From the start I argued that Daniel Penny might be facing a charge of manslaughter in the 2nd degree. That charge basically covers a death that was the result of reckless actions but which was not intentional. Last month, Penny surrendered himself to police and was charged with 2nd degree manslaughter. He was arraigned but didn’t enter a plea.

Mr. Penny, handcuffed and dressed in a dark gray suit and white dress shirt, stood straight and still before the judge, Kevin McGrath. He did not enter a plea to the charge, as he has yet to be indicted by a grand jury, and spoke only to answer the judge’s questions and acknowledge that he would next appear in court on July 17. He was released after posting bail.

Today, a grand jury indicted Penny on the charge of manslaughter, meaning the case will now proceed.

A grand jury on Wednesday voted to indict a Marine veteran who was arrested last month after killing a homeless man on a subway car in a case that created a political firestorm in New York City and beyond, according to a person with knowledge of the matter.

The case against the veteran, Daniel Penny, was brought by the Manhattan district attorney’s office, which had charged Mr. Penny with manslaughter in the death of the homeless man, Jordan Neely, but needed the grand jury’s approval to proceed with the case.

The charges are supposed to be sealed until tomorrow but someone leaked the news to the NY Daily News early. That means we don’t know for sure if there are other charges, only what the leaker decided to reveal. Assuming Penny pleads not guilty that means he’ll be prosecuted by Alvin Bragg’s office.

At a trial, Mr. Penny’s lawyers would likely argue that his actions were justified and that he had a reasonable belief that Mr. Neely was on the verge of using deadly force. Prosecutors would have to prove to a jury that Mr. Penny caused Mr. Neely’s death and used the chokehold knowing that it could kill.

As I’ve said before, I don’t think this prosecution is going to be a slam dunk. All it would take is one person on the jury who has been threatened on the subway (or who has family who has been) and Penny’s claim that he was trying to defend himself and the other passengers may sound more reasonable. Even that would not have been enough if Jordan Neely had no history of violence, but as we’ve learned since he did have such a history. In fact he had an extensive history which included assaulting an elderly woman and grabbing someone else’s child.

Thanks in large part to citizen journalists online, we now know that Jordan Neely had 42 previous arrests, many for subway violence.

At the time of the fatal struggle, he had an active criminal warrant, earned for punching a 67-year-old grandmother, breaking her nose and fracturing her orbital bone. On another occasion, and for God only knows what reason, Neely tried to kidnap a small child, briefly snatching a seven-year-old girl. Almost unbelievably, there exists a decade-old Reddit thread — recently discovered by the street reporter Andy Ngo — that consists of New York taxpayers documenting the subway crimes of Jordan Neely. The title? “Try to stay away from the Michael Jackson impersonator.” Simply put: Neely was seen as a disturbed and dangerous man — because he was.

This case will come down to how much of Neely’s history the judge allows to come before the jury and how Penny presents himself in court. Assuming he has no dark secrets that become part of the trial, I still think there’s a chance he will be acquitted. We got a preview of what Daniel Penny will say at trial in this video that was released a few days ago.