Jordan Neely’s death on a crowded Manhattan subway struck a chord with New Yorkers in May 2023, when bystander video of Daniel Penny placing the homeless man in a fatal chokehold went viral.
Now the lightning rod case against Penny – who claims he acted to protect the other passengers from Neely, who a witness said acted in a “frenziedly threatening” manner – is finally heading to trial, with jury selection set to begin on Monday go.
The jurors tasked with deciding Penny’s fate at his manslaughter trial will essentially step into the former Marine’s shoes before deciding whether to convict him, former prosecutors told The Post.
The panel of 12 Manhattanites will delve into the final moments of Neely’s life in painstaking detail — and be asked to imagine what they would do if they were in Penny’s situation, the legal observers said.
Here’s what you need to know ahead of the highly anticipated trial:
What does the Manhattan district attorney’s office have to prove?
The former infantry unit leader has repeatedly said he did not mean to kill Neely, a homeless former Michael Jackson impersonator who had battled mental illness in the years leading up to his death.
But prosecutors in the Manhattan District Attorney’s office don’t have to prove that Penny had the “intent” to kill in order to convict him on the charges he faces.
Instead, jurors will be asked whether they believe beyond a reasonable doubt that Penny “recklessly” caused Neely’s death. If they agree unanimously, they can convict Penny of second-degree manslaughter.
Penny also faces another charge with a lower burden of proof: criminally negligent homicide.
To convict him, the jury will have to agree that Penny failed to take into account what the law calls a “substantial and unjustifiable risk of death” when he restrained Neely for several minutes.
What will the prosecutors argue?
Manhattan District Attorney Alvin Bragg’s office has argued that Penny knew during the meeting that he would kill Neely, even though that was not his intention.
They cited testimony from a Marine trainer, who told the grand jury that Marines have learned that chokeholds — which are intended as a “non-lethal” restraint — can sometimes be fatal.
Prosecutors will also present evidence that Penny had a chokehold on Neely for six minutes and continued to restrain him even after the homeless man stopped making purposeful movements.
“The idea that death is not a foreseeable consequence of squeezing someone’s neck for six minutes goes beyond all bounds,” the district attorney’s office wrote in a November 2023 court filing.
Defense attorney Julie Rendelman said prosecutors will likely play the video of Neely’s death in slow motion, arguing that Penny continued to strangle him long after a reasonable person could have deemed him dangerous.
“I think they really have to unravel the scene, literally, second by second,” said Rendelman, who worked as a prosecutor for 20 years.
Prosecutors will likely focus on how the unarmed Neely — despite delivering a “horrific” tirade on the subway — did not “actively assault” anyone as Penny restrained him, said Brooklyn attorney and former prosecutor Jason Goldman.
But Rendelman said prosecutors would be making a mistake if they claim Neely posed “no danger to anyone” before Penny intervened.
“You may lose some of those jurors who have been on the train many times and have been threatened on many occasions by different individuals,” she said. “They really need to approach it in a way that recognizes that, but also recognizes that he went too far.”
What will the defense argue?
Penny’s attorneys, Thomas Kenniff and Steven Raiser, have argued that Penny’s chokehold was justified because of what they called Neely’s threatening behavior toward straphangers — including ravings that “someone is going to die today” and that he was “ready to go to Rikers.” ”
“Penny’s defense team will put jurors in that train car and challenge them with what would be the safest response in light of Neely’s chaos,” Goldman said.
The defense will also likely try to poke holes in the city medical examiner’s ruling that Penny’s chokehold caused Neely’s death.
The attorneys argued in an October 2023 motion that the medical examiner who testified before the grand jury never provided any specific evidence that Neely died of asphyxiation as a result of the chokehold.
They could, if the judge allows it, bring up Neely’s chronic abuse of the drug K2. Neely’s toxicology reports confirmed he had K2 in his system when he died, Penny’s attorneys say. But the report did not say how many were present.
Penny’s lawyers’ bid to dismiss the case on these grounds has so far been rejected.
But jurors could acquit him at trial if they find they have reasonable doubt that Penny’s chokehold caused Neely’s death.
Who will testify?
Several straphangers who witnessed the fatal encounter, police officers who responded to the scene and detectives who interviewed Penny that evening will take the stand, according to court papers.
Jurors will also hear from the city medical examiner’s office and possibly from psychological experts who could try to explain Penny’s state of mind during the episode.
A big question looming during the trial is whether Penny herself will testify. He will have a chance to make that decision after the prosecutor rests his case.
Rendelman told The Post: “I think he should probably testify.”
“This is one of those cases where it’s likely the jury will want to hear from Penny because part of that justification is about what he perceived at the time the events occurred,” she said.
“What was going through his mind with every step?”
How much time should Penny spend behind bars?
Penny faces up to 15 years in prison if the jury convicts him of manslaughter, and up to four years in prison if convicted on the lesser charge of negligent homicide.
The district attorney’s office did not indicate how severe the sentence would be for Penny, who had no criminal record before his arrest.
The final say on Penny’s fate in the event of a conviction would fall to Manhattan Supreme Court Justice Maxwell Wiley, who is presiding over the case.
What could complicate matters?
The Manhattanites on the jury may have had their own frightening experiences on the subway at some point, making choosing the panel particularly important, Goldman said.
“Jury selection is always a big part of any case, but especially multiply that by 10,” he told The Post.
“Beyond the four corners of this case and the legal norms, there will certainly be great feelings involved,” he said.
Last summer, Goldman represented 20-year-old Jordan Williams, who stabbed a man on the subway after the man punched his girlfriend and attacked Williams himself. Williams’ case was dismissed after a Brooklyn grand jury declined to indict him on manslaughter charges.
Unlike Williams’ case, there is no evidence that Neely took control of the passengers on the train before Penny boarded.
“I think the key is dealing with the self-defense aspect because I think they have an uphill battle in some respects,” Rendelman noted of the prosecution.
“Ultimately one of their arguments will be, even if you assume that initially — Daniel Penny’s argument that self-defense is true — there was a point at which there was no more self-defense protection.”
“That to me is one of the crucial things that the jury has to understand so they don’t lose them.”
