Thomas Kenniff, an attorney representing Daniel Penny, spoke to The Daily Wire on Friday about his client’s upcoming trial over the death of Jordan Neely, a troubled man Penny restrained on the New York City subway after Neely threatened passengers.
Penny, a former U.S. Marine, was controversially charged with second-degree manslaughter and criminally negligent homicide in Neely’s death. The 25-year-old is facing up to 19 years behind bars if convicted on both counts.
What the prosecution has to prove
Addressing the charges against Penny, Kenniff told The Daily Wire that the facts are on his client’s side and emphasized that the prosecution has a “substantial threshold” to establish – one that doesn’t align with the facts of the case.
“They’re not intent-based offensives,” Kenniff said of the charges. “In other words, the prosecution doesn’t have to prove that our client intended to kill Jordan Neely. Of course, he (Penny) did not, but they have to prove criminal recklessness and criminal negligence.”
Kenniff explained that those terms have a different meaning in criminal cases than they do in civil cases. In a criminal trial, like in Penny’s case, “the standard of proof, the threshold of what needs to be proved, is much higher,” the attorney said.
“The prosecution is going to have to prove, not only that our client Danny Penny caused Mr. Neely’s death, but that he foresaw the risk of death and consciously disregarded it – realized, ‘I may be about to kill this guy, I’m not intending to do it, but I really don’t care if I do,’” the attorney explained.
“That is a substantial threshold, and one that we don’t think the prosecution is going to be able to establish; it’s simply not what happened.”
How witnesses factor into the case
Eyewitnesses, those who were in the subway car with Neely and Penny, will play a key role in the case, Kenniff said.
Most of the eyewitnesses will be called by the state, Kenniff said, “and those witnesses are going to testify consistent with how most of them testified in the grand jury: that when the doors to that subway car sealed shut, and Jordan Neely began to speak, within a matter of seconds, it became the most terrifying moment for most of them that they’ve ever encountered in their lives.”
Witnesses testified to the grand jury that Neely said “someone is going to die today” and made it clear that he was ready to go to prison for life. Reported 911 calls involved in the incident also indicate that passengers thought Neely was armed, though police ultimately did not find any weapons on him.
Kenniff noted that it’s vital the jury members understand the circumstances Penny and others on the train faced, saying that this was not “just another day in New York.”
“This was different,” the attorney said. “This was quite different than any of the sort of erratic behavior we may be accustomed to seeing if we ride the subway long enough in New York City.”
Kenniff added that “medical evidence” will also show “very clearly that the cause of death in this case was not asphyxiation by chokehold, that Mr. Penny did not squeeze Jordan Neely’s neck and did not do so for any length of time that would have even approached causing death.”
The ‘chokehold’
The media have exclusively used the term “chokehold” when describing how Penny restrained Neely on the subway. The Daily Wire asked Kenniff if the defense will use the same terminology during the trial.
“I think we will use the terminology of ‘chokehold,’ and a ‘choke’ will be part of this trial, but I think what’s important for your [readers] to keep in mind, is that it means many different things,” he responded.
“There was a non-lethal restraint maneuver that is used when the objective is to restrain, not cause harm,” the attorney told The Daily Wire. “That will be part of this case, but that has nothing to do with lethality, and that’s completely different from what the actual cause of death was in this case.”
Kenniff suggested Penny used a “variation of a chokehold” as a “restraint measure,” which, he said, is “exactly how a chokehold is taught in the Marine Corps and how it was taught to Danny.”
“That will be evidence in some of the witness testimony we will hear; the Marine instructor who taught that maneuver to many Marines, including our client, will testify for the prosecution in this case,” he revealed.
K2 found in Neely’s system
When asked about the findings of a synthetic cannabinoid called K2 in Neely’s system, Kenniff told The Daily Wire this will likely come up in the case since it was uncovered by a toxicology report ordered by the prosecution.
“I don’t think it would be a smart tactical move for the prosecution to try to hide it,” he said. “So I think it’s coming out one way or another. I think it’s gonna come out through the government’s case, but certainly, that is going to be part of what the defense will point to [as one of] many other factors to describe the [circumstances].”
