The Trial of Daniel Penny

When 24-year-old Marine veteran Daniel Penny lunged for Jordan Neely, a thirty-year-old black man, during that fateful New York City subway ride a year and half ago, he released a fresh deluge of racial, moral, and political forces. The confrontation between these two men tragically ended Neely’s life but the streets remained oddly quiet. Many Americans began to wonder if the absence of a collective outcry signalled the decline of the Black Lives Matter movement that had transformed American politics and race-relations since the death of black teenager Trayvon Martin in 2012.

On the other hand, Neely’s death did result in the prosecution of his assailant and a debate duly ensued about the legal and moral permissibility of Penny’s actions. Was he, as some maintained, a Good Samaritan who sought to defuse a potentially dangerous situation? Or was he, as others insisted, a racist white vigilante who had murdered a black man for no good reason? The incident’s racial dimension guaranteed that it would become a polarising cause célèbre. A sober examination of the facts reveals a more tragic, complex, and human story.

I. The Incident

On Monday 1 May 2023, temperatures in New York were in the high fifties, but the subterranean Second Ave subway station was dank and tense. In the years since the riots and protests that followed the death of George Floyd in the summer of 2020, lawlessness in these stations and the subways they served had proliferated as policing retreated. A 2023 poll found that only 49 percent of passengers felt safe using the subway during the day, down from 82 percent in 2017 and 86 percent in 2008.

Wearing a backpack over a tan jacket and black hoodie, Daniel Penny was travelling on the northbound F train on his way to the gym when it pulled into the Second Avenue station. As the last passengers boarded the train and the doors began to close, Jordan Neely raced across the platform and burst into the crowded car. Dressed in visibly soiled sweatpants, Neely’s behaviour was erratic and alarming—the product, it would later emerge, of a psychotic break produced by a combination of synthetic marijuana and schizophrenia. He complained that he was tired and hungry, began demanding food and water, and threatened to kill nearby passengers.

Neely tore off his jacket and threw it onto the floor of the subway car. Nearby passengers began moving away from him. Caedryn Schrunk, a senior brand manager at Nike, described Neely’s rant as “Satanic” and said, “There was a moment where I truly thought I was going to die.” An eighteen-year-old passenger named Moriela Sanchez called 911 to report that Neely was “trying to attack everybody.” She requested that an “ambulance and a cop” meet them at the next stop. Nobody confronted Neely. Under such circumstances, most people will try to avoid eye contact with a disturbed individual and hope things quieten down. But when Neely began threatening a mother shielding her son behind a stroller, Penny decided to act. “The guilt I would’ve felt if someone did get hurt,” he later said, “if he did do what he was threatening to do, I would never be able to live with myself.”

Penny grabbed Neely from behind in a chokehold and pulled him down onto the floor of the subway car. Two other passengers helped restrain Neely’s hands. Less that thirty seconds later, the train pulled into the Broadway-Lafayette station. The entire ride from the Second Avenue station had lasted just one minute. Most passengers fled the train immediately while Neely continued to struggle in Penny’s chokehold. But Penny had learned his technique in bootcamp and he maintained control as he instructed bystanders to call 911. A few remaining passengers held open the doors to prevent the train from departing. A man warned Penny that Neely had defecated and that might be a sign that he was dying. One of the other men restraining Neely replied that the excrement was old and that Penny had already loosened his grip.

Sanchez, the teen who called 911, later testified that she was relieved that Penny had restrained Neely but feared that the chokehold was dangerous. Schrunk, the Nike employee, said, “If [Neely] would have gotten up, who knows what he would have done?” Neely eventually lost consciousness after almost six minutes of struggle. Penny and others released their hold and stood over Neely’s motionless body. When the responding officers arrived, they discovered that Neely still had a pulse. He was given Narcan and CPR before being transported to the Lenox Hill Hospital where he was pronounced dead. Later that same afternoon, Penny was questioned by the police and then released without charge.

II. The Prosecution

When a bystander video of Penny choking Neely found its way onto social media, it immediately went viral. Some Americans see every interracial encounter through a lens of white oppression and black victimhood, and for people with a pre-existing belief in the omnipresence of systemic racism and white supremacy, this particular incident—just three years after the George Floyd video—appeared to confirm their priors.

