Jordan Neely’s estate and his father are pursuing a civil case in response to Daniel Penny’s acquittal, seeking justice for Neely’s death caused by a fatal chokehold.
Penny was acquitted Monday of criminally negligent homicide in Neely’s chokehold death on a crowded F train in New York City last year. With his criminal trial behind him, Neely’s father, Andre Zachery, is moving forward with a civil case that could require Penny to testify, the Gothamist reports.
“It may be that the best justice left,” said Rodger Citron, a law professor at Touro Law Center who specializes in civil procedure. “Here is another case, another forum in which a different jury applying a different standard of proof may find civil liability against this defendant.”
Penny faced a potential four-year prison sentence after the more severe charge of second-degree manslaughter had been dismissed. Neely, a 30-year-old former Michael Jackson impersonator living with schizophrenia, had begun yelling threats after boarding the train on May 1, 2023. His final moments, captured on bystander video, sparked weeks of protests and garnered national attention.
Prosecutors in the criminal case accused Penny of go
ing “far beyond what was necessary” when holding Neely in a chokehold for an excessive duration, ultimately leading to his death. Meanwhile, Penny’s attorneys argued he acted in self-defense to protect himself and other passengers, suggesting that his actions might not have been the direct cause of Neely’s death.However, Zachary’s recently filed civil case argues that Penny acted negligently and recklessly, causing Neely’s death.
“This really, really hurts,” Zachery said outside court after the verdict. “What are we going to do, people?”
A civil lawsuit differs from a criminal case in that it requires only five-sixths of the jurors to agree there is a preponderance of evidence to establish liability, whereas criminal charges demand a unanimous decision from all 12 jurors, convinced beyond a reasonable doubt. Another difference is that Penny might not have the option to avoid testifying in a civil trial as he did in his criminal trial. One civil rights attorney says he could be compelled to testify because the Fifth Amendment of the U.S. Constitution does not shield defendants from self-incrimination in civil cases.
“He will have to go on record to explain exactly what he was doing at the time that Jordan nearly expired and then subsequently died,” civil rights attorney Joshua Lax said. “Answer questions under oath about what it is he was doing, why he was doing it? Why didn’t he do things differently? Why didn’t he pay attention? Why didn’t he stop — all of that he’s going to have to answer.”
It would also be up to the jurors to decide how much the settlement to Neely’s estate would be.
“It could be very high or it might be on the lower end or not at all,” Lax said.
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