UNBIASED - Death of Jordan Neely, Possible Charges Against Daniel Penny, SCOTUS Stays Controversial Execution.

Episode Date: May 9, 2023

1. Death of Jordan Neely on NYC Subway; Possible Charges Against Daniel Penny; Who is to Blame? (1:39)2. Supreme Court of the United States Grants Stay of Execution for Oklahoma Death Row Inmate, Richard Glossip. (11:18)If you enjoyed this episode, please leave me a review and share it with those you know that also appreciate unbiased news! Follow Jordan on Instagram, TikTok, and YouTube.  All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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You are listening to the Jordan Is My Lawyer podcast, your favorite source of unbiased news and legal analysis. Enjoy the show. Welcome back to the Jordan is my lawyer podcast. Happy Tuesday. I have two stories for you today. So first we're going to talk about that New York City subway chokehold incident that led to the death of Jordan Neely. And then we're going to be talking about Richard Glossop, who is the Oklahoma death row inmate that just had his execution stayed by the Supreme Court of the United States. I wanted to wait to discuss the debt ceiling

because I was going to cover some additional conversations that have been had, but President Biden's actually set to meet with some congressional leaders this week. So I just wanted to wait to cover that until the next episode. And same with Title 42, because that's expiring later this week, I figured I would wait because more is definitely going to happen between now and then. So I have those two stories for you today. Before we dive in, let me just remind you, please leave me a review on whatever platform you listen, whether it's Apple Podcasts or Spotify. It really helps support my show. And of course, please share my show with any of your friends, families, colleagues, whoever it might be that

share the same appreciation for nonpartisan reporting. So without further ado, let's get into today's stories. On Monday, May 1st, Jordan Neely was put into a chokehold on a New York City subway train car and later died. Now people are calling for the man who put Neely in a chokehold to be charged with murder. Let's talk about this. I want your thoughts. So at the end of this story, I'm going to tell you where to find a poll that I left for you guys. And I want you guys to contribute and also share your thoughts on my website, just because I would like to kind of gauge where you guys stand with this

and what you think needs to happen, if anything at all. So we're going to walk through a timeline. Monday, May 1st at about 2 26 PM, the police receive a report of a physical altercation on the F train at the Broadway Lafayette subway station in Manhattan. A minute later at 2.27, a call comes in to the police reporting threats. Two minutes later at 2.29 PM, an assault in progress is called, and then it's unclear exactly what time he ended up in a chokehold, but one of the riders known now as Daniel Penny approached Neely from behind and put him in a chokehold. The two fell to the floor and were on the floor for a little bit. It's unclear exactly how long. Some outlets are reporting three minutes. Other outlets are

reporting 15 minutes. So it just goes to show don't trust everything you read, but the two were on the floor from anywhere from three to 15 minutes. Obviously that's a, that's a large window, but more will come out as time goes on. So two other passengers approach the situation. One appears to be mediating the situation. The other seems to be helping restrain Neely. And when the police do arrive to the scene around two 30, Neely was unconscious. He was administered first aid, but pronounced dead later. His death was ultimately ruled a homicide. And I just want to reiterate that we don't know all of the details of what took place,

including what was said by Jordan Neely that triggered this chokehold. But what we do know was that he was yelling about having no food or water. He was fed up with his situation. He was saying he didn't care if he went to jail for life. He didn't care if he lived or died. He then took off his jacket and aggressively threw it on the subway car floor. At that point is when Daniel Penny came up from behind and put him in a chokehold. Per reports, Neely wasn't threatening to attack anyone. He didn't appear to want to attack anyone, but nonetheless, these are the facts as we know them right now. So here's a little bit about these two individuals. Jordan Neely, 30 year old African-American man, homeless. His mother was murdered in 2007. He was a Michael