Two days later, on 3 May, a group of angry activists swarmed a subway station in lower Manhattan, even though details of what had caused the confrontation between Penny and Neely had yet to emerge. They evidently felt that a black death at the hands of a white man spoke for itself. “We cannot just continue to stand by with complicity,” said a 22-year-old protestor named Shifa Rahman. “It’s the reduction and dehumanizing of black lives.” Another protestor, Adolfo Abrueu, claimed that his daughter could not believe “we have this amount of racism in what is supposedly the most progressive city.” The protestors then marched on to East Houston Street before turning on to Broadway. They attempted to block traffic, led anti-police chants, and demanded that law-enforcement officials arrest the unidentified white male in the video.

But this protest, and others that followed in the coming days, failed to spark a nationwide contagion, as the Floyd protests had done three years before. To the contrary, when Daniel Penny’s identity was disclosed on 5 May, public opinion appeared to shift in his favour. It soon emerged that Penny, a Long Island native, had served in the Marine Corps from 2017 to 2021 as an infantry squad leader and an instructor in water survival. He had been deployed twice. He now lived in an East Village apartment while he pursued a degree in architecture at the New York City College of Technology. He taught lessons at a gym and worked at a Brooklyn restaurant to pay for his tuition.

Many conservatives rushed to embrace Penny as a hero who had intervened to prevent an already dangerous situation from escalating further. They quickly established a fundraiser for his legal defence, and within days it had accrued nearly US$900,000 from 18,000 donors. Penny’s supporters blamed the Black Lives Matter movement and its calls to defund police departments for creating the conditions that led to this tragedy. If a Good Samaritan like Penny were to be convicted of wrongdoing, they warned, then bystanders would be discouraged from intervening under similar circumstances and lawlessness would only proliferate.

But if ideological fervour was absent in the streets, there was plenty of it to be found in the office of Manhattan district attorney Alvin Bragg. When he was fifteen, Bragg had been wrongfully accused of being a drug dealer by a police officer who was pointing a gun at his face. He launched his 2021 campaign for DA in the wake of the turmoil that followed George Floyd’s death, and at a time when America was still consumed by an emotive debate about the treatment of blacks by the criminal-justice system. As a candidate, Bragg declared that “we need to move away from what I would call a crime of poverty” and he vowed to pursue an agenda of racial equity in criminal matters. He would “shrink the footprint” of the criminal-justice system, he explained, by applying “a racial justice framework … to all levels of operations.”

Bragg’s election effectively carried the power of street protests into government. His office would no longer prosecute crimes like marijuana offences, prostitution, or subway-fare evasion, and this new regime of leniency had entirely predictable results. Three years later, the New York Post reported that, by 10 November, Manhattan had seen 27,122 reported felony crimes in 2024, up 16.9 percent from the same period in 2021. Rapes had risen by 7.4 percent, robberies by 8.9 percent, felony assaults by 16.8 percent, and grand larceny by 29.8 percent.

But perhaps the most damaging aspect of Bragg’s racial-equity reign was the perception of racial unfairness it created in one of America’s most racially diverse cities. Blacks and other people of colour were regularly released back onto the streets after they were arrested for heinous crimes. Five migrants were released without bail after they attacked two police officers. A pro-Palestinian activist named Waseem Awawdeh was offered a lenient plea deal after he and others viciously assaulted a man named Joseph Borgen in an antisemitic attack. Awawdeh said he would do it again. After a 61-year-old Latino named Jose Alba fatally stabbed a 35-year-old black ex-con named Austin Simon, Bragg’s office charged Alba with second-degree murder, even though video footage of the incident clearly showed that Alba had acted in self-defence.

It was therefore not surprising when Bragg’s office announced, on 11 May 2023, that Daniel Penny would be charged with manslaughter in the second degree. Penny surrendered himself to police the next day and was released on bond. Bragg later added a count of criminally negligent homicide to the charge sheet. At his arraignment on 28 June, Penny entered pleas of not guilty to both charges. The two men who helped Penny restrain Neely—one of whom was black—were not charged with anything.

The response from conservatives was furious. Florida governor Ron DeSantis tweeted a link to Penny’s fundraiser and added: “We must defeat the Soros-Funded DAs, stop the Left’s pro-criminal agenda, and take back the streets for law abiding citizens. We stand with Good Samaritans like Daniel Penny. Let’s show this Marine... America’s got his back.” That tweet helped to push the fundraiser to over the US$2-million mark.

