This is Bloomberg Law with June Brusso from Bloomberg Radio.
I was scared for myself, but I looked around. I saw women and children. He was yelling in their faces, saying, saying these threats. I couldn't just sit still.
Troll began this week for Daniel Penny, the Marine Corps veteran charged with recklessly causing the death of a homeless man by placing him in a deadly choke hold on a New York City subway train last year. The death of Jordan Neely ignited a firestorm of protests, debate, and division across the city and headlines across the country. Was Penny a good samaritan or a vigilante. Penny says he was trying to protect himself and the other passengers because Neely was threatening them.
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.
Jury selection in the case started on Monday. Joining me is criminal defense attorney Jeremy Salande, a former Manhattan prosecutor. How much of this debate about homelessness and mental illness and safety on the subway. How much will that bleed into the trial.
These are issues that are biggest hit home for many New Yorkers. But what happens outside the courtroom should remain outside the court. What happens inside the courtroom should be regulated by the four corners of the law. I would not expect that any of it should come into the trial.
The question is not what Jordan really did or didn't do Page weeks once and years before criminal record of the health builders being homeless in that moment, in that moment in time, was then Teddy justified and taking action to subdue Jordan Neili and then ultimately cause his death way recklessly and manage it me as the legs by the prosecutors.
Nearly reportedly had mental health and drug addiction issues. You don't think that his psychiatric his history, and the fact that synthetic cannabinoids known as K two were found in his system, you don't think that that will come in.
First of all, Max Wiley and Judge Wiley's has been around the block in terms of the criminal and criminal justice for years. He was actually my deputy chief when I was a prosecutor, and it's been on the bench a long time. I trust it he'll make the right call, and in this particular case, I think you have to setify the noise and again not looking at his criminal history, at his meaning Jordan Aally, not looking at his mental
health issues. Was it relevant in that moment to the determination and the reasonable person analysis, if you will, of Daniel Penny when he observed this man throwing down his jacket saying something along the lines of I don't care if I go to jail or whatever he might have said, and the reaction of people. So you have to limit it because you can't twist the jury and provide evidence that is not relevant in to the determination and decision making.
Daniel Penny didn't know about the prior history. Daniel Penny didn't know about the mental helmets, the K two cause and nearly they're acting a certain way. Maybe that could be relevant, But what did people see? What does the video show and demonstrate, and what happened in that moment is really important factor, not days, weeks and months before.
There's a four minute video of Penny pinning nearly to the ground and placing him in a choke hold while two other passengers helped to restrain neely, and both sides say they're going to use that, how will they use it differently?
Well, you know, I think that the defense's term to try to show that what Penny did was very reasonable in that moment and he's holding and pinning this individual to the ground, and you know there's other people who are helping him do something because they're equally concerned about the volatility of the immediate presence bones or that not
threat on lives of people on the subway. Whereas the prosecution is going to show a guy who was subdued and there's a hold around the neck and the true hold and probably concentrate more on that, which, ultimately, if you believe in their theory, and they proved me on a reading him about paused him to lose consciousness and ultimately pass, setting aside whether or not law enforcement did
CPR and should have done CPR. So it's the same video, obviously, But what is going to try to demonstrate it was reasonable in the moment. The other words, we're going to try to demonstrate it was naveraging, reckless, and beyond the panel, if you will.
The Medical Examiner's Office found that he died from compression to his neck as a result of the choke hold, and the manner was homicide. The defense said it's going to attack the emmy's report and bring up potential other causes of Neelie's death, including high levels of that K two in his blood stream that usually works in movies. Does it work in the courtroom.
It can work in the courtroom. And this is sort of a response to what we asked me earlier. I don't necessarily believe the cakes was relevant to the reaction and behavior of a penny, but it can absolutely be relevant. And I assume we'll have a forensic and expert for lack of better term, to try to establish this that the K two may have been that proximate natural cause or death to join a kneeling. So I think that's going to be something that they're going to argue, and
it should be something it sounds like it is. Does it work in real life as opposed to movies. Every case is unique, and every case is different. I believe that big concern here is you have to make sure that you separate those jurors the preconceived notion, whether it's race, whether it's politics, whether it's some way safety take them out of the equation so that that jury objectively analyzes the evidence that's presented in that courtroom. So it does work,
It absolutely can work. It's not an easy task or an easy lift, especially with such a charged case. From the emotional perspective.
