By Aya Elamroussi, CNN
Amid mounting pressures to charge the man who restrained Jordan Neely in a fatal chokehold on a New York City subway train car this week, the man’s attorneys contend he didn’t foresee the “awful tragedy,” which has sparked protests and further accentuated the city’s struggles with homelessness and mental illness.
Daniel Penny, 24, has been identified by his attorneys as the US Marine veteran who held down Neely on Monday afternoon while they were aboard the train in downtown Manhattan.
Neely, a street artist known for his Michael Jackson impersonations, had begun shouting at passengers that he was hungry, thirsty, and had little to live for before Penny forced him to the floor in a chokehold until he stopped breathing.
“We would first like to express, on behalf of Daniel Penny, our condolences to those close to Mr. Neely,” the law firm of Raiser and Kenniff, P.C. said in a statement Friday. “When Mr. Neely began aggressively threatening Daniel Penny and the other passengers, Daniel, with the help of others, acted to protect themselves, until help arrived.“
“Daniel never intended to harm Mr. Neely and could not have foreseen his untimely death,” the statement said. “We hope that out of this awful tragedy will come a new commitment by our elected officials to address the mental health crisis on our streets and subways.”
Neely’s killing, which happened as he was experiencing homelessness, comes as the nation’s largest city continues to grapple with the fundamental issues of a growing population of unhoused people and a mental health crisis — despite government efforts to alleviate the challenges.
Attorneys representing Neely’s family said the 30-year-old had mental health issues since he was 14 when his mother was murdered in 2007. Moses Harper, Neely’s friend, told CNN he was traumatized when his mother’s brutal killing was followed by her body being found in a suitcase.
Neely’s death has been ruled a homicide by New York City’s medical examiner, but the ruling does not determine whether there was intent or culpability, which is a matter for the criminal justice system to consider. Charges have not been filed in the case, which is under investigation by the Manhattan district attorney.
A witness told CNN although Neely was acting erratically, he did not harm anyone nor did they see him armed with a weapon.
“Passengers are not supposed to die on the floor of our subways,” Neely family attorney Lennon Edwards said.
Over the weekend, prosecutors are expected to continue reviewing evidence and witness statements, a law enforcement source told CNN. Four passengers who were in the train car have been interviewed by police, and authorities are still seeking to speak with several others.
The case is being investigated by senior prosecutors who plan to review the medical examiner’s report, obtain additional medical records and examine video footage, the Manhattan District Attorney’s Office said.
Thomas Kenniff, one of the attorneys representing Penny, ran as a Republican candidate against now-Manhattan District Attorney Alvin Bragg in 2021.
Neely’s killing prompted protests Friday from some who called for Penny to be arrested and charged.
Demonstrators gathered outside Bragg’s office, chanting “Indict Daniel Penny” and “Why is the killer free.” Some held signs that read, “Jordan Neely deserved better from New York.”
Civil rights activist the Reverend Al Sharpton also called for Penny to be charged in relation to the incident. Speaking at the National Action Network’s Saturday Action Rally in New York, he said the veteran “needs to be prosecuted.”
Sharpton added that he had spoken with the Manhattan DA’s office about the fatal chokehold.
“This man needs to be prosecuted cause what you will do if you do not prosecute him, in my judgment, is you will set a standard of vigilantism that we cannot tolerate,” Sharpton said. “The precedent alone is a threat to all of us.”
Prior to his killing, Neely had a lengthy arrest record with New York police, a law enforcement source told CNN’s John Miller, including 42 arrests on charges including petty larceny, jumping subway turnstiles, theft, and three unprovoked assaults on women in the subway between 2019 and 2021.
But Sharpton said that “none of that was known to the man choking him.”
“This man did not have his bio on his back,” he said. “This man had a mental issue and the way you handle that is not to put him in a chokehold and squeeze the life out of him. A mental issue on a train is not to be sentenced with death.”
It is not clear whether Neely and Penny had had prior interactions.
Chokehold lasted several minutes, witness says
Juan Alberto Vazquez was on the train when the deadly chokehold began and recorded the situation as it unfolded.
As soon as Neely got on the train, he started yelling about being “fed up and hungry” and “tired of having nothing,” Vazquez told CNN.
Before he was killed, Neely said, “I don’t care if I die. I don’t care if I go to jail. I don’t have any food … I’m done,” according to Vazquez.
As the yelling continued, many passengers became visibly uncomfortable and moved to other parts of the train car. Neely did not appear to be armed or looking to attack anyone, Vazquez told CNN.
Then a rider — later identified as Penny — came behind Neely and put him in a chokehold, with the two eventually falling to the floor, Vazquez said. Neely did not interact with that passenger at all prior to the attack, Vazquez continued.
In the video recorded by Vazquez, Neely and Penny are seen on the floor of a subway car with Penny’s arm wrapped around Neely’s neck. The two men were on the floor for about seven minutes, Vazquez said, adding he started recording about three or four minutes after the chokehold began.
Two other passengers approached Neely and the man holding him down. One appeared to be mediating the situation while the other seemed to help Penny restrain Neely, according to Vazquez.
After a while, Vazquez noticed Neely stopped moving and talking, he said. After police arrived, Neely was taken to a hospital where he was pronounced dead.
CNN has not been able to independently confirm what happened leading up to the incident or how long Neely was restrained.
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CNN’s Artemis Moshtagian, Elizabeth Hartfield, Haley Britzky, Paul P. Murphy, Jason Carroll, Yon Pomrenze, Celina Tabor, Sharif Paget, and Zoe Sottile contributed to this report.