Bragg countered by assigning Dafna Yoran to the case, a prosecutor who had previously committed herself to the pursuit of racial equity through restorative justice. In a 2019 case, Yoran asked for and received a reduced sentence for Matthew Lee, a black man originally charged with murder. Lee had attacked an 87-year-old former Lehman College professor named Young Kun Kim at an ATM as Kim was withdrawing US$300. Yoram reduced the charge to manslaughter, in return for which Lee had to meet with the victim’s family. Explaining her decision during an online seminar, Yoran declared: “I had a murder case where the defendant did not intentionally kill the victim. ... I really felt incredibly sorry for him that he had gotten to that point in his life where he felt there was no choice but to commit this robbery.”

Condemn this Violence without Equivocation

The protests are not merely the legitimate exercise of constitutional rights to assemble and to petition our government—they are essential for sustaining the moral health of our democracy.

QuilletteGlenn C. Loury

Yoran’s attitude to Daniel Penny was altogether less sympathetic. It did not seem to matter to her that Penny had no previous encounters with the law or that he served his country. Nor did she appear to care that Neely had an extensive criminal record that included 42 prior arrests. In 2019, Neely was rooting through trash cans in search of food when he sucker-punched a 68-year-old man named Filemon Castillo Baltazar in the face on a subway-station platform. In 2021, Neely punched a 67-year-old woman as she left a subway station and broke her nose and orbital bone. In the latter incident, Neely entered a guilty plea in exchange for admission to an alternative-to-incarceration program. However, he skipped the program and a warrant was issued for his arrest.

Which is not to say that Neely was entirely undeserving of sympathy. Few people walk a straight and uncomplicated path through life, and Neely’s childhood had been unusually turbulent. Before he was twelve years old, he often moved with his mother, Christine, between shelters in New York. Christine’s friends describe her as a proud woman who was taking classes to become a paralegal. Years before, she had separated from her son’s biological father, Andre Zachery, a building super and sometime musician. She subsequently began a relationship with a man named Shawn Southerland, whom she had met in her paralegal class, and Neely at last had a place to call home. He began to develop an act as a Michael Jackson impersonator, which he would perform for donations on subway platforms and trains.

But this stability would not last. Christine’s relationship with Southerland was volatile and the couple fought often. When Neely was fourteen, his mother disappeared, and her body was subsequently discovered in a black duffel bag by the side of the Henry Hudson Parkway. Neely developed severe depression and PTSD and began to struggle with schizophrenia. His father, Zachary, did not come forward to claim his son and Neely ended up in the foster-care system. He was nineteen when it came time for him to testify at Southerland’s trial. Southerland had chosen to represent himself, which meant that Neely was forced to face his mother’s killer during an agonising cross-examination.

Neely soon became homeless and fell into a vicious cycle of drug abuse, psychotic breakdowns, and hospitalisations—a pattern only interrupted by the occasional monetary and spiritual reward he received from a successful public performance. By the time of his death, Neely was reportedly on the city’s “top fifty” list of those most in need of help.

III. The Trial

Alvin Bragg and Dafna Yoran made no attempt to hide the racial biases of their office and these biases would play a significant role in their trial strategy. They knew that proving Penny’s guilt would be nearly impossible otherwise. The defence had a rebuttal to every witness the prosecution called and a convincing rejoinder to every argument they marshalled. The prosecution therefore attempted to tip the scales by leveraging white guilt. My father, Shelby Steele, has written that “white guilt is not a pang of conscience; it is a terror of the racist stigma—a stigma powerful enough to jeopardize the careers of individuals and to undermine the legitimacy of institutions. This terror leads whites and institutions to act guiltily even when they feel no guilt.” It was this terror that helped to propel the Black Lives Matter movement to success.

In 2014, when former US attorney general Eric Holder failed to find evidence of racial malice behind a white police officer’s shooting of a black teen, Michael Brown, he alleged a problem of “systemic racism.” Holder knew that by accusing the southern town—led by a white Republican mayor and policed by a mostly white law-enforcement department—of treating white and black citizens differently, he would obtain the indictment of ubiquitous racism he wanted. The white police officer, Darren Wilson, would be guilty by association. Holder succeeded because he understood that many Americans and institutions were far more concerned with maintaining moral authority and legitimacy than they were with anything as prosaic as the truth. They would throw Ferguson under the bus to prove they were not racist. 

