NEW YORK — The prosecution and defense are preparing for Monday's closing arguments in the Daniel Penny trial as it comes to a close after a break for the Thanksgiving holiday.
Penny put Jordan Neely, 30, a homeless man, in a fatal 6 minute-long chokehold after Neely boarded a subway car acting erratically.
Penny, 25, is charged with manslaughter and negligent homicide in the May 2023 choking death of Neely on the New York City subway. He pleaded not guilty.
Here are the key takeaways from the trial so far:
The prosecution’s argument
Prosecutors argue that Penny, a former Marine trained in martial arts, should have known that his chokehold maneuver was turning fatal, arguing that Penny held onto Neely “for far too long" -- more than 5 minutes after the train pulled into the station and passengers were able to exit.
Neely entered a moderately crowded subway car on an uptown F train at the Second Avenue stop and began yelling and moving erratically, when Penny put Neely in a chokehold. Thirty seconds later, the train arrived at the next station and essentially all the passengers left the train car.
Footage of the interaction between Penny and Neely, which began about 2 minutes after the incident started, captures Penny holding Neely for about 4 minutes and 57 seconds on a relatively empty train with a couple of passengers nearby.
"He was aware of the risk his actions would kill Mr. Neely and did it anyway," Assistant District Attorney Dafna Yoran said in her opening statements. "Jordan Neely took his last breaths on the dirty floor of an uptown F train.”
Prosecutors further argued that while Penny may be an "honorable veteran" and "nice young man," he used too much force for too long and was reckless with Neely's life because "he didn't recognize his humanity."
She later continued, "Under the law, deadly physical force such as a chokehold is permitted only when it is absolutely necessary and for only as long as is absolutely necessary. And here, the defendant went way too far."
The second-degree manslaughter charge only requires prosecutors to prove Penny acted recklessly, not intentionally, according to prosecutors.
The defense’s argument
Defense attorney Thomas Kenniff countered that Penny sought to protect passengers, claiming he was responding to Neely's "unhinged rage."
"This is a case about a young man who did for others what we would want someone to do for us," Kenniff said. "It doesn't make him a hero, but it doesn't make him a killer."
Penny claims to have heard Neely say "I will kill," said Kenniff, who has said there was no opportunity for his client to de-escalate or stop Neely from the harm he was threatening.
Borrowing from "a bit" of martial arts training he received in the Marine Corps, Penny put Neely into a chokehold without intending to kill him, the defense said, but to hold him until police arrived.
"His conduct was consistent with someone who values human life and that's why he was trying to protect it so fiercely," the defense attorney said.
Kenniff insisted his client "does not want to use any more force than is necessary," but Neely "aggressively resisted" while in Penny's grip. He said Penny thought Neely, who police say was unarmed, might have a weapon as he waited for police.
Daniel Penny’s interview with police
Jurors saw body camera video that had not yet been publicly released of Penny's initial encounter with police, more than 4 minutes after he let go of Neely.
On the first day of the trial, the jury saw the officer's body-worn camera footage that captured the attempts to save Neely and showed his lifeless body on the subway floor.
When searched for weapons, the only thing officers found in Neely's pockets was a muffin. Nothing else was found in the jacket, Officer Teodoro Tejada confirmed.
Penny is heard saying, "I put him out," when the officer asked what happened. To prosecutors, the footage -- which had not been seen publicly until the trial -- is evidence Penny disregarded Neely's basic humanity.
The defense used Tejada's testimony to suggest to the jury Penny did not behave like a criminal by fleeing the scene.
"Did he appear cooperative?" the lawyer asked.
"Yes," the officer replied.
"It didn't appear that he had anything to hide?" Kenniff asked.
"No," Tejada said.
Video of Jordan Neely’s subway chokehold death
In a video taken by then-17-year-old high school student bystander Ivette Rosario, a witness can be heard calling out to Penny, “He’s dying…you need to let him go.” Others are heard yelling on the clip to “get the cops!”
Rosario testified that she did not hear anyone say that Neely is "dying" at the time and it’s not clear whether Penny heard it either.
Man who helped restrain Neely testifies
A Bronx man who helped Penny restrain Neely "jumped in and tried to help" so Penny could release his chokehold, according to the man's testimony.
Eric Gonzalez, who is seen in video footage holding Neely by the wrist, boarded the subway and noticed Penny holding down Neely “with his legs around his waist and his arm around his neck.” Gonzalez testified he did not know why Penny was restraining Neely but he heard people yelling to call for the police.
Gonzalez said he waved his hands in front of Penny’s face to get his attention.
“I said, ‘I will grab his hands so you can let go,’” Gonzalez told the jury. “Just giving him a different option to hold his arm -- well, to restrain him until the police came.”
Prosecutors asked Gonzalez to clarify: “If I held his arm down, he could let go of his neck," he said.
Gonzalez said he watched Neely’s body go limp and let go of him before Penny did the same.
“I tried to shake Jordan Neely to get a response out of him, feel for a pulse, and then I walked away,” Gonzalez said.
Conflicting testimony about the cause of death
Dr. Cynthia Harris of the city's Chief Medical Examiner’s Office conducted Neely's autopsy in 2023 and ruled Neely's death a homicide, with the cause of death as "Compression of neck (chokehold).”
She testified at the trial that “the consensus was unanimous” in the medical examiner's office that Neely had died from the chokehold, according to Associated Press reporting: “There are no alternative reasonable explanations," she said.
Forensic pathologist Satish Chundru disputed that determination in his testimony in defense of Penny, according to the AP, arguing that Neely died from "combined effects" of his schizophrenia, synthetic marijuana, a blood condition and his efforts to struggle against Penny.
“In your opinion, did Mr. Penny choke Mr. Neely to death?" defense lawyer Steven Raiser asked, according to AP.
“No,” replied Chundru.
Prosecutors argued that Chundru's testimony departed from medical literature and his own opinion in similar cases, but Chundru testified that the cases were not comparable to this one, according to the AP.
Marine Corps instructor who trained Penny testifies
According to the AP, Joseph Caballer, the combat instructor who trained Penny, said that Penny was taught how to knock a person unconscious -- but that the technique could kill someone if held too long. He argued that someone performing the technique is supposed to let go when the person is rendered unconscious, and testified that Penny used the chokehold in an "improper" manner when asked by prosecutors.
However, the defense claims Penny did not use a strong enough hold to kill Penny, the AP reports.
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