Why Jake Gardner Died
White defendants accused of racially sensitive crimes can’t assume that the legal system will treat them fairly.
The Lost Sons of Omaha: Two Young Men in an American Tragedy, by Joe Sexton, Scribner, 384 pages.
It was a masterstroke of coincidental timing that Joe Sexton’s book about the deaths of Jake Gardner and James Scurlock happened to be published exactly one week after the fatal encounter between Daniel Penny and Jordan Neely on a Manhattan subway train.
The two incidents have a lot in common: Jake Gardner and Daniel Penny both served in the Marines; Scurlock and Neely both had long criminal records; in both confrontations, the white man claimed to be acting in self-defense; police initially believed them, but outcry based on the racial optics pressured authorities into bringing down on both men the full weight of the law.
Whether Daniel Penny will be convicted on his manslaughter charge is still in doubt. Unfortunately, there is good reason to think that the factors behind the Jake Gardner tragedy were not an anomaly from the hysterical summer of 2020 but are the new normal that Penny and every other similarly situated white defendant will have to deal with from now on.
The facts of the evening of May 30, 2020, are not in dispute. They were captured on camera from multiple angles. Jake Gardner and his father Dave were camped out in Jake’s bar called “The Hive” to protect it from looters during Omaha’s Black Lives Matter protests. Dave stepped out of the bar to confront a group of people breaking windows, one of whom he shoved. (Dave was 69 years old and weighed 140 pounds from undergoing chemotherapy.) A young black man came barreling out of nowhere and tackled Dave to the ground. Jake came over to protect his father. Two people tackled Jake and pulled him to the ground. He fired a warning shot and the two assailants backed off. Then James Scurlock jumped Jake from behind and tried to put him in a chokehold. Jake fired the fatal shot over his shoulder.
Gardner was a former Marine defending his lawful property and an elderly cancer patient. Scurlock was a face-tattooed habitual criminal on a looting spree. Security cameras showed him breaking the windows of Gardner’s bar shortly before the confrontation and also ransacking an architecture firm’s office down the street. He had just gotten out of prison for assaulting the mother of his baby and breaking her windshield.
You would think that anyone could conclude that, of the two of them, Gardner had the law on his side and rightly so. How did it get to the point where Sexton feels the need in his book to make the two men morally equivalent, much less the point where Gardner was charged with four felonies?
Because people lied shamelessly. One of the two assailants who first tackled Jake Gardner to the ground, a female protester named Alana Melendez, told a freelance video reporter within minutes of leaving the scene, “A white supremacist just killed a black man.” When he interviewed her for the book, Sexton asked how she knew he was a white supremacist. “I just knew. I don’t know,” she said. “It’s just what came out of me. If some stupid white fucker came to this protest with a gun, that’s what he is to me. And I knew that that would grab people’s attention.”
The most active proponent of the theory that Gardner was a racist was a blogger named Ryan Wilkins. A local lawyer who claimed to have gone to high school with Gardner, Wilkins wrote a series of blog posts accusing Gardner of being a “known white supremacist.” He claimed that Gardner had a swastika tattoo and had put hidden Nazi symbols in the logo of his business. He said Jake’s father was “a former drug-trafficker” who got involved with white supremacists during a stint in prison in Texas and that Jake used to join his father on drug runs.
Wilkins was assisted in his campaign of character assassination by a mysterious online figure who claimed to be Jake Gardner’s cousin and supplied Wilkins with tales of hearing the n-word at family barbecues and other racist behavior. This figure turned out to be a local sociology professor named Jenny Heineman, a self-described feminist and former sex worker. She was indeed a second cousin on Jake’s mother’s side, but family members told Sexton that, if Gardner and Heineman had ever met at a family function, “it was fleeting, and likely twenty years ago or more.”
To determine whether Jake’s father had ever spent time in prison in Texas, Sexton hired a private investigator, who found no evidence he had. He saw the autopsy report that catalogued all the tattoos on Jake’s body—no swastika. He gave the Hive logo to a research fellow at the Anti-Defamation League, who found no secret Nazi symbols. Sexton finally got Heineman to agree to an interview (she had at first insisted he hand over the story to a black female reporter), and she admitted that she had never witnessed a single example of racist behavior by Jake or his parents. “She said she’d been speaking as a sociologist, placing him in a broader sweep of the country’s racial history.”
