This is a guest essay by Eileen Weitzman, who is an attorney, artist, and social activist. She works with the International Campaign to Free Kamau Sadiki, D12, and the Peoples’ Senate amongst others.
Penny, a white man, was tried for manslaughter in the second degree and for the criminally negligent homicide of Jordan Neely, a Black man. The defense made fear a key element of their legal strategy. Appealing to the predominantly white jury’s fear of subway crime, they claimed that Penny “did for others what we would want someone to do for us” in their opening statement. It was an easy argument to make since NYC Mayor Eric Adams, a former cop, makes the same argument as he continually increases the number of cops he believes are needed to protect subway riders.
This is despite recent statistics finding that only 2.5 percent of the city’s violent index crimes occur on the subway and that just one felony assault is reported on the subway for every two million trips. In early 2024, Adams added an additional 1,000 cops. Not to be outdone, Governor Hochul brought in 750 National Guardsmen. Guardsmen are only supposed to be used for responses to emergencies such as natural disasters or riots. But politicians have reelections and their own agendas to think of too.
This “protection” is understood by all as protection from mainly Black and brown folks. That’s why, in the most recently available statistics, 93 percent of those arrested for fare evasion were Black and brown people, who comprise only 53.7 percent of NYC’s population. On the other hand, white people make up 40 percent of NYC’s population but account for only 6 percent of the total arrest rate.
With the media constantly hyping up subway crime, it’s no wonder that playing to white fear was a winning strategy. Not wanting to lose any opportunities, defense attorneys used their closing statement to remind jurors of this fear, asking them to imagine they were in that car when Neely entered and started screaming. They also referenced multiple witnesses’ accounts of how fearful they were.
The prosecutors never questioned the reasons behind this fear, instead conceding that Neely was “understandably frightening.” This pandering to fear, along with their own arrogance, led the prosecutors to make a major strategic mistake—they acknowledged that Penny was justified in taking Neely down and holding him in a chokehold until the next subway stop. Once they made that concession, there were only 51 seconds (out of an almost 6-minute chokehold) in which Penny’s actions could be deemed criminal.
Prosecutors argued that Penny should have released Neely because the passengers had left the train, and there was no longer any justification for the chokehold. They even called witnesses who testified that during those 51 seconds, Penny wouldn’t stop choking Neely despite being told to let go. But they did not help their case by calling several witnesses who testified about their fear of Neely, including a white woman who was sure she was going to be killed.
Nor did the prosecution manage to capture the jury’s sympathy for Neely when they characterized Penny during their closing argument as a peaceful, calm, honorable man, thereby reminding jurors of character witnesses’ testimony on his behalf. Rhetorically asking why someone with such characteristics might be reckless with Neely, their answer was that Penny didn’t recognize him as human.
According to the rules of evidence, the prosecutors weren’t allowed to call character witnesses for Neely since that would not be considered relevant. However, the defense was allowed to call witnesses to negatively characterize Neely’s former mental state once the judge ruled his mental health records could be part of their case. Outside of the jury’s hearing, they laughingly characterized Neely as an “unhinged nut job.”
Neely was on the top “50 list” of those needing services.
After deliberating for five days, the jury bought the defense’s argument that Neely died due to a “sickling crisis” compounded by K2 use and a psychotic episode. The prosecution’s reference to the many studies indicating that sickle cell was not the cause of death in similar situations didn’t manage to overcome their weak, fearful, and confusing strategy.
After Penny was indicted, over $3 million was raised for his defense fund. His white nationalist followers came out for him at the trial and continue to do so.
“Daniel’s a good guy and NY’s mob district attorney tried to ruin his life for having a backbone,” commented VP-elect JD Vance. His “backbone” comment refers to MAGA’s views that a white person who wants to or fears a Black person has the right to kill them.
This trial was all about white people believing they can do anything—including murder—to protect their race from Black people.
Penny’s acquittal was a legal reconfirmation that Black people can be killed with impunity and without any legal consequences.
“I’ll take a million court appearances and people calling me names and people hating me just to keep one of those people from getting killed or hurt,” Penny alleged after the trial. But he had no problem murdering Neely to “protect” them.
What should be very concerning to readers here is the weak public response from Neely’s supporters. Not many people attended the trial nor the demonstrations outside.
If you haven’t been showing up, there’s still time. Show up for other actions against the verdict. But also come out against the newest stage of the war on Black, brown, Indigenous folks, as well as the poor, disabled, immigrants, and other marginalized groups.
Come out against fascism, law and order, and the impoverishing of society for the benefit of a few billionaires. They depend on fear to accomplish what they want.
Organize your peers, families, and communities—and don’t be afraid.
LA LUCHA CONTINUA!
