not just Wikipedia. Heavy.com, which does very well in Google search results, states in a clear reference to the Facebook post: “Vazquez wrote that, although ‘so far the disturbed did not seem to want to attack anyone, a young man with brown hair and gray shawl grabbed him by the neck and laid him on the floor as he tied him with his legs. They were in that position for about 15 minutes while other passengers and the train operator called the police (as heard in the video). The Uniforms, btw, never arrived.’” (Uh, yeah, they did—and Vazquez says they did. What is Heavy.com even talking about?) Similarly, The City writes: “In the Facebook post, Vazquez wrote ‘They were in that position for about 15 minutes while other passengers and the train operator called the police.’”

. . . But It Seems that Vazquez Did Tell News Outlets that the Chokehold Lasted 15 Minutes. The Question Is: Does This Claim Make Sense?

Here’s where things get messy. Placing the inaccurate summaries of the Facebook post to one side, it appears that Vazquez may have independently told news organizations that Penny had Neely in a chokehold for 15 minutes. For example, NBC News published an article containing an interview with Vazquez, which I will reference later, in which NBC News states: “Neely was held in the chokehold for about 15 minutes, Vazquez said. The video showed two other subway riders appearing to help restrain him.” In context, NBC News seems to be citing its own interview and not the Facebook post, although it’s not clear. Similarly, the New York Post published an article containing an interview with Vazquez which states: “That’s when he said the straphanger came up behind Neely and took him to the ground in a chokehold — keeping him there for some 15 minutes, Vazquez said.” Here again, the source seems like a direct interview of Vazquez and not another misquotation of the Facebook post.

Here’s why I am skeptical of Vazquez’s 15-minute claim.

First, as I have shown, many news organizations actually claimed that Vazquez made the 15-minute claim in his Facebook post, when it seems pretty clear he did not. (The attribution to Vazquez is so widespread, I wonder if he ended up editing an earlier version of his post. But even if he did, what appears in the currently available version of that post does not make that claim.) The Facebook post actually contradicts the 15-minute claim, for reasons I have already described: Vazquez says it was 15 minutes from the time Penny initially grabbed Neely until the cops arrived—and the cops’ arrival is not shown on the video. By the time the video ends, it’s been nearly a minute since Penny released Neely from the chokehold. There are no cops in sight. How did so many news organizations misread the Facebook post? And how did they put “fifteen minutes” in the middle of a purported direct quote that actually reads “5 minutes”?

And if they misread the Facebook post that badly, you have to wonder whether they asked Vazquez leading questions in their questioning (“you wrote that Penny had Neely in a chokehold for about 15 minutes, right?”). At the very least, there is no evidence that any news organization has confronted Vazquez with the apparent inconsistency between his Facebook post and any claim that Penny had Neely in a chokehold for 15 minutes.

It also seems odd and dubious that Vazquez would have waited 12 minutes to begin recording. (On the video, Penny has Neely in a chokehold for less than three minutes.) Did Vazquez really watch this unfold for 12 minutes without recording it? Really?!

In the end, it’s possible that Vazquez will testify Penny had Neely in a chokehold for 15 minutes. But it ain’t what he wrote on Facebook, despite the claims of numerous news organizations to the contrary. Perhaps the Manhattan D.A. has more information on this than we news consumers do. But the reporting has been terrible, with numerous purported direct quotes from a Facebook post that do not actually appear in that post.

A Word About Neely’s Violent History

I will say more about this in the section on the law, but it’s unlikely that Neely’s long history of arrests and convictions for violent behavior will be admissible in Penny’s trial (if there is a trial). But some “news” organizations are hard at work whitewashing that history to serve the narrative that Neely was nothing but a nice guy who never displayed any tendency to violence. The most notable example of this was at The Guardian, where the deck headline tells us that Neely is “remembered as kind and loving” by those who know him. We are told that he was a talented Michael Jackson impersonator with a fan club, but that “many were remembering Neely as kind and talented, despite others’ attempts to portray him as dangerous and violent.” Here is a typical passage describing a neighbor’s rosy assessment of Neely’s character:

Espinal said he would see Neely dressed in his Michael Jackson outfit and described him as calm and quiet.