Both sides are going to call witnesses who are on the train, and it appears that their level of concern about Neely's behavior varied. Some said they were afraid, others said no, they see this all the time on the subway. Will their accounts sort of cancel each other out?
The testimony and the witnesses are not going to cancel shovel out to lack of a better way to describe it, The words that they use are going to be critically important because that video owning shows section in time and doesn't show that imminent threat because remembered by law, there needs to be that imminent threat of that serious physical injury or death even to allow for the justification defense or self defense if you will yourself or other people.
So beyond that video, how do these people perceive those moments? How do they react? And I'd be very concerned, as Daniel Penny's counsel and Daniel penny personally, if witnesses are going to call up and say, you know what, you see this all the time, you put your head down. I'm a New Yorker, I've been around the block, I'm
ridden these subways. Later at night, you just ignore that moment and the threat if he will goes away, because remember, too, it's not about just being scared or nervous or anxious. It's not a candae or textansponder of riding the New York subway. It's photography or a realual New York standard or just a reasonable standard versus standard, and what was deserved in the moment. So you have to be careful.
I don't think they're going to negate each other the words and the specificity why and how they believe that they were physical or serious physical danger in a death. That's so important, so important, not just that I'm scared.
What about the fact that he was a trained marine? Does that come in very well?
Can come in if there is evidence that he knew and was aware of this type of choke hold and how to apply it and use it, and the potential consequences of it. Because because remember, you know, it's not an intentional client but did he know of these risks from Jordan Eely? And then he just really ignored those risks. Was there a substantial likelihood or risk that his actions were going to cause another person's death and he ignored it.
It really just disregarded this person's well being in Jordan Eely. And if Danny Penny was aware and knew and had that skill set, I believe that it should come in.
It should revel go over what does a prosecution need to prove to get a manslaughter conviction?
So man'slaughter is a little bit different and criminally negligent on side, just think it's different from an intentional crime when you're trying advanced daughter the second degree, when the prosecution has to imagines that you recklessly cause the death
to another person. Reckless is that standard, whereas criminally negligent, which is different, and that's the lower felony, that's the class ethelony that when you do so you commit these acts, you failed to sort of perceive that there was this real substantial risk that your actions would tell us out of the person's death. So the recklessness is different and it's more severe than the lesser, if you will, of criminal negligence.
So The question looming over the trial, like every trial basically, is whether he's going to testify himself, And one of his lawyers said he'd be a great witness. We anticipate that he will, but that will depend on how the trial goes. Do you think he almost needs to testify to show his state of mind at the time.
Defense attorney such as myself, we don't always show our cards like the prosecution does at this point in the trial process. A lot of this hinges on that witness testimony. Yes, that video was important, but I think that video can work against Daniel Penny too, because you know, if someone is quote unquote squirming, as was used in the terminology by Daniel Penny, and that's not a favorable term, and for all those minutes to hold that person there, what
are these witnesses going to say? Are they going to articulate how and why they would feel for for their life or their physical safety? Because if they don't, then Daniel Penny has to testify. If they do and it's clear of this imminent threat danger, then maybe Daniel Penny doesn't, but I would expect him too. I would suspect he will testify because he probably will come across as a sympathetic person, not trying to attention the hurt another man to do what he thought was the right thing in
that moment. True or not, that's the jury to decide, but I would expect that he would testify.
You mentioned that Penny said that Neely was scored, and the judge has rule that the prosecution can introduce that video of him describing Neely as squirming to police and other things he said to police when he was being questioned.
