Both A Tragedy and A Threat

Clamor, Clarity and the Daniel Penny Trial

Daniel Penny killed Jordan Neely on an uptown F train on May 1, 2023. That is a fact not in dispute. What was in dispute, and what the Manhattan courts were tasked with determining, was whether the killing amounted to manslaughter, the lesser charge of negligent homicide, or something else entirely—a legal act of self-defense taken to the point of tragedy.

In the days following the incident, a predictable storm of outrage swept through New York City. Voices on the airwaves and the streets called for Penny’s prosecution, framing the case as emblematic of broader societal failures: mental illness, homelessness, and the limits of citizen intervention. One week ago that storm reached its legal conclusion when a jury acquitted Penny of the lone remaining charge against him.

The reaction was as fractured as the country itself. Penny became a symbol, and inevitably, a cause célèbre among certain circles of the right. Conservative outlets celebrated him as a hero, a man standing up against chaos. JD Vance invited him to the Army-Navy football game. There, amid the crisp pageantry of cadets and midshipmen—young men and women not much younger than Penny when he became a national figure—he was spotted smiling next to a grinning vice president-elect, looking every bit the polished, less pitiful version of Kyle Rittenhouse.

Eight days after his acquittal on negligent homicide charges, Daniel Penny is JD Vance’s guest at the Army Navy game

What stood out the most about Daniel Penny’s acquittal wasn’t the verdict itself, but the comparative quiet that greeted it. Nineteen months prior, the uproar over Jordan Neely’s death had been seismic, the calls for Penny’s prosecution loud and unequivocal. Activists, public officials, and ordinary citizens demanded accountability for what they saw as an unforgivable act of violence. Yet by the time the jury rendered its decision, the reaction, while impassioned in some quarters, felt muted. Outside the courthouse, protesters decried the not-guilty verdict as an expression of white supremacy. Local officials threw around words like “lynching,” and the country’s most prominent preacher maintained that Penny had escaped justice, but this scattered outrage seemed a pale echo of the torrent of emotion that followed Neely’s death. It was as though the country had moved on, or perhaps the volume had simply been dialed down.

Remembering the Cries for Prosecution

In the immediate aftermath of the incident, Daniel Penny, a former Marine, walked free. Penny voluntarily participated in an interview and later surrendered to authorities —a procedural step that activists framed as yet another affront. To those demanding swift and unequivocal justice, the optics were damning: a white man who had killed an unarmed Black man was being afforded what seemed like special treatment. Lost in the uproar was the fact that prosecutors routinely allow suspects in high-profile cases to turn themselves in when their attorneys have negotiated the terms. For those who had already judged Penny guilty, such procedural nuances mattered little. Justice, in their view, was about punishment, not process.

In the days following the incident, New York Governor Kathy Hochul was, as usual, either vague, noncommittal, or simply uncommunicative when first asked to comment on the morality of the killing. Eventually, she issued a few perfunctory words—predictable, carefully calibrated to avoid alienating any key constituencies. Mayor Eric Adams followed the same formula, offering remarks that balanced generic sympathy with political caution. By contrast, the city’s congressional delegation took a more forceful stance. Alexandria Ocasio-Cortez went so far as to label Penny’s actions as “murder,” a charge that prosecutors never pursued.

During this period a central but erroneous claim emerged: Neely posed no real threat. The ubiquitous refrain was that his only crime was making white people uncomfortable, that his death was a sacrifice to the vague and insidious notion of "white discomfort". In New York Magazine, writer Brittany Packnett Cunningham argued that white people are willing to kill Black people over nothing more than a sense of discomfort—and that society, broadly speaking, permits it.

Reverend Al Sharpton, moving between his roles as minister and media personality , held forth. He delivered a eulogy for Jordan Neely claiming that Penny “killed an unarmed man that hadn’t threatened nobody.” Sharpton aimed to elevate the tragedy into a broader moral indictment. At Neely’s funeral, he asked

“Let me get this right. A boy (Neely, age 30) is on the train screaming for help. May disturb you, may annoy you…there was no language, nobody was threatened, and you grab him and put him in a chokehold?”