Espinal said he and Neely talked about video games during one 30-minute conversation, their shared love of anime, and Neely’s busking.

“He was just a normal, nerdy kid,” he said.

Espinal expressed his frustrations at those accusing Neely of being violent, knowing nothing about the beloved dancer.

We’re told about Neely’s troubled history, his mental health issues, and how a minister says: “He was a nice person, not aggressive or violent. Everyone who knew him knows that.” There is literally not a single word in the entire article about his history of violence—other than to darkly insinuate that very ignorant people or news organizations, who obviously knew nothing about this very kind and gentle man, have tried to distort the truth by suggesting he was somehow violent. Nothing could be further from the truth! we are repeatedly assured.

It’s an amazing piece of propaganda, made even more amazing by what is being covered up. From the Daily News:

Not even a hint of that makes its way into the Guardian piece.

Again: this doesn’t mean it was justified for Penny to choke the man to death, and this information is likely irrelevant to the criminal proceedings. But it does go to the public conversation about the incident, given that this is being portrayed as a racially motivated lynching of a friendly artist who never hurt a fly. (About which, more in the next section.) The editors at the Guardian ought to be ashamed at how brazenly they have hidden the truth from their readers. Instead, I suspect they are proud.

Based on the Video, It’s Lazy and Biased to Assume This Was a Racially Motivated Incident

We’ve already seen above how Marc Lamont Hill has declared that Neely’s death was a “21st century lynching.” Hill is not alone. The New York Times reports: “Maurice Mitchell, director of the Working Families Party, criticized leaders for refusing to call Mr. Neely’s death ‘what it is: a modern-day public lynching.’” Perhaps led astray by the Guardian’s portrayal of Neely as a harmless and charming fellow, Tayo Bero tells us in the Guardian that Neely’s “lynching” for saying he was hungry and ready to die “revealed just how low the bar is for justifying Black death in America.” At Leftvoice.org, Julia Wallace informs her readers that “Neely was executed for being poor, Black, and disabled.” NBC News tells us that black Americans see this as an example of white vigilantism out of control. I could go on and on.

Then why did a black guy help the white guy do the lynching?

Had You Heard About the Black Subway Passenger Who Helped “Lynch” Neely?

As mentioned earlier, there is video of a portion of the incident, which was taken by “freelance journalist” Vazquez, which you can view here. It’s time to discuss that video. I say the video is only of a portion of the incident, because (as previously noted) Vazquez’s footage starts after Penny already had Neely in a chokehold. We don’t get to see Neely screaming about how he was ready to die and ready to go to prison for life. I suspect people’s visceral reaction to the incident is colored by the fact that we have the footage of what we now know was Neely struggling for his life, but we don’t have footage of what led up to the chokehold.

What does seem apparent from the video, though, is that the onlookers on scene clearly don’t believe they are witnessing a murder. Helping the Marine restrain Neely is a man whose race is not identified in any of the Big Media stories you will read about the incident, but who appears to me to be at least partially black:

If you watch the video, you’ll see this man asking bystanders if anyone has called the cops. It’s clear he’s not asking if anyone has called the cops on Penny. He was helping Penny hold down Neely. No, this man was asking if anyone had called the cops on Neely. That is an indication that he too believed that Neely had presented a potentially criminal threat.

The Big Media Effect

A full discussion of this topic is beyond the scope of this already-long newsletter, but I can’t help but observe that there is a reason a lot of people assume that there is a lot of white-on-black racial violence—in particular, police violence. Namely: that’s what media pays attention to. Imagine that people went around flipping coins, and every time a coin came up heads it was a media story, but every time it came up tails, you never heard another word about it. After a while, everyone would think coins come up heads far more often than tails. It’s the same reason that public fear of crime tends to outstrip crime statistics. Or—to take an example from the other end of the political spectrum and upset everyone equally—it’s the reason that some people think that millions of kids are going on puberty blockers or hormone therapy every year in the U.S. when the true number is a few thousand annually nationwide.