The choice of words that Daniel Penny chose in the moment are probably words in retrospect he should not have. You're not necessarily thinking of the right words to use, especially if you're not technically in custody at the time
and there's just an investigation. But to our certain that Jordan Neely was was squirming is not necessarily the right language when I think of someone being a violent threat to my life and safety or that in others, swirming is more squirming to get away from someone, squirming to slip away and protect oneself. Not he was flailing his arms, who was taking swings, who was cursing me out, he
was threatening people? He was grudging, squirming difficult word. If I'm the prosecution, I might seize on that word of squirming because it's not indicative, in my viewing, suggestive or honestly of those violent throws and violent actions. Whereas if I'm the defense, I may try to explain what I mean so I can explain it away and make it clear that in the moment when Daniel Penny was obviously anxious and this had just happened, he may have chosen the wrong words, but the heart of what he was
saying was the same thing. I was holding this person in a way that I felt was the best to achieve and the safest for everyone to achieve, him from not bringing anyone on their room worst on that train. So squirming is something that I might see on as a prosecution.
Police interviewed him on the day that Neely died and then released him. That was criticized by some elected officials and protesters demanded that Penny be arrested. Will that come.
In issues of something called Huntley hearing? It statements that are made whether you're in custody and it's an interrogation. As a matter of law, those issues aboady been litigated, So you're not going to hear that litigation in and of itself, but it could very well come in and I would expect it to come in that he was questioned and arrested only after the fact, because the prosecution wants to tell a complete story. They don't want to
seem like they're hiding the ball and misrepresenting. They want to explain why that occurred. Because if I'm the defense, I want to seize on that and say, you guys didn't arrest me initially. Look at because there's political pressure only because of his outside voices and the issues of race and the issues of subway safety and politics. Did my client get arrested? And that's not just or justice. So I would expect it to come in with both sides trying to rationalize a reason why. And I will
say that this is not incredibly atypical. Certainly most people are arrested in a moment, but there are times that not only does the NYPD not make an arrest initially, there are also times when prosecutors' offices DA's all is do what's called a DP or a decline to prosecute a case even after the process has started for further investigation, only to later make an arrest. So this is not necessarily typical, but it's not atypical either.
So what kind of juror are you looking for if you are the prosecutor, and what kind if you're the defense.
Starting with the prosecution, I'm looking for in real New Yorker, which is the opposite of what the defense is looking for. I don't want my Florida, Texas, California, Iowa transplant. I'm not looking for the guy or gal who's been around the block once because they had to walk to school or their new job, and they're so excited to be in the big city, you know, bright eyed and excited.
Maybe mom and dad are paying the rents. That's the person that the defense wants, because the defense wants that overreacting individual who is not familiar with the subway life, is not familiar with quote unquote goffing. Manhattanites are very very different, who've ridden in that subway, who live their lives to a better temper of jur that we would expect the prosecution to want to take. You know, put your head down, walk away, This too shall pass.
Would you rather be the prosecutor here or the defense attorney.
In this scenario? Whatman's asking me is trying to be sneaky and sly what I think is going to happen. That's what trying do I see, I see they It's not my first rodeo. That being said, if I had to take a side, which really sounds awkward saying that was because this is such a tragic case of matiti result. But if I had to take a side from a legal perspective, I would want to work aside of the prosecution. I think this is an uptill client to what I
have seen. I granted to process one hundred percent every single person, every single time, and the process system, on its course, will see the evidence. But that video is not some overwhelming piece of evidence that we say, oh my gosh, Daniel Plone, you know, was it reckless or negligent? Remember not intentionally. It's not irrelevant. And those witnesses on the subway from what I have read, which is not evidence,
and we'll see that evidence. But what I have read there's nothing so over well, oh my gosh, you know, if you've ridden the subway New York, this happened.
This happened.
It's terrible. It's sad in terms of people having episodes or madic episodes, or misbehaving or even getting aggressive environment. But that's something we see and I would not want to be on the side of Daniel Penny. But let's journey decide that it's not my job whether let's look through process from each course.
The case is going to take quite a while, so we'll check back with you. Thanks so much, Jeremy. That's criminal defense attorney Jeremy Salande. Courts in battleground states are getting ready to fight potential security threats, and they're expanding resources to deal with an expected influx of election litigation.
