Why a Decision About Charges in Subway Chokehold Death May Take Time

Three days after a man choked another passenger to death in a New York City subway car, law enforcement officials said they are still sorting out what happened and whether he should be criminally charged.

To a layperson, what happened may seem obvious: a man held Jordan Neely, a homeless 30-year-old, in a chokehold for several minutes, killing him.

But Mr. Neely’s attacker has not been arrested or charged with a crime, raising questions about how such cases are processed by New York’s legal system and angering many left-leaning politicians and activists who have called the process racist. They have asked why the man, who appeared to be white, was not kept in custody, and argued that were he Black, he would have been.

Law enforcement officials say the specific sequence of events and the laws that may come into play make the incident especially complex.

Mr. Neely, a Black man, had been screaming at passengers on an F train in Manhattan when the other rider put him in a chokehold for several minutes, until he went limp. He died from compression to his neck as a result of the chokehold, according to a spokeswoman for the medical examiner, who ruled his death a homicide on Wednesday.

On Thursday, Gov. Kathy Hochul of New York called the video of Mr. Neely’s death “horrific” and said “there have to be consequences.”

“It became very clear he was not going to cause harm to these other people,” Ms. Hochul, a Democrat, said after an unrelated event in Manhattan. “The video of three individuals holding him down until the last breath was snuffed out of him, I would say was a very extreme response.”

The man, a former marine who has not been identified, is being represented by Raiser and Kenniff, a Manhattan law firm whose founding partners were both in the armed services.

Thomas Kenniff, who was the Republican candidate for Manhattan district attorney in 2021, said that the firm had been in contact with the district attorney’s office and the Police Department about the incident, but did not have any further comment.

The rider who choked Mr. Neely was interviewed by the police and released, and a person familiar with the matter said the rider is not viewed by the authorities as a flight risk.

If he is charged by the Manhattan district attorney, Alvin L. Bragg, the man who applied the chokehold would most likely argue that the force he used against Mr. Neely was justified. Prosecutors would have to prove that he used deadly force without having believed that Mr. Neely was also using deadly force or was about to.

And in order to show those things in court, prosecutors would need to have interviewed every one of the many witnesses to the encounter, to make sure that none of them would say something that would hurt the prosecutors’ case. Prosecutors do not typically bring cases unless they believe they can win them.

Under New York law, a defendant in custody who has been charged with a felony must be released within a strict time limit unless the district attorney wins an indictment from a grand jury and alerts the court to that indictment or the defendant has consented to a delay.

A second time limit comes into effect after an indictment, guiding the amount of time prosecutors have to gather case material, share it with defense lawyers and state that they are ready for a trial to begin. If they do not meet their deadlines, or if the court finds there is missing case material, the case can be dismissed for violating a defendant’s right to a speedy trial.

The Manhattan district attorney’s office said it was still looking at a variety of factors.

“As part of our rigorous ongoing investigation, we will review the Medical Examiner’s report, assess all available video and photo footage, identify and interview as many witnesses as possible, and obtain additional medical records,” Doug Cohen, a spokesman for the office, said in a statement.

Part of the incident in the subway car on Monday was filmed in a four-minute video that was widely circulated. The footage shows two other riders helping to pin down Mr. Neely when the rider had his arms wrapped around his neck. Other passengers looked on.

The responses of the people in the subway car and of law enforcement officials have prompted fury among some New Yorkers about the death of another Black man at the hands of a man who appeared to be white.

“The initial response by our legal system to this killing is disturbing and puts on display for the world the double standards that Black people and other people of color continue to face,” the City Council speaker, Adrienne Adams, said in a statement.

Mayor Eric Adams called Mr. Neely’s death “tragic,” but urged patience as officials complete the investigation. “There’s a lot we don’t know about what happened here,” he said earlier in the week.

Both the Adams and Hochul administrations have been using a variety of tactics to reduce crime and the number of people who are mentally ill and living on New York’s streets.

The mayor has increased the number of police officers on subway platforms, directed mental health professionals and the police to take more people in mental health crisis to hospitals — against their will if necessary — and continued to tear down homeless encampments. But the mayor and governor have also pushed gentler strategies, including expanding the teams of counselors that serve people with mental illness in streets and shelters.

Juan Alberto Vazquez, a freelance journalist who shot the video inside the subway car, said that Mr. Neely had been yelling about being hungry and thirsty. “‘I don’t mind going to jail and getting life in prison,’” Mr. Vazquez recalled him saying. “‘I’m ready to die.’”

Another rider who had encountered Mr. Neely a couple of weeks earlier said he had seemed upset, but had calmed down when she offered him a few dollars. She said he had thanked her “for five minutes.”

When charges are brought hastily when a full investigation has not been conducted, they can be subject to second-guessing.

In another case from July, the Manhattan district attorney’s office was compelled to drop a murder charge against a bodega clerk in Harlem who fatally stabbed an attacker in his store. The clerk, Jose Alba, 61, was initially charged by Mr. Bragg’s office with second-degree murder.

Mr. Alba had argued with the girlfriend of the man he killed, Austin Simon, 35, over paying for snacks for her 10-year-old daughter. Mr. Simon went behind the bodega’s counter and shoved Mr. Alba.

Charges filed against Mr. Alba were criticized in some news outlets, as public pressure against the district attorney’s office mounted. Mr. Adams expressed support for Mr. Alba, saying at the time that New Yorkers should not fear being attacked at their place of employment. “There is a line that must be drawn when you are a primary aggressor, and that is what I saw on the video,” he said.

Nicholas Fandos contributed reporting.

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