Daniel Penney needs a jury trial for riding the subway, but he may not get one

What does a “jury of peers” look like for Daniel Penny, it’s time to judge in Manhattan Criminal Court for involuntary manslaughter and negligent homicide in the strangulation death of Jordan Neely on the F train in May 2023?

Typically, trial consultants analyze potential jurors by race, age, and gender. but in this casethere is a real gap in the jury transit: who takes the metro every day and who doesn’t.

Would a disproportionate work-at-home jury help or hurt Penny?

Last Monday, Judge Maxwell Wiley invited Approximately 450 potential jurors into his courtroom, giving each group of 90 a standard pep talk about the difficulties of going through the six-week trial.

By mid-morning on Friday, he had whittled the group down to 149, and that day began specifically questioning them to make sure the commission could be fair.

Wiley gently approached the group of 450, asking them if they could serve or not.

Specifically, he told jurors that “if you work for an hourly wage and you know your employer won’t pay you for more than three days of absence, tell us now.”

That’s because the state only pays jurors $40 a day. So if your employer will not pay you for your absence—by law your employer is only required to pay for three days of jury duty—you lose money.

And people least Days off are likely to be earned by hourly workers rather than salaried workers.

Fair enough, but this disproportionate self-selection of hourly workers from the jury pool has unintended consequences and a consequence unique to Penny’s trial: it likely excludes those who take the subway every day compared to those who do not.

Consider: Metro the number of passengers last Wednesdayon the day jury selection began, was only 75% of the pre-Covid norm.

People who rarely take the subway now compared to 2019 are more likely to be “home-based” or “hybrid” workers.

Instead, those who ride the subway every day — grocery clerks, nurses’ aides, security guards — are hourly workers who, the judge acknowledged, will have a harder time serving a lengthy trial.

Plus: Lots of white collar workers working in Manhattan always walked to work instead of going underground every day.

In 2010, 31% of Manhattanites living below Central Park (median household income at the time was $104,512) walked to work.

Only 12.7% percent of Manhattanites who lived above Central Park — median household income $46,510 — walked to work.

What group does Penny belong to?

he told The Post in May, shortly after he strangled Neely on the F train to (he says) protect other passengers from threats of violence by an erratic man who would “take the subway several times a day.”

If that’s true, he looked a lot like the average hourly worker who gets exposed a lot the ever-increasing underground violence and a mess since the end of 2019.

As of August of this year, the number of violent crimes in the metro, while lower than during and immediately after the pandemic, is 19% higher than in 2019.

Crime has increased by 56% more and the rate of underground murders has increased fivefold since 2019.

The more you use the subway and the longer your commute, the more often you’ll encounter crazy things that have exploded in 2020, including people who look like they’re about to turn violent.

I experienced this firsthand when I regularly took the subway back and forth across Manhattan to attend Penny’s trial last week.

On the 4th, I witnessed a nasty incident: a woman threatening to kill another woman, a stranger, on the northbound #6 train, just south of Union Square.

“Keep talking, keep talking, say something and you get poked,” she shouted during the verbal altercation.

No one was hurt, but this thing makes people nervous.

This stress, of course, does not give you a reason to kill someone.

What will the jury consider legallywhether Neely posed an immediate threat and, if so, whether Penny’s actions to neutralize that threat were justified.

But we all bring our own personal prospects in the jury box.

When the 149 potential jurors returned for further questioning on Friday, the judge asked a question that could make up for the initial mistrial: How often do each of them take the subway.

And it was surprising how much no need. Of the first 16 people interviewed, five said that they never or rarely ride the rails.

The same flexibility that allows them to avoid the subway because they work via laptop may be what allows them to serve on a jury in a subway murder case.

Nicole Gelinas is editor of the Manhattan Institute’s City Journal.