Subway verdict sends message

The acquittal of Daniel Penny of criminal liability for putting Jordan Neely in a deadly chokehold to stop him from menacing passengers in a Manhattan subway car is a significant cultural moment. Verdicts can often be interpreted as the struggle between competing elements, with jurors delivering the perspective of society on what happened.

The behavior of Penny, a former Marine from West Islip, is being hailed as emblematic of the frustration of New Yorkers with having to confront, daily, the problems of homeless and mentally ill persons living on the streets. Yet, what happened on May 1, 2023 on an uptown F train is also the story of how our policies and politics failed Neely, whose talents were long overcome by serious mental health problems ignored by both the city's civil and criminal systems. Neely had 42 previous arrests and the day he died had an outstanding arrest warrant for assaulting a 67-year-old woman in a 2021 subway incident. Neely needed supervised treatment.

Monday's verdict clearing Penny of the charge of criminally negligent homicide came after the same Manhattan jury deadlocked last week on whether Penny should be found guilty of a more serious manslaughter charge. That prompted the trial judge to dismiss the top charge in the indictment and send the panel home for the weekend to take a break. While the end of this criminal prosecution has many social takeaways, it's also very likely the jurors tried to apply the law to the facts to produce an honest result. 

This was a difficult case. The jurors had to determine whether causing someone's death reaches a criminal level, one of the toughest decisions to make when there is no obvious intent. The jurors wrestled with legal notions of whether Penny's actions were reasonable in assessing that Neely was a threat to himself or others in that subway car and whether Penny was negligent for continuing to hold Neely down long after he had been subdued. The testimony from the medical examiner was inconsistent and the defense team appeared to successfully argue that Neely had other medical problems that led to his death.

Painted on a large backdrop, this was a politically charged, post-pandemic prosecution with racial overtones; Neely was Black and Penny is white. In 1984, it was the story of Bernie Goetz, a white man confronted by four Black youths in a New York City subway, that became a commentary on crime and self-defense in the nation's cities and the emergence of a vigilante movement. The facts and charges were different but the story line remains the same. 

After the verdict, New York City Mayor Eric Adams said, "We have a mental health system that is broken. When you have someone repeatedly going through that system, that’s a signature of failure." That's clear. The challenge now is what Adams and the state's political leaders are going to do about it.