Criminal defense attorney’s quick reaction to Daniel Penny verdict.

Today, a Manhattan jury acquitted Daniel Penny of criminally negligent homicide in connection with the death of Jordan Neely on a Manhattan subway train. Last week, prosecutors had voluntarily dismissed Count 1 of their indictment charging Mr. Penny with Manslaughter in the Second Degree, after they appeared to be deadlocked on that more serious charge. The prosecutors almost certainly believed that they had a good chance at a conviction on the less-serious charge of Criminally Negligent Homicide, given the fact that some jurors evidently thought he was guilty of the more serious Manslaughter in the Second Degree charge. That decision seems like a tactical catastrophe now, given the ensuing full acquittal on the indictment. Had the prosecutors not dismissed Count 1 (Manslaughter in the Second Degree), they would have had an opportunity to try Mr. Penny again on all charges. Now, instead, Mr. Penny is free and will have no criminal convictions whatsoever.

We have not yet received reports from the jurors about why they chose to acquit Mr. Penny. Jurors may eventually discuss their decision with members of the media, but until then, we can only really speculate as to where the prosecution went wrong (or how the defense won this stunning victory). It’s certainly possible that the defense created doubt as to the causation of Mr. Neely’s death. The defense presented an expert forensic pathologist who testified that the chokehold Mr. Penny applied to Mr. Neely had not been the cause of Mr. Neely’s death. In fact, he opined, this death had resulted from a combination of pre-existing health conditions and Mr. Neely’s recent drug use. The prosecution’s expert, a forensic pathologist from the Office of Chief Medical Examiner, dismissed this argument, though perhaps with a touch of arrogance. Without pretending to be a medical expert, it does seem very unlikely that the chokehold had NOTHING to do with Mr. Neely’s death. After all, it otherwise seems a tremendous coincidence that Mr. Neely died in a chokehold. Would Mr. Neely have simply dropped dead on the subway train if Mr. Penny hadn’t touched him? That also seems pretty doubtful. Keep in mind that the prosecution only had to prove that the chokehold CONTRIBUTED to the death, not that it was the sole cause. Some media reports suggested that the OCME examiner had been somewhat cavalier in her examination of the complete record or consideration of other causes, though that could be a matter of opinion. In any case, if this was the reason for the acquittal, then some heads should probably roll at the Office of Chief Medical Examiner.

There are a lot of other ways that the defense might have beaten this case, in the minds of the jury. First and foremost, the jury might have decided that although what Mr. Penny did was not something that they would have done, it was not so unreasonable under the circumstances as to qualify as a “gross deviation from the standard of care that a reasonable person would observe in that situation” (i.e. negligence). As a New Yorker who rides the subway train most days (and has for over twenty year), the author can state that although he has seen mentally ill and unhinged homeless people ranting and raving on his subway train, he has never previously given any real consideration to grabbing any of those people. Indeed, the undersigned has never seen another passenger even attempt to engage a person having a mental health crisis on the subway. New Yorkers ignore those people, or move away onto another train, or just look down at their phones. This case involving Mr. Neely and Mr. Penny may have indeed been more threatening or menacing than the average New York City subway situation involving a mentally ill person screaming on the subway, but New Yorkers will probably tell you that they’ve seen these situations before but haven’t acted as Mr. Penny did. So, it is somewhat surprising that New Yorkers essentially Ok’d this behavior on the subway, because it is hardly typical behavior. That being said, it might reflect a growing resentment or fear that some New Yorkers have about these situations. Or, perhaps more likely, it reflected the jury’s conclusion that perhaps Daniel Penny was fundamentally not a terrible person deserving of jail.

Finally, it must be noted that racial dynamics may have played a role in this case. A good trial lawyer is always conscious of race considerations in a case. So, consider this scenario: If Jordan Neely had been a 22-year old white NYU student having a mental health crisis on the subway train and saying the exact same things as he did in this case prior to his death, would anyone have choked him? Would Daniel Penny have been acquitted in his death? These are difficult questions, but for now they are only hypothetical.

The defense made another argument that might have resonated strongly with the jury. The defense attorney argued that this case, more than anything, was an indictment of our health care system that fails to provide adequate care and treatment for the mentally ill and homeless in our city. That is something that New Yorkers can probably agree upon universally. We all feel terrible for the homeless and mentally ill people we see everyday, and wish there were a better solution. Perhaps this verdict was the jury’s call to action for a better system for the care and treatment of the homeless and mentally ill.

Overall, this was a fascinating case that would make for a good law student exam question. Kudos to the defense team for an excellent defense. It was a tough case for the prosecution but it certainly looked like they fumbled the ball at the goal line by dismissing count 1. Evidently, they vastly overestimated the appeal of their arguments.