Over the next several weeks, a Manhattan jury will decide whether a 26-year-old former Marine should go to prison for putting another man in a fatal chokehold on the subway and continuing to squeeze his neck for about six minutes.
Daniel Penny stands trial this month on charges of manslaughter and criminally negligent homicide in the death of Jordan Neely, a homeless man who witnesses say was yelling that he was hungry and ready to go to prison while aboard an uptown F train in May 2023. The Manhattan district attorney’s office says Penny should have known the chokehold could put Neely’s life in danger. Penny’s attorneys say he was trying to help subway commuters who felt unsafe, and that he didn’t mean to hurt or kill anyone.
A video that shows several minutes of the chokehold and its aftermath went viral after Neely’s death and underscored deep fissures in the debate about homelessness, mental illness and safety on the subway. Some called Penny a hero and donated to a multimillion-dollar legal defense fund, while others characterized him as an overzealous vigilante.
As Penny’s trial gets underway this month, legal experts say, prosecutors will likely try to convince jurors that his individual actions over a handful of minutes caused Neely’s death — and that he went beyond what a reasonable person would do. Penny’s attorneys, on the other hand, will have to convince jurors that his actions were warranted. To do that, experts expect one key witness to play a starring role in Penny’s case: New York City’s public transit system.
Fear about subway crime has persisted in the transit system in recent years, especially after ridership decreased during the pandemic. A handful of high-profile acts of violence by people with severe mental illness on subway platforms and in train cars have also stoked concerns — even though researchers have found that it’s uncommon for people with serious mental illness to commit violent crimes.
Legal observers say jurors’ perception of subway safety will likely be a key factor in the case. Jurors will have to determine whether it’s reasonable for commuters like Penny to take matters into their own hands when they feel unsafe on the country’s largest subway system.
“The subway is a microcosm of all of this,” said Todd Spodek, a defense attorney not connected to the case. “You’re not in a large area where you could just walk away. You’re stuck.“
The Manhattan DA’s office declined to comment on their legal strategy for trial. One of Penny’s attorneys, Steve Raiser, said in a text message that their case will focus on the government’s failure to address mental health and homelessness on the subway.
“The [g]overnment failed Mr. Neely and every rider on that train,” he said.
The prosecution: zooming in on Penny’s decisions
There’s still a lot we don’t know about the moments that led to Neely’s death. But according to court papers, Neely got on an uptown F train at 2nd Avenue on the Lower East Side, threw his jacket, and yelled. Witness accounts to the grand jury varied, but multiple people on the subway that day said Neely expressed that he was hungry and thirsty. Some said Neely yelled about being ready to die or go to jail for life if he didn’t get what he wanted. Then Penny wrapped his arm around Neely’s neck, the defendant later told police.
While prosecutors wouldn’t comment ahead of trial, their arguments in court records have zeroed in on the minutes and seconds that passed after Penny decided to put Neely in a chokehold on the train. They say Penny kept restraining Neely after the subway pulled into the Broadway-Lafayette station and passengers were able to leave the car, after Neely stopped moving, and after another passenger warned that Penny might kill Neely if he didn’t let go.
Legal experts and court papers suggest that prosecutors will likely focus on whether Penny knew he was endangering Neely’s life as he continued to squeeze the man’s neck. Spodek said he expects the DA’s office to question Penny’s “minute by minute, second by second” decision-making process.
“They’re going to try and tailor their theory of the case to the immediate circumstances. That what’s happening in the larger New York City area is irrelevant,” the attorney said. “The only thing that matters is what happened when they got on that train that very moment and nothing more.”
Vinoo Varghese, a former Brooklyn prosecutor who now works in criminal defense, said he expects the DA’s office to also highlight Penny’s experience in the Marines.
“He kept holding onto this guy, and he’s a trained military guy,” Varghese said prosecutors will likely tell the jury. “He’s not your ordinary citizen, and so he should have known that he was going to kill this guy.”
The defense: tapping into jurors’ fears of subway crime
Penny’s defense attorneys, Spodek and Varghese both said, will likely focus more broadly on the day-to-day environment on New York City subways that could have influenced Penny’s decision to put Neely in a chokehold.
In a motion to dismiss the case filed last year, Penny’s attorneys described an atmosphere of “traumatizing” fear on the subway car after Neely boarded. They quoted passengers who said Neely’s behavior was “insanely threatening” and “satanic,” that he shouted “someone is going to die today” and that he was “ready to go to Rikers.” They cited one long-time subway commuter’s statement to the grand jury that she had encountered many things on the train, “but nothing that put fear in me like that.”
Spodek said the jurors will have to ask themselves whether Penny reasonably believed that people on the F train were in danger.
“Was this unique? Was the circumstances to such a high level that he had no choice but to do this?” he said. “And I think the answer is, from the defense’s point of view, absolutely. And there are witness observations to support that.”
Varghese said he expects Penny’s defense attorneys to try to pick jurors who can empathize with Penny and other riders who were scared on the subway that day. He said it could be more challenging to find those jurors in a largely Democratic borough.
“Amongst New Yorkers on this kind of political issue, in a city that leans overwhelmingly left and blue — particularly in Manhattan — it’s going to be difficult for him,” Varghese said.
“But,” he added, “I think people are fed up with what they have to deal with on the subway.”
‘What do I do?’
Another central facet of the case is Neely’s psychiatric history. He was diagnosed with schizophrenia and used synthetic cannabinoids — also known as K-2 — according to court records. Experts and court filings show that information is likely to come up at trial as defense attorneys try to convince jurors that Neely was scaring subway riders.
Neely’s death fueled debates about the city’s treatment of people with serious mental illness, particularly in the subway system. Mental health advocates told Gothamist they worry the trial will inflame rhetoric about subway crime and bolster misconceptions about mental illness and violence.
“It will perpetuate this stigmatization of people with mental illness,” said Melissa Beck, who has worked as both a prosecutor and defense attorney and now advocates for mental health reform. “It will perpetuate the status quo of criminalizing people with mental illness, and it will do nothing to increase access to culturally competent, evidence-based care for people with mental illness.”
On a recent evening at the Broadway-Lafayette station, lifelong New Yorker Nadya Belov said she’s not sure what she would decide if she were a juror in Penny’s case.
“I would have to really look at the evidence,” she said, “because I wasn’t there. I don’t know what happened.”
Belov said her first instinct is to help when she sees people in distress in the subway system, but she’s often not sure how she can. And a lot of the time, she said, she feels scared.
“Sometimes people are screaming,” she said. “I’ve seen a guy throw stuff. And then you’re in the car as it’s moving and someone is throwing something, and then at that point you no longer know what the person will do. So, you’re like, ‘What do I do?’ Like, I don’t want to be in the middle of this if something goes down.”
Belov said when something like that happens, she normally switches cars at the next stop. So does Alve Al, a friend of Neely’s who was sitting on a bench at the Broadway-Lafayette station last week. He said there was “no need” for Penny to choke Neely.
“I would have walked away,” he said. “Life is more worth living. But for him to do what he did, he’s going to have to pay the price.”
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