NEW YORK– Jurors on Wednesday asked to see video of police and bystanders at the heart of the case manslaughter by asphyxiation in return for Daniel Penny as his lawyers complained that an aggressive protester harassed the Marine veteran outside the New York City courthouse.
Within about an hour of starting a second day deliberationsthe anonymous jury sought a second look at videos captured by the body cameras of officers responding to the subway in which Penny grabbed Jordan Neely, an agitated man whose behavior and words terrified passengers.
Jurors also wanted to watch video taken by a Mexican journalist who was on the train, which shows much of the roughly six-minute detention, and police video of Penny’s interview with detectives in the station building.
Penny has pleaded not guilty to manslaughter and negligent homicide. His defense claims he had the right to act to protect fellow subway riders from Neely, believing the man was about to hurt someone.
Prosecutors say Penny recklessly squeezed Neely’s neck too hard and for too long. City medical researchers determined that the chokehold killed Neely, although the defense claims he died from a mix from schizophrenia, drug use, a genetic disorder and his battle with Penny.
The case has stirred debate about public safety, societal responses to mental illness and homelessness, the line between self-defense and aggression, and the role of race in it all. Penny is white, while Neely was black.
A few protesters have routinely gathered outside the courthouse to denounce Penny as he comes and goes. Some Penny supporters have also appeared, sometimes with a flag in hand.
Defense attorney Thomas Kenniff said in court Wednesday that at one point during the trial, a protester followed Penny to a waiting car and banged on the doors. Then, the lawyer said, the same man threw “violent” insults at Penny when he arrived on Wednesday.
An Associated Press journalist witnessed someone making a rude and harassing comment to Penny while Penny was on her way to court.
Kenniff said the man had at times been in the audience in the courtroom, and he asked Judge Maxwell Wiley to ban the man.
Wiley — who said he saw the car incident from his office window — declined, noting that the public has a right to access legal proceedings. He said court officials had occasionally restricted people’s entry because of their behavior in the courtroom, but that he was not inclined to ban anyone because of behavior outside it.
Early in the trial, Penny’s attorneys expressed concern that the jury might hear the protesters. Their screams sometimes float through the courtroom windows, but usually happen before jurors are seated or after they leave.
Kenniff worried out loud Wednesday about whether the commotion would be audible in the jury room. Wiley said moving deliberations elsewhere could complicate the safe transfer of jury notes to the court, noting that he has instructed jurors to ignore anything they might hear from outside the courtroom.
“At this point I think we assume they are following their instructions,” the judge said.
Witnesses said that on May 1, 2023, Neely boarded a train in Manhattan, began moving erratically, shouted about his hunger and thirst and proclaimed that he was prepared to die, go to jail or — as Penny and some other passengers recalled – to kill.
Penny came up behind Neely, grabbed his neck and head and took him to the ground. The veteran later told police he “just put him in a chokehold” and “kicked him out” to make sure he didn’t hurt anyone.
Jurors deliberated for about three hours Tuesday, when they also asked to repeat the judge’s instructions on the justification defenses and the specifics of the crimes charged.
___
Associated Press journalists Larry Neumeister and Ted Shaffrey contributed.