Who's Responsible For The Death Of Jordan Neely?

A young man was killed last week because he was acting erratically on a New York City subway.

With the ensuing protests, potential criminal investigation, and information coming to light that Neely was unmedicated and threatening -- what's the right thing to do? In a way, that's the easy question. The hard question is how to support the tens of thousands of people in New York City and around the country who suffer mental illness without a safety net.

Anyone who's traveled by subway in any major city has been there: Sitting on a train minding their own business when the presence of a person not quite right comes into sight. Whether they're spied sprawled out on a bench crowded with stuffed plastic bags or whether their presence is more menacing -- a person talking too loud, pacing the car back and forth as if it's their private amphitheater, or maybe (as happened to a friend of mine) pulling a machete from their coat -- the average rider is (or should be) aware that danger lurks.

My reaction has always been retreat ... either sink into the seat without making eye contact, or dart for the nearest exit door at the next stop.

There is a good way and a bad way to engage a person suffering a crisis of mental illness. I've engaged with my share of mentally ill people as a criminal defense attorney, but usually with the security of them being behind bars and me on the other side. Trapped in a subway car is a different scenario.

The goal of any subway ride is to get where you're going and move on with your day. Actively engaging someone who's clearly in the midst of a crisis could do one of two things: momentarily distract the person or elicit more hostility. The person clearly needs help, but generally that help should come from trained professionals who might be able to do something useful like bring the person to a hospital or a shelter or figure out if anyone in the community (like family or friends) can care for him.

Nothing like this happened last week. Rather than ignore Jordan Neely, three men intervened. One of them, Daniel Penny, held him in a chokehold so strong, it killed him. Perhaps they thought Neely presented an imminent danger. Perhaps, they were just fed up with the commonality of such outbursts and wanted it stopped. Was Penny's use of force excessive? Sure, it was. It killed Neeley. Was it intentional homicide? Doubtful.

The answer to the easy question, what's the right thing to do now, is to convene a grand jury, let them hear evidence, and decide whether to indict on whatever charges the Manhattan District Attorney's Office deems appropriate. Penny will likely be charged with manslaughter -- negligently killing another person. I doubt there's enough evidence to indict him for murder.

Penny, lawyered up with an attorney who used to work as a Manhattan D.A., will be invited (as Donald Trump was) to testify before the grand jury and tell his side of the story. What led him to intervene? Why a chokehold? Why didn't he let up on the pressure when and if it was clear that Neely was subdued and had no weapons, or at least couldn't reach them? Why did it take so long to call for professional (police) intervention?

While it's clear police are not as trained as they need to be in handling the mentally ill, they at least have some training.

Photos of Neely from 2010 in his doe-eyed innocence impersonating Michael Jackson contrast sharply with the bearded, disheveled man witnesses described as shouting in the subway about being hungry, not caring if he went back to jail, and wanting to die.

We've all been there, but we haven't all engaged. The city (and the country) needs to step up its game for the mentally ill. First of all, they're not all the same. Most are nonviolent. Those acting out are, for the most part, lost for a moment and need to return to treatment and medication.

Those whose families have had enough, or just don't have the means to provide continued emotional or economic support, have the toughest road. That's where the city must intervene to provide shelter, bring them to immediate services, or even short-term hospitalization.

Neely was apparently given this chance after being arrested in November 2021 for punching a 67-year-old woman on the Lower East Side. He was allowed to enter an Alternative to Incarceration (ATI) program and was doing well until he left the program, and a warrant was issued for his arrest.

Police only caught up to him the day he died.

Of my clients in jail, at least 50% suffer some form of mental illness. That's not to say that all mentally ill people commit crime. But some -- who fall through the cracks, live on the street, and resort to desperate measures -- end up in jail, the de facto warehouse for the mentally ill. And when they misbehave there, they go to solitary. That never makes them better.

So, what would remedy the situation? How about a concerted public awareness campaign that starts with destigmatizing mental illness. According to the Centers for Disease Control and Prevention (CDC) at least one person in five in the United States suffer some sort of mental illness. About one U.S. adult in 25 live with a serious mental illness such as schizophrenia, bipolar disorder, or major depression. Painting everyone with the brush of "craziness" -- and therefore dangerous -- is statistically wrong. According to an article by the American
Psychological Association, most people with severe mental illness are not violent. However, when other factors are present such as substance abuse, a history of childhood physical abuse, and having parents who abused substances, the combination is synergistic.

Clearly, homelessness is another aggravating factor. Two of the most important practices for someone dealing with mental illness is getting steady sleep and having access to medication and treatment. Those are among the first things the homeless lose.

There's no easy fix for the hard question -- how to solve the problem. But one start might be, don't hold a guy who's clearly suffering with mental illness in a chokehold when you don't know your own strength. When possible, just get off the train.

Toni Messina has been practicing criminal law since 1990, first as a public defender with the Legal Aid Society, then in her own firm covering both federal and state courts, lecturing on the criminal justice system, and trying over 100 criminal cases including murder, rape, gun trafficking, and white collar matters. She loves her job.