That which we hear about in Big Media becomes outsized in our minds. That which we hear nothing about seems like a minor phenomenon. There’s a reason that people think only black people are suffocated by police. After all, you’ve heard about George Floyd. But unless you’ve been a reader of my newsletter for a while, you probably have not heard of Tony Timpa— a white guy with depression and schizophrenia who was suffocated by police while they cracked jokes.

The stories where black people are victimized are famous. Say their names! The ones where non-black people are victimized? Those, you have to actively seek out.

About That Allegation that a Bystander Warned Penny He Was Going to Kill Neely

Another thing you’ve probably heard is that bystanders warned Penny that he was likely killing Neely and that Neely had likely defecated on himself. Representative of this “journalism” is an article in Newsweek headlined Marine Veteran Was Warned He Was 'Going to Kill' Jordan Neely. The article states in relevant part:

In an extended video of the incident cited by the Daily Mail on Friday, Penny reportedly continued to hold Neely in the headlock position even after the homeless man faltered after two minutes and six seconds reaching the point when a bystander stepped onto the train. The man who was not seen in the video can be heard telling Penny that Neely had defecated.

"He's defecated on himself... you're going to kill him now," the man reportedly said, according to the Daily Mail.

That is . . . a highly selective account. What it leaves out is that the black or mixed-race fella you see in the video helping to hold down Neely acknowledges what appears to be a stain on Neely’s pants and tells the bystander it’s an old stain. This is all reported in the very Daily Mail piece cited by Newsweek. That piece actually has a decent account of what you can see on the video:

The longer video that emerged today shows the three minutes and 52 seconds after the train pulled into Broadway Lafayette station on Monday at 2.30pm. 

The footage begins with Penny already with Neely in the chokehold. For two minutes and five seconds, Neely struggled on the floor, flailing his feet. 

He went limp after two minutes and six seconds, by which point a by-passer had stepped onto the train.

The man - who can be heard but is not seen - warned Penny that Neely had defecated, which he feared was a sign that he was dying.

'He's defecated on himself... you're going to kill him now,' he said. 

Another man who was helping Penny restrain Neely replied that it was an old stain on Neely's trousers, and that Penny was no longer 'squeezing'. 

'He's not squeezing? All right. Because after he's defecated himself that's it. You've got to let him go,' he replied. 

He then warned of a 'murder charge'.  

The second man turned to Neely and said: 'Hey can you hear me?'. Met with silence, the man told Penny to stand up. 

Penny does not speak, but releases Neely and springs to his feet. 

The unidentified by-stander can be heard saying: 'That was one hell of a chokehold, man.' 

Over the next several seconds, Penny and the other man who had been helping him attempt to put Neely in the recovery position. 

After three minutes and 50 seconds, Neely appears to convulse or take a deep breath. 

That last bit is interesting. It’s quite true that you can see Neely’s torso raise and sink as if he is taking a deep breath, some seconds after Penny let him go. Maybe the coroner can explain that, but it surprises those of us who had assumed that Neely died while Penny had him in a chokehold. That clearly did not happen. (Which doesn’t mean Penny did not kill Neely. I think he clearly did.)

So the only “warning” given by a bystander is based on what appears to be a misunderstanding of the facts. The bystander is initially worried about a possibility that the black man helping to restrain Neely denies: that Neely had defecated on himself. It’s mere seconds later that Penny releases Neely.

There is another part of the prevailing narrative that has been distorted: the nature of Neely’s comments, and just how threatening they were. I’m going to save that discussion for the next section, on the analysis of the applicable criminal statutes to this case.

Analysis of the Law

At this point, I’ll provide an analysis of the relevant statute and how a prosecutor might go about analyzing how the known evidence fits the charge. Because I’ve mostly been telling you ways that the prevailing narrative has disfavored Penny, you likely think I’m about to tell you that everything he did was perfectly justified.

I’m . . . not so sure about that.