The manslaughter trial of Daniel Penny, the former Marine accused of putting a homeless man in a fatal chokehold on the New York City subway last year, moved to closing arguments Monday after weeks of testimony in the case.
Penny, 26, is facing charges of second-degree manslaughter and criminally negligent homicide in the death of 30-year-old Jordan Neely.
The charges stem from a May 2023 incident in which Neely boarded a subway car in Manhattan and acted erratically and loudly yelled at passengers. Penny grabbed him from behind and kept him in a chokehold for about six minutes, even after Neely stopped moving, prosecutors have said.
Jurors have to answer whether Penny’s actions were justified. But the trial itself has raised broader questions of mental illness, race relations and the concept of vigilante justice.
Penny faces up to 15 years in prison if convicted of manslaughter or up to four years if convicted of criminally negligent homicide. The judge could also choose not to sentence Penny to prison time, even if he’s convicted.
Even without cameras or recording allowed in the courtroom, the case has been filled with video and audio evidence, including 911 calls, bystander video shot on smartphones, and police body camera footage capturing the chokehold and the moments following.
What the defense and prosecution have said during closing arguments
In closing arguments Monday, the defense argued Penny was acting to protect other passengers from Neely and Neely’s death was not foreseeable.
“Daniel Penny was the one who moved to protect them. Why? Because he had something the others didn’t, something unique to him. His training,” attorney Steven Raiser said. “Because Danny acted to save those people. And there’s no dispute that when Danny acted, he didn’t know whether Jordan Neely was armed.”
The defense has also challenged the medical determination Neely died from the chokehold and suggested the charges were brought because of “a rush to judgment based on something other than medical science.”
Raiser said Neely “was on a collision course with himself,” and Penny “acted when others could not. He put his life on the line, he did that for perfect strangers.”
Prosecutors are “scapegoating this man here, the only guy who was brave enough to stand up when he was needed. The government wasn’t there, the police weren’t there when the people needed help, Danny was. And when he was the one who needed help, no one was there,” Raiser said during his closing argument, which lasted about two hours.
In closings for the prosecution, Dafna Yoran said it was admirable Penny intended to protect fellow passengers but said “he just didn’t recognize that Jordan Neely’s life too needed to be preserved.”
“No one had to die on May 1, 2023,” she said.
The prosecutor told jurors self-defense is legally justified on rare occasions. She said Neely might’ve threatened deadly physical force on the subway but argued a reasonable person should’ve known he wasn’t capable of carrying out the threat.
During Yoran’s closing, she also sought to illustrate Penny’s recklessness by pointing to his apparent lack of remorse in his video-recorded police interview, noting Penny never asks about Neely’s condition.
“There is something else glaringly missing,” Yoran said. “Any regret, any remorse, any self-reflection. He makes it clear that he didn’t intend to hurt Mr. Neely – but he never says he is sorry, he doesn’t care.”
The prosecutor is expected to continue her closing argument Tuesday morning before Judge Maxwell Wiley charges 12 jurors to consider the case against Penny.
Scared for your life, or just another day in New York?
During jury selection, most potential jurors said they ride the subway frequently and have witnessed outbursts from people acting erratically on the trains. Some said the outbursts made them feel “personally threatened,” while others said they did not.
Some witnesses described a callous disregard for Neely’s life, saying Penny didn’t let go of the chokehold even when others on the train told him to – including one man who initially helped hold Neely down. In a video presented at trial, an unseen bystander can be heard saying, “Let him go!” Another man, who was previously homeless himself, said Penny actively stopped him from assisting Neely.
Prosecutors called several bystander witnesses to the stand: Some testified they were scared by Neely and relieved when Penny put him in a chokehold. One woman said when Neely entered the subway train, it was the first time in her life she felt like she was going to die.
Defense attorneys declined to call any bystanders who witnessed the subway chokehold, even saying the prosecution’s witnesses were making the case for the defense.
“As this testimony is coming out of the prosecution’s case, there’s actually very little for the defense to do,” Thomas Kenniff, a defense attorney for Penny, told reporters.
Penny’s military background comes into play
Penny served four years in the US Marines as a sergeant, from 2017 to 2021, with his last duty assignment at Camp Lejeune in North Carolina, according to military records.
Defense attorneys called several men Penny served with in the Marines to testify to his character: Nolan Drylie, who served with Penny in the same battalion, said Penny had a reputation for being “above reproach,” and as Marines they were “taught to value life.”
As the defense sought to establish Penny’s good character with his military background, prosecutors alleged his training proved he knew what he was doing during the chokehold.
Penny was a green belt in the Marine Corps martial arts program, where he learned several chokes designed to cut off blood flow to the brain and render someone unconscious, his martial arts instructor in the Marines testified for the prosecution.
Joseph Caballer, the instructor, said after reviewing photos and videos of the chokehold in court Penny incorrectly used a blood choke technique in the restraint of Neely.
The prosecution also called several paramedics, who testified they made multiple failed attempts to revive Neely, who had no pulse and was not breathing when they arrived.
Medical experts spar over Neely’s cause of death
The final witnesses for both the prosecution and defense focused on Neely’s cause of death, with medical experts for each side offering opposing viewpoints on how the homeless man died.
Dr. Cynthia Harris, the medical examiner who performed Neely’s autopsy, found the chokehold caused Neely’s death before reviewing results from several post-mortem tests including a toxicology report. Testifying for the prosecution, she said she had no doubt Neely died from neck compression and any drugs eventually found in his system wouldn’t have changed her mind.
But a forensic pathologist for the defense countered Harris’ conclusions, saying instead Neely died of a combination of factors including his sickle cell trait, schizophrenia, the struggle and restraint by Penny and K2 intoxication.
While a toxicology study found the presence of K2 – a synthetic cannabinoid – in Neely’s system, Harris testified she did not think the stimulant drug contributed to his death.
She acknowledged she made the determination before toxicology results were in, but said she did not feel it was necessary to wait – it would not have changed her mind if he had “enough fentanyl in his system to put down an elephant.”
A different medical expert for the defense testified about Neely’s medical history, presenting 50 pages of documents detailing his multiple interactions with the city’s health system over more than a dozen hospitalizations in six years. Some hospitalizations were due to his abuse of K2, according to the records.