Jackson impersonator in New York. He loved to dance. People that knew him said he was a great kid. He did deal with mental illness and a documented history of violent and erratic behavior. He had a criminal record, specifically one time in 2019, he punched a bystander in the face on a subway platform. And then in 2021, he assaulted a 67 year old woman on the subway by hitting her in the face. He was also part of this privately known list in New York City. It's known as the top 50. It's basically a register of New York City's most at risk homeless people. And that's just due to the frequency of incidents and interactions that the city has with these people. He had been taken

to the hospital many times. Sometimes it was willingly, other times not. And so that is a little bit about him. Depending on which outlet you read, you will see a different portrayal. So I did want to cover both bases. Obviously, you know, something like CNN is going to portray more of how good of a kid he was, his mental illness and what his mental illness stemmed from and kind of more of a victim portrayal. And that's not me saying whether that's right or wrong. That's just what the fact is. Whereas more right wing outlets like Fox News portray him more as a criminal with a, you

know, deep, violent record. And with that being said, I linked various websites for you to read, including, I believe, ABC News, CNN, Fox News, and a couple of others on my website, jordanismylawyer.com, in the sources section, so you guys can kind of see how these different outlets portray him in a different light depending on who's doing the reporting.

Okay, so now let's get into Daniel Penny. We don't know as much about him as we do about Jordan Neely, but what we do know is that he's a 24-year-old white man. He served in the Marine Corps from 2017 to 2021. He does not have a criminal record. He's currently a college student, and following the incident, he was questioned by the police, but they ultimately let him go. Because Penny is white and Neely is black, this becomes a race issue to some people. Would this be as big of a news story if it were a white man who killed another white man or a black man who killed another black man? That's for you to decide. I'm just here to pose the question. Following the incident, Penny's attorneys released the following statement. They said, the law firm of Razor and Kenneth represents Daniel Penny, a 24-year-old college student

and Marine veteran. Earlier this week, Daniel Penny was involved in a tragic incident on the New York City subway, which ended in the death of Jordan Neely. We would first like to express on behalf of Daniel Penny, our condolences to those close to Mr. Neely. Mr. Neely had a documented history of violent and erratic behavior, the apparent result of ongoing and untreated mental illness. When Mr. Neely began aggressively threatening Daniel Penny and other passengers, Daniel, with the help of others, acted to protect themselves until help arrived. Daniel never intended to harm Mr. Neely and could not have foreseen his untimely death. For too long, those suffering with mental illness have been treated with indifference.

We hope that out of this awful tragedy will come a new commitment by our elected officials to address the mental health crisis on our streets and subways. So that was the statement from Penny's attorneys. Now, Jordan Neely's family says that the statement was neither an apology nor an expression of regret, but rather character assassination. They also said that the statement was a quote, clear example of why Penny believed he was entitled to take Jordan's life. In the first paragraph, he talks about how good he is. And in the next paragraph, he talks about how bad Jordan was in an effort to convince us that Jordan's life was worthless, end quote. So keep in mind that Penny hasn't been charged yet, but protesters are calling for justice. Some are calling for Penny to be charged.

Other protesters and advocates are placing the blame on the mayor and the governor. Some protesters were even standing on the subway tracks holding up trains with, you know, signs and shouting and all that stuff. Now, as far as the charges against Penny, like I said, none have been brought, but as of last week, prosecutors were still weighing whether to bring a case against him. The decision as to whether the case will be brought before a grand jury won't come until later this week, so we should have an update by the end of the week. But the charges could range anywhere from nothing at all to involuntary manslaughter, to murder, we just don't know. The main difference between manslaughter and murder is that manslaughter doesn't require

the intent to kill, whereas murder does. And keep in mind also that these crimes vary by state, so we're specifically talking about New York. In New York, you have manslaughter in the first degree and you have manslaughter in the second degree. First degree requires intent to cause serious physical injury, not intent to kill, but you do in fact cause that person's death, whereas manslaughter in the second degree is where the defendant didn't intend for the victim to die, but acts in such a reckless and dangerous manner that the victim does die. In this scenario, the defendant consciously disregards the potentially fatal risks involved to the other person. So those are the differences between manslaughter in the first degree and manslaughter

in the second degree. And then of course, murder requires actual intent to kill. If this does go to a grand jury, it'll be up to the jury to determine if Penny acted in a reasonable manner in doing what he did. So keep in mind that the burden of proof is lower at this stage. It's not that the grand jury has to find beyond a reasonable doubt that he committed manslaughter or murder. It's just that there has to be a reasonable basis to believe that a crime had been committed. If the grand jury does decide that charges should be brought, that's when he would be charged with a crime and it would go from there. So at this point, there's still, you know, the determination still has to be made to bring this before a grand jury. And then from there, the grand jury would have to decide if charges should be brought.

