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Brian Lehrer: Brian Lehrer on WNYC. As you've been hearing, subway choker, Daniel Penny, has turned himself in this morning to face charges in the death of Jordan Neely on that F train in lower Manhattan last week. We'll get legal analysis now from a former assistant Manhattan DA, and take your calls on the evidence as it's known so far, as well as some of the systemic homelessness, mental health, and criminal justice issues involved. Here's a lawyer for the Neely family, Lennon Edwards, on Channel 7 last Friday on how they see Daniel Penny.

Lennon Edwards: We have a civilian also who's really, in my view, this is somebody who's a trained killer. He is an ex-marine and he understood the art of hand-to-hand combat.

Brian Lehrer: Lennon Edwards, lawyer for the family of Jordan Neely. Penny's lawyer says he was acting in self-defense and that he never intended to hurt anyone. Penny is now charged with second-degree manslaughter. With us now is Catherine Christian who spent more than 30 years as an assistant district attorney in Manhattan, including a senior trial counsel and director of legal staff training. She's now a partner in the law firm, Liston Abramson. Catherine, we really appreciate you coming on with us again. Welcome back to WNYC.

Catherine Christian: Glad to be here. Good morning, Brian.

Brian Lehrer: Listeners, your questions or comments about the indictment of Daniel Penny, 212-433-WNYC, 212-433-9692. Catherine, let me get one thing straight first that I'm a little confused about. My understanding is that DA Bragg is announcing these charges, but he's also still going to impanel a grand jury. How can both things be true?

Catherine Christian: Well, that's typically how it happens. An arrest is made and, in this case, this morning, the arrest was made with a felony. At his arraignment, the prosecutor who's going to be standing in the arraignment will say, "And we are now serving grand jury notice." You cannot proceed to trial on a felony in New York State unless the case has been indicted by a grand jury.

What the DA did in this case, he could have just done a presentation to the grand jury and after presenting all the evidence, reached out to the now-defendant, Penny's attorney, and offered him an opportunity to come testify, but he decided at this time that we're going to make an arrest, we're going to charge him, put a criminal complaint, have him arraigned, and then we'll present the case to the grand jury.

I think probably one of the reasons was- I'm not saying there was any political pressure, people wanted DA Bragg to, "Why aren't you prosecuting? Why aren't you prosecuting?" It's my experience that rushed justice is bad justice. They needed time to get all of the facts.

First of all, we knew who the defendant was. We had a photo of him. He had retained an attorney. His attorney, Thomas Kenneth, said, "I am the attorney." There wasn't a case of flight or not knowing where he was. I'm certain that the attorney was speaking to the DA's office. The timing now, for some people, it's late. I'd say it was very prudent to wait and get all of your ducks in a row, and it's completely proper to make the arrests, have an arraignment, and then present the case to the grand jury. That's what DA Bragg is going to do.

Brian Lehrer: You mentioned public pressure. There have been protests, as we all know. People have been willing to get themselves arrested and go to jail to press for justice to be done as they see it in this case. Do you think that influenced this indictment? Does it matter maybe to an elected DA, which we have in New York, more than an appointed prosecutor?

Catherine Christian: Well, there is no indictment. There will only be an indictment if a grand jury votes an indictment. There's been an arrest and there's a criminal court complaint that has been filed, and I haven't seen it, and I don't think he's been arraigned yet, we'll charge manslaughter in second degree.

He is an elected official and he is obviously concerned about the public, but the fact that he did not immediately authorize an arrest tells me that he, meaning DA Bragg, is being very thoughtful. In fact, I know the prosecutor, he assigned to lead this homicide investigation as a very experienced, very smart, very thorough prosecutor.

As I said, you don't want to rush. You want to take your time. There are going to be people who are going to opine. The only people that count for this prosecution are the witnesses, the people who are actually in that subway car who can tell the ADA who's assigned to this case what they saw and what they heard. That's most important. The video we've all seen shows the ending. It doesn't show the beginning and the middle.

I'm just envisioning if I were doing the case, you want to get every piece of evidence you can. I'm a regular subway taker. I've been taking it over 50 years. I live in New York City, so I want to know did he come on from the platform into that car or did he come from another car into that car. If he came from another car, I hope I have witnesses from that other car and I want to know how he was acting there. If he came from the subway platform, was there any surveillance there? That takes time. Getting all of those witnesses, getting that surveillance.

You also want to know about the defendant. What did he say after it happened? Who did he speak to? Did he text anyone? Did he email anyone? What did he say? That will go into what his state of mind is. That takes time, and so you want the DA to do it right.

