Ask Alexi: An Objective Look at the Legal Issues Surrounding the NYC Subway Death of Jordan Neely

The death of Jordan Neely on the New York City subway, which was caught on camera, has sent shockwaves through NYC and the country at large. In the latest development, second-degree manslaughter charges were brought against Daniel Penny, the former marine who is seen on video placing Neely in a hold that a medical examiner ruled led to his death.

To get a better understanding of the foundational elements of the case, we asked Alexi two questions, one regarding the mens rea element of the offense, which the prosecution has the burden of proving, and one about a defense that Penny may raise.

Regarding the offense, we submitted this question: Is a criminal defendant's military experience and training considered when determining whether they acted recklessly for the purposes of second-degree manslaughter? Read the full sample memo here.

Regarding the defense, we asked: Under what circumstances is the use of deadly force legally justified in defense of others? Read the full sample memo here.

In case you’re not already familiar with Alexi, it is an AI platform for legal professionals that produces objective legal research memos in response to legal research questions. The memos include the most authoritative and relevant legislation and caselaw on the questions submitted, giving legal professionals unsurpassed confidence in their knowledge of the law. Learn more.

As expected, Alexi produced thorough legal research for each question, providing the most up-to-date and authoritative legal information—a solid starting point for each side to build their case.

The Mens Rea Element of the Offense

For the mens rea question, Alexi returned this conclusion (abridged):

“No New York decisions were identified that discussed whether a criminal defendant's military experience and training may be considered by a court when determining whether they acted recklessly for the purposes of second degree manslaughter. However, a discussion of the recklessness requirement for second degree manslaughter may be instructive.

A person acts recklessly when he is aware of, but disregards, a substantial and unjustifiable risk to the degree that their behavior does not comport with the manner in which a reasonable person would have acted under the circumstances. (People v. Davis, 526 N.E.2d 20, 530 N.Y.S.2d 529, 72 N.Y.2d 32 (N.Y. 1988))

Determining whether a crime having recklessness as an element was committed entails an objective assessment of the degree of risk presented by the defendant's reckless conduct. The defendant's subjective intent is irrelevant. (People v. Davis, 526 N.E.2d 20, 530 N.Y.S.2d 529, 72 N.Y.2d 32 (N.Y. 1988))

However, it is still necessary that the defendant (1) be aware of a risk; and, (2) disregard that risk. (Williams v. State, 100 Md.App. 468, 641 A.2d 990 (Md. App. 1993))”

Alexi identified a New York case involving a police officer and another involving a physician where the defendants’ professional training did appear to factor into whether they acted recklessly. The full memo can be viewed here and contains this structure:

• Issue: The question posed to Alexi.
• Conclusion: A quick and concise summary of the law on the question. 10 paragraphs for this memo.
• Research Description: Further details of the question, if any, including any factual background.
• Law: A detailed discussion of the law relevant to the question.
• Authorities: A list of all the authorities referred to in the memo.

The Defense of Justification

If Penny’s lawyers can prove that the use of deadly force was justified in defense of himself or other subway passengers, he could be acquitted of the crime:

“Under N.Y. Penal Law § 35.15, a person is justified in using deadly physical force against another if they reasonably believe such to be necessary to defend a third person from what they reasonably believe to be the use or imminent use of deadly physical force by such other person. (People v. Sanchez, 2017 NY Slip Op 01718 (N.Y. App. Div. 2017))”

However, the defense must also show that the train passengers could not simply remove the imminent threat by moving away from Neely. There is no so-called “stand your ground” law that would apply in this case:

“Even in such cases, however, the actor may not use deadly physical force if they know that with complete personal safety, to oneself and others, they may avoid the necessity of so doing by retreating. (N.Y. Penal Law § 35.15 (2023))”

Alexi also identified other situations where the use of deadly force is justified:

“Additionally, a person may use deadly physical force upon another person if they believe that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act, robbery, or burglary. (N.Y. Penal Law § 35.15 (2023))”

Alexi noted that “justification” is not an affirmative defense and that the burden of proof rests on the prosecution to show that deadly force was not justified:

“Justification is a defense, not an affirmative defense, and therefore the People bear the burden of disproving it beyond a reasonable doubt. (People v. Brown, 102 N.Y.S.3d 143, 125 N.E.3d 808, 33 N.Y.3d 316 (N.Y. 2019))”‍

What Remains to be Proven‍

It will be up to the prosecution to show that Penny acted recklessly when causing Neely’s death, and that self defense or defense of others with deadly force was not justified in the circumstances.

Meanwhile, the defense may attempt to establish a reasonable doubt that Penny acted with a culpable mens rea when attempting to restrain Neely, despite the hold resulting in Neely’s death, and to establish that he was justified in using deadly force to defend himself or other subway passengers.