NEW YORK — A 12-person jury here unanimously found Daniel Penny not guilty Dec. 9 in the death of Jordan Neely. New York City District Attorney Alvin Bragg charged Penny 19 months ago with killing Neely on a subway train.
Neely, 30, was a homeless man and Black. Penny, 24 at the time, is a college student, former U.S. Marine, and Caucasian.
Many eyewitnesses, police and emergency personnel, medical examiners, character witnesses and others, 40 in all, testified. Working people who were on the train May 1, 2023, told how Neely burst into the subway car as the doors were closing. He was aggressive, throwing his jacket to the ground as nearby passengers moved away. He threatened and screamed, “Someone is going to die today” and “I will kill.”
Witness Caedryn Schrunk described his ranting as “satanic” and said she “thought I was going to die.” Lori Sitro testified she used her stroller as a barrier to protect her 5-year-old child. Alethea Gittings said, “I was scared shitless.”
Penny watched Neely’s behavior, then grabbed him from behind and held on to restrain him. Both fell to the ground. Two other riders helped hold a fiercely struggling Neely down until police arrived. In videos played at the trial, Penny told detectives he was trying to “de-escalate” the situation and prevent Neely from harming anyone.
Others in the subway car, a multiracial cross section of this city’s working class, stepped up to help. Some appealed to the conductor to hold the train. Others called 911. Several passengers later thanked Penny.
Police testified that Neely had a pulse when they arrived. They administered CPR and a dose of Narcan, an opioid antidote. They declined to perform mouth-to-mouth resuscitation, saying they feared catching a disease. Neely was taken to a hospital and an hour later he was declared dead.
“Those passengers were afraid,” Mayor Eric Adams, who is Black, said Dec. 3, suggesting Penny should not have faced criminal charges. “You have someone [Penny] on that subway who was responding, doing what we should have done as a city.”
Frame-up campaign
From the moment Neely died, other Democratic Party officials, including Bragg, began recasting what happened as a homicide driven by racial hate.
Tossing aside constitutional rights, especially an accused person’s right to be considered innocent unless proven guilty beyond a reasonable doubt, Congresswoman Alexandra Ocasio-Cortez labeled Neely’s death a “murder.” Her colleague, Jamal Bowman, called it an “execution.” Rev. Alfred Sharpton smeared Penny as a vigilante. Black Lives Matter supporters called Neely’s death a “lynching.”
The liberal capitalist press pictured Penny, the Marine, as a trained killer, versus Neely, “a beloved street performer,” who when he was younger impersonated Michael Jackson. A May 4, 2023, New York Times opinion column was headlined, “Making people uncomfortable can now get you killed.”
Reporters repeatedly referred to Penny’s restraint of Neely as a “chokehold,” recalling for readers the 2020 death of George Floyd in Minneapolis.
Small protests took place. People jumped on subway tracks to block trains. They demanded Penny be railroaded to jail.
For Bragg, the Penny case became an opportunity to bolster an election campaign narrative peddled by Joseph Biden and later Kamala Harris, that Democrats “protect” voters against the alleged “fascism” and “white supremacy” of Donald Trump and “MAGA Republicans.” Last spring Bragg gained notoriety by framing Trump on 34 felony counts of business fraud, a verdict Trump is appealing.
Bragg first charged Penny with second-degree manslaughter carrying a possible 15 years in jail. Then weeks later, he added a criminally negligent homicide charge with a maximum four-year prison term. This “overcharging” was meant to pressure Penny to agree to a plea bargain for the lesser charge, handing Bragg a conviction.
Prosecution case unravels
For Bragg and his lead trial prosecutor, Dafna Yoran, witness testimony, video evidence and the facts produced at trial made the case against Penny paper thin.
Yoran conceded at the trial’s start Penny’s intentions may have been good, but it was Penny’s “chokehold” that killed Neely. “He went way too far,” she said. Then the prosecution hammered away at the jury for seven weeks on Penny’s “guilt.” They even divided a five minute video into 1,465 still frames for a slide by slide presentation to argue manslaughter had occurred. Passengers’ phone videos and police bodycam footage were played and replayed on six jumbo TV screens.
Dr. Cynthia Harris, the city’s medical examiner, testified videos proved a chokehold killed Neely. She said she didn’t need to see the autopsy or toxicology reports to reach her conclusion. Even if Neely had enough fentanyl in his system to knock down an elephant, she said, it would not have changed her mind.
Penny’s attorneys called a forensic psychiatrist who testified Neely’s 5,000-page medical record convinced him Neely was “severely psychotic.”
Dr. Satish Chundru, a forensic pathologist, also testified for the defense. A chokehold did not cause Neely’s death, he said. The homeless man died from a sickle-cell crisis causing a lack of oxygen, provoked by the “combined effects” of a potent synthetic marijuana, known as K2, in Neely’s system; acute schizophrenic psychosis; and physical exertion against Penny’s restraint.
In the end, over the seven-week trial, prosecutors provided zero evidence that Penny was a racist or a vigilante looking to kill a Black person.
Jurors began deliberations Dec. 3. Three days later they told Judge Maxwell Wiley they could not reach a unanimous verdict on the second-degree manslaughter charge.
Yoran then proposed the judge dismiss the manslaughter charge and instruct the jury to consider the lesser criminally negligent homicide count, Bragg’s aim from the beginning. The judge complied and overruled objections by Penny’s defense attorney, who called for a mistrial.
After a weekend break, the jury reconvened and quickly reached a unanimous decision finding Penny “not guilty,” a stunning blow to District Attorney Bragg and his weaponizing of his office for partisan political ends.
Penny’s trial and Neely’s death, however, reveal greater injustices facing working people.
Penny became a scapegoat for city authorities and capitalist politicians, who find themselves unable and unwilling to solve the crises of homelessness, the proliferation of deadly illegal drugs, and the longstanding mental health crisis plaguing this city and the country.
Neely suffered from major depression, schizophrenia, PTSD, and drug abuse. He was locked up in Rikers Island jail from November 2021 until February 2023 for punching a 67-year-old woman, breaking her nose and fracturing her eye socket bone. He was released from jail on a plea deal and ordered to stay in an intense inpatient treatment center, but walked out after 13 days. No one did anything to get him back. Three months later he was dead.
The danger he became to others and himself is a consequence of a profit-driven capitalist system governed by Democrats and Republicans on behalf of its rulers, who could care less for anyone or anything they cannot use to make profit. They are responsible for his death.