Now, again, I linked all kinds of articles for you on my website to show you how vastly different this story can be portrayed. So definitely check those out. And that Spotify poll. So it's a, it's a poll specifically for Spotify. Something really cool about Spotify is that they actually let you engage. They let me engage with you guys through these polls. So every so often I'll post a poll just to gauge, you know, what you thought about my episodes or how you feel about certain stories or what your favorite story was. So in this particular episode, I am leaving a poll to see where you guys stand on this particular issue.

I want to know if you think that Penny should be charged. So that poll, again, is on Spotify. You can find it once you click on this episode. On Friday afternoon, the United States Supreme Court halted the execution of Richard Glossop. Richard Glossop worked as the manager at the Best Budget Inn in Oklahoma City in 1997. He lived on-site at the motel with his girlfriend, and he was in charge of hiring. So he hired a guy named Justin Sneed to do maintenance work at the motel. The owner of the motel and Glossop's boss, Barry Van Treese, was found beaten to death with a baseball bat. Now here's the thing,

Sneed, that handyman that Glossop hired, confessed to robbing and killing Van Treese, but he told police that he only did it because Glossop promised to pay him $10,000 to do it. So he said, hey, I was the one who beat this guy to death. I robbed him. I killed him. But Glossop told me to. So to avoid the death penalty, Sneed agrees to be the state's key witness in both trials against Glossop, both of which resulted in the death penalty. So the handyman that actually committed the murder got life without parole, and he testified in two different trials against Glossop, saying that Glossop was the one who told him to do it. The first conviction was in 1998, and then in 2001, the Oklahoma Court of Criminal Appeals

unanimously threw out the conviction. They called it an extremely weak case and found that Glossop had received unconstitutionally ineffective assistance of counsel. He was then retried and again sentenced to death in 2004. The sentence was affirmed by the Oklahoma Court of Criminal Appeals in 2007 in a 3-2 decision, and it has stood ever since. What Glossop's team says is that Justin Sneed was addicted to meth at the time that he committed the murder. He had a habit of breaking into cars in the parking lot of the motel while he was employed there. He needed money, so he robbed the owner. He ended up killing him. And then to avoid the death penalty, he put all the blame on Richard Glossop, who actually had nothing to do with it.

Now, aside from this murder conviction, Glossop is also known for being the named plaintiff in a Supreme Court case from 2015. So that case is called Glossop v. Gross, and it's a case that upheld the use of midazolam in executions. So you guys have heard me talk about midazolam before if you've been here for a while. The controversy in that case was whether the use of midazolam constituted cruel and unusual punishment in violation of the Eighth Amendment. And in a five to four decision at the Supreme Court, they allowed for the use of midazolam when used in combination with other execution drugs.

So depending on the state, you know, some states have one drug, some have two, some have three. Nebraska has four drugs. But when midazolam is used, what the Supreme Court has said is that it has to be used with other drugs. So the only time you'll see midazolam being used as an execution drug is when states have two, three, four drug protocols. And even then, it's not always used, but it's used in some states. So he is also known for that. He's the named plaintiff in that case. His execution has been scheduled five different times. He's had three last meals. He was originally set to be executed in 2015. His execution was rescheduled three times that year. And then he was scheduled again in 2022. So specifically September, 2022, the month before the scheduled execution,

the governor granted him a 60 day stay and it was rescheduled to December, 2022. Well, then another say was granted in November. And this time the stay allowed the appellate court to review the case. So the execution is rescheduled for February of 2023. And in January, kind of unrelated, the Attorney General of Oklahoma requests a new execution timetable because there were staff shortages within the Department of Corrections and they needed to kind of redo the execution schedule. So then his execution is rescheduled to May 18th specifically of this year. So just over a week from now. And in March, the attorney general announces that the execution is going to be stayed again to allow an independent counsel to review Glossop's case. So the review from independent counsel comes back and there's

11 concerns that are laid out in this review. Three, I'll go over three of them. I'm not going to go over all 11, otherwise we'd be here all day. But just to give you an idea, so one of the concerns was whether a polygraph test was actually ever conducted because there was reference to a polygraph test in his 2014 clemency hearing, which was used against him. But there's actually a question as to whether that polygraph test ever even happened. The other concern is this box of evidence that was either lost or destroyed by either the DA's office or the Oklahoma City Police Department. They're unsure, but basically it's this box of evidence that no one knows what happened to. And then the other concern is missing security footage from a gas station across the street from a crime scene.

