A couple who filmed former Marine Daniel Penny strangling Jordan Neely, ultimately leading to his death in May 2023, are refusing to come to New York to testify at Penny’s trial.
The couple “apparently took a video of the incident, and have since refused to testify before the Grand Jury, having returned home somewhere in Europe,” a judge said during a pretrial conference for the attorneys involved.
“So far they have refused to share the video they recorded,” the judge explained, the newspaper reports. The New York Post.
“They refused to share it with the prosecution or anyone else, and to this day they refuse to come back to testify.”
It’s unclear who the couple are or why they have so far refused to cooperate with authorities, but Penny’s lawyers believe the images could be “incredibly favorable” to the former Marine if they were admissible as evidence.
Daniel Penny, 25, faces 15 years in prison for fatally strangling Jordan Neely, 30.
Penny held Neely in a chokehold on the floor of the subway car while others assisted her on May 1, 2023.
The couple, believed to be residing somewhere in Europe, have so far rebuffed attempts by prosecutors to get them to turn over the images, Manhattan Supreme Court Judge Maxwell Wiley said.
The Manhattan district attorney’s office is still in contact with the tourists and has held several video meetings with them, but has not yet given the go-ahead without explaining why they will not hand over the footage or return to the city to testify.
Penny, 25, faces charges of second-degree murder and criminally negligent homicide following a confrontation on a subway train in May 2023 that left Neely dead.
Penny restrained Neely after he allegedly threatened people on the train car.
Penny strangled him on the F train at the Broadway-Lafayette Street and Bleecker Street station.
He was 24 at the time of the incident and was filmed holding Neely down, holding him on the ground until he fell unconscious.
Penny put Neely in a fatal chokehold on the New York subway. Neely had been threatening passengers.
Neely was pronounced dead at the scene and the medical examiner later ruled the death a homicide, saying her neck injuries showed strangulation was the cause.
Penny, a former infantry squad leader, said he had no intention of killing Neely but felt he had to intervene to protect the other passengers from Neely, who was littering and threatening to “kill a motherf***er” and go to jail.
Penny broke her silence to say that Neely’s death had nothing to do with race, stating that she did what she believed was right and would behave the same way if she were in the same situation again.
He has pleaded not guilty. His defense attorneys had previously sought to have the case dismissed, arguing that he “intervened to save lives,” but the request was rejected in January.
Neely, who was homeless, was a former Michael Jackson impersonator and had been battling mental illness in the years before his death.
Jury selection in Penny’s trial is scheduled to begin in late October.
A couple who filmed former Marine Daniel Penny strangling Jordan Neely, ultimately leading to his death in May 2023, are refusing to come to New York to testify.
Their lawyer, Thomas Kenniff, said that if the couple refused to testify this could raise a “very serious problem”.
Kenniff explained how the couple’s testimony in their account of what happened and what they witnessed would be “probative” and also “incredibly favorable to the defense, or at least certain parts of it.”
The tourists’ account of the incident could “perhaps be more probative than any testimony on the issues that will be discussed in this trial,” the lawyer added.
The judge also asked attorneys present at the pre-trial conference if they would be open to the couple testifying remotely from Europe.
“I certainly don’t have the means to do that. I guess whether the people have it or not is a matter of international law, of The Hague and so on,” Kenniff said.
Court records detail how prosecutors have another video in their possession showing Neely’s death.
Jury selection is expected to begin around October 21, and the trial itself is expected to last several weeks.
If convicted, Penny could face up to 19 years in prison.
Penny, a former infantry squad leader, said he had no intention of killing Neely but felt he had to intervene to protect the other passengers.
Neely had an extensive criminal record for crimes committed on the subway, including brutal attacks on other passengers.
In 2021, he attacked an elderly woman as she was exiting the Bowery station in the East Village. She suffered a broken nose, a fractured orbital bone and “bruising, swelling and significant pain to the back of her head” in the Nov. 12 attack, according to a criminal complaint.
He admitted to the assault charge on Feb. 9 in exchange for a 15-month prison-alternative program, according to the Manhattan District Attorney’s Office.
He was supposed to stay in a treatment center and stay sober.
Between January 2020 and August 2021, he was arrested for public lewdness after pulling down his pants and exposing himself to a woman, misdemeanor battery for striking a woman in the face, and criminal contempt for violating a restraining order.
All three cases were dismissed as part of a settlement.
In June 2019, Neely assaulted Filemon Castillo Baltazar, 68, on the platform of the W. 4th St. station in Greenwich Village, court records show.
“All of a sudden, he punched me in the face,” the victim told the New York Daily News. She said she had seen Neely before the attack rummaging through garbage bins for food.
Neely had an extensive criminal record for crimes committed on the subway, including brutal attacks on other passengers.
A month earlier, Neely punched a man in the face, fracturing his nose on the Broadway-Lafayette platform, the same subway station where he died.
In both 2019 cases, he pleaded guilty to misdemeanor assault and was sentenced to six months in jail.
Neely’s family said he was “experiencing a mental health episode” and that no cyclist asked what was wrong before Penny and two others restrained him.
A woman riding the subway that day described how she was reading a book when she heard Neely start screaming.
“He said, ‘I don’t care if I have to kill somebody, I’ll do it. I’ll go to jail, I’ll get shot.’ I looked at where we were on the subway, in the sardine can, and I thought, ‘Okay, we’re between stations. There’s nowhere we can go.'”
She said Fox News that Penny was simply acting in “self-defense,” and I believe in my heart that she saved many people that day who could have been hurt.
“Nobody wants to kill anybody,” he said. Mr. Penny did not want to kill the man. It took three men to restrain Mr. Neely. He was struggling.
The woman, who described herself as a “woman of color,” also said race had nothing to do with what happened on the train.
“This is not about race. This is about people of all colors who were very, very afraid and a man who stepped in to help them.
“They are using race to divide us.”
He said New York – a city he has lived in for 50 years – was beginning to look like a “Third World country”.
“I miss the city under Giuliani’s law and order. When it comes to exposing people or subjecting them to violent behavior, the people who are in power and supposed to protect us don’t do it.”