Sharpton did not get it right, but he did get attention. The eulogy was covered on the local affiliates of CBS, ABC, was linked to on the NYT homepage, and played on local NPR affiliate WNYC, where the station’s widely respected host Brian Lehrer, a week after the killing stated, “As far as we know he (Neely) was not threatening anyone, as in ‘I’m going to hurt you’, he was just yelling about his mental state.”

Terrified and Scared Shitless

If nothing else, the trial disproved this narrative, offering a few more solid facts upon which a consensus might cautiously rest. The testimony of the dozen or so people on that F train, ranged from unsettled to outright terrified. A middle aged African-American woman described herself as "scared shitless" by Neely’s behavior, offering consistent praise for Penny’s actions from the moment of the incident to her testimony in court. A Hispanic man who helped Penny subdue Neely described the encounter as deeply threatening. Another rider recounted being left “terrified” by Neely’s tone and vehemence. A mother recalled placing her stroller between Neely and her five-year-old child to protect him from Neely as he “lunged at people within a foot of their faces.” A Latina high school student, who referred to Penny during the trial only as "the white man," admitted to being so frightened by Neely’s behavior she thought she would pass out. Another passenger testified that she thought she would die, quoting Neely as saying, “I don't care if I die. I don't care if you die. Lock me up for life.”

These accounts did not of a man merely making people uneasy, but of a situation that felt dangerous, spiraling, and unsafe. Prosecutors, in fact, conceded this point, choosing to focus on the duration of the chokehold, not the original decision to apply it.

The trial left the jury to decide a disarmingly simple question: Should a reasonable person have known that applying a chokehold for as long as Daniel Penny did might kill someone? The jury, having heard the testimony, concluded that the answer was no. From what I’ve read and learned from legal experts, a conviction on the lesser charge of negligent homicide would not have been unreasonable. Yet even that finding, like so much in this case, is debatable. What is certain is that Jordan Neely—sympathetic, tragic, and a walking emblem of systemic failure—was, at the moment Daniel Penny subdued him, a legitimate threat. The trial swept away the improbable, almost poetic assertion that Neely’s death was caused solely by “white discomfort,” a phrase that framed the incident as a kind of racial parable rather than a chaotic, tragic confrontation in a subway car. To be sure, the most hardcore activists still peddle this theory, but unlike the initial outcry demanding Penny’s prosecution, their arguments have gained no real traction.

Of course, some in the political class have clung to more dramatic language. A few, such as Congressman Jamal Bowman, continue to describe Neely’s death as entirely a consequence of white “discomfort,” though Bowman’s influence is waning along with his tenure in Congress. AOC, once vocally accusatory, has fallen quiet since the verdict. Mayor Eric Adams and Governor Kathy Hochul have maintained their trademark non-committal neutrality, but this time there is no chorus of outrage demanding moral clarity from them.

Reverend Al Sharpton has likewise modulated his position. He still speaks of vigilantism but no longer denies that Neely posed a threat. Whether the muted reaction to Penny’s acquittal reflects the broader national mood after Democratic losses, or simply a strategic recalibration by politicians reading the mood of the electorate, is an open question. I’d like to think that media outlets such as New York Magazine or The New York Times have avoided commissioning fresh screeds against the verdict because they value the integrity of the justice system and the deliberation of juries after what appears to have been a fair trial. But that may be overly optimistic.

Broken Fever or Lull in the Storm?

I may be giving too much credit to reason prevailing in a fractious system. I may also be misreading this as a moment of transition, a breaking of the fever where the journalistic impulse to elevate the loudest, most incendiary voices in debates about racism, begins to wane. More likely, this is just a brief pause dictated by the public’s fluctuating appetite for moral outrage—an intermission before the next crescendo.

I also cannot ignore the canonization of Daniel Penny. I can’t say I wouldn’t have compassion for him if he’d been sentenced to prison, but the deification of a former Marine who held another man in a chokehold until he defecated himself and died is not a hallmark of a healthy society. At the same time, I am encouraged that the jury trial marked the outer limits of Penny’s demonization.

The verdict has, if nothing else, illuminated a few basic truths. It has brought a measure of clarity—facts that we might agree upon, or at least should, if we are serious about understanding what happened and seeing it clearly. Most encouraging of all is that the circle of that “we” appears to have grown. The voices that remain shrill, endlessly clamoring, seem fewer and fainter, their power diminished by a collective refusal to heed them.