It would be bad enough to have nutcases like Wilkins and Heineman slandering you online, but their lies did not stay online. These people were called in by special prosecutor Fred Franklin to assist in his investigation and helped to shape the indictment against Gardner. There was a direct pipeline between Twitter rantings and the law.
According to Wilkins, he was a “background witness” and helped the special prosecutor connect “with a few other witnesses to Gardner family racism and the shooting—some of whom later testified before the grand jury.” Sexton leaves it ambiguous whether Heineman testified or not. She says she didn’t; other parties hint that she did. One of the police investigators told Sexton that he specifically warned Franklin against calling Heineman, which suggests that Franklin at least considered it.
“The idea that Franklin had even contemplated calling her seemed unthinkable,” Sexton writes. “She was not a witness to the incident; she had no communications with her distant cousin that might have somehow been helpful. She had merely made unverifiable and inflammatory claims about her supposedly racist family.” It is all the more astonishing considering that Franklin never sought testimony from several eyewitnesses to the fatal encounter, including Dave Gardner and a cousin of James Scurlock's who was in his looting party that night.
Sexton obviously thinks very little of the special prosecutor, who only got the job because Omaha did not have many other prominent black attorneys to choose from. Sexton catches Franklin in some stunning gaffes, including altering the words of a text message to make a quote from Gardner sound more sinister. Franklin told Sexton that he suspected Gardner had staged the confrontation at that particular spot because he thought he was out of range of the security cameras. “I found this, frankly, breathtaking,” Sexton confesses. The idea that Gardner was thinking about camera placement was “really, to be honest, a fantasy.”
In a press conference after the indictment, Franklin said, “The day before this shooting took place, Donald John Trump tweeted, ‘When the looting starts, the shooting starts,’ and the evidence is significant in terms of Jake Gardner’s affinity for the president.” Franklin’s theory was that Gardner had been waiting in ambush inside his bar with the intention of killing a protestor, which would make him the aggressor and negate any claim of self-defense. His support for Trump was evidence that that was the kind of thing he would do.
Did Franklin steer the grand jury toward an indictment by throwing out a lot of tenuous evidence of racism, like voting for Donald Trump, and downplaying the exculpatory facts? The only way to be sure would be to see the grand jury transcript. Sexton tried to get a look at it. So did Jake’s parents. It remains sealed.
Indicted on four felony charges, Jake Gardner killed himself on September 20, 2020, the day he was supposed to turn himself in. Obviously he should have chosen to live. But no one could possibly have reassured him in his final days that he should trust the legal process to come to the right conclusion, considering how badly it had served him up to that point.
Daniel Penny released his first video interview over the weekend. In it, he explains his side of the story of the subway confrontation, emphasizing Jordan Neely’s threatening behavior and the justifiable fear that he and other passengers felt. He carefully rebuts all the media myths about the encounter: no, he didn’t target Neely because of his race; no, he didn’t keep Neely in a chokehold for fifteen minutes, more like five. My guess is that Penny received coaching from media professionals in how to come across as sincere, confident, and empathetic—which is not to say that he isn’t genuinely all those things.
Releasing videos is an unorthodox move for a criminal defendant. You are supposed to let the legal process work itself out, not try the case in the court of public opinion.
Get weekly emails in your inbox
That was a rule for yesterday. Gardner followed that rule. So did Derek Chauvin. (Do you even know what Derek Chauvin’s voice sounds like?) How did it work out for them? Their silence left a void that was filled by deranged and unscrupulous race hustlers whose version of events became the accepted narrative, for lack of any alternative. Public perceptions are not supposed to determine the legal outcome of a case, but in the era of Black Lives Matter, they do.
Douglas County Attorney Don Kleine originally declined to press charges against Jake Gardner, but public outcry (including protests at Kleine’s residence) convinced him to appoint a special prosecutor. Sexton talked to some of the protesters who called for Gardner to be prosecuted. They all believed the line that Jake was a white supremacist. Their demands were unreasonable and based on lies, but the legal authorities felt they had to give in to them.
If every judge and prosecutor were as honest as Don Kleine, who refused to charge Gardner even under immense pressure to do so, then defendants like Daniel Penny could stay silent and entrust their fates to the courts. But America is running out of Don Kleines and his replacements are inclined to capitulate to the mob. In that kind of world, defendants have no choice but to play the PR game.