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

I wrote this essay for The Guardian, highlighting a fundamentally racist argument that Penny’s lawyeres used in the trial, that it was sickle cell trait – a condition that disproportionately affects Black people – that killed Jordan Neely. This legal argument is common, dangerous, and wrong.

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)…

Click here to read the rest of the essay.