Jordan Neely’s father Andre Zachery filed a wrongful death lawsuit against Daniel Penny days before a Manhattan jury acquitted Penny for negligent homicide on Dec. 9. Zachery’s lawyer, Donte Mills, says the civil case now stands as the family’s final shot at accountability and maintains that they are seeking far more than a payout.
“That’s not how our legal system works. Wrongful death happens when you believe somebody killed someone else, or they died as a result of someone else, and that person was negligent,” said Mills. “I think that’s the case here. But as far as recovery from wrongful death — we didn’t put an amount in the lawsuit [and it is] up to the jury — that’s for the value of the life of the person who died. That has nothing to do with the family, we also don’t even distribute the money. The court does.
“Our job is to hold Daniel Penny responsible, and then a court decides distribution we have nothing to do with that. What the compensation is for is the fact that a life was taken and Jordan’s life had value.”
Neely died on May 1, 2023 shortly after Penny held him in a chokehold for six minutes while on an uptown F train, which prosecutors argued was reckless. The medical examiner ruled the manner of death a homicide via compression of the neck.
But the preceding events caught national attention. Neely, who lived with serious mental illness, entered the train with a threatening outburst. He did not make physical contact and was unarmed. But when he frightened the other passengers, Penny, a former marine, intervened.
A video of the deadly encounter surfaced online soon after. Protests erupted in the city and a week later, Penny was publicly identified and charged for manslaughter and negligent homicide. But across the country, conservative figures anointed the former marine a hero and raised more than $3 million towards his legal defense fund.
The trial began in the fall, with the jury ultimately hung on manslaughter, the top charge, which was ultimately dropped. By then, Neely’s aunt Mildred Mahazu knew Penny would not be convicted. Days later, he was fully acquitted.
“He’s not a policeman. He [had] no reason to put his hands on Jordan,” said Mahazu over the phone. “If he never put his hands on Jordan, Jordan would be alive today.”
Mills, who spoke to the AmNews in his Midtown Manhattan office, believes the prosecution largely laid out the case properly and acknowledged the jury’s hesitation in sending Penny to prison for intervening in a “scary” situation. However, like prosecutor Dafna Yoran, Mills believes Penny went too far.
“The fact that a jury was hung on manslaughter shows me that there are people who believed that Daniel Penny was responsible for Jordan’s death,” said Mills. “We also know that in a civil suit, which is what we’re bringing, the standard is lower. The burden is lower. In a criminal case, it has to be proven ‘beyond a reasonable doubt.’ In a civil case, it is ‘more likely than not.’
“The other part is I truly believe that Daniel started out trying to do the right thing and believing he was doing the right thing. And I think a jury believed that as well and it makes it hard to convict this person of a crime and potentially send him to jail… in the civil case, jail is not an option. So I think it makes it easier for a jury to focus simply on his actions and not the end result.”
Tandy Lau is a Report for America corps member who writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.
Suing Jordan’s loving father and the NY DAs would be the last option for accountability.