Over eight days of testimony from more than 30 witnesses, prosecutors have not shied away from accounts that described the homeless man whom Daniel Penny choked to death on an F train as frightening. In fact, they sought them out.
The prosecutors from the Manhattan district attorney’s office, led by Dafna Yoran, rested their case Monday after calling nine passengers who rode the train that day last year. Almost all recounted how the victim, Jordan Neely, had menacingly approached, yelling about being hungry and wanting to go back to jail.
But letting witnesses describe how frightened they were was a strategic move, said Anna Cominsky, director of the criminal defense clinic at New York Law School. Because prosecutors would probably not find passengers who would say that Mr. Neely did nothing wrong, they had to address his actions head on, she said.
So the government lawyers attempting to convict Mr. Penny of manslaughter and criminally negligent homicide laid out a theory that did not depend on Mr. Neely’s actions: They argued that Mr. Penny, a former Marine, held Mr. Neely in a chokehold for too long when he restrained him. Mr. Penny’s actions turned criminal when he kept choking Mr. Neely, a Michael Jackson impersonator with a history of mental illness, after he was no longer a threat, they said.
Prosecutors have tried to get the jurors to move past what happened in the train car and to focus on the minutes after the doors opened at the Broadway-Lafayette Street station in Manhattan and Mr. Penny still did not release his hold. It was then, they told the jurors, that Mr. Penny’s actions turned from helpful to criminal. And, they said, his training in the Marines should have told him when to let go.
Here is what to know about the trial so far:
The medical examiner holds firm
Prosecutors have said that Mr. Penny choked Mr. Neely for approximately six minutes, increasing the pressure as the other man struggled. Mr. Penny’s lawyers have argued that it is impossible to know the amount of pressure Mr. Penny was exerting.
Each side is attempting to persuade the jury of its explanation of what killed Mr. Neely.
Over three days, a medical examiner walked the jury second by second though video of the last moments of Mr. Neely’s life. The examiner, Dr. Cynthia Harris, said he died from “compression of the neck.”
As he was pinned to the floor with Mr. Penny’s arms wrapped around his neck, Mr. Neely’s flailing legs and spasms were involuntary movements, she said. They indicated brain damage from a lack of oxygen and “air hunger,” and demonstrated how Mr. Neely’s air flow was restricted, she said.
Dr. Harris testified that alternate explanations suggested by the defense, like drug use and pre-existing health problems, were not the cause of Mr. Neely’s death. During cross-examination, Mr. Penny’s lawyers spent hours trying to poke holes in Dr. Harris’s testimony.
“He could have come back with enough fentanyl to put down an elephant,” she said at one point. “No toxicologic result would have changed my opinion.”
The man in the black hat speaks
A video of Mr. Penny and Mr. Neely that circulated online last year captured an unidentified man in a black hat who had helped Mr. Penny restrain Mr. Neely.
Eric Gonzalez, who grew up in the Bronx, was that man.
He had left a work site near the Broadway-Lafayette station and boarded the F train, he told the jury during his testimony. But seconds after entering the car, he noticed the two men fighting and stepped in.
He tried to get Mr. Penny’s attention and told him that he would hold Mr. Neely’s arms so he could readjust his hold, Mr. Gonzalez testified. He had hoped that Mr. Penny would release his chokehold, he said.
“I said, ‘I’m going grab his hands so you can let go,’” Mr. Gonzalez testified. But Mr. Penny did not acknowledge his suggestion, said Mr. Gonzalez, who held Mr. Neely’s arms anyway.
Mr. Gonzalez’s testimony was important for prosecutors to establish their argument that Mr. Penny could have released his chokehold yet continued to restrain Mr. Neely.
A question of training
A former Marine who instructed Mr. Penny in chokeholds, Joseph Caballer, testified that images and videos he had watched suggested that Mr. Penny might have put his training into practice improperly.
Mr. Caballer told the jury that Mr. Penny seemed to be trying to use a nonlethal “blood choke,” which he would have learned in the Marines. But, as the men struggled and Mr. Neely shifted in Mr. Penny’s arms, his hold may have become what’s known as an “air choke,” which takes longer to render someone unconscious and can be deadly.
The testimony from the trainer drives at a fact that prosecutors want to establish: that Mr. Penny should have known that his restraint could have become deadly.
During cross-examination, Mr. Caballer said that, at times, it appeared that Mr. Penny was “not applying a lot of pressure” and said that a person could have someone in a chokehold without exerting pressure or restricting breathing.
What is Mr. Penny’s likely defense?
Mr. Penny’s defense lawyers began presenting their case on Monday and are expected to call witnesses over the next week.
His lawyers are likely to focus on the panic that witnesses described. Mr. Penny’s actions were justified, his lawyers have argued, and he was acting as a protector.
During opening statements, Mr. Penny’s lawyer Thomas A. Kenniff, told jurors that his client — whom he calls “Danny” — “did for others what we would all want someone to do for us.”
The defense will be likely to try to highlight the testimony of passengers like Caedryn Schrunk, who has already testified that she was filled with “a sense of relief” when Mr. Penny took Mr. Neely to the ground.
“This was the first time in my life where I, like, took a moment because I thought I was going to die,” she told Mr. Kenniff on cross-examination. Ms. Schrunk, who sometimes also referred to Mr. Penny as “Danny” during her testimony, described the chokehold as Mr. Penny placing “his arm across the chest.”
For their first witnesses, Mr. Penny’s defense on Monday called Jacqueline Penny, his sister, and Alexandra Fay, his neighbor and childhood friend in West Islip, N.Y. Both women spoke about Mr. Penny’s small town upbringing and family life, helping the defense present Mr. Penny as a suburban Long Island boy-next-door.
Even before the trial, Mr. Penny’s lawyers mentioned Mr. Neely’s synthetic marijuana use and his sickle cell gene as possible causes of his death. The defense lawyers have also said they plan to call a psychiatrist to discuss Mr. Neely’s mental illness and have requested his medical records.
Support for a troubled man
The gallery of the courtroom at 100 Centre Street has been packed almost every day. Many in the audience have been family and supporters of Mr. Neely, including his father, Andre Zachery, who has been present nearly every day.
Mr. Penny’s family members have been less in evidence.
Members of Black Lives Matter and the National Action Network have protested at Collect Pond Park across from the courthouse nearly every morning. When Mr. Penny arrives, flanked by attorneys and security, their muffled chants have carried into the 13th-floor courtroom through a single cracked open window.
Protesters have hurled the phrases “murderer” and “subway strangler” as he enters. But near the courthouse entrance, plastered amid graffiti on a green electrical box attached to a traffic light pole, is a sticker that reads “Free Daniel Penny.”
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