Daniel Penny’s lawyers argue he protected others, prosecutors say he ‘went too far’ as NYC subway manslaughter trial begins

By Eric Levenson, Gloria Pazmino and Mark Morales, CNN

(CNN) — During the first day of Daniel Penny’s manslaughter trial in the death of Jordan Neely on the New York City subway last year, the prosecution and defense painted dueling portraits of Penny in opening statements.

The prosecution said the former Marine “went way too far” and violated “law and human decency” by putting Neely, a homeless street artist, in a fatal chokehold.

The defense countered Penny was responding to a threat, and his actions that day prove he is not someone who “devalued human life” under the circumstances.

In their opening statement, the defense said while Penny held Neely in a chokehold, Penny did not squeeze him with force the entire time. Lawyers for Penny plan to argue Neely did not die from Penny’s chokehold, but rather a combination of other factors including Neely’s alleged drug use.

Penny, 26, is facing second-degree manslaughter and criminally negligent homicide charges in Neely’s death in May 2023. He has said his actions were an attempt to protect people on the subway.

The trial touches on the hot-button issues of subway crime, mental illness, race relations and vigilante justice.

Neely, who is Black, had boarded a crowded subway in Manhattan and was acting erratically and loudly yelling, according to witnesses. Penny, who is White, then grabbed Neely from behind and put him in a chokehold, and he maintained the hold for about six minutes, including after Neely stopped moving, according to prosecutors.

Neely was later pronounced dead at a hospital. A medical examiner ruled his death a homicide.

Several minutes of the chokehold were captured on bystander video, leading to protests and calls for Penny to be arrested. Others have defended Penny’s actions and have donated over $3 million to his legal defense fund.

Penny surrendered to police on a manslaughter charge nearly two weeks after Neely’s death, and the Manhattan District Attorney’s Office announced an indictment at the end of the following month.

“Jordan Neely took his last breaths on the dirty floor of an uptown F train,” Manhattan prosecutor Dafna Yoran said Friday in her opening statement. “At the time he died he was 30 years old, homeless, suffering from mental illness.”

“We pass people like Jordan Neely every day in New York City, on our way to the store, on our way to work, on our way back.” Yoran continued. “We are trained not to engage, to pretend that they are not there.”

Neely walked into a moderately packed subway car and began screaming threats. He talked about being hungry and thirsty. His voice was loud, the prosecutor said.

In response, “The defendant Daniel Penny took it upon himself to neutralize him. He wrapped his legs around Mr. Neely’s body and held him there. Seconds later the train arrived at the train station,” Yoran said. “With no one left to protect, the defendant nonetheless kept Mr. Neely in a deadly chokehold for an additional 5 minutes and 53 seconds.”

“He continued to choke Jordan Neely after Mr. Neely had lost consciousness.”

Penny has specialized training in chokeholds, “so he knew that continuing to choke Mr. Neely once he had already passed out could and would lead to his death,” Yoran said, detailing the defendant’s military background.

The prosecutor said Penny “went way too far.”

“His indifference towards Mr. Neely – the man whose life he was literally holding in his hands – caused him to disregard basic precautions, in contravention of the law and human decency.”

After releasing him from the deadly chokehold, Penny “didn’t look back,” Yoran said.

“He went and picked up his hat that had fallen off, he dusted himself off and then he stood over Mr. Neely, waiting for the police.”

The prosecutor pointed out despite being trained in first aid, Penny never once attempted to help Neely.

Yoran detailed some of the evidence that will be presented to the jury, including video captured by journalist Juan Alberto Vasquez, calling it the “single most important piece of evidence.” Yoran warned jurors will see Neely’s “life being snuffed out.”

Defense Attorney Thomas Kenniff in his opening statement told jurors Penny was responding to a threat on the subway when he moved to restrain Neely and put him in a chokehold.

Kenniff said “seething, psychotic Jordan Neely” displayed “unhinged rage,” causing the passengers on the train – men, women and children – to cower in fear.

As Neely screamed about being hungry and thirsty, Kenniff said, the environment changed when Neely took off his jacket, whipped it around his head and dropped it on the ground with such force the train fell silent.

“At that moment Danny sees a mother barricading her son behind a stroller just as Mr. Neely appears to go for them,” Kenniff said. “(Danny) hears the words, ‘I will kill.’ When Jordan Neely threatened to kill, there was only one thing Daniel Penny could do.”

In a nod to the evidence in the case, as well as their defense strategy, Kenniff said while Penny held Neely in a chokehold, he did not “squeeze him” the entire time, noting that Neely never appeared to be choking and he did not say he couldn’t breathe.

Kenniff said evidence will show Neely did not die from the chokehold but rather from cardiac arrest caused by the use of drugs and likely the “excitement” of the event.

Penny took actions “anyone of us” would want someone to take, Kenniff added. “You stand up and protect thy neighbor. That’s what Daniel Penny did.”

Before opening statements, Penny, dressed in a navy blue suit, light blue shirt and dark tie, could be seen saying “good morning” to court staff before taking a seat at the defense table. Neely’s father along with other supporters are sitting in the back of the courtroom.

With protests outside the courthouse audible inside the courtroom, Manhattan Supreme Court Justice Maxwell Wiley instructed the jury to not listen to the words being yelled.

“Anything you should hear outside the courtroom has nothing to do with this,” Wiley said. “If you hear people expressing opinions outside this court, ignore them.”

Police officers testify

Body camera video from the first responding officer was introduced Friday as the initial piece of evidence in the trial. The several-minute-long video shows Neely lying motionless on the ground, his body limp, as more officers arrive at the scene. The officers check for Neely’s pulse and eventually move to render aid.

