Can the system breathe?

​The trial of Daniel Penny begins soon. Two years have passed since the Marine Corps veteran choked Jordan Neely to death on a subway train. Motive of action and degree of intention are yet to be determined. 

The victim had reportedly acted "hostile and erratic" and threw trash and threatened passengers, some of whom perceived they were in danger. Judging from their narratives, that would be natural. 

Neely was not in possession of a weapon and at no time did he or anybody else claim that he was, but he clearly expressed readiness to commit grievous bodily self-harm. He was unmistakably at a breaking point.

Daniel Penny sized up Neely to be more than an anti-social nuisance. He succumbed to the drama of the moment, and Neely succumbed to Penny's neutralization of what may or may not have been an imminent menace to other passengers. 

Witnesses were traumatized yet relieved.

Penny insists that his intervention was solely to keep the peace and avert injury and spiraling mayhem. Passengers overwhelmingly, if not unanimously, viewed Penny's initiative as civic-minded and rational.

Was Neely's death an accident? Was it negligence fueled by racism? Was Penny just playing to an audience? Did he just panic and blow a gasket? Was he driven by hormonal rage? 

Did he simply want to keep Neely incapacitated until the police arrived, and it just didn't work out that way? Did he merely miscalculate in the heat of the moment? Did he welcome the opportunity to mete out "justice,” even if he didn't seek or promote the opportunity?

Is he a good Samaritan or an avenging vigilante?

I'm not schooled in the fine points of the law, which is just as well since there are none anymore. Judicial standards have been abrogated by failure to enforce them universally. Facts cannot be boiled down in a simmering pot of arbitrary allegations. Defaulting to charges of racism is lazy and often conniving. 

Truth and justice are not paint-by-numbers operations.

Did Penny realize what was happening to Neely? If not, then he was not trained in the safe and proper applications of chokeholds, as taught in the military, to law enforcement and in children's jiujitsu classes. If he was clueless to the protocols of responsible strangulation, he had no business experimenting on necks.

Neither surprisingly nor implausibly, Penny allegedly said on a police video that he was simply trying to "de-escalate" the situation and "keep him from hurting anyone else.”

The stakes are too high to allow for any margin of error. 

Under these circumstances, hindsight must be merged with foresight and pre-enabled by it.

Jordan Neely was homeless, had a drug history and a long rap sheet, but his death is no less tragic for his having not been a pillar of society. Once we make such differentiations, we are all lost. 

Life's sanctity is across the board. No classifications belong or rubrics fit. 

It is alleged, with various degrees of sincere belief, default demagogy and perhaps perspicacity, that for no other reason than the victim was Black, and the perpetrator was white, that the tragedy was fueled by racism that may have been subconscious. We cannot look into his heart. We can only speculate and there is no hard evidence. 

There's a lot of race hustling and baiting going on. Also, heroic championing. All vying to be the coin of the realm.

Penny says he is saddened by the tragedy. Because it upended his life or due to the human toll? Have his lawyers counseled him on what sort of person to adopt and project?  

Criminal attorneys are big on billable, thespian tutorials for their clients. They are masters of reinvention.

Even before the trial's first utterance, the public is divided into two main factions of people whose primal passions have made up their minds for them. Plus, a splinter group who actually care to hear the evidence first.

Neely suffered a lot. The dancer and Michael Jackson impersonator's life was star-crossed. Its constellation was largely man-made, not as much by Neely himself as by human indifference masquerading as sound public policy, which zealously protects the right of judgment-compromised people to destroy themselves.

In recent decades, there has been a precipitous drop in the number of hospital beds for psychiatric patients. Thousands of beds have been decertified, especially in New York City, where the number is ludicrously inadequate. Politicians have scored brownie points with civil libertarians who tout "community-based services" over hospital settings, which they equate with imprisonment when it is involuntary.

Manhattan District Attorney Alvin Bragg and Daniel Penny's defense attorney have clashed over whether Neely's psychiatric history and use of powerful synthetic cannabinoids should be raised at trial. They have both calculated their positions based on the odds of getting an acquittal or conviction, rather than weighing whether such clarifying information might advance understanding.

Both have priorities that supersede the interests of pure justice.

A judge ruled that Penny's statements to police could be heard by the jury. Bragg seeks to block witnesses from testifying about Neely's mental and drug abuse history and his dozens of prior arrests for violence on the street and subway, including a random attack on an elderly woman which broke her nose and orbital bones.

Thousands of people have donated over a million dollars to Daniel Penny's defense fund. Florida Governor Ron DeSantis said, "America's got his back.” Bragg wants him locked up for manslaughter.

Jordan Neely was a complex person whose existence was harsh and loaded with extenuating circumstances. His mother was murdered and found in a suitcase alongside a parkway, and he was sent off to foster care. 

He'd been diagnosed with multiple psychiatric disorders and since 2019, was listed on a roster of people “who stand out for the severity of their troubles and their resistance to accepting help,” according to The New York Times. Government dysfunction was an  accessory to his demise. That is a crime for sure.

This man paid his dues. His memory should be for a blessing.