Prosecutors will rest their case Monday in Daniel Penny’s months-long trial for the death of homeless man Jordan Neely on a Manhattan subway train last year.
Former Marine Penny, 26, claims he acted in self-defense and in defense of other passengers after Neely terrorized their subway train and threatened them, but prosecutors say he turned to vigilantism and killed Neely with a chokehold.
Neely, 30, was once part of the city’s corps of subway and street performers and was known for his Michael Jackson impersonations. He struggled with substance abuse and mental illness and had a criminal record that included convictions for assault.
Neely’s death on the subway last spring sparked racial tensions in the Big Apple, as groups like Black Lives Matter tried to portray Penny as an overzealous, white ex-Marine who targeted an innocent black man.
However, the national attention on the trial has left many conservatives wondering why Penny was charged in the first place.
Penny is charged with manslaughter and negligent homicide. He faces a prison sentence of up to 15 years.
Daniel Penny, 26, faces 15 years in prison if convicted of manslaughter for the subway death of homeless man Jordan Neely, 30. Penny will be seen in court in Manhattan on Monday
Penny says he acted to protect himself and fellow passengers, but prosecutors have portrayed him as unskilled and say he improperly administered a chokehold during a period that resulted in the victim’s death.
Neely, 30, was once part of the city’s corps of subway and street performers and was known for his Michael Jackson impersonations
The Prosecutor’s Case
Prosecutors say Penny wanted to protect people but recklessly used too much force, overlooked Neely’s humanity and made no effort to spare his life.
City medical examiners ruled that Neely died from the chokehold. However, a pathologist hired by Penny’s defense disputed this finding.
Prosecutors have noted that the veteran continued to grab Neely’s neck after the train stopped and that anyone who wanted to get off was able to do so, after bystanders urged Penny to let go, and even after Neely had sat still for almost a minute.
Multiple witnesses said Neely yelled that he needed food and something to drink, threw his jacket on the ground and said he didn’t care if he died or went to jail. They differed in descriptions of his movements and whether they were threatening. Some said they were alarmed by him and some were grateful when Penny subdued him.
Several other passengers testified that they were afraid of Neely and were relieved when Penny grabbed him.
However, a man who later intervened and held Neely’s arms told jurors that he urged Penny to let go, but the veteran continued to strangle Neely for a while.
Prosecutors have portrayed Penny as unskilled and say he improperly administered a chokehold during a period that resulted in the victim’s death.
The Marine who trained Penny to apply a chokehold, combat instructor Joseph Caballer, admitted that video filmed by witnesses indicated his old cadet appeared to have done so inappropriately.
Penny (who was seen in court on November 18) also had character witnesses testify about his nature, including his mother and two Marines who served with him overseas
Caballer testified that the video appeared to show Penny trying to use a “blood choke” to restrain Neely – something he said should have knocked him unconscious in seconds.
Instead, the wait lasted more than six minutes.
During that time, while squirming in Penny’s arms, Neely could have inadvertently turned the clamp into an “air choke,” which takes longer to render someone unconscious and could be fatal much more easily.
The hold is not taught by Marines, he told jurors.
The defense
The defense claims that Penny held on because Neely tried to break free at points and that the pressure on the man’s neck was not consistent enough to kill him.
Dr. Satish Chundru, who was called to testify by Penny’s lawyers, blamed Neely’s death on a combination of sickle cell crisis and the effects of schizophrenia and synthetic marijuana.
The statement from the former Miami-area medical examiner was in stark contrast to the statement from the doctor who performed the city’s autopsy just days earlier.
Dr. Cynthia Harris had insisted it was neither the drugs nor the victim’s genetic condition that took Neely’s life, while also ruling out cardiac arrest.
During the trial, jurors watched videos recorded by bystanders and police body cameras and watched Penny explain his actions to officers at the scene and later in an interrogation room at the police station.
“I just wanted to keep him from reaching people,” he told investigators, demonstrating the chokehold and describing Neely as “a crackhead” who “acted like a lunatic.”
Dr. Satish Chundru made the claim Thursday in Manhattan Criminal Court. He can be seen here as a witness during another case in 2012
“I’m not trying to kill that man,” he insisted.
Penny now took the stand in his own defense, with one of his attorneys noting that jurors did hear from Penny, in the form of his recorded statements to police minutes and hours after he put Neely in a chokehold.
“Virtually everything he said at that time is consistent with credible testimony from his fellow passengers,” said Penny’s attorney Daniel Kenniff.
Penny’s lawyers have said Neely charged at a woman with a small child and said, “I will kill.”
Dr. Alexander Bardey, a defense expert who reviewed Neely’s medical history, said on the witness stand that he suffered from severe schizophrenia for years, including believing that the late rapper Tupac Shakur told him to “change the world.”
Neely also suffered from “paranoid fears that people want to hurt him,” “grand delusions that people are jealous of him,” and reported hearing “the voice of the devil.”
Despite the shocking nature of Neely’s history, Manhattan prosecutors had tried to keep Bardey’s testimony out of the trial and attempted to withhold evidence of Neely’s mental illness and drug abuse from Penny’s jury.
In his testimony, Bardey said he reviewed thousands of pages of Neely’s medical records from 2015.
Bardey previously worked for the Rikers Island jail, and witnesses said Neely shouted about his willingness to return to prison as he threatened subway passengers.
He said he had worked on hundreds of cases of schizophrenia patients, and said Neel’s case was among the worst of his career.
“His symptoms I would classify as severe,” Bardey testified.
“He describes paranoid fears that people want to hurt him, grandiose delusions that people are jealous of him, said Tupac told him to change the world, and that’s what he did.”