So the former assistant district attorney isn't sure whether the video was ever in the possession of the DA's office. He said it might have been, but it was never made available to Glossop. So he admits himself it should have been secured and made available to Glossop. And the fact that it wasn't is a concern. So those were three of the 11 concerns that were laid out in this review. I did include the independent counsel review on my website, so you can read that for yourself if you want and read in full the 11 concerns. But following the

review in April, the attorney general's office files a motion to vacate the murder conviction, essentially throw it out. And he noted in the motion to vacate the murder conviction, essentially throw it out. And he noted in the motion to vacate, he said, look, I'm not saying he's innocent, but there's definitely enough evidence to doubt his guilt. And therefore, you know, we as the state of Oklahoma don't feel comfortable with this going forward. On April 20th of this year, so just last month or a few weeks ago, the Oklahoma Court of Criminal Appeals rules against Glossop. So they say, no, his conviction stands. He's going to be executed. The only chance he has at this point is either the United States Supreme Court or a grant of clemency. Well, a week later, his clemency is denied. It's a two to two ruling and there has to be a majority. And in this

case, it was two to two. So obviously not a majority. Now you might be asking why were there only four panel members? Because usually with things like this, there's an odd number so that you can have a majority ruling. Well, one of the panel members actually recused himself because he was the husband of one of the prosecutors in Glossop's case. So without him, there was only four panel members. Therefore, the two-to-two decision just wasn't enough. So just about a week ago, following this denial of clemency, Glossop's attorneys make one final attempt, and they petition for a stay of execution to the Supreme Court. Well, the Supreme Court grants the stay on Friday. And we don't know specifically how each justice ruled. You guys may have heard me

talk about this the last time we talked about a stay. Stays are a little bit different than Supreme Court decisions in the fact that they don't go as into detail. Sometimes they don't say anything at all about why they grant the stay or why they deny the stay. In this case, they did say a little bit, which we'll get into. But you also don't know how each justice ruled. What we do know is that Justice Gorsuch did not take part in this decision. That's presumably because he dealt with the case earlier as an appellate court judge, but we don't know that for sure. We just know he didn't take part in this decision. Now, what they said in granting the stay is they said specifically

the sole issue before the court is whether there was a due process violation under this prior Supreme Court case that basically established that the failure of a prosecutor to correct the testimony of a witness, which the prosecutor knew to be false, is a denial of due process under the 14th Amendment. And in Glossop's case, it was determined by independent counsel that recently released prosecution notes identified a psychiatrist who treated Justin Sneed for a serious psychiatric condition. But despite the prosecution knowing this, they actually let Justin Sneed not only hide his psychiatric condition, but also the reason for his lithium prescription through his testimony to the jury. So in April, the state actually confesses to this error. So remember how I said Glossop's attorneys had filed that motion to vacate the conviction? Well, the state actually filed an unopposed response.

And what they said is, yes, this error was done, it happened, and we support Glossop's request for a stay. Well, despite the state filing that, the appellate court actually still denied the request for the stay. But this was one of the Supreme Court's main justifications in granting the stay. So here's how granting a stay works. The party petitioning for the stay has to prove four things. Number one, that they're likely to succeed on the merits. Two, they'll suffer irreparable harm without the stay. Three, their threatened harm outweighs the defendant's harm from a stay. And four, the stay will advance the public interest. And two through four are quite straightforward.

