Marine veteran Daniel Penny goes on trial for manslaughter in NYC subway chokehold death of Jordan Neely

(CNN) — Opening statements are set to begin Friday for the US military veteran accused of fatally choking a homeless Black man on the New York City subway last year, in a case that touches on the hot-button issues of subway crime, mental illness, race relations and vigilante justice.

Daniel Penny, a 26-year-old former Marine, faces charges of second-degree manslaughter and criminally negligent homicide in the May 2023 chokehold death of 30-year-old Jordan Neely. Penny has pleaded not guilty and argued he was acting to protect others.

Neely 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 that 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.

“Daniel Penny stands indicted for Manslaughter after allegedly putting Jordan Neely in a deadly chokehold for several minutes until and after he stopped moving,” Manhattan District Attorney Alvin L. Bragg Jr. said last year.

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 by 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 that Neely was “irate” and “threatening everybody” and that 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.

Thomas Kenniff, Penny’s attorney, said his client was trying to help others on the subway who were afraid of Neely. He also challenged the medical examiner’s determination that the chokehold caused Neely’s death.

“Our client was coming to the aid of others. He didn’t cause Mr. Neely’s death, he didn’t intend Mr. Neely’s death, he didn’t foresee Mr. Neely’s death,” Kenniff said in a news conference October 21.

“His actions are what any of us who, if we were riding the subway and we saw someone behaving in the manner that Mr. Neely was behaving – threatening the lives of men, women and children on the subway train – that we would all want someone to do that for us,” he added.

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.”

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