The huge protests that erupted after George Floyd’s death, the nationwide institutionalisation of DEI programs that followed, and President Biden’s executive order requiring every government agency to operate on the racial-equity principle all provided evidence of the enduring political influence of white guilt. Bragg and Yoran gambled that playing this race card would be enough to sway the jury, and as the trial got underway, there were reasons to think they might be right. Much of the reporting and commentary immediately after Neely’s death assumed and emphasised an important racial dimension in recklessly inflammatory ways.

On 4 May, just three days after Neely died, the New York Times published an op-ed by Roxanne Gay under the tendentious headline, “Making People Uncomfortable Can Now Get You Killed.” There was, Gay wrote, “no patience for simple mistakes or room for addressing how bigotry colors even the most innocuous interactions,” and she reproached Americans for allowing themselves to become “a people without empathy, without any respect for the sanctity of life unless it’s our own.” Penny’s identity and most key facts of the case were not yet known, but Gay had already decided that Penny was a racist and that his fellow passengers should feel ashamed of the discomfort Neely’s aggressive behaviour had caused them.

The day before that op-ed appeared, Representative Alexandria Ocasio-Cortez had tweeted, “Jordan Neely was murdered.” In a subsequent interview, she said, “There is nothing, nothing, nothing that can justify killing a person, especially if they are unarmed and not a physical threat to anyone. … All of this has to do with race and class. If the city just wants this to be a playground for the rich, that is the most dangerous outcome for all of us. We are all subject to violence if the value of our life is measured by our income, or measured by our mental health, or measured by our race.”

Before a racially mixed jury of seven women and five men, prosecutor Yoran pursued a similar line of reasoning. In her opening statement, she allowed that “the defendant did not intend to kill him. His initial intent was even laudable.” But that charitable sentiment was short-lived, and Yoran’s rhetoric soon slipped into the kind of activist sloganeering for which her office has become notorious. Daniel Penny, she told the jury, did not believe that Neely deserved “even the minimum modicum of humanity.” And Neely, she contended, wanted nothing more than “to be seen.” Defence attorney Thomas Kenniff replied that Penny had been motivated by a “protect thy neighbor” ethic, not racial animus. “This is a case,” he said, “about a young man who did for others what we would want someone to do for us. It doesn’t make him a hero, but it doesn’t make him a killer.”

As the trial proceeded, it became clear that Penny’s character would play an equal or even more important role than the actual incident. Yoran continued to push a narrative of callous inhumanity with racist overtones. She called witnesses to the stand who referred to Penny as a “murderer” and as the “white man.” The defence objected to this kind of language and asked for a mistrial, but their request was denied. They called several character witnesses to testify on Penny’s behalf. An active duty Marine, Gunnery Sgt. Nathaniel Dunchie, said that “discrimination is not tolerated in the Marine Corps” and that Penny was a temperamentally peaceful man of integrity and honesty. Another Marine, Platoon Sgt. Nolan Drylie, now an Alabama farmer, testified that Penny received a Humanitarian Service medal in 2018 for helping victims of Hurricane Florence.

Yoran pressed ahead with her portrait of a vindictive racist, regardless. A black man was dead, and she was the humanitarian in this trial with compassion and even history on her side. But throughout the trial, she was unable to acknowledge what psychologist Abraham Maslow has described as one of the most basic human needs: safety. Neely’s behaviour did not merely cause Penny and the other subway passengers “discomfort”—a relatively trivial concern. What Neely’s behaviour actually provoked was an overwhelming and primitive need for self-preservation that outweighed every other consideration. Why else would a teenager place a 911 call within thirty seconds of Neely boarding the train?

In her closing statement, Yoran continued to treat Penny as if he was being charged with a hate crime. She told the jury that Penny “didn’t recognize that Jordan Neely was a person. He saw him as a person that needed to be eliminated.” She claimed that Penny “was so reckless with Neely’s life because he didn’t seem to recognize his humanity.” She then replayed excerpts of Penny’s police interrogation video, recorded when Penny had been read his Miranda warning but had not been told that Neely was dead. In the video, Penny referred to Neely as a “crackhead” and said, “You know these guys, they’re pushing people in front of trains and stuff.” Yoran then turned to the jury and said, “The context is very telling here. When the defendant is talking like this about Mr. Neely, he knows he very likely had killed him. Can you imagine a reasonable person speaking like this about a human being that he or she had just killed?”