Two, his threatened irreparable harm is obviously his death. Three, the Supreme Court said the state won't suffer any harm actually if the stay is granted because they confessed. And four, the Supreme Court says the public interest is clearly served by not executing a man after the state has concluded itself that the conviction cannot be sustained. So two through four are quite straightforward. That first factor we're going to talk about a little bit more detail because that's what the court spent the majority of time discussing in its grant of stay. And that's whether Glossop is likely to succeed on the merits. And this is what the Supreme Court said. They said, through a state official, is entitled to greater weight. Here, the state made its confession of

error through its attorney general. Therefore, it should be given great weight. So it goes on to say here the state's conviction of Glossop was obtained through false testimony that was not corrected by the prosecution, specifically the state's indispensable witness at Glossop's second trial, Justin Sneed, also the indispensable witness at the first trial, but he was the person who actually delivered the fatal blows to the victim. Evidence that was previously withheld by the state reveals that Sneed appeared to have been diagnosed with bipolar affective disorder in 1997 after the murder while in the custody of the Oklahoma County Jail. Sneed was prescribed

lithium by a psychiatrist. Based on newly released interview notes that were previously withheld by the state, the prosecutor was aware that Sneed had been treated by a Dr. Trumpet. Despite this reality, prosecutors allowed Sneed to effectively hide his serious psychiatric condition and the reason for his prior lithium prescription through false testimony to the jury. At the second trial in 2004, Sneed testified as follows on direct examination by the prosecutor. The prosecutor asks, after you were arrested, were you placed on any type of prescription medication? Sneed answers, when I was arrested, I asked for some

Sudafed because I had a cold, but then shortly after that, somehow they ended up giving me lithium for some reason. I don't know why. I never seen no psychiatrist or anything. Prosecutor's question, so you don't know why they gave you that? Answer, no. Now keep in mind, the one examining Justin Sneed on the stand is the prosecutor who knew of the psychiatrist. So the prosecutor made no attempt to correct Justin's testimony to the jury. The Supreme Court goes on to say, in fact, as shown above, Sneed had been treated by a psychiatrist in 1997. Further, he was not prescribed lithium for a cold. Instead, he was prescribed to treat his serious psychiatric condition that combined with his own methamphetamine use would have had an impact on his credibility and memory recall in addition to causing him to become potentially

violent or suffer from paranoia. Therefore, Sneed made false statements to the jury. Further, the newly disclosed notes indicate that the prosecutor knew or should have known of Sneed's treatment by a psychiatrist. Consequently, consistent with its obligations under prior Supreme Court precedent, the state believes that the prosecutor should have corrected Sneed's false testimony. Sneed personally bludgeoned the victim to death, and his testimony linking Glossop to the murder was central to the conviction and death penalty aggravator. If Sneed had accurately disclosed that he had seen a psychiatrist, then the defense would have likely learned of the serious nature of Sneed's psychiatric condition and the true reason for Sneed's lithium prescription. With this information, plus Sneed's history of drug

addiction, the state believes that a qualified defense attorney likely could have attacked Sneed's ability to properly recall key facts at the second trial and provide a viable alternative theory of the case that did not involve Glossop. Stated another way, the state has reached the difficult conclusion that the conviction of Glossop was obtained with the benefit of material misstatements to the jury by the state's key witness. Accordingly, the state feels compelled to correct these material misstatements by its key witness and requests that the case be remanded to the district court for further proceedings. As a result, the state has confessed error and agrees that Glossop is likely to prevail on the merits of his forthcoming petition. So that is what the Supreme Court said about that first factor in determining whether to

grant a stay, which is, is Glossop likely to succeed on the merits? They said, because of all of this, yes, he is likely to succeed. The state who brought this case against him in the first place even says themselves that he is likely to succeed on the merits. So now that the stay has been granted, what now? Well, Glossop is going to file his petition for writ of certiorari to the Supreme Court, which is basically a request to review the case. The Supreme Court will decide whether to hear the case or not, and the stay is in place until they decide. So he won't be executed for now. I would imagine the Supreme Court either hears the case or directs the district court to

rehear this case, in which case he would get a new trial. So for now, he will stay on death row until something happens. So that's Richard Glossop. That's what's happening in that case. And that concludes this episode. I hope you enjoyed it. Please don't forget to check out my website. I have all the sources there for you. Also the Spotify poll. Don't forget about that. Please

leave me a review and please share this episode with your family, friends, and colleagues that you feel will also enjoy unbiased news. I will talk to you on Friday. Bye.