In states like Arizona, Pennsylvania, and Nevada, courts are announcing plans from speeding up election related cases and shortening appellate deadlines to making sure every judge is on call on election day and creating new social media accounts to get out accurate information. Joining me is Suzanne Monnac, judiciary reporter for Bloomberg Law. Let's start by talking about the concerns
that courts are having right now about the election. First, I mean, we've heard about these increased threats against judges and other judiciary workers. Tell us about that. If that's part of the concern now.
Absolutely, threats against judges and other judiciary specials have been on the rise in recent years. We've seen the number of investigated threats by the US Marshals more than double
between twenty nineteen and twenty twenty three. Obviously, now as we're heading into an election, these cases are their high profile, they're watched on a national scale, and so as we're seeing already this landscape where judges are at increased risk of threat of harm, now they're handling a case of significant, potentially political importance, especially if it's in any of these battleground states, it may be a big decider in the election.
So anytime we have judges handling cases like that, especially in this heightened threat landscape, you know there are just going to be heightened security concerning what are they.
Doing about that? I mean, are they giving judges more security?
Obviously I had judges I spoke to for this story, or hesitance has evolved too many you know details about
their specific security planning for obvious reasons. But we have seen quite a bit of you know, improvement, ius I'll say, more resources given to security thance the last election for example, and a big reason for that is the tragic event that happened in summer of twenty twenty when the son of a New Jersey federal judge was murdered in his own home by dis frontal attorney posing as a delivery man in this horrible event was really a bit of
a wake up call for the judiciary on security. And so we saw Congress past legislation a few years ago trying to crack down on, you know, having publicly posted personal identifying information for judges on the Internet, like their addresses, or seeing judges being encouraged to use software to delete information that may already be online. The judiciary has changed their system to sort of try to encourage judges to
have home security systems and then get those reinverse. So we are seeing programs on more of a national level to you know, try to better protect judges. And obviously every year the judiciary ask Congress for more money for these security resources, and that's continued. So while there hasn't been you know, necessarily you know, more bodyguards for individual judges, per say, we are seeing really an increased focus on this in Washington.
And so what are some of the other concerns that the courts are having now as you know the election is approaching.
These security concerns you know, are true for election cases. There are of course also true for any you know, high profile case you're dealing with, you know, a celebrity or maybe some viral true crime case. But election cases can be kind of like a unique situation for the courts, and that they can be maybemaquely vulnerable to some of these disinformation campaigns we've seen targeting the judiciary. This might be you know that judges are biased or you know,
helped for one side over the other. While at the same time we're seeing a lot of you know, claims of elections broad including from former President Donald Trump. So those two kinds of just them for me campaigns together can really just put judges hearing election cases in a really uniquely difficult situation.
What are they able to do about the disinformation either Russian disinformation or Trump's disinformation or all the rest of the inaccuracies we see online.
And it's certainly a difficult problem to tackle. You know, I think we've seen some courts fetiship away at it by trying to better publicize information about election cases, maybe having a landing page on the home page of their website, so the public, maybe especially amid increasing distrust in the media and reporters, the public can go onto the court website and click the case and see the filings for themselves.
The Pennsylvania State Court system, for example, a state we're highly expected to have some contentious election litigation in that battleground state, has launched a blue sky page and we were social media platforms to kind of push out information about high profile election cases. So I think we're trying to see more transparency from the court, trying to make these cases accessible to the public, where like court you know, docket page may not be quite as accessible to someone
who isn't used to, you know, waiting through litigation. But at the same time, of course, you know, these campaigns are a challenge on a national scale, and you know, there are researchers I've spoke to who really study disinformation and they say it's coming from Russia and maybe other
foreign actors and sometimes from domestic actors as well. So I mean it's, you know, one of those things that you know, there's not one solution to you know, fight election disinformation, and I think it's become you know of increasing concern in racing years.
Is there more emphasis on this in the swing states, the states that we think might determine the election. You mentioned Pennsylvania that seems to be a you know, a must win.
