Daniel Penny’s lawyers used a racist defense strategy and it worked | Moustafa Bayoumi

Make no mistake, Daniel Penny was acquitted this week of choking Jordan Neely to death on the New York City subway after his lawyers invoked some of the most institutionally insidious appeals to anti-Black racism around.

Penny’s defense lawyers and his legions of fans will say otherwise, of course. They’ll point out that Penny, a 26-year-old former marine, was merely protecting himself and his fellow passengers from Neely, a 30-year-old unhoused Black man suffering from schizophrenia. And they’ll argue that if race did matter in this trial, it was only Penny’s race that mattered. Penny’s attorneys (and the New York Post) vehemently objected when the prosecution described Penny, who is white, as “the white man”, as if pointing out the obvious was some underhanded masterpiece of racial guilt-tripping.

But don’t believe what the lawyers said, no matter how loud they said it. Believe what they did.

Penny’s defense team paid an expert witness, Dr Satish Chundru, nearly $100,000 to testify at the trial, which had a mostly white jury composed of seven women and five men. By the time Chundru took the stand, the facts of Neely’s death were clear. Neely entered an uptown F train on 1 May 2023 and, clearly in distress, began yelling that he was hungry, thirsty and ready to go to jail. Less than 30 seconds later, Penny had Neely in a chokehold called “the blood choke” that Penny’s own marine trainer testified was used improperly by the ex-marine. That specific chokehold will render a person unconscious after only 13 seconds, the Marine Corps martial arts instructor testified, at which point one should stop. Penny held Neely in the chokehold for about six minutes, including a full 50 seconds after Neely had gone limp.

Both common sense and medical science would dictate precisely what the medical examiner found. Neely’s cause of death was asphyxiation due to Penny’s chokehold. But that’s not what Dr Chundru determined. According to Chundru, Neely died of a mix of factors: his schizophrenia, drugs in his system, and the fact that he was a carrier of a genetic trait called sickle cell. “This is not a chokehold death,” Chundru testified.

And here’s the problem. Sickle cell trait is an inherited and normally asymptomatic blood condition that mostly means the person with the trait is simply a carrier of a specific gene. I’m personally a carrier of a related condition called thalassemia. (Full-blown sickle cell disease requires two sickle cell genes, not just the one carried by those who have sickle cell trait.) There is simply no good scientific evidence that the sickle cell trait plays any role in choking deaths. The American Society of Hematology even warns that deaths attributed to sickle cell crisis “must be viewed with profound skepticism”.

Now take a guess which population in the United States most often carries the sickle cell trait? Upwards of 10% of African Americans are carriers of the gene, far and away more than any other population in this country (and more than 90% of those with full-blown sickle cell disease in the United States are Black people). In 2021, the New York Times investigated the dubious practice of blaming the deaths of Black men at the hands of law enforcement on the sickle cell trait, finding at least 46 instances in what “was almost certainly an undercount”.

This racially marked determination is very similar to the finding of “excited delirium”, another racially coded finding used by authorities around the country. “Excited delirium” is a diagnosis not found in the DSM, the standard classification of mental disorders used by mental health professionals in the United States, but that hasn’t stopped the authorities from invoking it. As Columbia University’s Dr Paul Applebaum explains, excited delirium “has been used to explain fatalities of people in police custody, especially deaths of young Black men, and to exculpate police officers from responsibility”.

What findings of “excited delirium” and “sickle cell trait” both do is pathologize Black people, especially Black men, by turning their own bodies against them in a court of law. The news site Gothamist understood this in a report filed from Penny’s trial. Penny’s lawyers, Gothamist reported, “argued that [Neely’s] own cells starved him of oxygen – not their client’s arm wrapped around his neck”.

I don’t know if the jury was swayed by Dr Chundru’s testimony. We’ll have to wait to hear directly from the jurors to know what transpired during their deliberations. But what I do know is that, in 2021, lawyers representing Derek Chauvin, the Minneapolis police officer convicted of murdering George Floyd, sought the same sickle cell trait defense in a motion to dismiss the case against their client. It didn’t work.

What I do know is that, unlike the Derek Chauvin trial, this time around the use of the sickle cell defense has left the realm of law enforcement and migrated to the case of a citizen vigilante executing his own justice, which worries me owing to the expansion of its use.

What I do know is that, again unlike Derek Chauvin, Daniel Penny is a free man today, indicating a serious rightwing turn in how our juries and the public are assessing high-profile cases about the deaths of Black men like George Floyd and Jordan Neely.

What I do know is that Vice President-elect JD Vance posted on X.com “thank God justice was done in this case. It was a scandal Penny was ever prosecuted in the first place.” And Rudy Giuliani posted: “A great act of justice by 12 fair New Yorkers rejecting the racist, unjust charges of Bragg, the Soros imposed DA. Daniel Penny is a hero and deserves a medal from NYC and [Donald Trump].” And Kyle Rittenhouse, acquitted in 2021 of shooting three people at an anti-racist protest in Wisconsin (killing two), posted “Congratulations on your NOT GUILTY Daniel Penny!!!!” and “Self-defense is still alive in this country.”

What I do know is that an online Daniel Penny legal defense fund raised over $3m, including a $10,000 contribution from Vivek Ramaswamy and $5,000 from the musician Kid Rock.

What I do know is that Jordan Neely never physically touched anyone in that subway car, and that there’s a long history of white people killing Black people without due process in this country.

What I do know is that Jordan Neely was hurting and hungry and now he’s dead. And our criminal legal system has determined that this outcome is just fine.

What I do know is that, while this verdict is seen as a vindication for the principle of self-defense, Jordan Neely was armed with nothing more than a muffin in his pocket. And the idea that all the Daniel Pennys in this city can exercise their vigilante violence on others in this city out of some undefined notion of “safety” and later rely on explicitly racist defense strategies like sickle cell trait, makes me feel like I and a lot of the rest of New York City are now living in a lot more danger.