The Daniel Penny Case -- Two Contrasting Timelines

When lives are at risk decisive action is a must. And it must come quickly.

Remember Kitty Genovese

Does anyone remember the story of Kitty Genovese? In March 1964 a Kitty Genovese was murdered in Queens, New York. She had been raped and stabbed at least 13 times. The assault lasted approximately a half-hour. Two weeks later The New York Times ran a front-page article that reported that numerous people had heard her screams and watched the attack but did nothing to aid her. The article began by saying that

For more than half an hour thirty-eight respectable, law-abiding citizens in Queens watched a killer stalk and stab a woman in three separate attacks in Kew Gardens.… Not one person telephoned the police during the assault.

How would Kitty’s life been different if one of the people hearing her screams or watching from their windows had taken decisive action to save her life?

Neely and Penny — A fatal encounter and the timeline

On May 1, 2023, one man on a subway car in New York did exactly that. He made an instantaneous decision to try to protect innocent New Yorkers from suffering the same fate as Kitty Genovese. That man was Daniel Penny.

The man who threatened Penny and his fellow passengers was a drug-addled schizophrenic named Jordan Neely. Neely’s irrational and threatening behavior caused the people in the subway car to fear for their lives. They heard and watched Neely as he screamed and ranted, threating all other passengers who were trapped in the subway car with him. Penny described Neely’s actions and threats as reported by CBS News:

“The three main threats that he repeated over and over was, ‘I'm going to kill you,’ ‘I'm prepared to go to jail for life,’ and ‘I'm willing to die,’" said Penny. “I was scared for myself, but I looked around, I saw women and children. He was yelling in their faces ... I didn't want to be put in that situation, but I couldn't just sit still and let him carry out these threats.”

Everyone knew that someone had to do something and do it quickly. No one knew how long it would take this apparent lunatic to begin carrying out his threat to kill people.

There was one man on the subway who was trained to act to defend others. In the Marines, Penny had been trained to act quickly and decisively to protect others when danger threatened. But he only had seconds to act. Even a few minutes could have been too long. If Neely had a knife, he could have killed several innocent passengers in a few seconds.

Penny did not bury his head in a newspaper, pretending not to notice what was happening and hoping that the lunatic would leave him alone. He did not have time to debate the pros and cons of acting or not acting. He did not have the time to call a lawyer for advice or even to pull out his smart phone and research what guidance he might get about New York law of self-defense.

So, Penny acted. He managed to wrestle Neely to the floor and place him in what is commonly called a “choke hold.” This was not intended to be a fatal hold. It is intended to temporarily cut off blood flowing through the carotid artery to the brain. Properly applied it renders the opponent unconscious in about 3 - 5 seconds. But if the opponent keeps resisting, that shows that blood is still flowing, and the hold must be adjusted to cut off the blood flow. Normally it is not an especially dangerous move. It is routinely taught and used in Jiu Jitsu matches and police academies, as well as in the military. As I understand the reports of the evidence in this case, Neely kept attempting to fight even after Penny applied the “choke hold.” We all know what happened — Neely died.

Consider what could have happened had Penny not acted. Would anyone on the subway car risk their own safety, even their life, by attempting to stop this apparent madman? Or would we be reading about another Kitty Genevese situation after Neely made good on his threats to seriously injure or kill innocent people because one took action to restrain him?

That this did not happen is because Daniel Penny had to make an instantaneous decision to use force to protect himself and the other people on the subway car. He had to act immediately, not two, three or five minutes later. And he had to make this decision under considerable stress and pressure.

Another timeline — the jury deliberations

Penny was not charged initially. He was questioned and released. But after ten days of agitation by “community activists,” District Attorney Alvin Bragg charged him with criminally negligent homicide, which can result in a prison sentence of fifteen years.

The trial began over a month ago, on November 1. After closing arguments this past Monday, the jury began deliberating on Tuesday, December 2. As I write this, they have not reached a verdict and will began their fourth day of deliberations on Friday.

During their three days that the jury has been second-guessing Penny’s actions, they have had numerous discussions among themselves, trying to decide if he should have acted — a decision that he has, maybe, 3 - 5 seconds to make. But they don’t just talk among themselves. They have reviewed all the evidence, including photos, cell phone videos of the event itself, videos of witnesses’ comments at the time, and transcripts of witnesses’ trial testimony where they described the events. They have twice asked to be reminded of certain parts of the judge’s jury instructions and reportedly were given a copy to read.

In short, the jury has had three days, now going on four, to consider every piece of evidence and every bit of testimony as well as the lawyers’ closing arguments and the judge’s instructions. That’s roughly 17 thousand times as long as Daniel Penny had to make his decision.¹ And they still have not been able to decide whether Penny should have acted as he did.

So, what conclusions do you draw from this? Did Daniel Penny make the right split-second decision?

1. Assuming 8 hour days for deliberation.