On Dec. 9, after a trial that lasted over six weeks, Daniel Penny, a white man, was acquitted of manslaughter in the second degree and for the criminally negligent homicide of Jordan Neely, a Black man. On May 1, 2023, Penny held Neely in a chokehold on the subway for nearly six minutes, including for almost a minute after Neely lay motionless. Neely died from compression of his neck as a result of the chokehold, a New York City medical examiner testified during the trial. 

Penny’s defense attorneys made fear a key element of their legal strategy. Appealing to the predominantly white jury’s fear of subway crime in their opening statement, they claimed Penny “did for others what we would want someone to do for us.” In their closing statement, they asked jurors to imagine they were in that subway car when Neely entered and started screaming and reminded jurors about witnesses’ accounts of how fearful they were.

The State’s attorneys never questioned the reasons behind this fear. They even proudly admitted the fear was reasonable, conceding that Neely was “understandably frightening.” The prosecutors made several strategic mistakes. In addition to pandering to fear, they said Penny was justified in taking Neely down and holding him in a chokehold until the next subway stop. Once the prosecution made that concession, there were only 51 seconds during which Penny’s actions could be deemed criminal.  

The prosecution’s attorneys argued Penny should have released Neely at that time because the other passengers had left the train, and there was no longer a justifiable reason to maintain the chokehold. They called witnesses who testified that during those 51 seconds, Penny wouldn’t stop choking Neely, even though bystanders were telling him to let go. 

But the prosecutors also called a number of witnesses who testified about their fear of Neely, including a white woman who said she was sure she was going to be killed — even though others testified that Neely never threatened any individuals and didn’t have any weapons. 

The prosecutors didn’t manage to capture the jury’s sympathy for Neely, a man who, in his last few living acts, threw his jacket on the ground and shouted that he was hungry and thirsty. Yet they deemed Penny a peaceful, calm, honorable man, reminding jurors of his character witnesses’ testimony during their closing argument. Rhetorically asking why someone with such characteristics might be reckless with Neely, the prosecutors’ answer was that Penny didn’t recognize him as human.  

According to the rules of evidence, the prosecution wasn’t allowed to call character witnesses on Neely’s behalf, because that would not be considered “relevant.” ­However, the defense was allowed to call witnesses to negatively characterize Neely’s mental state once the judge ruled his mental-health records could be part of its case. 

Neely was a human being worthy of support and sympathy from the jury, the prosecution should have argued. That also might have helped downplay the fear. But the prosecutors didn’t speak about how Neely was loved by his family, that he was an accomplished street performer. Nor that he was a homeless Black man in a mental-health crisis who was calling out for food and help when Penny attacked him from behind. I suppose the latter would have put too much blame on the City — Neely’s struggles were so considerable that he was on the City’s “Top 50” list of people in need of services. 

After deliberating for five days, the jury bought the defense’s argument that Neely died due to a sickle-cell crisis compounded by K2 use and a psychotic episode. To discount the medical examiner’s findings that Neely died from the chokehold, the defense hired a forensic pathologist who revealed that if he had agreed with the medical examiner, his contract with the defense would have been terminated. 

The prosecutors’ reference to many studies indicating that sickle cell was not the cause of death in similar situations didn’t manage to overcome their weak, fearful and confusing strategy. 

With the media and the mayor constantly hyping up subway crime, it’s no wonder that playing to white fear was a winning ploy. Adams, a former police captain, has continually increased the number of subway police. This despite recent statistics finding only 2.5% of the city’s violent index crimes occur on the subway and just one felony assault is reported on the subway for every two million trips.

In April, Adams approved the hiring of an additional 1,200 cops. This after Gov. Hochul had in March deployed 750 National Guard soldiers and 250 New York State Police and MTA Police combined to patrol the city’s subways. The National Guard is only supposed to be used for responses to emergencies such as natural disasters, riots etc., but politicians have reelections and their own agendas to think of. 

This “protection” is widely understood as protection from mainly Black and Brown folks. In the fourth quarter of 2022, 93% of those arrested for fare evasion were Black and Brown people, who comprise only 53.7% of New York City’s  population. On the other hand, whites make up 40% of NYC’s population but only 6% of the total arrest rate. 

After Penny was indicted, over $3 million was raised for his defense fund. His white-supremacist and MAGA followers came out for him at the trial. “Daniel’s a good guy, and New York’s mob district attorney tried to ruin his life for having a backbone,” commented vice president-elect J.D. Vance. His use of “backbone” refers to MAGA’s views that a white person who wants to or fears a Black person has the right to kill them. This is the history and foundation upon which the United States exists and what this trial was all about: White people believing they can do anything, including murder, to protect their race from Black people. 

Penny’s acquittal was legal reconfirmation that Black people can still be killed with impunity and without any legal consequences.

“I’ll take a million court appearances and people calling me names and people hating me just to keep one of those people from getting killed or hurt,” Penny said after the trial. But he had no problem killing Neely to “protect” them. 

The lame public response of Neely’s supporters should be concerning to readers. Not many folks attended the trial nor the demonstrations outside. A few after-the-verdict demonstrations were small. 

If you haven’t been showing up, there’s still time. Show up for other actions against the verdict. But also come out against the newest stage of the war on Black, Brown and Indigenous folks, as well the poor, disabled, immigrants and other marginalized groups, commencing on ­Jan. 20. Come out against fascism, law and order, and the impoverishing of society for the benefit of a few billionaires. They’re depending on fear to accomplish what they want. Organize your peers, families and communities, and don’t be afraid. Power concedes nothing without struggle! 

Eileen Weitzman is an attorney, artist and social activist who witnessed the Penny trial regularly. She works with The People Fightback, People’s Senate, International Campaign to Free Kamau Sadiki and the Spirit of Mandela Coalition.

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