Daniel Penny needs a subway-riding jury and he may not get one

What does a “jury of his peers” look like for Daniel Penny, now on trial in Manhattan Criminal Court for manslaughter and criminally negligent homicide in the choking death of Jordan Neely on an F train in May 2023?It’s common for trial consultants to parse potential jurors by race, age and gender.But in this case, the real divide in the jury pool is transit: who takes the subway every day, and who doesn’t.Would a disproportionate “work-from-home” jury help Penny, or hurt him?Last Monday, Judge Maxwell Wiley invited 450 or so potential jurors into his courtroom, giving each batch of 90 a standard spiel about the difficulties of serving on a six-week trial.By Friday mid-morning, he’d winnowed the group down to 149, and that afternoon began to specifically question them to make sure the panel can be fair.Wiley took a mild approach with the 450-person group when asking them if they were or were not able to serve.Specifically, he told the jury pool that “if you work for an hourly wage, and you know your employer won’t pay you for more than three absent days, let us know now.”That’s because the state pays jurors only $40 daily.

So if your employer won’t pay you while you’re absent — by law, your employer is required to pay for only three days’ worth of jury duty — you’re losing money.And the people least likely to be paid for days off are people on hourly wages, not salaries.Fair enough, but this disproportionate self-selection of hourly workers out of the jury pool has an unintended consequence, and a unique implication for the Penny trial: It likely removes those who take the subway every day, relative to those who don’t.Consider: Subway ridership last Wednesday, the day jury selection began, was just 75%  of the pre-COVID normal.The people who take the subway rarely now, relative to 2019, are more likely “work-from-home” or “hybrid” workers.Those who are on the subway every day, by contrast, are grocery clerks, nu...