After Penny’s acquittal in the New York subway chokehold trial, attention turns to a civil case

After Penny’s acquittal in the New York subway chokehold trial, attention turns to a civil case

With Daniel Penny’s criminal trial in the rearview mirror, public attention will likely turn to a civil lawsuit filed last week by the father of the man he was accused of killing, Jordan Neely.

Penny was acquitted Monday of charges of causing Neely’s death when he held him in a chokehold for several minutes on an uptown F train in the spring. Witnesses said Neely, a former Michael Jackson impersonator who suffers from schizophrenia, began shouting threats after he boarded the train. According to evidence presented during the trial, Penny, a former Marine, held Neely in a chokehold on the floor of the train for about six minutes. Neely was pronounced dead soon after.

Prosecutors in the criminal case argued that Penny “went way too far” and held Neely by the neck longer than necessary, killing him. Penny’s lawyers said he was trying to protect himself and his fellow passengers and argued that Penny’s actions may not have directly led to Neely’s death.

Now that Penny has been acquitted, those hoping to see him held accountable will have to turn to a civil lawsuit filed last week by Neely’s estate and his father, Andre Zachery. In the case, Penny is accused of negligently and recklessly causing Neely’s death.

“This really, really hurts,” Zachery said in court after the verdict was announced. “What do we do now, guys?”

According to attorneys who specialize in wrongful death cases, the civil lawsuit has the potential to provide a sense of justice to those disappointed by the jury’s verdict in the criminal case.

“It may be that the best justice system remains,” said Rodger Citron, a law professor at Touro Law Center who specializes in civil litigation. “Here is another case, another forum, where a different jury, applying a different standard of proof, may find civil liability against this defendant.”

Joshua Lax, a civil rights attorney, said the same facts would be considered in a criminal case.

“It would be a similar body of evidence,” he said. “There would be medical evidence. There would be eyewitness evidence. It wouldn’t be that different.”

But while criminal charges require a unanimous decision from 12 jurors to be convinced beyond a reasonable doubt, civil suits only require five-sixths of the jury to find a preponderance of evidence in determining liability.

“It’s a lighter burden,” said Fredrick Brewington, a civil rights attorney. “It is a criminal prosecution that does not involve a prison sentence or anything like that, but rather a fine.”

Brewington compared Penny’s acquittal to OJ Simpson’s 1995 acquittal. In that case, Simpson was not found guilty of criminal charges but was found guilty in the eyes of a civil jury. That jury ultimately awarded $34 million to the family of one of the people he was accused of killing, Ron Goldman, 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 in place and it was put together to ensure that the rights of those accused are protected and to achieve justice for the victims,” Brewington said.

Another key difference between criminal and civil trials is that Penny may not have the luxury of not exercising her right to testify in court in a civil trial, experts said.

Lax, a civil rights attorney, said Penny could be forced to testify in a civil trial because the Fifth Amendment of the U.S. Constitution does not protect defendants in civil cases from self-incrimination.

“He needs to come on the record to explain exactly what he was doing at the time Jordan almost lost his life and then died,” Lax said.

“Are you answering questions under oath about what he did, why he did it? Why didn’t he do it differently? Why wasn’t he paying attention? Why didn’t he stop – he’ll have to answer all that.”

Lawyers said it would be nearly impossible to put a dollar figure on any potential settlement.

“Depending on how the jury views Daniel Penny’s conduct, the score could be very high, on the low end, or not at all,” Lax said.

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