After opening statements, prosecutors called three of several police officers who responded to the scene. The prosecution introduced video captured by a body camera worn by Teodoro Tejada, who was one of the first officers on the subway platform.

The video shows him running down into the subway from street level and arriving at the subway car to find Neely motionless on the floor as bystanders and Penny stand by.

Tejada testified he checked Neely for a pulse. Initially he said he felt a “faint pulse” later on the stand, he said when checked again, Neely did not have a pulse. Other officers provided similar testimony. Tejada said as he was trying to aid Neely he did “sternum rubs” while another officer also checked for Neely’s pulse and began shouting at him as if trying to rouse him from sleep.

The second officer, Dennis Kang, a 6-year veteran of the NYPD, said Penny’s eyes appeared to be open and closed at the same time. In the video, Neely’s eyes appear slightly open, but his sight does not appear focused as he lays motionless and limp on the ground. When asked by the defense if he had felt a pulse on Neely, Kang replied, “yes.”

Sergeant Carl Johnson, in charge of the public safety unit that day, also testified he arrived at the platform but he said he found Neely “totally unresponsive.”

“When I came down to the subway, I did not see Mr. Neely breathing,” Johnson said.

Johnson can be seen on video administering Narcan to Neely. During his testimony, the officer said although he did not know if Neely was a drug user, he administered Narcan while operating under the assumption he was a homeless person and a likely drug user who was possibly overdosing.

“I came in, we checked Mr. Neely, gave him some Narcan and I asked Mr. Penny what happened,” Johnson said.

Neely’s father, sitting in the courtroom gallery on Friday, could be seen holding his head in his hands, wiping tears. As the video played, he bowed his head, looking away from the screen from time to time, shaking his head.

The killing has polarized city residents, many of whom have personal experiences with disorder on the subways, and raised broader questions about the racial dynamics at play and how the city treats people with mental health issues. Former President Donald Trump said in an interview with Fox News last week it was “an awfully tough case.”

At jury selection over the last two weeks, most jurors said they ride the subway frequently and have witnessed outbursts from people acting erratically on the trains. Some said these outbursts made them feel “personally threatened,” while others said the outbursts did not.

Penny has said Neely was acting in a threatening manner, and his attorneys have said they are confident a jury will find his actions were “fully justified.” Penny, who is out of jail on a $100,000 bond, faces up to 15 years in prison if convicted of manslaughter and up to 4 years if convicted of criminally negligent homicide.

Jeremy Saland, a former prosecutor for the Manhattan District Attorney’s Office, said the case touches on a lot of major issues and emotions.

“This is something that is relatable to so many people and that’s why it’s enraged the passion on both sides, from ‘Leave Penny alone, all he was doing was protecting the lives of fellow subway riders,’ and on the flip side, ‘He needs to be held accountable for taking the life of another person.’”

What happened on the subway

The evidence is likely to focus on testimony from witnesses on board the train that day, as well as experts in medicine and restraint tactics. The defense has said they have not decided if Penny will testify.

The fatal encounter happened on the afternoon of May 1, 2023, on a northbound F train at the Second Avenue station in Manhattan.

Neely, a Michael Jackson impersonator, shouted at passengers that he was hungry, thirsty and tired of having nothing, and he threw his jacket on the train’s floor, according to Juan Alberto Vazquez, a witness who filmed the incident.

“I don’t care if I die. I don’t care if I go to jail,” Neely said, according to Vazquez.

Penny then came up behind Neely and put him in a chokehold, and the two fell to the ground and remained there for several minutes. When police arrived at the subway station in Lower Manhattan before 2:30 p.m., they administered first aid to an unconscious Neely.

In a court filing, prosecutors said witness accounts differed about Neely’s exact words and actions prior to the chokehold. While a few witnesses stated they were fearful of Neely, others felt differently, including one person who described the moment as being “like another day typically in New York.”

None of the witnesses said Neely had physical contact with anyone before Penny came up behind him, according to the prosecution filing.

“Many witnesses relayed that Mr. Neely expressed that he was homeless, hungry, and thirsty. Most recount that Mr. Neely indicated a willingness to go to jail or prison,” the prosecutor wrote in the filing.

Penny told police Neely was “irate” and “threatening everybody” and others on the train were afraid, according to court records filed last June. “I just put him out. I just put him in a chokehold,” Penny said.

Penny also told the New York Post he was “deeply saddened by the loss of life” and the incident “had nothing to do with race.”

Neely’s family members to attend trial

Penny is a veteran who served in the US Marines, according to law enforcement and military records. He was a sergeant and served from 2017 to 2021, and his last duty assignment was at Camp Lejeune in North Carolina, military records show.

Neely was known for his smooth Michael Jackson dance moves that entertained many — yet he struggled after the trauma of his mother’s murder in 2007, when he was 14 years old.

Neely was on a New York City Department of Homeless Services list of the city’s homeless with acute needs, sometimes referred to internally as the “Top 50” list, a source told CNN last year.

Donte Mills, the attorney representing Neely’s family, said the street performer’s loved ones have not moved on from the subway killing and they never will.

“The fact of the case is this: Someone got on the train and was screaming, and someone choked that person to death,” Mills said in a news conference October 21. “Those things will never balance out, and there’s no justification that can make those things balance out.”

Mills said there will be as many as 20 family members attending the trial.

Saland, the former prosecutor, said a huge factor in the case will be those eyewitness accounts of the interaction and whether the use of force was justified.

“Was that threat real and imminent? We’re basing that on a reasonable person’s standard here,” Saland said. “This is why it’s not just going to rest on what Penny says but what these other people said in terms of their observations of what occurred.”

This story has been update with additional information.

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CNN’s Rebekah Riess, Jessica Xing, Ray Sanchez, Sharif Paget and Veronica Stracqualursi contributed to this report.