Absolutely. I mean, of course, election litigation can happen anywhere. It can be contentious in any state. But I think, you know, I bring up the battle around states, these swing states, because I think probably the contensus is that that's where these litigation might have the greatest impacts one way or the other. You know, a state that is not a swing state, it's probably like the election litigation may just not have the same you know, national significance
as one in a battleground state. And so that just means it's more likely to garner more public attention. And it's just when you're not having cases with this much public attention that you're more likely to see threats from the public. People who are scrutinizing these cases. They're scrutinizing the judges. They're calling chambers and threatening the judges if they don't rule in favors, you know, whatever direction of
the case they think will benefit their favored candidate. And so just you know, more national scrutiny, more national attention just is always going to bring security threads.
And you're right that some courts and swing states are trying to speed up election related cases and you know one has every judge on call on election day.
Yes, security is not the only challenge for courts managing this type of litigation. Sometimes it's just a resources challenge's an administrative challenge. These cases are filed in both state and several courts, but perhaps largely in state courts, and depending on the court, you know, they may just know there's not have resources. These courts have really very court by court across the country, and of these courts just may not be used to handling a case that is
so high profile and such national significance. And with these cases also can come just like timeliness concurrency mentioned, you know, speeding up processing of cases. You know, election days in November, the inauguration is supposed to be you know, the following January. That really is a time crunch to be able to get through any very important election challenges that could determine
the outcome of the whole election. And so we've seen courts you know, putting out guidance, you know, shortening appellate deadlines to get these moving faster, asking judges to prioritize election cases, perhaps over other cases. Or you mentioned on staffing.
I had it with former chief judge of the Nevada Federal District Court tell me that starting for the twenty twenty election, her court was having all judges, all active judges, be on call for election day to make sure that if they had multiple emergency motions requesting emergency time sensitive relief, they would have the resources to handle that.
And in these swing states, we're seeing a lot of pre election litigation over some important issues having to do with not only who can vote, but how the votes are counted.
Absolutely these cases, I mean, there's already been quite a few files. So when I say their course starret you know, gearing up or so for election litigation, you know it's already begun, and I think we're expecting more to follow, you know, some of the types of cases that have been you know, while so far we've already had a state court in Georgia block of Republican election boards moved
to mandate that ballots be hand counted. Other litigation that's in filed that's been you know, in Pennsylvania over like whether ballots can be you know, accepted if they have the wrong date or they don't have a date. So just a lot of different types of issues in the election system regarding you know, mail in voting, voter eligibility, that sort of thing that we're seeing in battle ground states across the country.
I saw you you talk to Texas Supreme Court Chief Justice Nathan Heckton. He said elections are hard on the judiciary because the public is thinking everything's political everything, and that the courts must be too, and so judges are concerned about the public's perception of fairness.
I think absolutely, I think concerned about public distrust and the judiciary has to be top of minds for judges. I mean, their goal is, you know, they want to be an independent, you know, impartial decider, a judicator. If the public, you know, thinks that judges are biased, you know,
it certainly is a pretty significant hit to the judiciary's credibility. So, I mean, I think most judges, you know, they see that they see this trend in this polling while also it seeing a rise in security threats to them, And I think it's concerning across the board, you know, Judge Heston. Actually he mentions me as well that you know, in some states like his, for example, judges run in partisan elections for their seats, and that's something we see in
some state courts. And he told me that's not something he's actually for. And it's just sort of all of these things that can make it, you know, can erode really I guess space in the judiciary and make it harder for judges to do their job.
I want to turn for a moment, Susan to the controversy over that Alaska judge. Start by telling us about former Alaska judge Joshua Kindred and the scandals surrounding him.
Yes, there's been quite a judicial ethics saga coming out of Alaska. Former Judge Joshua Kindred, as a Trump appointee, resigned in July amid findings by the Appellate Court Judicial Counsel that he had engaged in very serious sexual misconducts, including sexual harassment with his former clerk, as well as inappropriate relationships with attorneys who appeared before him, and he
lied about it to judicial investigators. This judge has since resigned, but in the week of his departure, we have seen now significant potential conflicts of interest in some of his past cases, involving those where he might have had an inappropriate relationship with one of the attorneys in the case.
