A widely shared video of a former Marine putting his arms around a man’s neck and holding him in a chokehold until he died on the floor of a New York City subway will play a key role in the trial of Daniel Penny, who is charged in the death of Jordan Neely.
Both Penny’s lawyers and those prosecuting him say they will use the four-minute video to bolster their arguments in a case that has become a flashpoint in the country’s longstanding debate over racial justice and, closer to home, the safety of the city’s subway system.
Lawyers for Penny, 26, who is white, say their client did not apply enough pressure to make the hold lethal, while prosecutors argue he used excessive force to kill 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 second-degree murder and manslaughter and faces up to 19 years in prison if convicted.
The New York City coroner’s office ruled that Neely died from neck compression caused by the chokehold, and the manner was homicide.
Police questioned Penny 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, screaming aboard an F train in Manhattan, witnesses said. Some recalled him saying he was homeless, hungry and didn’t care if he went to jail. Prosecutors do not dispute that Neely acted aggressively, they said in court documents.
Steven Raiser, an attorney for Penny, said about a half-dozen witnesses will testify for the defense.
“You have an individual who says he was afraid of this gentleman, Mr. Neely, and he had to act,” Raiser said Thursday. “We have multiple witnesses who come forward and say, ‘Yes, he’s right. That’s exactly how I felt.'”
But prosecutors said in court documents that witnesses “differed widely in their threat assessments.”
One witness said, “It was like a normal day 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 didn’t feel personally threatened,” while another said, “I wasn’t really concerned about what was going on,” and, “I’m used to that, so I see that all the time.”
None of the witnesses who testified before the grand jury said Neely displayed or claimed to have a weapon or had physical contact with anyone before Penny began choking him, prosecutors said in court documents.
Penny also said he did not see Neely hit anyone or show a weapon before Penny took 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 footage. Video footage shows Penny wrapping his legs around Neely’s body as the pair lay on the floor of the train car.
Prosecutors said in court documents that Penny held Neely in a chokehold for about six minutes, including nearly a minute after Neely “ceased all intentional movement” and after the subway car entered the Broadway-Lafayette Station and the doors opened.
Neely lost consciousness during the struggle, police said. An eyewitness testified before the grand jury that he was initially grateful for Penny’s intervention, but that he believed the nature and duration of the hold bordered on excessive, prosecutors said in court documents.
Raiser said the defense plans to dispute that Penny had Neely in a chokehold. He said Penny held Neely to restrain him, not to strangle him.
“The video has often been cited as supporting the chokehold being too long,” Raiser said. “But in reality, the video shows that he was not applying pressure, and that he was holding Mr. Neely down.”
Penny told multiple officers at the subway station that day that he had approached Neely from behind and put him in a chokehold and that Neely “was threatening everyone,” according to court documents.
Both sides said they will discuss the coroner’s toxicology report, which showed that synthetic cannabinoids were in Neely’s system 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 bail pending trial and stopped working in construction because of the lawsuit.
Supporters have donated more than $3 million to a fund for Penny’s legal fees 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 each other if they believe someone is in danger.
In February, an additional 1,000 police officers were assigned to the subway system after the city saw a 45 percent increase in serious crimes in January.
A month later, New York Gov. Kathy Hochul announced she would send 750 National Guard members and another 250 state troopers and Metropolitan Transportation Authority police officers to the subway to help the New York Police Department conduct bag checks at busy train stations.
Hochul’s announcement came a week after a passenger slashed a subway conductor in the neck and other crimes on the subway system.
The NYPD announced this month that crime on the subway system fell 4.8 percent in the third quarter of this year compared to the same period a year ago. According to the police, crime on the subway system is down 5.1 percent through September of this year.