When a New York jury acquitted Daniel Penny in the killing of Jordan Neely, it didn’t give us an answer. The jury confronted — and confronted us with — a question: What accommodation does society owe its neuro-diverse members?
Jordan Neely, an agitated, homeless, schizophrenic Black man in crisis, boarded a New York subway F Train, yelling that he had “Had enough.” Some passengers were frightened. Some said Neely threatened them; others denied that.
Daniel Penny, a former Marine from Long Island who was studying architecture, stepped up, put Neely in a chokehold, and maintained that chokehold for approximately six minutes. At the end of this encounter, Neely was dead — killed, according to the Medical Examiner, by Penny’s continued pressure on his throat.
Penny was indicted and tried. Manslaughter charges were dismissed at a mid-point in deadlocked jury deliberations, and the case against Penny was sent back to the jury on the lesser charge of negligent homicide. The jury delivered a verdict of “Not guilty.”
Media responses when the “not guilty” verdict was announced conveyed a sense that they had been long-rehearsed. The case had been covered intensively ever since Neely’s death. Everyone had known that some verdict was coming, and the trial had been reported as a zero-sum contest with one winner and one loser.
Reactions fell into two categories: Either the acquittal amounted to “a green light for white vigilantism,” or it was the resounding vindication of a hero who had protected his neighbors against the forces of disorder.
These takes are both mistaken.
An acquittal in a criminal case states only that the jurors felt a reasonable doubt — that they were unable, in the language of the classic instruction, to arrive at a sense of “moral certainty.” The factual question the Penny jury could not answer affirmatively was whether Penny had taken a risk “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.”
This was not a verdict on the “send the cops or send the social workers” dialectic that dominates the contemporary media debate. In fact, the Penny verdict acknowledged the debate’s inadequacy. The jury apparently took account of the fact that you can send either the cops or the social workers, or both, and still be confronted by harrowing “boundary work” on the scene. You will face in everyday life innumerable interactions when neither the cops nor the social workers are around.
It is hard to think of the Penny case without thinking of Walker Evans’ haunting collection of subway photographs, “Many Are Called” — covert portraits from the subway’s unique zone of solitude-in-public. New Yorkers have always accommodated mental illness in that zone. For years, they accommodated Neeley, whose chronic wanderings had earned him a place on the city’s “Top 50” list of the disruptive mentally ill.
New Yorkers share a tacit understanding, a specialized code that informs what conduct will be ignored, when glances will be averted and verbal objection withheld when space will be ceded and you will move to another car. The grasp of these rules is one of the things that makes you a New Yorker. But is failure to grasp or apply them a crime?
Many are called to face men and women in crisis. Whether and when you are chosen is not up to you. Circumstances chose Penny. His jury did not focus solely on Penny’s conduct at the decisive moments; it widened the lens.
It saw that Penny and Neely were brought together in an encounter that neither man should have been required to manage — that in a safety sense Penny, like an exhausted, undertrained nurse who delivers a fatal overdose of a badly labeled drug in a NICU, was a “second victim.” And it asked what we could expect of each other as reasonable people when these moments arrive.
When we react by angrily attacking the Penny verdict or by self-righteously applauding it, we are taking shelter behind Penny. We are using him to duck the basic question Neely’s death poses: whether, as policing scholar David Thacher puts it, “We should view disability not as a property of individuals with certain impairments but as a property of the society that has failed to accommodate them.”
We should talk about that.
James Doyle is a lawyer and author in Boston.
