Couple who filmed marine Daniel Penny putting Jordan Neely in chokehold are refusing to testify at murder trial

A couple who filmed ex-Marine Daniel Penny putting Jordan Neely in a chokehold in May 2023, ultimately leading to his death, are refusing to come to New York to testify at Penny’s trial.

The pair “apparently videotaped the incident and have since refused to testify before the grand jury. They have returned to their home somewhere in Europe,” a judge said during a preliminary conference with the attorneys involved.

“They have so far refused to share the video they made,” the judge said, the New York Post.

“They refused to share it with the prosecution, or with anyone else, and they have refused to testify to date.”

It’s not clear who the couple is or why they have so far refused to cooperate with authorities, but Penny’s lawyers believe the footage could be “extremely favorable” to the former Marine if admitted into evidence.

So far, the couple, believed to be living somewhere in Europe, have rebuffed attempts by prosecutors to get them to hand over the footage, said Manhattan Supreme Court Justice Maxwell Wiley.

The Manhattan District Attorney’s Office is still in contact with the tourists and has held a number of video calls with them, but they have not yet given the green light, without explaining why they will not hand over the footage or return to the city to testify.

Penny, 25, is charged with second-degree murder and manslaughter after a confrontation on a subway train in May 2023 that left Neely dead.

Neely was held by Penny after he allegedly threatened people in the train car.

Penny put him in a chokehold 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 and on the ground until he was unconscious.

Neely was pronounced dead at the scene and the coroner later ruled it a homicide, saying his neck injuries proved the chokehold was the cause.

Penny, a former infantry unit commander, said he did not mean to kill Neely but felt he had to intervene to protect fellow passengers from Neely, who was throwing trash and threatening to “kill a motherfucker” and be jailed.

Penny broke his silence and said Neely’s death had nothing to do with race. He said he did what he thought was right and would act the same way if he were in the same situation again.

He has pleaded not guilty. His defense lawyers previously tried to have the case dismissed, arguing that he “intervened to save lives,” but this was rejected in January.

Neely, who was homeless, was a former Michael Jackson impersonator and had struggled with mental illness in the years leading up to his death.

Jury selection for Penny’s trial is expected to begin in late October.

According to his lawyer, Thomas Kenniff, it could pose a “very serious problem” if the couple refuses to testify.

Kenniff explained that the couple’s testimony about what happened and what they saw would be “evidential” and also “exceptionally favorable to the defense, or at least certain parts of it.”

The tourists’ account of the event “may provide more probative value than any testimony on the issues at issue in this trial,” the lawyer added.

Lawyers present at the preliminary hearing were also asked by the judge whether they were open to the couple testifying remotely from Europe.

“I certainly don’t have — we certainly don’t have the means to make that happen. Whether the people do or don’t do that, I think, is a matter of international law, and The Hague, and so forth,” Kenniff said.

Court records show prosecutors have other video footage showing Neely’s death.

Jury selection will begin around October 21, and the process itself is expected to last several weeks.

If found guilty, Penny could face up to 19 years in prison.

Neely had an extensive criminal record for crimes on the subway, including violent attacks on other passengers.

In 2021, he attacked an elderly woman as she left the Bowery station in the East Village. She suffered a broken nose, a fractured eye socket and “bruising, swelling and significant pain to the back of her head” in the Nov. 12 attack, according to a criminal complaint.

According to the Manhattan District Attorney’s Office, he confessed to assault on February 9 in exchange for a 15-month alternative prison program.

He would stay in a treatment center and remain sober.

Between January 2020 and August 2021, he was arrested for public lewdness (by dropping his pants and exposing himself to a woman), assault (by hitting a woman in the face), and criminal contempt (by violating a restraining order).

All three cases were dismissed as part of a deal.

Court documents show that in June 2019, Neely attacked 68-year-old Filemon Castillo Baltazar on the platform of the W. 4th St. Station in Greenwich Village.

“Out of nowhere he punched me in the face,” the victim told the New York Daily News, saying he saw Neely rummaging through trash cans for food before the attack.

A month earlier, Neely punched a man in the face and broke his nose on the platform of Broadway-Lafayette, the same subway station where he died.

In both 2019 cases, he pleaded guilty to assault and was sentenced to six months in prison.

Neely’s family said he was “having a mental episode” and that no riders asked what was wrong before Penny and two others held him down.

A woman on the subway that day said she was reading a book when she heard Neely screaming.

“He said, ‘I don’t care if I have to kill an f, I’m going to do it. I’m going to jail, I’m going to take a bullet.’ I look at where we are on the subway, in the sardine can, and I’m thinking, ‘Okay, we’re between stations. We can’t go anywhere.’

She told Fox News that Penny only acted in ‘self-defense’, and I believe deep down that he saved many people that day who could have been injured.

“Nobody wants to kill anybody,” she claimed. “Mr. Penny didn’t want to kill that man. It took three men to control Mr. Neely. He was struggling.”

The woman, who described herself as a “woman of color,” also said that 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 scared and a man who came to help them.

“Race is used to divide us.”

She said New York, the city where she has lived for 50 years, was beginning to look more and more 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 are supposed to protect us are not.”