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Kai Wright: Hey, this is Kai. On this past Sunday's show, we talked about homelessness and the fact that both the problem and the solutions to homelessness are hiding in plain sight. If you missed the episode, scroll back one in your feed. I do think it's an important one. The context for that show was the killing of Jordan Neely on a New York City subway train. We didn't talk in detail about his story because we wanted to focus on solutions, but for me, Jordan Neely's death raised deep and fundamental questions about our whole society, about what kind of people we are and why.

Right after the news broke, my colleague Brian Lehrer had a live conversation in which he confronted those kinds of questions with The Nation's justice correspondent Elie Mystal. It's an emotional exchange and one that eventually does talk about the legal ramifications in the case as well, so I want to share that with you. Here's WNYC's Brian Lehrer.

Brian Lehrer: The Nation magazine's justice correspondent Elie Mystal has an article this morning headlined One Man Killed Jordan Neely, but We All Failed Him. Elie Mystal joins us now. Thanks for coming on with us again, Elie. Sorry it's under these circumstances.

Elie Mystal: Yes. Hi, Brian. How are you?

Brian Lehrer: Okay. I'll note that your article starts with the almost obvious counterfactual, "What would the legal system be doing now if it was a Black wannabe vigilante who placed a chokehold on a white man behaving erratically but not attacking anyone?" Want to go there?

Elie Mystal: That's a fine place to start. There is no version of events where a Black man on the subway sneaks up behind a white homeless person. I don't care if that white homeless person was loud, menacing, what have you. There's no version of events where a Black man sneaks up behind that white person, chokes them to death in broad view of the other passengers, has that murder captured on video, and then goes home after a brief chat with police. There's just no version of events where that happens.

If you think there is a version of events where that happens, you need to actually go back to some kind of school because there is no lived Black experience that would tell you that a Black person could get away with doing what this former Marine did.

Brian Lehrer: Listeners, I want to give out the phone number right away because people are already calling in on many of our lines. We do want to make this, in addition to whatever conversation that I have with Elie, about anything you want to say or ask about the chokehold death of Jordan Neely. We offer this platform for you as we do. 212-433-WNYC, 212-433-9692. Elie, you also question whether it's really just mental illness or also a kind of rational response in a way to be screaming in a hostile and erratic way if everyone ignores your existence. Want to elaborate on that?

Elie Mystal: This is difficult because I think we as New Yorkers, we are so inured to the poverty and desperation of others around us. We can't go through our days in this city, in this wealthy city, we cannot go through our day without seeing the indices of poverty, homelessness, desperation. We all develop a kind of defense mechanism, a coping mechanism, if you will, of basically ignoring it, basically putting it out of your mind. We can't live in the cognitive dissonance between us having so much and some people having so little.

Just to take the sting off of it, I'll personalize it to me. I can't live with the cognitive dissonance of that, so I ignore it. I walk past homeless people all the time. I have two small children. I have a 10-year-old and a 7-year-old. I'm in the process of teaching them to walk past, to ignore the desperation when we're trying to go to the Nintendo store. When that is your existence of people, people like me, ignoring you, just refusing to acknowledge that you're there, how can you tell me that screaming is the bridge too far?

How can you tell me that yelling, expressing your desperation for food, how can you tell me that that is not only the bridge too far, but that's the capital crime that should get you killed because you screamed at, for lack of a better word, jerks like me who were just trying to keep their head down in their iPhone on their way to lunch? I should be screamed at. I should be made uncomfortable by that. The idea that my discomfort is somehow the justification to murder a man, [scoffs] I understand that there are people who are going to disagree with me, but I find that very difficult to swallow.

Brian Lehrer: People who know your work may be surprised by one of the next things you wrote in your article, which is you write that you have empathy for the choker, and you wonder if he was struggling with mental illness too, a former soldier reacting with disproportionate violence to a tense but non-violent situation. Would you elaborate on that?

