Controversial "vigilante" NYC killing of autistic black man

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The jury has begun deliberating in the subway chokehold death trial of Daniel Penny.

Little more than an hour into deliberations the jury asked for a readback of a portion of the judge's instructions on the law. The jury is interested in the part about justified use of force.

The jury -- comprised of seven women and five men -- is considering whether to convict Penny of manslaughter and negligent homicide in the death of Jordan Neely, a 30-year-old homeless man, on a New York City subway train.q

A verdict in one of the most divisive criminal trials of recent times is imminent.

Penny, who is white, killed Jordan Neely, a homeless and mentally troubled Black man, on the New York City subway in May 2023.

What is agreed is that Penny restrained Neely, placing him in a physical hold for around six minutes, and that Neely died.

The city medical examiner in New York has said that Neely died as a result of compression of the neck from Penny’s actions.

A pathologist who testified for the defense has contended he might have died from other issues, including drug use and a blood condition.

The medical examiner volleyed back that this idea was “so improbable that it stands shoulder-to-shoulder with impossibility.”

But the fates of Penny and Neely have, like so much else in American life, become sucked into the polarities of political debate.

Conservatives have cast Penny as a hero who is being unfairly scapegoated by progressives.

In this narrative, the former Marine was intervening, at risk to himself, in order to mitigate the danger posed by Neely to other passengers.

The medical examiner volleyed back that this idea was “so improbable that it stands shoulder-to-shoulder with impossibility.”

But the fates of Penny and Neely have, like so much else in American life, become sucked into the polarities of political debate.

Conservatives have cast Penny as a hero who is being unfairly scapegoated by progressives.

In this narrative, the former Marine was intervening, at risk to himself, in order to mitigate the danger posed by Neely to other passengers.

Further fueling conservative anger, the prosecution emanates from the office of Manhattan District Attorney Alvin Bragg (D), who has been a target of the right’s ire since he spearheaded the successful prosecution of President-elect Trump on hush money charges.

To many progressives, however, Penny deserves to be convicted.

The left’s narrative is that Penny exaggerated the threat posed by Neely and failed to respect the humanity of the person who died at his hands.

They note that at least one bystander on the train sought without success to get Penny to release Neely. They also point out that Penny apparently continued to restrain Neely after the latter’s body had gone limp.

Since the incident occurred, prominent politicians of both parties have weighed in.

Florida Gov. Ron DeSantis (R) posted on social media less than two weeks after the incident that the fight to defend Penny was part of a bigger quest to “stop the left’s pro-criminal agenda.” He also called on supporters to “show this Marine [that] America’s got his back.”

Former Rep. Matt Gaetz (R-Fla.) around the same time cast Penny as a “subway superman.”

More broadly, a Christian-oriented crowdfunding site raised more than $3 million for Penny’s legal defense, and conservative media figures asserted that his actions were justified.

Progressives took a diametrically different view.

Rep. Alexandria Ocasio-Cortez (D-N.Y.), two days after Neely’s death, wrote on social media that he had been “murdered.”

The New York congresswoman, writing before charges had been pressed against Penny, contended that because the dead man “was houseless and crying for food in a time when the city is raising rents and stripping services to militarize itself while many in power demonize the poor, the murderer gets protected w/ passive headlines + no charges.”

Ocasio-Cortez said this scenario was “disgusting.”

Democrats on the left of the party, such as New York City Public Advocate Jumaane Williams, have argued that the push to exculpate Penny is closely related to a racist view that too quickly sees Black people as a threat.

Other progressive voices beyond the political arena endorse that perspective.

“I think it breaks down, as it always has, between people who are afraid of Black people and people who are not,” Ron Kuby, a New York-based criminal defense and civil rights attorney, told this column.

Kuby was strongly critical of the admiration expressed in some quarters for Penny.

“It’s deeply disturbing to me to have the man lionized,” he said.

“It’s one thing to take the position of ‘look, this is all terrible, he didn’t set out to hurt anyone and it’s all very tragic.’ That’s a position you can take and reasonably defend. But to make the guy out as a hero, someone brave enough to do what others would not? Or as a good Samaritan? The good Samaritan didn’t come upon that person by the roadside and choke him to death.”

But even some Democrats acknowledged that rising public concerns about crime and antisocial behavior provide a backdrop to the case that may contribute to more lenient views of Penny’s actions.

New York-based Democratic strategist Hank Sheinkopf said that the public perceptions of the case were being driven by views of “disorder.”

Citing Trump’s better-than-expected performance in New York City in the recent presidential election, Sheinkopf said, “People are very concerned about disorder, which is why Trump did so well.” By contrast, he contended, “the extreme left doesn’t understand what disorder is.”

Even so, Sheinkopf made clear he was not arguing for Penny’s innocence, or guilt.

“The fine line is, was Penny excessive or not? And what does it mean to defend another person — when do those actions go beyond defense?”

Those are the questions the jury in New York is now considering.