Now, the negative of making the arrest today and having a criminal court complaint filed is now we call it the clock starts ticking. What we mean by that, 35 days from today the DA's office has to give Mr. Penny's attorney everything that's in their files, the documents, the audio, the video, things from NYPD. You may say, "Well, NYPD is under the control of the DA's office." Well, legally they're supposed to be, but they have to get every single document under the law has to be provided to the defense attorney.

Also, what starts ticking is you have six months under the law in New York State to bring a felony case to trial. If it doesn't go, it gets dismissed. Now, there are obviously a whole bunch of exceptions, and I'm not going to bore people to death of what they are, and so that clock starts ticking. That's another reason why you don't want to rush and immediately make an arrest and file a complaint.

I anticipate that the evidence will be going to the grand jury shortly. If not, it's going to happen. People, I understand impatience, but if we care about justice, we want it to be done right, and we want it to be fair. I'm a stickler for innocent until proven guilty. Now that Mr. Penny is a defendant, he is innocent until proven guilty.

Brian Lehrer: Now I'll get my language straight and people can sort out the difference in their heads between an indictment, which has not happened yet, and a criminal complaint even though, as you say, the clock starts ticking for all the rules that apply to the prosecutors. All right. Second-degree manslaughter, what does that mean?

Catherine Christian: That is defined as you recklessly cause the death of another person. Now, what does recklessly mean? Every term has a definition. Recklessly means that you, the defendant, was aware of and consciously disregarded a substantial and unjustifiable risk that a result will occur. What was the result? Death.

Many people, I've heard noncriminal lawyers, or at least noncriminal lawyers from New York State, this is murder, this is murder, this is murder. It is not murder. Murder is specifically defined. Murder requires intent. Intent is defined that you act with the intention, you have a conscious objective, is to cause this result. Murder is defined as you intended to cause death and then death happened, or another way of saying it, you intended to kill and the person died.

You cannot objectively say that there was an intention here, that Mr. Penny intentionally acted and his objective was to cause a death, but you can argue that what he did was reckless because he should have been aware of and he consciously disregarded the risk of what would happen if you put someone in a chokehold.

You can also argue that it was a lesser, it was intentionally- not intentionally, it was negligent, which is a lesser standard than recklessness when you fail to perceive that substantial and unjustifiable risk as opposed to recklessness where you're aware of and you consciously disregard. The charge, my understanding is manslaughter in the second degree, which is obviously a felony. It's considered a C felony. Actually, under New York State law, it's considered statutorily non-violent felony. If he were to be convicted of it, the judge could give him no jail or up to 15 years in prison. That's what he is being charged with. Again, I'm saying that's what he's been charged with a criminal complaint. The grand jury may decide something else. They can say, "It's not manslaughter in second degree, it's criminal negligence," or they can say, "We're just not going to vote an indictment." It will be up to those 23 grand jurors.

Brian Lehrer: Robert in Marine Park, Brooklyn, you're on WNYC with former Manhattan Assistant District Attorney, Catherine Christian. Hi, Robert.

Robert: Thank you so much. Miss Christian, I used to- many years ago, I was a civilian employee of the NYPD. On my own, I just studied the penal law. I must say, if I may say so, you did an excellent job of explaining the manslaughter. I would say even as just as a layman here that that would be the appropriate charge. I do have a question.

Now, it's my understanding that some people have brought up that Mr. Penny, or somebody in the subway car, why did they have to resort to force? Everybody has cell phones these days. Why couldn't somebody have called the police on the cell phone? I do know sometimes when you call 911, it can actually take a while. Let me ask a question here. Was there an option for Mr. Penny or someone else to pull the emergency cord, and that way the train crew would have responded immediately? I would assume, correct me if I'm wrong, that the train crew are trained on how to handle a passenger, like a disorderly passenger. Wouldn't that have made more sense to pull the emergency code?

Brian Lehrer: Robert, thank you for your question.

Catherine Christian: Okay, I'll tell you this as a subway rider, and I've been told this by transit, never pull the emergency cord, because what's happened, now you stop the train, you stop the train in between platforms. That should never be the immediate reaction. You want to train to continue, and then get to that next station, and then go and tell the conductor. That's just someone as a subway rider who suddenly has been told, "I'm sorry, you're now stuck here because someone has pulled the emergency cord."

In terms of 911 calls, I haven't listened to them. My understanding that there were some 911 calls, so I'm certain that that's another reason why you want the DA's office to take their time because they want to get every single call and listen to what were they saying, and who was making the calls. Were there people actually in the car? Well, that's very important because they're going to be saying to the 911 operative and going to be describing what they're seeing as it's happened. My understanding, there are, but I have no idea what the substance of those calls were.