In his closing argument, defence attorney Steven Raiser hinted at the racial overtones of the case when he suggested that the charges were brought because of “a rush to judgment based on something other than medical science.” He then added: “The government wasn’t there. The police weren’t there. Danny was. And when he needed help no one was there. The government has the nerve to blame Danny because the police weren’t there?”

The jury began its deliberations on 3 December 2024. After several days, they informed Judge Maxwell Wiley that they could not agree on a manslaughter verdict which carries up to fifteen years in prison. Faced with the prospect of jury deadlock and a mistrial, the prosecution requested that the manslaughter charge be dismissed so the jury could concentrate on the lesser charge of criminally negligent homicide. With that request granted by Judge Wiley, the jury quickly acquitted Penny of the remaining charge and he walked out of the courtroom a free man.

IV. The Aftermath

The jury’s verdict was correct in my judgement, but it left a peculiar vacuum. If Daniel Penny was not to blame for Jordan Neely’s death, then who was? The prosecution had failed to convince the jury of an alleged racial motive, but their failure left them with no one else to prosecute or blame. That left an uncomfortable question: was Neely to blame for his own death? On the Left, it is taboo to ask such a question after the premature death of a black person. The correct answer is always that such deaths are caused by a racist system and its foot-soldiers. So, the acquittal of one such alleged foot-soldier produced an outpouring of frustration.

Al Sharpton accused Penny of “vigilantism,” a historical word associated with the lynching of blacks by whites in the 19th and early 20th centuries. “Jordan was in the middle of a mental health crisis,” Sharpton announced, “but instead of being offered a helping hand, he got an arm around his neck. This verdict represents the blatant legalization of civilian vigilantism.” On Twitter, the NAACP echoed Sharpton: “The acquittal of Daniel Penny in the death of Jordan Neely has effectively given license for vigilante justice to be waged on the Black community without consequence.”

A local Black Lives Matter activist named Walter “Hawk” Newsome called for “black vigilantes” to get active and asked, “How about we do the same? ... Fuck America. How dare you laugh and cheer when someone gets away with murdering us.” Others in the media, academia, and elsewhere were eager to share race-baiting sentiments of their own. “Imagine, just imagine,” Mehdi Hasan tweeted, “if Jordan Neely had been white and Daniel Penny was black. Imagine what some of the folks defending Penny today would be saying. Just imagine.”

Perhaps chastened by the defeat in court, Alvin Bragg resisted the temptation to indulge in this kind of demagogy. In fact, he made no mention of race at all as he responded to the verdict. Back in 2022, Bragg had pledged that his office would protect public safety but that it would not “destroy lives through unnecessary incarceration.” Now, after a jury rejected his frivolous prosecution of Penny, he limply offered, “As with every case, we followed the facts and the evidence from the beginning to the end.”

Not one of these reactions to the verdict was convincing. Progressives have spent years demanding meaningful reforms to law enforcement and the broader criminal-justice system but the failure of their preferred remedial initiatives is now plain for all to see. When Penny spoke after the trial, he described the city officials who had prosecuted him as “self-serving,” implying that they refused to take any responsibility for Neely’s fall. “These are their policies that clearly have not worked,” Penny said. “Their egos are too big just to admit that they’re wrong.”

That reaction to the verdict was probably closest to the truth. Most significantly, the Black Lives Movement has failed to capitalise on the national momentum it built and the billions of dollars it raised over twelve years of activism to save black lives like Neely’s. Instead, their efforts have only aggravated grievances and spread greater racial disharmony. That may be why, when they pointed their fingers at Penny, they found very few people were still willing to listen to them.

Something has changed. When former police officer Darren Wilson was accused of killing Michael Brown in a racially motivated murder in Ferguson, MO, in 2014, he received death threats and was forced into seclusion where he remains to this day. Even being cleared by Attorney General Eric Holder was not enough to rescue Wilson’s reputation. But when Penny left the courtroom, he headed to a bar for a beer with his attorneys. What is one to make of this discrepancy? Does it signal the weakening of the hold white guilt has over American society? If so, that bodes well for America, for it would mean a return to the individual and to individual justice—which is what Daniel Penny received.