Veteran Daniel Penny is acquitted in NYC subway chokehold case over Jordan Neely’s death

Associated Press

NEW YORK (AP) — A Marine veteran who used a chokehold on an agitated subway rider was acquitted on Monday in a death that became a prism for differing views about public safety, valor and vigilantism.

A Manhattan jury cleared Daniel Penny of criminally negligent homicide in Jordan Neely ’s 2023 death. A more serious manslaughter charge was dismissed last week because the jury deadlocked on that count.

Penny, who had shown little expression during the trial, briefly smiled as the verdict was read. While celebrating later with his attorneys, he said he felt “great.”

Both applause and anger erupted in the courtroom, and Neely’s father and two supporters were ushered out after audibly reacting. Another person also left, wailing with tears.

“It really, really hurts,” Neely’s father, Andre Zachery, said outside the courthouse. “I had enough of this. The system is rigged.”

The case amplified many American fault lines, among them race, politics, crime, urban life, mental illness and homelessness. Neely was Black. Penny is white.

There were sometimes dueling demonstrations outside the courthouse, including on Monday. High-profile Republican politicians portrayed Penny as a hero while prominent Democrats attended Neely’s funeral.

Penny’s attorneys argued he was protecting himself and other subway passengers from a volatile, mentally ill man who was making alarming remarks and gestures.

Penny “finally got the justice he deserved,” one of his lawyers, Thomas Kenniff, said while celebrating the outcome with him at a downtown Manhattan pub.

Manhattan District Attorney Alvin Bragg, a Democrat whose office brought the case, said prosecutors “followed the facts and the evidence from beginning to end” and respect the verdict.

The anonymous jury, which had started deliberating Tuesday, was escorted out of court to a van.

Penny, 26, served four years in the Marines and went on to study architecture.

Neely, 30, was a sometime subway performer with a tragic life story: His mother was killed and stuffed in a suitcase when he was a teenager.

As a younger man, Neely did Michael Jackson tributes — complete with moonwalks — on the city’s streets and subways. But Neely also struggled with mental illness after losing his mother, whose boyfriend was convicted of murdering her.

He subsequently was diagnosed with depression and schizophrenia, was repeatedly hospitalized, and used the synthetic cannabinoid K2 and realized it negatively affected his thinking and behavior, according to medical records seen at the trial. The drug was in his system when he died.

Neely told a doctor in 2017 that being homeless, living in poverty and having to “dig through the garbage” for food made him feel so hopeless that he sometimes thought of killing himself, hospital records show.

About six years later, he boarded a subway under Manhattan on May 1, 2023, hurled his jacket onto the floor, and declared that he was hungry and thirsty and didn’t care if he died or went to jail, witnesses said. Some told 911 operators that he tried to attack people or indicated he’d harm riders, and several testified that they were afraid.

Neely was unarmed, with nothing but a muffin in his pocket, and didn’t touch any passengers. One said he made lunging movements that alarmed her enough that she shielded her 5-year-old from him.

Penny came up behind Neely, grabbed his neck, took him to the floor and “put him out,” as the veteran told police at the scene.

Passengers’ video showed that at one point during the roughly six-minute hold, Neely tapped an onlooker’s leg and gestured to him. Later, he briefly got an arm free. But he went still nearly a minute before Penny released him.

“He’s dying,” an unseen bystander said in one video. “Let him go!”

A witness who stepped in to hold down Neely’s arms testified that he told Penny to free the man, though Penny’s lawyers noted the witness’ story changed significantly over time.

Penny told detectives shortly after the encounter that Neely threatened to kill people and the chokehold was an attempt to “de-escalate” the situation until police could arrive. The veteran said he held on so long because Neely periodically tried to break loose.

“I wasn’t trying to injure him. I’m just trying to keep him from hurting anyone else. He’s threatening people. That’s what we learn in the Marine Corps,” Penny told the detectives.

However, one of Penny’s Marine Corps instructors testified that the veteran misused a chokehold technique he’d been taught.

Prosecutors said Penny reacted far too forcefully to someone he perceived as a peril, not a person. Prosecutors also argued that any need to protect passengers quickly ebbed when the train doors opened at the next station, seconds after Penny took action.

Although Penny told police he’d used “a choke” or “a chokehold,” one of his lawyers, Steven Raiser, cast it as a Marine-taught chokehold “modified as a simple civilian restraint.” The defense lawyers contended Penny didn’t consistently apply enough pressure to kill Neely.

Contradicting a city medical examiner’s finding, a pathologist hired by the defense said Neely died not from the chokehold but from the combined effects of K2, schizophrenia, his struggle and restraint, and a blood condition that can lead to fatal complications during exertion.

Penny did not testify, but relatives, friends and fellow Marines did — describing him as an upstanding, patriotic and empathetic man.

The manslaughter charge would have required proving that Penny recklessly caused Neely’s death. Criminally negligent homicide involves engaging in serious “blameworthy conduct” while not perceiving such a risk. Both charges were felonies punishable by prison time.

During the criminal trial, Neely’s father filed a wrongful death suit against Penny.

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Associated Press journalists Joseph B. Frederick and Ted Shaffrey contributed.