Brian Lehrer: What's your understanding of the law with respect to when a person can legally place another person in a chokehold or physically attack them in any way if that person hasn't attacked anyone himself, because according to the witnesses that we know of so far, Neely was shouting things like he's ready to die or go to jail, and threw his jacket on the ground. No one that I've seen has yet said that he actually threatened harm, like, "I'm going to hurt you people." Where is the line as to make a so-called reasonable person?

Catherine Christian: Well, you said no onwyou have seen. You said no one you've seen. I have no idea what witnesses the ADA and the DA's officers have spoken to. I know who people have said things in public and then I'm like, "Was that person on the subway car?" The law is basically would be called self defense, but under New York State, it's called the law of justification. It is actually very friendly for the criminal accused. What I mean by that, it's a reasonable standard. I'm just going to read you the sentence that the judge would, on a trial where a defendant has said, "I did this in self defense, I used physical force," or, "I used deadly physical force."

The first sentence that the judge will read to the jury as he's instructing, or she's instructing them on the law is, "The defendant is not required to prove that he was justified. The people," the people being the prosecution, "are required to prove beyond a reasonable doubt that the defendant was not justified." Now, that's very friendly to that person who's being accused of manslaughter in the second-degree murder. Their deffence is, "I was justified."

It's a reasonable person standard so in order to prevail, and prevailing, obviously, it's going to be up to a jury, that you were justified, you have to have honestly believe that what you did was necessary to defend yourself or others from what you honestly believe to be the immediate use of force, and that a reasonable person in your position knowing what you knew and being in that same circumstance would have believed that too.

Actually, I'm paraphrasing a very long jury instruction that a judge would give, and also the same instruction will be given to this grand jury at the conclusion of the presentation of the evidence by the prosecutor in that case. It's very factual and I anticipate- I have no inside knowledge, I do not know Mr. Penny's attorney, but I represented someone who had a, I thought a viable, credible self-defense claim. I brought them to the grand jury to testify and the grand jury voted not to indict. I anticipate that this particular defendant may testify in the grand jury.

Typically, defendants do not testify to the grand jury. Most do not. When they do, it's often in cases where they have a viable self defense or credible self defense because if the grand jury believes you, there's no indictment, the case is over, otherwise, it's a one-sided presentation.

It's a friendly defense, meaning for the defendant because it's on the prosecutor to prove that you weren't justified, but you still have to have facts that are credible, that that jury, that grand jury will say, "You know what, I think a reasonable person would have done what he did," or someone else, they may say, "You know what, that's not reasonable. That's not a self defense." It's going to be really up to the grand jurors. If they don't believe him and they vote to indict, then there'll be a trial and it'll be up to that jury.

Brian Lehrer: Esteban in Brooklyn, you're on WNYC with Catherine Christian, former Assistant Manhattan District Attorney. Hi, Esteban.

Esteban: Hi, Brian. Hi, Catherine. I am calling, despite the fact that I should say first and foremost, it's probably likely that the hold Jordan needed was likely a hug, rather than a choke, which seems probably obvious in all the layers of unfortunate racial and social and economic discrimination [unintelligible 00:17:10] [crosstalk]--

Brian Lehrer: I don't understand that distinction that you're making because everybody- that doesn't seem to be in dispute that there was a chokehold.

Esteban: No, what I'm saying is that, I think somebody with better training, and probably a better understanding might have recognized that the man needed a compassionate extension, when I say a hug, rather than a choke.

Brian Lehrer: I see, that that's he needed. Go ahead.

Esteban: I meant that. The knee-jerk reaction was one of aggression rather than compassion. That's why I'm calling. It's not so much to criminalize. I don't know what the positive outcomes will be for Mr. Penny or society at large in criminalizing the veteran, although without question, our actions deserve consequences. I am calling though because I have not yet seen this utilized enough as an example of the obvious use of excessive force that's proliferating society at large.

I've heard it discussed in abstract terms but really, it is a one-to-one link, not only with police brutality, the use of excessive force, whether it's firearm brutality that's going on across the country, and obviously, the extreme polarization.

Perhaps you just had a segment with the congresswoman about artificial intelligence and immigration. It's the otherness of the individualism, extreme individualism, and otherness as opposed to the sense of family or sameness. That, to me, seems to be what is on trial. It's frustrating that there are potential advocates for what I would call mandatory volunteer services. I think it was in Obama era, effort to do this or other efforts that would help urban dwellers to engage with each other and understand each other in ways that would prevent this behavior.

Brian Lehrer: I understand. Those are really interesting and important underlying points, Catherine, but do you think they wind up at trial in any way on one side or the other?

Catherine Christian: Well, what happens at trial is only legally sufficient evidence. Things opinions and politics are forbidden. It's just the facts and the law when you're talking about the actual trial. What's happening outside the courtroom is really not allowed in.

