Daniel Penny trial: Marine veteran's defense says Jordan Neely's four words justified deadly subway chokehold

Daniel Penny returned to a Manhattan courthouse this morning for opening statements in his manslaughter trial for the death of Jordan Neely, an erratic homeless man he placed in a chokehold during an outburst on the subway.

Outside, protesters held signs and a megaphone and blasted Penny’s actions as “illegal,” although his defense has argued his actions were entirely justified under the law because of threats Neely shouted out loud on the subway car.

Inside the courtroom, prosecutors delivered their remarks first, conceding that Neely “scared many of the people” on the train where he died.

“Jordan Neely took his last breaths on the dirty floor of an uptown F train – at the time he died he was 30 years old, homeless, on synthetic drugs, and suffering from mental illness,” Manhattan Assistant District Attorney Dafna Yoran began. 

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Video of the incident shows other passengers helped Penny restrain Neely, who later died. The trial kicks off after more than a week of jury selection.

Prosecutors, in a 45-minute opening statement, said Penny maintained the chokehold for 5 minutes and 53 seconds, calling the move “unnecessarily reckless.”

“He did not intent to kill him, but under the law deadly physical force such as a chokehold is permitted only when it is absolutely necessary and only for as long as it is absolutely necessary,” the prosecution continued.

The defense countered that Penny was defending himself and other passengers from Neely’s threats of violence.

“This is a case about a young man who did for others what we would want someone to do for us,” the opening statement from defense co-counsel Thomas Kenniff began. “Words like ‘I’m ready to die. I’m ready to serve a life sentence,’ when these threats spoken in the confined [space] in a moving subway car, you either bury your head and pray or you stand up and protect thy neighbor. That’s what Danny Penny did.”

Penny grew up in a middle-class New York family and joined the Marine Corps to serve his country and also to secure the means to pay for a college education, his lawyers said. 

He was studying architecture at the New York City College of Technology and working jobs as a swimming instructor and barback at the time of his encounter with Neely, whom lawyers described as “a seething psychotic” who was “high on drugs” when he boarded the subway car and started screaming. 

“As the doors seal shut, and the train goes towards the dark tunnel, Neely slams his jacket on the ground with such force that the train falls silent,” Penny’s defense continued. “He demands drinks, food and money. He tells passengers that if they don’t give them what he wants, he is going to take it from them.”

He raised his voice, ranting about going back to the Rikers Island jail, getting a life prison sentence and being ready to die, the defense continued.

“Passengers begin flooding towards the far end of the subway car, Neely sets his sights on a group of female passengers, [and] at that moment Danny sees a mother barricading her son behind a baby stroller,” the lawyers said. “Neely utters the words, ‘I will kill,’ and, ladies and gentleman of the jury, when Jordan Neely threatened to kill there was only one thing Danny Penny could do.”

After Neely announced the threat, there was no time to “de-escalate the situation,” they said. Penny acted defensively to take down the madman.

“Danny’s intent is not to kill Mr. Neely, in fact he did not want to hurt him at all,” the defense continued. “The evidence will show that Danny made every conscious effort to avoid harm.”

Penny used what the defense described as a “non-fatal chokehold” he hand been trained to use.

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“His purpose in using the hold was to contain him until the police arrive – something that took longer than anyone on the train would have expected,” the lawyer said.

Penny remained at the scene until police arrived. Neely was still breathing when he let him go.

After the opening statements, the first witness took the stand, an NYPD officer who responded to the scene. Neely’s relatives, seated in the back of the courtroom, grew emotional during the questioning.

Neely did not have a weapon when officers arrived. They found only a muffin in his jacket pocket. Neely had a pulse but was not breathing, and officers administered the opioid antidote Narcan, but it did not revive him.

There were women and children on the train, and Penny told detectives he perceived a threat, according to testimony from pretrial hearings.

When Neely walked into him, he said, he put him in a chokehold.

“I’m not trying to kill the guy,” he told detectives. “I’m just trying to de-escalate the situation.”

A second witness, NYPD Sgt. Carl Johnson, was asked by Yoran why officers chose to use Narcan on Neely.

“Mr. Neely was lying on the floor of the subway car, totally unresponsive,” he said.

“He was an apparent drug user, and he was very dirty,” Johnson testified. “I didn’t want my officers to put their lips on his mouth. They could get hepatitis or AIDS … chest compressions would be enough to get him awake.”

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During cross-examination, Johnson was asked why officers did not use mouth-to-mouth resuscitation.

“There’s a certain line where you have to protect your officer. Look at 9/11. I wouldn’t want one of my officers getting sick from this,” Johnson said.

NYPD Officer Dennis Kang was the third witness during Friday’s trial, with his body camera footage from the incident playing for the jury.

“My man! Stay with me … yo!” Kang was heard telling Neely in the body camera footage.

Kang said that when officers first responded to the scene, Neely was lying face down on the floor before they “flipped him stomach side up and tried to wake him up.” 

The third witness’ body camera footage captured Penny telling Kang that Neely was “throwing a bunch of sh– and said I’m gonna go to prison forever.”

The first day of the trial ended around 4:24 p.m. on Friday after two MTA witnesses were called to talk about the transit authority’s work flow.

With a total of five witnesses during the first day of the trial, maintenance superviser Michael Ramjattan and train dispatch employee Cecil Postell were the last people called to the stand.

Penny is a 25-year-old Marine Corps veteran and college student.

Neely was a 30-year-old homeless man and former Michael Jackson impersonator with a history of mental illness and criminality, including a prior charge for assaulting a 67-year-old New York City woman in 2021.

Penny faces up to 19 years in prison if convicted.

The trial is slated to begin again on Monday, Nov. 4 at 10 a.m.