Elie Mystal: Yes, Brian. Look, the racial politics are the racial politics of this situation, and there's no avoiding that. Hasn't been confirmed by the media so I'm going off of reports now, but when I heard that he was a former Marine and I thought about what we do to soldiers, how we change them, how we change their responses, how we change their reactions to things, how we teach them to kill, and we teach them to kill telling them that this is in defense of other people, how we need them in some situations to have those skills, and then how we dump them back in normal society, peacetime society so often without the services, the support, the counseling, the therapy that they need to readjust.

Maybe the choker had hatred in his heart. Maybe the choker was a bad guy. I don't know. Maybe Neely had hatred. I don't know these people as people and I don't claim to, and I don't actually think that that's the important part here what they were in their other lives. In this moment, what I see is a former soldier who has reacted disproportionately violently to, yes, a tense, but situation that happens on the subway all the time. I can't help but think and wonder and question whether or not he also had the mental health services that he needed to readjust to living in one of the most densely packed cities in the world.

Now, that empathy, Brian, that doesn't mean that I don't think that he's criminally responsible for his actions. Two things can be true at the same time, and I think the story demands that people be able to live with nuance and complication and gray. Just because he may have been suffering or I wonder whether he was suffering from his own mental travails doesn't mean that that's a justification for homicide, but it does mean that it's another aspect of how our entire society, certainly our city, has failed in this moment.

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Brian Lehrer: It's Notes from America. We'll be right back.

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Brian Lehrer: Brian Lehrer on WNYC with Elie Mystal, justice correspondent for The Nation, as we talk about the chokehold death of 30-year-old homeless Black man because race is an issue here killed by a white 24-year-old former Marine as he's being described on the F train. Before we go to some callers, I quoted The Post calling the choker a wannabe vigilante thinking it was kind of a condemnation. You also cite The Post calling him a vigilante, but I think you took it more as a compliment. How do you read that word in The Post?

Elie Mystal: Yes. I'm old enough to remember what the white New York media thinks of vigilantes. I'm old enough to remember what these people did to Bernard Goetz. Bernard Goetz was to me an evil man who shot four unarmed Black people on the subway in 1984 paralyzing one of them. Papers like The Post ran an entire public campaign defending Goetz's crimes as subway vigilanteism. He was trying to defend himself.

When I hear the word vigilante from the white press talking about a white man who has murdered a Black man, I know what they mean by that word. They're not thinking vigilante as in something that needs to be punished by society. They think that they found their white Batman, and that is an aspect of the story that, and I think you hear from my analysis, Brian, I am trying hard not to graft what people like The New York Post are going to try to do onto whatever motivations this ex-Marine had. I'm trying to keep those two things separate in my mind.

What these people think he was doing versus what he thought he was doing may well be two different things, but Lord knows I see what The New York Post is going to try to do coming from a mile away.

Brian Lehrer: Legally speaking, the Bernard Goetz case, for a lot of our listeners who weren't even alive when that happened 40 years ago,-

Elie Mystal: God, I'm so old.

[chuckling]

Brian Lehrer: -he was a white man who had been previously mugged. When four young Black males approached him on the subway and asked how are you doing and asked for $5, he shot them anticipating that he was going to be mugged, according to him. Long legal story short, he was found not guilty. With your lawyer's hat on, can you explain New York law as it applied to that case and how it might apply to this?

Elie Mystal: Yes. The Bernard Goetz case to me is a classic case of jury nullification. The man attempted to murder those Black people, but he was let off by a jury of his peers, of his overwhelmingly white peers, who decided that shooting Black people who bother you on the subway isn't actually a crime. When we think about what might happen to this ex-Marine, that thought still holds true. Choking Black people to death who bother you on the subway might not be a crime in this city. Even if he's charged with a crime by DA Alvin Bragg, a jury of his peers might well say, "That guy was scary, and he got what was coming to him."

Look, I want to say, again, like I said, this is a area of gray. Had I been on the subway, I would have been scared too. We live in a violent society, and I don't think that that violence is because the subway is inherently violent. I think it's a violent society because the NRA and Republican gun laws have turned the society into a war zone. Given the proliferation of guns, given the proliferation of mass shootings, had I been on the subway in that moment, I also would have been afraid. Fear, and now I'm putting the legal hat on, is not a justification for homicide. We are not precogs, we are not Miss Cleo, we do not live in a world where you can murder somebody because of what they might do.

