Daniel Penny trial: Opening statements begin in trial of former Marine charged in New York subway death

NEW YORK– Opening statements began Friday in the trial of Daniel Penny, who is charged with killing Jordan Neely, a homeless man who acted erratically on a New York City subway train by placing him in a fatal chokehold on May 1, 2023.

The sounds of a street protest over Neely’s death could be heard in the 13th floor courtroom before the opening statements. Protesters were heard calling Penny a “subway strangler.”

Judge Max Wiley said he would instruct jurors to ignore “noise outside the courthouse.”

Penny, in a slate blue suit, walked confidently into the courtroom and took a seat at the defense table.

The former Marine has pleaded not guilty to charges of second-degree manslaughter and negligent homicide in Neely’s death. Wiley denied Penny’s bid to dismiss his involuntary manslaughter case in January.

The jury, made up of seven women and five men, four of whom are people of color, is being asked to do something prosecutors admit is difficult: convict someone of an unintended crime.

To convict, prosecutors must prove that Penny’s use of deadly force was unjustified and that Penny acted recklessly and knowingly ignored the substantial risk of keeping Neely in a chokehold for so long. Prosecutors don’t have to prove that Penny intended to kill Neely, which defense attorneys say was not Neely’s intention.

According to Wiley, the process is expected to take between four and six weeks.

The case has fueled political narratives about urban crime and captivated a city where the subway is indispensable.

What happened that day

While there is no doubt that Penny’s actions led to Neely’s death, testimony varies as to the events that led to Penny applying the fatal chokehold, according to several sources.

Many witnesses reported that 30-year-old Neely, who was homeless at the time of his death and was known to perform as a Michael Jackson impersonator, stated that he was homeless, hungry and thirsty, according to prosecutors. Most witnesses also said Neely was willing to go to jail or prison.

Some witnesses also reported that Neely threatened to hurt people on the train, while others did not report hearing those threats, according to police sources.

In addition, some witnesses told police that Neely shouted and harassed passengers on the train. However, others have said that while Neely exhibited erratic behavior, he had not threatened anyone in particular and had not become violent, according to police sources who spoke to ABC News after the incident.

According to documents from the Public Prosecution Service, some passengers on the train that day said they did not feel threatened. One said they weren’t “really worried about what was going on,” while another called it “a typical New York day.” That’s what I’m used to seeing. I didn’t really look at it like I was going to be threatened or anything like that, but it was a little different because, you know, you don’t really hear anyone say something like that.”

However, other passengers described being scared, court documents show. One said they “encountered a lot of things, but nothing that scared me that much,” while another said Neely made “half lunges” and came within “half a foot of people.”

According to police sources, Neely had a documented history of mental health issues and arrests, including alleged cases of disorderly conduct, fare evasion and assault.

Less than 30 seconds after Penny allegedly put Neely in a chokehold, the train arrived at the Broadway-Lafayette Station, according to court records.

“Passengers who were afraid because they were trapped on the train were now able to exit the train. The defendant continued to hold Mr. Neely’s neck,” prosecutor Joshua Steinglass said in a court filing objecting to Penny’s dismissal request.

According to prosecutors, footage of the interaction, which began about two minutes after the incident began, shows Penny putting Neely in a chokehold for about four minutes and 57 seconds on a relatively empty train, with a few passengers nearby.

Prosecutors said Neely ceases all purposeful movements about three minutes and 10 seconds into the video.

“After that moment, Mr. Neely’s movements can best be described as ‘twitching and the kind of agonal movements you see around death,'” prosecutors said.

The case is expected to include testimony from passengers who were aboard the subway at the time, as well as an approximately six-minute video of the chokehold.

Jury to hear eyewitness testimony

Before making statements Friday, Wiley granted a defense request to allow some statements made to police by eyewitnesses to the chokehold that were captured on body-worn cameras.

One witness, Ms. Rosario, was captured on a body-worn camera 15 minutes after the incident aboard the F train.

“I see most of that statement coming in as an expression of excitement,” Wiley said.

The judge refused to allow part of her statement in which an officer is questioned asking whether she thought Neely was using drugs.

A minute later, a Mr. Latimer is captured and Wiley said his statement is “well within the immediacy of the event” and can be admitted.

“This person is showing emotion and excitement as he describes what happened. It’s a story,” Wiley said.

Most of the passengers who were on board the train and witnessed the event are expected to testify at the trial.

The jury will see evidence that Neely didn’t have a gun

The judge also previously ruled that the jury will see evidence showing Neely was unarmed.

Penny’s defense had tried to exclude evidence or testimony about the lack of a gun recovered in a search of Neely’s body, but in a written opinion issued Thursday, Wiley said such evidence and testimony are relevant to the case.

“The fact that Mr. Neely was unarmed provides additional relevant information to assist the jury, namely: it clarifies what someone in the defendant’s position could have observed,” Wiley wrote. “The possibility that a person in the defendant’s situation might have been reasonable in mistakenly believing that Mr. Neely was armed is appropriate for the jury’s consideration and well within their capabilities.”

The defense worried that including evidence that Neely was unarmed could increase sympathy for the victim, but Wiley said it would help the jury decide whether Penny’s actions were justified.

Penny’s lawyers and Neely’s family speak before the trial

Members of Neely’s family sat with spectators for opening statements Friday.

“I loved Jordan. And I want justice for Jordan Neely. I want it today. I want justice for everyone and I want justice for Jordan Neely,” his uncle, Christopher Neely, said before entering the court.

Prosecutors in the Manhattan district attorney’s office are expected to concede that Neely may have seemed scary to some subway passengers, but will argue that Penny continued the chokehold well past the point where Neely stopped moving and posed any threat.

Penny’s lawyers have said they were “saddened by the loss of life” but that Penny “saw a genuine threat and took action to protect the lives of others,” arguing that Neely was “insanely threatening” to passengers on board from the subway. .

While Penny’s defense will argue that he did not intend to kill Neely, prosecutor Steinglass has noted that the second-degree manslaughter charge only requires prosecutors to prove that Penny acted recklessly, and not intentionally.

“We are confident that a jury, aware of Danny’s actions in putting his own safety aside to protect the lives of his fellow riders, will reach a fair verdict,” said Penny’s attorneys, Steven Raiser and Thomas Kenniff, earlier this year, after Penny’s statement. request to drop the charges was denied.

“This case is simple: someone got on a train and screamed, only for someone else to choke him to death,” Neely family attorney Donte Mills said in an earlier statement to ABC News. “These two things are not in balance and will never be in balance. There is no justification.”

“Jordan had the right to take his own space. He was allowed to sit on that train and even scream. He didn’t touch anyone. He was not a visitor on that train, in New York or in this country.” Mills added.