I was fairly certain that after the jury hung on the top count of Manslaughter 2, and Justice Max Wiley agreed to dismiss the count with prejudice at the prosecution’s request, Daniel Penny was looking at a conviction on the lesser account of criminally negligent homicide as a compromise verdict. After all, there was at least one, if not more, jurors ready to convict on the top count, and jurors get tired after a while and tend to accommodate the strongly held positions of their fellow jurors so they can reach a verdict and go home.
I was wrong. The jury acquitted and courtroom burst into chaos.
On the Penny side, supporters believed he should never have been prosecuted for taking action to protect other subway riders from the “crazy man” who told them he wasn’t afraid to go to prison, wasn’t afraid to die. These are strong words that strongly suggest he’s about to do something very bad to someone else. Penny, the ex-Marine, didn’t turn away, but decided to take a stand to protect others.
Even though it ended in tragedy, the death of a man (who happened to be black, giving rise to imputed racism), Penny’s purpose was to protect others from Jordan Neely. Even though his chokehold, if chokehold it was, was extreme, in the midst of the interactions on the subway train, were Penny’s actions as a good Samaritan far enough beyond the pale to go from protection of others to a crime against Neely?
On the Neely side, here was another white man acquitted of killing a black man. If the races were reversed, would the jury have been so accommodating of the excesses of the chokehold? Neely hadn’t yet done anything to physically harm anyone, and talk is cheap. This is especially true of the ranting of a man who was mentally ill. Sure, he had priors, but that wasn’t known to anyone on the train and so could not have entered into the calculus of Penny’s actions.
Neely had been failed by “the system.” He was offered treatment in lieu of incarceration before, and ultimately walked away from it to his detriment. But are the mentally ill expected to make wise choices about their care? Making wrong choice is something of a hallmark of mental illness, and so instead of being treated, he was on a subway car threatening to harm others. But it was still just a threat.
Ultimately, the only offense upon which the jury reached a verdict was criminally negligent homicide, under Penal Law § 1250.10.
A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person. Criminally negligent homicide is a class E felony.
“Criminal negligence” is defined in Penal Law § 15.05(4).
“Criminal negligence.” A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
Penny also presented a justification defense, but it appears that the jury did not make a finding that his actions were justified, or the jury would not have hung on the top count. While the hold of Neely’s neck that resulted in death may well have presented a “substantial and unjustifiable” risk, was it a gross deviation from what a reasonable person would do under the circumstances?
Ironically, the progressive position would normally back the defendant charged with the killing, except that this time it was a white man killing a black man, and identity trumps everything else. Accordingly, calls of outrage followed the verdict based solely on the racial aspect of the case. Would Penny have acted any differently if Neely was white? Would the jury have reached a different verdict if Penny were black? It’s impossible to say, given that the jury addressed the case as it was presented and not some hypothetical racial contortion of the facts. But for the unduly passionate, believing is close enough to justify their outrage.
Penny is being feted as a hero following the verdict, and thereare some pretty strong reasons why he should be. He could have turned away from the fracas, and if Neely then harmed a passenger on the train, it wouldn’t be his problem. But instead, he stood up to help others, at personal risk and without any personal benefit. That the end was tragic does not turn Penny from good Samaritan to murderer, and that the person killed was mentally ill, homeless, drugged and black wasn’t the cause of Neely’s demise, but his threatening conduct and assertion that he wasn’t afraid to die.
Society may well have failed Jordan Neely. But did Daniel Penny? Did the jury?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
> “it appears that the jury did not make a finding that his actions were justified, or the jury would not have hung on the top count. ”
That assumes the jury was acting logically and consistently, and I’m not sure how safe an assumption that is–it’s certainly not unheard-of for juries to make crazy or inconsistent findings. But I’m likewise puzzled how a jury went from hung on Manslaughter 2 to NG on negligent homicide, even though I think it was the right result.
As my old pal Patterico reminded me, one never knows what a jury will do.
You picked a heckuva week to go away. Hope you had fun and welcome back!
I, too, am mystified by how the jury could go from hung on Manslaughter to acquit on Criminally Negligent Homicide. I wonder what the judge said when he took the top count away from tem. Did he indicate that it was being dismissed? Or did he just say, “OK, stop thinking about that and now please deliberate on the other charge.” Has anyone talked to the jurors since to get an insight into their deliberations?
Obviously, I didn’t sit through the trial, but I tend to agree with the dismissal of the Manslaughter charge as a matter of law (particularly since te prosecution requested it). Based on wat I’ve read, I could go either way on the CNH charge, which means I have reasonable doubts about it. So at most, I agree with the verdict, and at worst I can’t argue with it. But the hung to NG move is still puzzling.
A psychologist once said no two people are ever in the same relationship. I guess no two people ever attend the same trial. I am always surprised when I speak to jurors after they reach a verdict.
The Kenosa video showed Kyle Rittenhouse acted in self defense. The three and a half minute video of Jordan Neely dying in agony by strangulation while he was restrained by three men with another passenger pleading with Daniel Penny to release the choke hold was a classic example of depraved indifference homicide So I agree, Penny should not have been charged with manslaughter.