With Daniel Penny’s criminal trial in the rearview mirror, public attention is likely to turn to a civil case that was filed last week by the father of the man he was accused of killing, Jordan Neely.
Penny was acquitted Monday of charges that he caused Neely’s death when he held him in a chokehold for several minutes on an uptown F train this spring. Witnesses said Neely, a former Michael Jackson impersonator who had schizophrenia, started yelling threats after he boarded the train. Penny, a former Marine, held Neely in a chokehold on the floor of the train for about six minutes, according to evidence presented during the proceedings. Neely was pronounced dead soon after.
Prosecutors in the criminal case argued Penny went “way too far” and held onto Neely’s neck for longer than he needed to, killing him. Penny’s attorneys said he was trying to protect himself and his fellow passengers and argued that Penny’s actions may not have directly caused Neely’s death.
Now that Penny has been acquitted, those who hope he will be held accountable must turn to a civil case filed last week by Neely’s estate and his father, Andre Zachery. The case alleges that Penny negligently and recklessly caused Neely’s death.
“This really, really hurts,” Zachery said outside court after the verdict. “What are we going to do, people?”
According to lawyers who specialize in wrongful death cases, the civil lawsuit has the potential to bring a sense of justice for those disappointed in the jury’s verdict in the criminal case.
“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.”
Joshua Lax, a civil rights lawyer, said a criminal case would consider the same set of facts.
“It would be a similar body of evidence,” he said. “There’d be medical evidence. There would be eyewitness evidence. It wouldn’t be that different.”
But while criminal charges require a unanimous decision of 12 jurors to be convinced beyond a reasonable doubt, civil lawsuits only require five-sixths jurors to think there’s a preponderance of evidence in liability.
“It’s a lighter burden,” said Fredrick Brewington, a civil rights lawyer. “It’s a prosecution that’s done not for any form of jail or anything, but a monetary award.”
Brewington compared Penny’s not guilty verdict to O.J. Simpson’s not guilty verdict in 1995. In that case, Simpson was found not guilty of criminal charges, but guilty in the eyes of a civil jury. That jury ultimately awarded the family of one of the people he was accused of killing, Ron Goldman, $34 million and found Simpson responsible for Goldman’s death and the death of Simpson’s ex-wife, Nicole Brown.
“This is a system that we have and it’s been put together for the purpose of making sure that rights of individuals who are accused are protected as well as seeking justice for those who have been victimized,” Brewington said.
Another key difference between criminal and civil trials is that Penny may not have the luxury of using the right to not testify in court at a civil trial, experts said.
Lax, a civil rights lawyer, said Penny could be compelled to testify in a civil trial because the Fifth Amendment of the U.S. Constitution does not protect defendants against 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,” 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.”
Lawyers said putting a dollar figure on any possible settlement would be almost impossible.
“Depending on how the jury feels about Daniel Penny’s conduct it could be very high or it might be on the lower end or not at all,” Lax said.
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