New York City central criminal courthouse braced this week for the start of a trial that will shed light on and perhaps assign accountability for the death of a 30-year-old unhoused Black man.
Was Daniel Penny, the 24-year-old former US Marine accused of causing the death of Jordan Neely, an unhoused former Michael Jackson impersonator, acting recklessly when he placed Neely in a chokehold allegedly for more than six minutes on the subway last May?
Along the way, the case will also be a referendum on the safety of the city’s transit system, the effectiveness of its mental health services, and where limits on citizen interventions in situations where they may perceive themselves or others to be under physical threat may lie.
Last week, as more than 100 potential jurors were being screened ahead of opening arguments, Judge Maxwell Wiley granted a request by prosecutors to conceal the identity of the jury, acknowledging that “threats” had been made to all parties in the case.
“I believe that’s wise,” Wiley said. “There’s not just opinions, but very, very strong opinions. There’s been people who have not been afraid to make threats.”
Wiley asked potential jurors if they had heard of the case. Nearly everyone raised their hand.
“Not a surprise,” the judge remarked.
Penny, who has pleaded not guilty to second-degree manslaughter and negligent homicide, told investigators that Neely, who suffered from schizophrenia, threatened to kill other passengers and was merely was trying to hold Neely down until help arrived. The chokehold lasted at least 5 minutes.
Neely’s death sparked immediate protests. On the subway platform at Broadway-Lafayette, where EMTs had attempted to revive Neely, a support column had been daubed with “Who killed Jordan Neely?”
Tensions soon turned into hostility toward New York’s policy for the unhoused and transit authority police.
“This was a horrible lynching – the murder of someone needing help,” student Shifa Rahman told the Guardian last year. “He was at a point of desperation and a citizen, acting in racial bias, acted to suppress that.”
Penny told police that Neely was ranting in an “insanely threatening” way, shouting “I’m gonna’ kill you” and saying he was “ready to die” or go to jail for life before he placed him in the chokehold.
Witnesses on the subway car have offered differing accounts of what took place. One said Neely had been acting aggressively and frightening people but hadn’t attacked anyone. Other witnesses claim Neely was not threatening.
“Jordan Neely did not attempt to physically injure anybody on that train so the question is whether a majority of white people on a jury are going to let another white guy kill a Black man in the middle of Manhattan because the man is scary,” says veteran New York criminal defense attorney Ron Kuby.
“Historically, the answer to that has been, sure,” he adds. “So we’ll see whether things have changed … ”
Penny was not charged for nearly two weeks, sparking further protests across the city. He faces up to 15 years in prison if convicted of the manslaughter charge.
“I’m not trying to kill the guy,” Penny told investigators, according to court papers, and said he was “not a confrontational guy”.
Outside Manhattan criminal court, Penny was greeted with shouts of “murderer!” by social justice protestors, some held signs that read “Justice for Jordan Neely: End Racist Vigilantism Now!”
Neely’s family and supporters have said he was simply crying out for help. They say his mental health had deteriorated after his mother’s body was found stuffed in a suitcase in the Bronx.
Neely’s aunt, Carolyn Neely, later said her nephew became a “complete mess”, noting he was schizophrenic and suffered from both PTSD and depression.
“The whole system just failed him. He fell through the cracks of the system,” she told the New York Post.
City authorities had placed Neely, who was on the psychosis-inducing synthetic marijuana K2, according to an autopsy report, was on a list informally known as “the Top 50” of people known for the severity of their mental health troubles and resistance to accepting help.
“Jordan Neely’s life mattered,” New York mayor Eric Adams said before Penny was charged. “He was suffering from severe mental illness. That was not the cause of his death. His death is a tragedy that never should have happened.”
Other New York political figures, among them progressive council member Chi Osse, have pointed to a failure of mental health services and disparities in the way that Penny was arrested and released, and the way a Black man might have been treated if the situation was reversed.
Penny’s defense fund has raised more than $3m via a pledge drive that describes the criminal charges as “stemming from him protecting individuals on a NYC subway train”.
Tensions around the case seep deep into issues confronting New Yorkers that have played into difficulties even selecting a jury to hear the case and what may be admitted into evidence. Last week, prosecutors reportedly asked the judge in the case to bar witnesses from calling Penny a “hero” or “good Samaritan”.
According to an email exchange between lawyers obtained by Gothamist, assistant district attorney Dafna Yoran said the use of those terms was subjective and “the equivalent of a determination that the [defendant] was justified”.
But defense lawyer Thomas Kenniff countered that witnesses used those words soon after the incident. “It describes what they perceived, Neely acting as the aggressor, and Mr Penny acting to defend and protect,” he wrote.
The trial is expected to last six weeks.
