Judge denies Marine vet Daniel Penny's motion for mistrial in subway chokehold case despite 'bias' red flag

NEW YORK – Lawyers for Marine veteran Daniel Penny, who is on trial for the death of a man they called an “unhinged nutjob” in court, asked the judge to declare a mistrial Thursday over testimony from a “biased” witness and an apparent anti-White narrative from Manhattan District Attorney Alvin Bragg’s prosecutors.

The defense argued that Penny is not getting a fair trial, and raised a number of objections, saying that the prosecution was trying to paint Penny as a “White vigilante” and improperly allowed witness Johnny Grima, a homeless man with a conviction for bashing someone with a bat, to call the defendant a “murderer” from the witness stand when he has not been accused of murder.

Penny, 26, was an architecture student who was attending a New York City college after proudly serving his country in the Marine Corps, defense attorney Thomas Kenniff said.

Neely, 30, was an “unhinged nutjob” with a documented history of making trouble, he said, including the alleged assault of a 67-year-old woman on another subway car. 

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That remark prompted observers in the gallery to start to speak up, and court officers told them to “quiet down.”

Judge Maxwell Wiley denied the request but told Kenniff, “I see what you’re getting at.”

Grima, an unemployed 40-year-old from the Bronx who spends time working with the homeless and spent 13 months behind bars, testified that he had poured water on the head of an unconscious Neely when Penny told him to stop.

Then he claimed that Penny was “flinging Neely’s limbs around carelessly” when he repositioned him on the floor after Grima suggested he might choke if left on his back. He did not witness the start of the altercation.

“It’s something like when you have an abuser abusing someone, and they’re not trying to let anyone near the abused,” he claimed. 

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Penny’s defense team took issue with how objections were handled during Grima’s testimony.

Wiley said he believes that Grima’s “bias” was clear to the jury but that he still had relevant testimony to give.

Prosecutors argue that Penny went too far when he put a belligerent, shouting Neely in a chokehold on a Manhattan subway car after he started screaming death threats. The defense maintains that his actions were justified.

“He’s not charged with murder, so you just need a reckless or negligent standard here,” said Paul Mauro, a retired NYPD inspector who has been following the case. “To say that he was reckless when [Neely] was screaming, ‘I’m gonna kill somebody’ . . . and he’s still breathing when the cops show up – that’s not reckless. I’m sorry, and that’s not negligent.”

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Neely was known to police as an emotionally disturbed person and yet remained free to harass the public, he said.

“A clue to this whole thing is the cops let him go, because of the clues at the scene,” Mauro said. “They did not have probable clause.”

Police questioned Penny and let him go. He was indicted days later by Bragg’s office and turned himself in.

Penny faces up to 19 years in prison if convicted. Friday marks 12 days into an expected six-week trial.

Bragg’s office did not immediately respond to a request for comment.