Daniel Penny returns to the courtroom after a break in New York, on Oct. 21.Seth Wenig/The Associated Press
Prosecutors and defence lawyers agree on this about Marine veteran Daniel Penny’s encounter last year with a distressed, angry man making ominous remarks on a New York subway: Penny didn’t mean to kill him.
But a prosecutor told jurors Friday that Penny “went way too far” in trying to neutralize someone he saw as a threat and not as a person, while a defence attorney said Penny showed “courage” and put others’ welfare ahead of his own when he placed Jordan Neely in a chokehold that ended with Neely limp on the floor.
Both sides gave opening statements Friday in the manslaughter trial surrounding Neely’s death. The case has rattled fault lines surrounding race, homelessness, perceptions of public safety and bystanders’ responsibility.
Penny’s critics see him as a white vigilante killer of a Black man who was behaving erratically and making dire statements but wasn’t armed and hadn’t assaulted or even touched anyone in the subway car. Supporters credit the 25-year-old Penny with taking action to protect frightened riders – action that he has said was meant to defuse, not kill.
Prosecutor Dafna Yoran told jurors the case isn’t “a referendum on our society’s failure to deal with mental illness and homelessness on the subway,” nor on police response, on whether Penny had a right to intervene before officers arrived or even on whether his initial decision to use a chokehold was appropriate.
Rather, she said, “He used far too much force for far too long. He went way too far.”
She said he showed “indifference” toward Neely and “didn’t recognize his humanity.”
Not so, said defence lawyer Thomas Kenniff. He told jurors that Penny applied only as much force as needed to contain a “seething, psychotic” man who had lunged toward a woman with a small child and declared, “I will kill.”
“In that moment, Danny could look away and pray, or he could summon the courage to put the safety of his neighbours above that of himself, to protect those who could not protect themselves,” and he did the latter, Kenniff said.
“It doesn’t make him a hero. But it doesn’t make him a killer.”
Jurors, who were quizzed earlier about their subway experiences, later saw police body camera video of officers trying to revive Neely on the subway floor and Penny calmly explaining he had “put him out.”
The case has been absorbed into the United States’ fractious politics, with Republican officials speaking up for Penny and Democratic ones attending Neely’s funeral. Both supporters and critics of Penny have held demonstrations; Penny arrived at the courthouse Friday to critical chants from a small group of protesters.
Once in court, Penny sat straight up in his seat at the defence table, mostly looking directly ahead. A member of Neely’s family who was in the audience sometimes sniffled with tears.
“We know who the victim is in this case, and we know who the villain is,” family lawyer Donte Mills said outside court.
Neely’s life was tattered by mental illness and drug use after his mother was murdered and stuffed in a suitcase when he was a teen, his family has said. By 30, he sometimes entertained subway riders as a Michael Jackson impersonator, but he also had a criminal record that included assaulting a woman at a subway station.
Penny, an architecture student who served four years in the Marines, was going from a college class to a gym when he encountered Neely on a subway May 1, 2023.
Neely was begging for money, shouting about being willing to die or go to jail, and making sudden movements, according to witnesses. Yoran said Neely talked about hurting people.
Penny put his arm around the man’s neck, took him to the floor and held Neely there, with Penny’s legs around him.
With a bystander recording some of the encounter on video, Penny held Neely for about six minutes, Yoran said. The hold continued as the train stopped at a station, all but two fellow riders got off, those two helped restrain Neely, and another warned Penny, “If you don’t let him go now, you’re going to kill him,” according to her statement and court papers.
Kenniff said Penny was pleading with fellow passengers to call police and that he kept holding Neely because the man periodically flailed or tried to get up.
Penny ultimately released Neely nearly a minute after his body went limp, prosecutors said. He waited for police, but Yoran noted that although Penny was trained in first aid, he didn’t check Neely’s breathing or pulse or try to revive him.
Penny later told police that he had simply wanted to “de-escalate” the edgy situation and wasn’t trying to injure Neely but rather “to keep him from hurting anyone else.”
City medical examiners determined that Neely died from compression of the neck. Penny’s lawyers question that finding.