Brian Lehrer: Let me let me jump in on that for a second because Penny's defense lawyer is Thomas Caniff, who happens to be, no coincidence I'm sure, the Republican who ran against Brad for DA in 2021. I saw a legal analyst on MSNBC today suggest that the defense will try to put DA Bragg himself on trial in effect, for allowing the subways to become a place where incidents like that are more likely. Do you expect and would a judge allow that kind of defense?

Catherine Christian: No, absolutely not. He can say whatever he wants outside the courtroom, but how is that relevant at all to whether or not this person, Mr. Penny, is guilty or not guilty of manslaughter in the second degree? You can say whatever you want outside the courtroom, but once you're in there, in that well of the courtroom, is just the facts and just the evidence.

I don't know how you can say DA Bragg is responsible for what's going on in the subway system as a longtime subway rider. What I find when I hear about Mr. Neely and his mental health issues and that he was arrested whatever, 40 times, that means there were 40 times that he came in contact with the New York City government agency, NYPD, or the court system that he could have received some help in and didn't.

Out of fairness, it's the way the laws are, it's hard to force someone to get help. There's many ways to go. You don't want to force someone into a mental institution who shouldn't be there. That's a problem. 40 times, and now we end up with this tragedy here. I'm sure his mental health will come out at the trial, but it could be a positive or a negative. And I'm saying that in terms of the defendant on trial.

Brian Lehrer: We're just about at a time. Let me throw two more at you and see if you can give me short answers to these.

I played the clip of the Neely family lawyer noting Daniel Penny, 24, was in the Marines. That's how the media is referring to him generally too, 24-year-old former Marine Daniel Penny. Do you think either side uses his marine training in one way or another? And then my second question is, why aren't the other people who held Neely down until he was dead also being charged?

Catherine Christian: Well, that's a good question. Because I also want to know. I hope there was a conversation with them. I hope the DA's office spoke to them because I would also want to know what led them to assist Mr. Penny. What was Mr. Neely doing that they felt they had to assist, or not doing? They are very important witnesses.

First of all, charging them would be, you would have to prove that they had the same mental state as Mr. Penny, that they were intentionally aiding him in consciously disregarding that substantial and justifiable risk of death. They are very important witnesses because the videotape I've seen, which is basically the end, you do see these two men assisting Mr. Penny in holding him down. I forgot your first question. I'm sorry.

Brian Lehrer: Oh, it was just about the relevance of his having been in the Marines and therefore perhaps knowing what a fatal chokehold is.

Catherine Christian: Well that could be relevant that if it was true that he was trained. They keep saying the marine veteran. The man's 24. How much time could he have spent in the Marines?

Brian Lehrer: I don't know.

Catherine Christian: It's not like a 45-year-old. He's a 24-year-old. It is relevant, what training did he receive? Wouldn't you have known X, Y, and Z if you put this pressure, this would've caused this result? Yes, that would be relevant.

Brian Lehrer: I want to indulge my curiosity on one legal question about another subject. The Northern New York City suburbs refusing to take some of the migrants who Mayor Adams found hotel rooms for. My question about that is, are the refusals of the northern counties even constitutional?

I haven't heard anybody raise this, but it seems to me the local governments there are stopping Mayor Adams from renting hotel rooms and paying for them on the basis of the race and national origin of the guests. Isn't that unconstitutional on its face?

Catherine Christian: Well, I would ask this. Would they be doing that if these were people who were fled from the Ukraine? That would be a good question. In terms of constitutionality, that, I don't know, but they will argue the same way that Mayor Adams is upset at Abbott for sending people to New York City. They would argue, how dare he, Mayor Adams, without our permission, send them up to Rockland County. That would be their argument. They would say, oh, it has nothing to do with race. It has suddenly-- we have an influx that you don't want to keep in New York City and without our permission, how can you do that?

That's a good question, but you're right. If it's just we don't want them here because they're Mexican, because they're Venezuelan, because they're dark-skinned people, to me that's a constitutional issue, but I'm not a constitutional lawyer. I think Ryan, you've now just sort of piqued the interests of those constitutional lawyers out there.

Brian Lehrer: All right. Maybe we'll follow up next week with a constitutional lawyer. I think Mayor Adams could argue that there's no analogy with Abbott just putting people on buses and shipping them to New York without accommodations. Adams has rented and paid for hotel rooms, but that's the next show. Catherine Christian, who spent more than 30 years as an assistant district attorney in Manhattan, including a senior trial counsel and director of legal staff training, is now a partner at the law firm Liston Abramson. Thank you so much for your insights. We appreciate it so much.

Catherine Christian: Thank you. Glad to be here.

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