Use of K2, sometimes referred to a “spice,” has been linked to psychosis.
“It’s very important that the jury be aware of that drug in Mr. Neely’s system, and the effects of that drug, because it affects behaviors, particularly when Mr. Neely was likely in a psychotic episode to begin with, which he has a history of,” Kenniff said. “It’s going to affect how threatening Neely appeared.”
“In other words, you and I on our worst day are never going to project this sort of terror and fear in third parties that someone who is in the midst of a paranoid schizophrenic psychotic episode, which the evidence suggests Jordan Neely was,” Kenniff said. “That’s very relevant that the jury understand that, because it goes to the fear that my client felt, that the other passengers felt, and why this was something different than the sort of erratic behavior one might associate with, ‘just another day on the New York City subway system.’”
The Race Element
The Daily Wire asked Kenniff if he thought race would be injected into the case by the prosecution. Notably, legacy media have suggested Penny, who is white, was acting out of racial bias or racial animus, since Neely happened to be black. There is, of course, no evidence of race playing into the incident.
“I don’t think it’s gonna be something they’re gonna inject in the case,” Kenniff responded. “I think if they try to do that, they would probably walk themselves into a mistrial.”
“It’s just not part of the narrative here, and it would be, of course, completely prejudicial to my client,” the attorney continued. “This was not a racial incident. My client couldn’t control the fact of his skin color any more than he could control that of Jordan Neely, nor would he want to. My client has no history of any racial animus.”
Will Penny take the stand?
Penny is “certainly willing to take the stand, and I actually think he would be a fantastic witness,” Kenniff told The Daily Wire.
Kenniff emphasized that the defense is not going to try to put Penny “on some sort of pedestal” or make him out to be a hero “any more than we’re trying to vilify Jordan Neely,” but said he believes Penny would be a great witness because of his character and his ability to recall the facts of the case.
“I think that he’d be a great witness based on who he is – again, not because he’s someone heroic, but because he’s an ordinary person who tried to do the right thing and tried to stand up and protect those who can’t protect themselves,” Kenniff said. “And I think he’d be a great witness because he would be able to recount the facts as they occurred, and it’s consistent with probably about a dozen other people who are likely to testify in this case about what they saw, what they perceived.”
“He may very well testify,” Kenniff continued, “but it’s a very personal decision, a decision that a defendant makes in consultation with their attorneys. And we have to determine whether it’s appropriate in this case.”
“Everyone should keep in mind that the burden is on the prosecution,” Kenniff said. “It’s not for a defendant to get up there and talk himself out of a case and try to convince a jury that he’s not guilty.”
“In fact, that’s the very reason the defendant doesn’t have to testify and the jury can’t infer anything negative of it,” he said. “The reason why that was put in our Constitution by the Founding Fathers is exactly that: to emphasize the fact that if the government wants to bring charges against you, it’s the government’s job to prove the case, not your job to un-prove it.”
How Penny is holding up
“Listen, no one ever wants to face the working end of a local, state, or federal criminal prosecution,” Kenniff told The Daily Wire. “Short of a certain medical diagnosis, it’s probably the scariest thing that could ever occur in anyone’s life. There is no way to minimize that.”
But “on a relative scale of how he’s doing under the circumstances, I think he’s doing as well as anyone could do,” Kenniff said of his client.
The attorney noted that Penny could have “played the odds” and done nothing, and hoped he wouldn’t be one of the people victimized by Neely, who was threatening to kill passengers.
“He didn’t do that, he put himself right in the middle of harm’s way and intervened on behalf of strangers that he’d never seen before, that he’d never spoken to before, that he knew nothing about,” the attorney said.
It’s “not about heroism, but about his character, and someone like that — while it’s still terrifying to be in the situation — he is someone who I think has the personal character to handle it as well as anybody could.”
Related: Here’s What Potential Jurors Are Being Asked In The Trial Of Daniel Penny
