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Grand jury remains unclear for Jordan Neely case a week after chokehold killing
By
Matt Katz
Published May 9, 2023
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By
Matt Katz
Published May 9, 2023
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One week after Daniel Penny put Jordan Neely in a deadly chokehold on the F train, some New Yorkers — most visibly protesters who occupied subway tracks — are impatiently waiting for charges in the case.
“A week seems like a long time to some, but it’s not as important as getting to the right decision on charging using the right process,” said Cy Vance, the former Manhattan District Attorney, in an interview. “And that requires more time, often, than some people feel is justified. But generally speaking, it’s a longer process than people appreciate.”
If arrests happen, the process can play out in two ways.
Manhattan District Attorney Alvin Bragg could file a felony complaint against Penny or any other individual alleged to have been involved in Neely’s death. At that point, the individual would be arrested and a judge would decide whether to hold that person in jail while they await trial. Then prosecutors would have six months to convene a grand jury to move forward with the felony indictment.
Or, Bragg could go directly to the grand jury — presenting any evidence that investigators have accumulated — before moving forward with an arrest. If the grand jury votes to indict, the defendant would then surrender and go before a judge to be arraigned. That’s usually where the person would enter a plea, and when the judge would decide whether to hold him or her in custody. Former prosecutors said that is the more likely scenario if Bragg decides to pursue charges.
One of Penny’s attorneys, Steven Raiser, told Gothamist on Sunday night that he has not been notified that a grand jury has convened, which is legally required if that were to happen.
But while there are few signs yet that Bragg is planning to convene a grand jury, there are reasons he might choose to do so. Once a grand jury is impaneled, according to Jeremy Saland, a criminal defense attorney who once worked as a prosecutor in the Manhattan District Attorney’s Office, evidence can be subpoenaed. In this case, that evidence — like any video footage, 911 calls, and witness statements — could shed light on what happened in the minutes before Penny put Neely in a prolonged chokehold on the floor of the train. And that could determine the nature of the potential charges.
Up to now, two witnesses have described those moments before the incident — one man who told New York Magazine that Neely was acting erratically, and another anonymous witness who said in the news site Hell Gate that nothing noticeable led to the incident.
The highly controversial nature of the case also may prompt Bragg to go to a grand jury before filing charges, Saland said. New Yorkers are debating the nature of victimhood in this situation, and already sympathy for Neely and hunger for justice are cutting across political lines. One of Penny’s attorneys, Thomas Kenniff, even ran against Bragg for Manhattan District Attorney in 2021. A grand jury would allow Bragg to punt the decision on whether to charge Penny.
“The DA is going to be able to say, ‘I did my job with this evidence and gave it to the people of the city of New York, and the state court in Manhattan, to decide appropriate charges,’” he said. “You’re putting that in the hands of the criminal justice system and not an individual DA.”
If a grand jury is convened, Penny could testify to that panel, but doesn’t have to, Saland said.
Although several witnesses are seen on an eyewitness video recording of the incident, and presumably others were on the train before the video began, most have not yet come forward in media reports. That’s because prosecutors who are in contact with witnesses may have advised them to keep quiet, Saland said.
“If I’m a prosecutor what I would say to the witnesses is, ‘I can’t tell you what to do. You are your own person. But I would ask that you do not discuss this publicly because we don’t want to adversely impact the legal criminal justice process. We don’t want to taint it,’” he said.
Regardless of the direction that Bragg goes, his prosecutors and NYPD detectives are now working together on the case. Both agencies have said the investigation is continuing. “The DA’s Office and the NYPD have to reconstruct what occurred, to ascertain the appropriate charges, and what Mr. Penny’s intent was and objective was and goal was when he put Neely in a chokehold that ultimately resulted in his death,” said Saland, who wrote a detailed blog post on the legalities involved.
He added, “Everybody has to pause and let the DA’s office do their job.”
This story has been updated to clarify a quote by criminal defense attorney Jeremy Saland.
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Matt Katz
Matt Katz is a former WNYC & Gothamist reporter.
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Gothamist is funded by sponsors and member donations
Gothamist is funded by sponsors and member donations
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