Daniel Penny has admitted he put a homeless man in a chokehold in a subway car on May 1, 2023.
Mr. Penny, a former Marine, said he believed the man, Jordan Neely, a 30-year-old Michael Jackson impersonator who ranted about being hungry and desperate, was poised to kill someone. He had to be stopped, Mr. Penny, then 24, told investigators, before he could hurt someone on the busy F train rumbling through Manhattan.
Mr. Penny’s actions, according to prosecutors, became criminal when he refused to let go of Mr. Neely long after he had gone limp. When Mr. Penny finally released his grip, a journalist who had filmed the chokehold kept his phone’s camera trained on Mr. Penny, who stood over Mr. Neely’s sprawled frame, staring down at him and not moving to help. Mr. Neely was pronounced dead that day at Lenox Health hospital in Greenwich Village.
On Monday, Mr. Penny’s trial on charges of manslaughter and criminally negligent homicide will begin in Manhattan Criminal Court. It could last six weeks.
The violent encounter divided the city, with some New Yorkers saying that Mr. Penny’s actions reflected transit riders’ fears and frustrations. Crime rates on the subway were higher at the time than they were before the Covid pandemic and there were regular reports of people being shoved onto the tracks or assaulted on station platforms.
But others said the killing showed the city’s inability or unwillingness to help its most vulnerable and marginalized residents. Mr. Penny, according to prosecutors, may have acted out of fear, but in the end he failed to see Mr. Neely’s humanity.
On Monday, the process of picking the jurors who will ultimately judge Mr. Penny’s actions will begin. Here is what to expect:
What evidence will prosecutors present?
Dafna Yoran and Jillian Shartrand, of the Manhattan district attorney’s office, will prosecute the case against Mr. Penny, which is expected to rely on a four-minute video that captured the violent encounter, as well as on Mr. Penny’s recorded statements to detectives in the hours that followed and the testimony of eyewitnesses.
The video shows how Mr. Penny continued to hold on, his arms around Mr. Neely’s neck and his legs wrapped around the homeless man’s body. Mr. Neely struggled against Mr. Penny, and then two other men moved in, holding on to Mr. Neely until 50 seconds after he had become motionless.
During his police interrogation, which was filmed, Mr. Penny said he had let go of Mr. Neely as soon as the other two men, who have not been identified, stepped in.
At the precinct that day, Mr. Penny referred to Mr. Neely as a “crackhead” and a “crazy person.”
Mr. Penny’s defense lawyers asked Judge Maxwell T. Wiley to withhold the recorded interview from the jury, arguing that their client had made his statements while he was being detained without probable cause. Soon after, Judge Wiley ruled that the jury could watch the interview.
Prosecutors are also likely to call as witnesses the people who were in the subway car that afternoon.
According to filings from prosecutors, several passengers told a grand jury that they were fearful, but there were other accounts that undermined “the notion of rampant and universal panic.”
“For me, it was like another day typically in New York. That’s what I’m used to seeing,” one witness told the grand jury, according to the filings. “I wasn’t really looking at it as if I was going to be threatened or anything to that nature.”
What is Mr. Penny’s defense expected to be?
The defense is likely to use the testimony of the passengers as evidence that there was panic on the train.
During the grand jury hearings, witnesses described people looking nervous or “scattering” away as Mr. Neely became more erratic, according to an unsuccessful motion filed by Mr. Penny’s lawyers to dismiss the indictment.
“I’m thinking he can do something to me,” one witness said, according to the motion. “I was worried about my safety when everyone moved away from me.”
Mr. Penny’s team of lawyers — Steven M. Raiser, Thomas A. Kenniff and Barry Kamins — indicate in their motions that they will rely on eyewitnesses to paint Mr. Penny as a “protector” who held on to Mr. Neely until help arrived.
They will most likely try to challenge a medical examiner’s finding that the chokehold killed Mr. Neely. During the grand jury hearings, prosecutors brought up Mr. Penny’s training as a Marine, which included how to use a chokehold and when to let go, as evidence that he should have foreseen the possibility that the move could be fatal.
In their motion, Mr. Penny’s lawyers said there was no evidence that he had held Mr. Neely for six straight minutes and that the prosecution’s own medical examiner had testified that “not all chokeholds are deadly.”
“Furthermore, as to chokeholds that have been deadly, there is no evidence to suggest that Mr. Penny was aware of these other instances (regardless of how ‘highly publicized’ they were),” the lawyers wrote.
The defense lawyers have also said they plan to call a psychiatrist to discuss Mr. Neely’s mental illness, treatment history and chronic use of K2, a synthetic drug, and have requested his medical records.
The reason, Mr. Kenniff said during a recent hearing, was not to “disparage” Mr. Neely, but because the “public has a right to have eyes on this case, to see what is actually going on here.”
Mr. Neely had been struggling with his mental health for years. He was on a roster informally known as the Top 50, a list of homeless New Yorkers in a city of eight million who stand out for the severity of their troubles and their resistance to accepting help.
Prosecutors have countered that “the only reason” to drag Mr. Neely’s medical records in front of the jury is to get them to “devalue Mr. Neely’s life.”
What is the state of the city’s subway system?
In 2022, the year before Mr. Neely’s death, there were 10 murders in the subway system, compared with about two per year, on average, in the five years before the pandemic.
And while the subway was less dangerous than in the 1980s and ’90s, when there was an average of more than two dozen murders each year, the rise in crime in the wake of the pandemic had New Yorkers on edge.
Since Mr. Neely’s death, officials have flooded the system with more than 1,000 police officers and in March, after a series of fatal shootings on the subways, Gov. Kathy Hochul even brought in the National Guard.
This month, the police touted a drop in violent crimes on the subways, citing a 5 percent reduction in overall crime this year through September compared with the same period last year.
The police attributed the decline to “the N.Y.P.D.’s ongoing strategy to prevent crime and provide reassurance to passengers.”
But grim statistics remain.
Eight people were killed on subway cars or in stations this year through Oct. 13, three more than during the same period last year, according to the most recent figures from the police.
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