A Marine veteran accused of fatally choking a homeless man on a train will face a jury this week in an effort to fight charges that could land him in prison for 19 years.
And when Daniel Penny’s high-powered legal team mounts his defense, the eyes of the nation will be watching: were his actions a selfless act of heroism, or a cruel show of violence that left a relatively harmless man dead?
The 24-year-old launched at Michael Jackson impersonator Jordan Neely, 30, as the homeless man went on a wild rant on the train car in New York City on May 1, 2023.
Witnesses testified that Neely was behaving erratically, screaming and threatening people. Penny held a squirming Neely in a chokehold for six minutes until he lost consciousness.
Police who were first to the scene performed CPR – but only after several minutes had gone by and they had first administered a shot of Narcan, it emerged in court during a pretrial hearing earlier this month.
Neely was taken by ambulance to a hospital, where he was pronounced dead.
Penny pleaded not guilty to second-degree manslaughter and criminally negligent homicide, and his legal team attempted to have the charges dismissed back in January.
A jury trial kicks off on October 21, and Penny’s defense will argue he intervened to protect himself and other passengers from Neely’s ‘insanely threatening’ actions amid a rash of subway assaults and other crimes in the subway system over the past two years.
Neely, who was homeless, was a former Michael Jackson impersonator and had been battling mental illness in the years leading up to his death.
The case itself has divided the public. Some agree that Penny acted heroically in the best interest of himself and fellow passengers’ safety, while others say it was a blatantly excessive show of force toward a mentally ill, homeless black man.
Key footage missing from evidence
A tourist couple who were on the train and witnessed the incident are reportedly unwilling to turn over footage which Penny’s lawyers believe would be ‘incredibly favorable’ for the former marine.
Back in September, the judge revealed the couple ‘declined to testify in the Grand Jury, having gone back to their home in Europe someplace’ and have also ‘so far refused to share the video that they took.’
‘They refused to share it with the DA, or with anyone else, and they are so far refusing to come back to testify,’ Manhattan Supreme Court Justice Maxwell Wiley said.
Past illegal conduct on subway
Neely had an extensive rap sheet for crimes on the New York City subways, including vicious assaults of other passengers.
In 2021, he attacked an elderly woman as she left the Bowery station in the East Village. She suffered a broken nose, a fractured orbital bone, and ‘bruising, swelling and substantial pain to the back of her head’ in the November 12 attack, according to a criminal complaint.
He admitted felony assault on February 9 in exchange for a 15-month alternative-to-incarceration program, according to the Manhattan District Attorney’s Office.
He was supposed to stay in a treatment facility and stay sober.
Between January 2020 and August 2021, he was arrested for public lewdness after pulling down his pants and exposing himself to a woman, misdemeanor assault for hitting a woman in the face, and criminal contempt for violating a restraining order.
All three cases were dismissed as part of a deal.
In June 2019, Neely assaulted 68-year-old Filemon Castillo Baltazar on the platform of the West 4th St. Station in Greenwich Village, court records show.
One month earlier, Neely punched a man in the face, breaking his nose on the platform of Broadway-Lafayette – the same subway station where he died.
Narcan over CPR
During a pre-trial hearing on October 3, one of the officers who was first on the scene revealed that CPR was not performed on Neely right away, despite indications he was still alive.
Instead, they administered a dose of Narcan, the medication used to reverse opioid overdoses.
Prosecutors have been at pains to argue that Neely’s past conduct and substance issues are not relevant to the case, but the admission gave the defense ammunition to argue that drug use played a factor in how he was treated by officials in his dying moments.
Nation divided
The case shocked America and has divided the public.
Some agree that Penny acted heroically in the moment, while others say it was a blatantly excessive show of force toward a mentally ill, homeless black man.
Supporters have rallied behind Penny and backed a fundraiser in his name.
On the day he returned to court in early October, new donations began pouring in.
One donor said Penny ‘would have been considered a good Samaritan in yesteryear.’
The campaign has raised $3.098million for Penny’s legal fees with thousands of donations ranging from $5 to $20,000.
One of the most generous donors was former Republican presidential candidate nominee Vivek Ramaswamy, who gave $10,000 to the cause last year.
State accuses Penny of excessive force
While prosecutors have previously accepted that Neely’s behavior made some passengers fearful, they argue Penny held him down for significantly longer than was necessary.
Assistant district attorney Joshua Steinglass wrote in an earlier court filing that at least one witness described Neely’s ramblings as ‘like another typical day in New York.’
He argued that the F train they were traveling on arrived at the Broadway-Lafayette station and the door opened less than 30 seconds after the chokehold started.
‘Passengers who had felt fearful on account of being trapped on the train were now free to exit the train,’ Steinglass said.
‘The defendant continued holding Mr Neely around the neck.’
Steinglass said second degree manslaughter only requires prosecutors to prove Penny acted recklessly, not intentionally.
Links between DA and Penny’s defense
Penny’s defense attorney has personal history with Manhattan District Attorney Alvin Bragg.
Thomas Kenniff was the Republican nominee campaigning for the DA job against Bragg back in 2021, following the retirement of Cyrus Vance Jr.
Kenniff was always a long shot given the Democrats significantly outnumbered Republicans in Manhattan.
He attempted to argue that Bragg was too soft on crime for the office, and was concerned he would implement ‘lenient’ policies which could ultimately worsen the crime rate.