Whatever way they come down, they will face a storm of criticism from the opposite flank in the nation’s culture wars.

The judge overseeing the trial of Daniel Penny, the man accused of using a deadly chokehold on Jordan Neely last year on a New York City subway, dismissed a manslaughter charge in the case Friday after jurors said they were deadlocked.

The decision, which came at the request of prosecutors, means jurors will consider only the lesser charge of criminally negligent homicide. It carries a maximum sentence of up to four years. Jurors were not told that prosecutors made the request. Penny has pleaded not guilty.

The jurors — seven women and five men — will resume deliberations Monday. They twice sent a note to the judge Friday — one in the morning and another in the afternoon — saying they could not come to a unanimous decision on the top charge of manslaughter in the second degree. After the first note, Judge Maxwell Wiley ordered them to continue deliberating.

Before deliberations began Tuesday afternoon, Wiley told the jury that it must come to a unanimous decision on the manslaughter charge before it would be allowed to consider criminally negligent homicide. They were also instructed to decide whether Penny’s actions caused Neely’s death and, if so, whether he had acted recklessly and in an unjustified Outside the presence of the jury Friday, Kenniff more than once asked that the judge declare a mistrial when the jury could not reach an agreement on the manslaughter charge. He also objected to the dismissal of the charge.

“This is essentially elbowing the jury, or would be, to reach a compromised verdict,” Kenniff said.

Before the more serious charge was dismissed, prosecution and defense attorneys had sparred over whether jurors should be forced to continue deliberating.

“The jury has been deliberating for roughly 20 hours over four days in what is, in many ways, a factually uncomplicated case as far as this is an event that transpired over minutes on video,” Kenniff told the judge. “We are concerned that the giving of the Allen charge under these circumstances will be coercive.”

An Allen charge instructs a deadlocked jury to continue trying to reach a unanimous verdict.

Dafna Yoran, an assistant prosecutor with the Manhattan District Attorney’s Office, disagreed. She said that morning the note was the first indication of any disagreement within the jury.

The jurors have sent the judge 10 or so notes since deliberations began. They asked to rewatch bystander videos of Penny restraining Neely, responding officers’ body camera videos and video of Penny’s subsequent interview with two police detectives at a precinct. They also asked to rehear some of the medical examiner’s testimony and for the judge to read back the definitions of recklessness and criminal negligence and to have the definitions in writing.

“The tenor of the notes is that this is an extremely conscientious jury that has been approaching it very systematically,” Wiley said after the defense team’s first request for a mistrial Friday. “So I think it is correct, it’s not time to declare a mistrial. But, on the other hand, it’s not time to assume that they’ve just sent this note out because it’s gotten difficult for them.”

Later, before dismissing the manslaughter charge, Wiley told jurors that he did not want them to violate their consciences or abandon their best judgment.

“I will again urge each of you to make every possible effort to arrive at a just verdict here,” he said.

After their first note indicating they were deadlocked, Wiley commended the jurors for their work so far, and told them that it is not uncommon for juries to have difficulty initially in reaching a unanimous verdict.

“You’ve been at this for a little over two and a half days,” he told the jurors before directing them to resume deliberations. “That’s a long time. But given the factual complexity of the case, I don’t think it’s too long

Daniel Penny was acquitted Monday of criminally negligent homicide in the chokehold death of Jordan Neely, a 30-year-old homeless man with a history of mental illness whose final moments on a New York City subway train were captured on bystander video that set off weeks of protests and drew national attention.

As the jury foreperson read the "not guilty" verdict, some observers in the courtroom applauded. Others began to audibly sob and yell, including Neely’s father, Andre Zachery, who was escorted out.

"This is America. That is the sound of Black pain," one person said outside of the courtroom in Lower Manhattan to the reaction.

Chants of "no justice, no peace," could be heard echoing from outside.

The case divided people in New York — and beyond — in some cases along political and racial lines. Neely was Black. Penny is white. Some people viewed Penny as callous and his actions as criminal on the day he encountered Neely, who had been shouting and acting erratically when he boarded a subway train in Manhattan on May 1, 2023. Others contend Penny was selfless in his attempt to protect fellow passengers.

The case also spurred debates about safety within the city’s subway system and failures in addressing homelessness and mental illness, both of which Neely had struggled with. Jumaane Williams, a Black Democrat who is New York City’s public advocate, was among those who questioned why police let Penny go after questioning him at a precinct hours after Neely’s killing. New York Rep. Alexandria Ocasio-Cortez, also a Democrat, said Neely had been “murdered.” Prominent Republicans like Florida Gov. Ron DeSantis and Matt Gaetz praised Penny and promoted a fundraiser for his legal fund, which has raised more than $3 million. His defense team includes Thomas Kenniff, a Republican who ran unsuccessfully for Manhattan District Attorney in 2021. Vickie Paladino, a Republican city councilwoman from Queens, attended last week's closing arguments in support of Penny.