Trust me, trust me, y'all don't want to live in a world where I can murder somebody because of what they might do to me in the future or you can murder somebody because of what they might do to you in the future. That world, Brian, makes New York City itself an unworkable proposition. Okay? If we are literally going to live with eight million of our citizens and be able to kill each other based on what another one of us may do, could do, looks like they're about to do, that would make the entire city unworkable, so no. As the medical examiner has ruled it a homicide, legally the question will be whether or not that homicide is justified.

I am taking the straphanger side on that one, not that I personally believe it, but let's just go with the report. The fact that he was allegedly frightening people is not a justification for homicide. Now, what kind of a homicide is this? Again, with the legal hat on, I see manslaughter as opposed to murder, just eyeballing it from the video, from the whatever. The key difference in a legal weedy way is murder requires a real intent to kill, manslaughter doesn't necessarily require that intent.

At some level, again, when I say New York City failed this man, it is the actions of the other passengers that I think knocks this down to manslaughter because as the reporter who took the video said, as opposed to helping the guy, they didn't think they were killing him. The same reporter said, I read in one of the stories about it, that another passenger stepped over the lifeless body and said, "He'll be all right." I don't know why-

Brian Lehrer: I saw it. That happened.

Elie Mystal: -we're like this, but not everybody has gotten the memo that chokeholds can kill. I don't know if they thought they were watching the WWE or something, but as they saw it happening, not everybody on the train even registered that what they were seeing was death.

Brian Lehrer: Go ahead. Do you want to finish the thought?

Elie Mystal: I think that the killer will have, just based on the reaction of the other passengers alone, a credible case to say that he didn't intend to kill the man, and that's why I say this comes to me more like manslaughter, which is a non-justifiable homicide but one that doesn't involve quite the same level of intent, one that involves questions of recklessness or intent to do something inherently dangerous, but not the intent to kill.

Brian Lehrer: Warren in Brooklyn, you're on WNYC with Elie Mystal, justice correspondent for The Nation. Hi, Warren.

Warren: Hi. Thank you for covering this topic. As a regular subway rider, I've noticed an uptick in policing on the platforms and even announcements by train drivers when we get to a platform of an NYPD presence. Given the response time here, it doesn't seem like that really was effective. I'm also curious to be more effective in situations like this to have a similar amount of social workers who could provide de-escalation services instead.

Brian Lehrer: Warren, thank you. Elie.

Elie Mystal: Yes, Mayor Eric Adams, maybe more cops isn't the answer to everything wrong in the world. Maybe more cops doesn't magically solve everything, Mayor Adams. Maybe, Mayor Adams, the problem here is not that the man had the temerity to be homeless in public, to be homeless on the subway. How dare he? Maybe the problem is not that people saw him. Maybe the problem is that nobody helped him. I would like the mayor to consider that as he muddles through his response to this. I would like the governor to consider that as they muddle through their responses.

Brian Lehrer: Pushback on that might be he wasn't ignored by the system. According to the reporting in The Times, he was given a safe house, supportive services housing for a time. They don't say how that ended. Also, that group, Bowery Residents' Committee that's quoted, saying they've been doing outreach with him. Also, a friend was quoted saying, "Reach out when you're ready to get help." What's ignoring, what's a system in place, what's not ignoring?

Elie Mystal: It is difficult to force a person to receive mental health services if they don't want to. The complication there is that often the people who need the services the most are the ones who don't think they need the services anymore, so there is definitely complication and outreach there. My point is simply that this is not complication and outreach that can be fixed with more cops. This is not complication and outreach that can be fixed with more incarceration.

Again, while the man was in distress and while he was allegedly hostile to the other passengers, he was non-violent. He did not hurt anybody on that subway that day. The idea that this requires some kind of police response as opposed to some kind of social response, the situation itself proves the lack of utility of more cops in every situation.

Brian Lehrer: Shelly in Westport, you're on WNYC. Hi, Shelly.

