A criminal trial to determine the fate of a Marine veteran who killed a homeless black man by placing him in a chokehold on a train is being held up by a nightmarish jury selection process.
Daniel Penny, 26, will face a jury of his peers in a mammoth trial expected to last six weeks to determine whether he is guilty of murder and negligent manslaughter.
He placed Jordan Neely, 30, in a chokehold on a New York City subway in May 2023 in an attempt to subdue the Michael Jackson impersonator.
And now the Manhattan Supreme Court faces a series of fiendish challenges in an effort to find a full panel of jurors.
Daniel Penny, 26, will face a jury of his peers in a mammoth trial expected to last six weeks to determine whether he is guilty of murder and negligent manslaughter
Penny’s lawyers want him to be tried by his “colleagues,” people who, like him, are regular New York subway passengers.
But New Yorkers who regularly ride the subway are much more likely to have lower-paid hourly workers.
Their employers only have to cover their wages for the first three days of a trial, with the court paying jurors just $40 a day to hear a case that will last six weeks.
Judge Maxwell Wiley says anyone in that position is exempt from trying the Penny case.
His ruling could mean using jurors who have less experience with the horrors that can occur on the New York subway. They, in turn, may be less sympathetic to Penny about what happened eighteen months ago.
Neely behaved erratically on the train and, according to Penny, threatened those around him. He still had a pulse when first responders arrived and administered a dose of Narcan, which is usually used to treat overdoses.
The incident divided the nation and sparked widespread debate, making it all the more important for the Manhattan Supreme Court to select a neutral jury panel of twelve people.
Penny put Neely in a chokehold on the subway floor while others assisted on May 1, 2023
The incident divided the nation and sparked widespread debate, making it all the more important for the Manhattan Supreme Court to select the best possible 12-person jury panel.
The jury selection process in this case has been long and drawn out, lasting over a week and not a single juror showed up.
An estimated 450 New Yorkers were called into the courtroom last week as Judge Maxwell Wiley attempted to rule out applicants who could not qualify based on scheduling availability.
About 149 potential jurors were asked to return for further questioning, at which point Judge Wiley reportedly said, “If you work for an hourly wage and you know your employer will not pay you for more than three days of absence, let us know now .’
New York State pays jurors $40 a day for their services, and by law employers are only required to pay for three days of jury work.
In a trial expected to last six weeks, the court has indicated it will consider whether joining the jury would cost someone money.
Neely was a Michael Jackson impersonator who was well known and recognized in Times Square (pictured in 2009)
NYPD officers attempt to revive Jordan Neely as he lies on the floor of an F train on May 1
While a potential juror’s race, age, gender and socioeconomic status are common considerations in trials, in this case a person’s use of the subway and experiences with public transportation will also be interrogated and analyzed.
The rise of “work-from-home culture” since the Covid pandemic has also limited the number of New Yorkers using the subway.
Of the 20 potential jurors who underwent a second round of questioning Friday, most said they used the subway at least occasionally. Many said they had also seen strangers having outbursts while traveling.
The group was divided on whether they had ever felt threatened or unsafe by the behavior of strangers.
They were also asked if they had ever served in the military, taken self-defense classes or had any experience with mental illness, substance abuse or homelessness.
Penny faces up to 19 years in prison if convicted on both counts. He maintains his innocence
Anti-racism protesters gathered outside the downtown courthouse last Monday
Four were formally excluded from the trial, while the rest are still pending.
More potential jurors returned Monday to undergo the same questioning.
Judge Wiley hopes to have the 12-member jury in view by the end of this week, paving the way for the trial to begin next week.
Penny faces up to 19 years in prison if convicted on both counts.
He maintains his innocence.