Jordan Neely’s death in a crowded Manhattan subway car made worldwide headlines in May 2023, after bystander footage showed former Marine Daniel Penny restraining the erratic homeless man in a fatal chokehold. The case is finally set to go to trial, with jury selection beginning Monday.

Penny, who has argued that he acted to protect fellow passengers from a menacing Neely, faces charges of second-degree manslaughter and criminally negligent homicide. Neely, a homeless Michael Jackson impersonator with a history of mental illness, died after Penny placed him in a chokehold for several minutes. According to prosecutors – who don’t have to prove intent to kill, Penny acted recklessly in causing Neely’s death.

Manhattan District Attorney Alvin Bragg’s office has argued that Penny knew during the encounter that he might kill Neely, even if that was not his intention.

They’ve cited testimony from a Marine trainer, who told the grand jury that Marines are taught that chokeholds — which are meant to be a “non-lethal” restraint — can sometimes be fatal.

Prosecutors will also bring up evidence that Penny kept Neely in his chokehold for six minutes, continuing to restrain him even after the homeless man was no longer making purposeful movements.

“The notion that death is not a foreseeable consequence of squeezing someone’s neck for six minutes is beyond the pale,” the DA’s office wrote in a November 2023 court filing. –NY Post

Penny, a former infantry squad leader, has maintained that he did not intend to kill Neely, however Bragg’s office only has to convince a jury that Penny “recklessly” caused the death or disregarded a “substantial and unjustifiable risk of death” when he kept Neely in a chokehold for several minutes.

Julie Rendelman, a former prosecutor, suggested that the prosecution will likely play video footage of the incident in slow motion to underscore Penny’s extended use of force. “I think they really need to break down the scene, literally, second-by-second,” she explained.

According to Rendelman, prosecutors will make a huge mistake if they try to argue that Neely was “no danger to anyone” before Penny stepped in.

“You may lose some of those jurors who have been on the train many times, threatened by different individuals on many occasions,” she told the Post. “They really have to approach it in a way that recognizes that, but also recognizes that he went too far.”

The Defense’s Strategy

Penny’s defense lawyers, Thomas Kenniff and Steven Raiser, are expected to argue that their client’s actions were justified, pointing to what they describe as Neely’s erratic and threatening behavior. Witnesses recalled Neely shouting that “someone is going to die today” and declaring that he was “ready to go to Rikers.”

The defense is likely to question the medical examiner’s ruling that Penny’s chokehold directly caused Neely’s death. In an October 2023 motion, the attorneys argued that the examiner never provided specific evidence that Neely died from asphyxiation. Penny’s team may also attempt to introduce evidence of Neely’s drug use, pointing to toxicology reports that indicated Neely had the synthetic drug K2 in his system. While Penny’s lawyers acknowledge that the reports do not specify the quantity, they suggest that the drug could have been a contributing factor.

Who Will Testify?

According to the report, there will be several witnesses who were on the train, police officers who responded to the scene, and detectives who interviewed Penny. The city medical examiner’s office will likely present its findings, and the prosecution may call psychological experts to shed light on Penny’s mindset during the encounter.

A looming question is whether Penny himself will take the stand. Legal observers are divided on the wisdom of this move, but Rendelman said, “I think he probably needs to testify,” adding “This is one of the cases where it is likely that the jury is going to want to hear from Penny, because part of that justification is going to be about what he perceived at the time that the events were happening.”

The Stakes and Challenges

If convicted of second-degree manslaughter, Penny could face up to 15 years in prison. A conviction on the lesser charge of criminally negligent homicide carries a maximum sentence of four years. The final decision on sentencing would rest with Manhattan Supreme Court Justice Maxwell Wiley.

Jury selection is expected to be a critical phase, as prospective jurors’ own experiences on the subway could shape their views. “Jury selection is always a big part of any case, but for this one in particular, multiply that by 10,” said Brooklyn prosecutor Jason Goldman.

And according to Rendelman, “at the end of the day, one of their arguments is going to be even if you assume that initially – Daniel Penny’s argument that self defense is true, there was a point in time where there was no longer self-defense protection.”