Defense lawyers obviously have looked at the conflicts of interest and tried to take advantage of them, and actually one judge has ordered a new trial in one case.
Yes, both the Alaska US Attorney's Office and federal defenders have identified does of cases where there may have been potential conflicts of interest. These incublud cases where Judge Kendred saw the case through to the end, as well as cases where he recused midway through once the judiciary started investigating him. In his times to some of these lawyers were revealed, and so that'll be the defenders at least were taking a look to see if there's a an
avenue for relief for their client. And yes, as he mentioned last month, we saw that for the first time we saw an Alaska federal court case being overseen by a visiting judge from within the circuit or she ordered a new trial for a defendant because in his case, though this attorney had not actually been officially an attorney of records for the prosecution she had had a supervisory role.
This is an attorney who had been found by the Judicial Council to have sent explicit photos of herself to the judge as a part of some sort of flirtatious relationship to two of them had and as a result of the fact that she had sent those photos and had a supervisory role in the case, the judge felt that there was at a very least an appearance of a significant conflict that merited a new trials describe is going to get a full redo under a new judge.
So for the first time, federal prosecutors are asking to have a case thrown out, a criminal conviction, one of Kindred's cases.
That's right. Up until now, we've seen you know, requested by defense lawyers, largely mostly on the criminal side, though at least one civil case trying to have you know, decisions against their clients thrown out based on the presence of this attorney who'd sent photos.
To the judge.
And then last night we saw it really go a step further when the Justice Department itself, you know, it's part of its own case review, identified a case where it felt that it was a significant conflict of interest that had to bring it to the court and asked to vacate a conviction that had happened two years ago as a result of the judicial and you know, really prospecatorial in this conduct. Here, they for the first time publicly identified the lawyer who had been sending the nude
photos to the judge. Bloomberg has already reported her identity, but had been unnamed so far in public court filings. And they revealed that this lawyer had had ex party conversations with the judge about this case. So just you know, really serious disclosure regards being prostatorial in judicial misconduct.
Here, the Justice Department told the court it learned from a hearsay source about an ex party conversation the judge had with this prosecutor.
Yeah. Absolutely, and that's I mean, that's a very significant disclosure, especially the current straight from the Justice Department. You know, I think there's been a speculation among the defense bar that, oh, if the judge is, you know, having this flirtatious, you know, sexting relationship with a prosecutor, that perhaps there's conversations happening
between them about cases. But to hear it from the Justice Department itself was significant and This also isn't you know, the first time we already saw a request this time by earlier by the defense bar regarding the judge having you know, conversations with another prosecutor in the office who
wasn't actually on that case. This has you know, been raised before that this judge it has been having you know, sexual relationships of some kind with more than one prosecutor and what kind of conflict whether it's going to present for the defendants in his core room.
I was just interested in this. You said that of the motion to vag Kate was signed by Stephen Klemer, a veteran fixer recently deployed to the Alaska What do you do about that?
Mister Klemer was you know, deployed over to the office, you know, just a few months ago. My colleague's a Justice Department reporter, was the one to report on his entrance, and he's since filed his name in multiple dockets of
cases that are being reviewed. And I think it really just goes to show that the Justice Department sees a problem here that they've now brought in somebody with decades of experience and these kinds of issues to be you know, going to Alaska filing, you know, an appearance on these dockets and engaging in this case review to find potential conflicts between the judge and attorneys with the last US Attorney's office.
And it's probably going to be years that this saga is going to play out. What an unusual case. Thanks so much, Suzanne. That's Bloomberg Lawn Judiciary reporter Suzanne Monnac. And that's it for this edition of the Bloomberg Law Podcast. Remember you've can always get the latest legal news by subscribing and listening to the show on apple Pie podcast, Spotify, and at Bloomberg dot com, Slash podcast, Slash Law. I'm June Grosso and this is Bloomberg