Daniel Penny trial: Opening statements begin Friday

Opening statements will begin Friday in the trial of Daniel Penney, who is accused of causing the death of Jordan Neely, a homeless man who acted erratically on a New York City subway car in a fatal chokehold on May 1, 2023.

The trial is expected to last four to six weeks, Judge Max Wylie said.

Penny, a former Marine, has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in Neely’s death. In January, Wiley rejected Penny’s bid to dismiss his manslaughter case.

The jury of seven women and five men, four of whom are people of color, will be asked to do what prosecutors acknowledge is difficult: find someone guilty of an unintentional crime.

To convict, prosecutors must prove that Penny’s use of deadly force was unjustified and that Penny acted recklessly and knowingly ignored the substantial risk that Neely would be placed in a chokehold for so long. Prosecutors do not have to prove that Penny intended to kill Neely, which defense attorneys say Neely did not intend to do.

The case has reinforced political narratives about urban crime and captivated a city in which the subway is indispensable.

What happened that day

While there is no doubt that Penny’s actions led to Neely’s death, according to various sources, witness accounts differ regarding the events that led to Penny using the fatal chokehold.

Multiple witnesses reported that Neely, 30, who was homeless at the time of his death and known as a Michael Jackson impersonator, said he was homeless, hungry and thirsty, according to prosecutors. Most witnesses also said Neely expressed a willingness to go to jail or prison.

Some witnesses also reported that Neely threatened to harm people on the train, while others did not report hearing those threats, according to police sources.

Additionally, some witnesses told police that Neely was yelling and harassing passengers on the train. However, others said that while Neely exhibited erratic behavior, he did not threaten anyone in particular or become violent, according to police sources who spoke to ABC News after the incident.

Some passengers on the train that day said they did not feel threatened, according to court filings from prosecutors. One said they were “not really bothered by what was going on,” while another called it “like just another normal day in New York. This is what I’m used to seeing. be a threat or something like that, but it was a little different because, you know, you don’t really hear anyone say something like that.”

However, according to court records, other passengers said they felt afraid. One said they “experienced a lot of things, but nothing that filled me with that kind of fear,” while another said Neely did “half lunges” and came “within half a foot of people.”

According to police sources, Neely had a documented history of mental health problems and arrests, including alleged cases of disorderly conduct, fare evasion and assault.

According to court records, less than 30 seconds after Penny allegedly strangled Neely, the train arrived at the Broadway-Lafayette station.

“Passengers who were feeling scared because they were trapped on the train were now free to get off the train. The defendant continued to hold Mr. Neely by the neck,” prosecutor Joshua Steinglass said in a court filing opposing Penney’s request for dismissal.

Prosecutors said footage of the interaction, which began about two minutes into the incident, showed Penny holding Neely in a chokehold for about four minutes and 57 seconds on a relatively empty train with a couple of passengers nearby.

About three minutes and 10 seconds into the video, Neely stopped making targeted movements, prosecutors said.

“After this point, Mr. Neely’s movements can best be described as the ‘twitching and agonizing movements you see before you die,'” prosecutors said.

The case is expected to include testimony from passengers who were on the subway at the time, as well as approximately six minutes of video of the chokehold.

The jury will see evidence that Neely did not have a gun.

Before opening statements, the judge ruled that the jury would see evidence showing Neely was unarmed.

Penny’s defense sought to exclude evidence or testimony about the absence of a weapon found during the search of Neely’s body, but in a written opinion issued Thursday, the judge said such evidence and testimony was relevant to the case.

“The fact that Mr. Neely was unarmed provides additional information that may assist the jury, namely, by clarifying what might have been perceived by someone in the defendant’s position,” the judge wrote. “The possibility that a person in the defendant’s situation could have reasonably mistakenly believed that Mr. Neely was armed is consistent with the jury’s consideration and is within their ability.”

The defense is concerned that including evidence that Neely was unarmed could increase sympathy for the victim, but the judge said it will help the jury decide whether Penny’s actions were justified.

Penny’s lawyers and the Neely family speak in court.

Prosecutors in the Manhattan District Attorney’s Office are expected to acknowledge that Neely may have appeared intimidating to some subway passengers, but will argue that Penny continued the chokehold well beyond the point when Neely stopped moving and posed any threat.

Penney’s lawyers said they were “saddened by the loss of life” but that Penney saw “a credible threat and took action to protect the lives of others,” arguing that Neeley made “crazy threats” to subway train passengers. .

While Penny’s defense will argue that he had no intent to kill Neely, prosecutor Steinglass noted that the second-degree manslaughter charge only requires prosecutors to prove that Penny acted recklessly, not intentionally.

“We are confident that the jury, aware of Danny’s actions in disregarding his own safety to protect the lives of his fellow racers, will reach a fair verdict,” Penny’s lawyers Steven Reiser and Thomas Kenniff said earlier this year after Penny was killed. the motion to dismiss the charges was denied.

“This case is simple. Someone got on the train and was screaming, so someone else strangled him to death,” Donte Mills, an attorney for the Neely family, said in a past statement to ABC News. “The two do not balance and will never balance. There is no excuse for this.”

“Jordan had the right to take his own place. He was allowed to be on this train and even scream. He didn’t touch anyone. He was not a guest on this train, in New York or in this country,” he said. Mills added.