A widely shared video of a former Marine wrapping his arms around a man’s neck and restraining him in a chokehold until he died on the floor of a New York City subway car will play a key role in the trial of Daniel Penny, who is charged in the death of Jordan Neely.
Both Penny’s attorneys and those prosecuting him say they will use the four-minute video to bolster their arguments in a case that became a flashpoint in the nation’s long-standing debate about racial justice and, closer to home, the safety of the city’s subway system .
Attorneys for Penny, 26, who is white, say their client did not apply enough pressure for the hold to be deadly, while prosecutors argue he used excessive force to take the life of Neely, a 30-year-old Black man who worked as a Michael Jackson impersonator.
Jury selection in Penny’s trial begins Monday. He has pleaded not guilty to charges of manslaughter and criminally negligent homicide and faces a maximum of 19 years in prison if convicted.
The New York City chief medical examiner’s office found that Neely died from compression to his neck as a result of the chokehold, and the manner was murder.
Police interviewed Penny on the day Neely died and released him, a decision criticized by some elected officials and others who wanted him arrested immediately.
The May 1, 2023, killing began with Neely, who struggled with homelessness and mental illness, shouting aboard an F train in Manhattan, witnesses said. Some recall him saying he was homeless, hungry and didn’t care whether he went to jail. Prosecutors do not dispute that Neely was acting in an aggressive manner, they said in court documents.
Steven Raiser, an attorney for Penny, said a half-dozen or so witnesses will testify for the defense.
“You have an individual that’s saying that he was frightened by this gentleman, Mr. Neely, and he had to act,” Raiser said Thursday. “We have several additional witnesses that come up and say, ‘Yes, he’s right. That’s exactly how I felt, too.’”
But prosecutors said in court documents that witnesses “differed sharply in their threat assessments.”
One witness said, “It was like another day typically in New York. “That’s what I’m used to seeing,” according to grand jury minutes cited in a court filing.
Another witness said, “I personally didn’t feel threatened,” while another said, “I wasn’t really worried about what was going on,” and, “I’m kind of used to that, so I see that all that time.”
None of the witnesses who tested before the grand jury said Neely displayed or claimed to have a weapon or that he came into physical contact with anyone before Penny began choking him, prosecutors said in court documents.
Penny also said he had not seen Neely put his hands on anyone or display a weapon before Penny brought him to the ground, according to court documents.
Penny, who served in the Marine Corps for four years before being discharged in 2021, pinned Neely to the ground with the help of two other passengers, according to prosecutors and bystander video. Video shows Penny wrapping his legs around Neely’s body as the pair are on the floor of the train car.
Prosecutors said in court documents that Penny had Neely in a chokehold for approximately six minutes, including nearly a minute after Neely “ceased all purposeful movement,” and after the subway car had pulled into the Broadway-Lafayette Station and the doors had opened.
Neely lost consciousness during the struggle, police said. An eyewitness tested to the grand jury that while he was initially grateful for Penny’s intervention, he believed the hold’s nature and duration bordered on excessiveness, prosecutors said in court documents.
Raiser said the defense plans to dispute that Penny had Neely in a chokehold at all. He said Penny restrained Neely to hold him down, not to choke him.
“The video’s been cited frequently as supporting the chokehold as going on too long,” Raiser said. “But in reality, the video proves that he wasn’t applying pressure, and he was holding Mr. Neely.”
Penny told multiple officers at the subway station that day that he had approached Neely from behind and put him in a choke or chokehold and that Neely “was threatening everyone,” according to court documents.
Both sides said they will discuss the medical examiner’s toxicology report, which found that synthetic cannabinoids were in Neely’s body when he died, according to court documents.
Raiser said Penny, who is from Long Island but now lives in Manhattan, was free on $100,000 bond pending trial and stopped working in construction because of the trial.
Supporters have donated more than $3 million to a fund for Penny’s legal expenses started by his attorneys.
Raiser said the case has resonated with people because it highlights the issue of safety for train riders and whether they have a duty to protect one another when they believe a person is in danger.
An additional 1,000 police officers were assigned to the subway system in February after the city saw a 45% spike in major crimes in January.
A month later, New York Gov. Kathy Hochul announced she would deploy 750 members of the National Guard and an additional 250 state troopers and police officers from the Metropolitan Transportation Authority to the subways to assist the New York Police Department with bag checks at busy train stations.
Hochul’s announcement came a week after a passenger had slashed a subway conductor in the neck and following other crimes in the subway system.
The NYPD announced this month that subway crime was down 4.8% in the third quarter of this year compared to the same period a year ago. And subway crime was down 5.1% year to date through the end of September, the police department said.