Shelly: Hello, Brian. Thank you for taking the call and for starting all our days with inspiration and faith that we can make this a better world. I want to caution us about mental health services because it's becoming a catchphrase, and the very people who need it most are not the ones who are going to sit down for their telehealth appointment at ten o'clock every Tuesday. Yes, I like the idea of the social workers on the train, but I would use them to calm the other passengers because, as you say, this guy wasn't violent. We need the concrete services. If people don't have food, if people don't have a comfortable place to live, yes, they're going to be upset. We need to shift our priorities.

I'm especially concerned about attributing mental health to everything in terms of the gun issue. If you know there are a lot of mental health problems around, you get rid of the guns. If you know three-year-olds are going to touch hot stoves, you do something to keep the kids away from the hot stove. Thank you all for what you're saying and what you're doing. This is a tough case, but it's only by working together and shifting some priorities. I heard those calls about the landlords. If we protect others, it's the only way to protect ourselves.

Brian Lehrer: Shelly, thank you very much. One more call.

Elie Mystal: Thank you so much. I just have a quick surprise there. I agree with all that. It's part of what I'm saying. Again, one of the reasons why I think this is such a New York story is that we as New Yorkers, we have to be able to live together with this. We have to be able to deal with the with the occasional person acting out, yelling, screaming, acting a ruckus in public without murdering them. That is the proposition that a large urban environment is based upon. We have to be able to do better than that.

Brian Lehrer: I wanted to take one more call, but we have some other breaking legal news on a story that we covered in depth yesterday that I want to get your take on, Elie. The Proud Boys' January 6th trial, just in, four of the five leaders of the Proud Boys have been convicted. What I want to ask you about this is something we discussed on the show yesterday. They seem to have had this Trump made us do it defense. That they didn't come up with the idea to try to violently block Congress from verifying the election, although that's what they were accused of. They say Trump called them to arms.

Now the jury has rejected that defense, presumably for four out of the five, and convicted these Proud Boys leaders holding them responsible for planning the attack on the Capitol, I guess not Trump. Does it make it harder for the special counsel investigating Trump to file possible charges against him?

Elie Mystal: Nope. Not at all. If anything, I would say that living in a world where the button people get convicted, where the people who carry out the deeds get convicted, but the person whose the deeds we're in support of, the person who told them to stand by and stay ready, that person doesn't get charged, that's a bad world. That's not something that we should accept, so no, I don't think the Proud Boys' verdict should have any impact on any investigation for Trump.

I don't think it should have had any impact if it had gone the other way. If they had gotten off or if the Trump made us do it defense had worked, I don't think that should have had any impact on Trump's culpability. They're two separate cases. Their actions or responsibilities under the law are two different things. You have to treat the Proud Boys as one case, and that has been now dealt with, and you have to treat Trump as a separate case, and I'm waiting to see if anybody has the gall to ever deal with that.

Brian Lehrer: Enrique Tarrio, leader of the Proud Boys, now convicted of seditious conspiracy this morning. One more, Elie. In the E Jean Carroll versus Trump rape and defamation lawsuit, the defense has decided not to present a defense case at all on Trump's behalf after E Jean Carroll herself testified in her plaintiff's side of the argument and brought witnesses. How do you understand what the Trump side is doing by not mounting a defense?

Elie Mystal: It's not entirely unusual. It's weird. It's not entirely unusual. It's because the burden of proof lays with the plaintiff. In this case, E Jean Carroll is trying to make the case that Trump defamed her. I happen to believe her, but that's a legal standard. What the Trump defense team is saying is simply that she didn't meet the legal standard to prove that he defamed her, and so there's nothing for us to defend is what they're trying to say. Now, it's a lawyer move you do when you don't have a great defense.

[chuckling]

Elie Mystal: They're not hiding the ball there, but what I would say is that it's not a crazy lawyer move. It's a move that I think people have seen before and we'll see if it works.

Brian Lehrer: Elie Mystal, justice correspondent for The Nation. His latest article is about the chokehold death on the F train saying we all failed 30-year-old Jordan Neely. Thanks a lot, Elie.

Elie Mystal: Thank you so much for having me, Brian.

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