A Marine veteran accused of fatally strangling a homeless man on a train will appear before a jury this week in an effort to fight charges that could land him in prison for up to 19 years.
And when Daniel Penny’s powerful legal team defends him, the eyes of the nation will watch: were his actions a selfless act of heroism, or a brutal display of force that left a relatively innocent man dead?
The 24-year-old approached Michael Jackson impersonator Jordan Neely, 30, when the homeless man went on a wild tirade on a train car in New York City on May 1, 2023.
Witnesses said Neely was behaving erratically, yelling and threatening people. Penny put a writhing Neely in a chokehold for six minutes until he lost consciousness.
Police who were first on the scene performed CPR, but only after several minutes had passed and they had first administered an injection of Narcan, according to a court hearing earlier this month.
Neely was taken by ambulance to a hospital, where he was pronounced dead.
Penny put Neely in a chokehold on the subway floor while others assisted on May 1, 2023
Marine veteran Daniel Penny, accused of killing a menacing homeless man when he placed him in a six-minute chokehold on a train, stood outside a NYC courthouse for a hearing in early October
Penny pleaded not guilty to second-degree manslaughter and negligent homicide, and his legal team tried to have the charges dismissed in January.
A jury trial is set to begin on October 21 and Penny’s defense will argue that he intervened to protect himself and other passengers from Neely’s “insanely threatening” actions amid a spate of subway attacks and other crimes on the subway system over the past two years .
Neely, who was homeless, was a former Michael Jackson impersonator and had battled mental illness in the years leading up to his death.
The case itself has divided the public. Some agree that Penny acted heroically for the sake of herself and the safety of fellow passengers, while others say it was a blatant excessive show of force against a mentally ill, homeless black man.
Supporters have rallied behind Penny and backed a fundraising campaign in his name
Important images are missing from evidence
A tourist couple who were on the train and witnessed the incident are reportedly unwilling to turn over footage that Penny’s lawyers believe would be “incredibly favorable” to the former Marine.
In September, the judge revealed that the couple “declined to testify at the Grand Jury because they had returned from somewhere in Europe” and also “has thus far refused to share the video they made.”
“They refused to share it with the district attorney, or anyone else, and so far they refuse to come back and testify,” Manhattan Supreme Court Justice Maxwell Wiley said.
Daniel Penny, 25, faces 19 years in prison for putting Jordan Neely, 30, in a fatal chokehold. Neely, who was homeless, was a former Michael Jackson impersonator and had struggled with mental illness in the years leading up to his death
Neely had an extensive criminal record for crimes on the subway, including vicious attacks on other passengers
Previous illegal behavior on the subway
Neely had an extensive criminal record for crimes on the New York City subway, including vicious attacks on other passengers.
In 2021, he attacked an elderly woman as she left the Bowery station in the East Village. According to a criminal complaint, she suffered a broken nose, a broken eye socket and “bruising, swelling and significant pain to the back of her head” during the Nov. 12 attack.
He admitted to a crime on Feb. 9 in exchange for a 15-month alternative to incarceration program, according to the Manhattan District Attorney’s Office.
He had to stay in a treatment center and stay sober.
Between January 2020 and August 2021, he was arrested for public indecency after pulling down his pants and exposing himself to a woman, assault for punching a woman in the face, and criminal contempt for violating a restraining order.
All three cases were dismissed as part of a deal.
In June 2019, Neely attacked 68-year-old Filemon Castillo Baltazar on the platform of the West 4th St. Station in Greenwich Village, court records show.
A month earlier, Neely punched a man in the face and broke his nose on the platform at Broadway-Lafayette — the same subway station where he died.
Neely was a Michael Jackson impersonator who was well known and recognized in Times Square (pictured in 2009)
Narcan on CPR
At a pre-trial hearing on October 3, one of the officers first on the scene revealed that Neely was not immediately resuscitated, despite indications that he was still alive.
Instead, they administered a dose of Narcan, the drug used to reverse opioid overdoses.
Prosecutors have struggled to argue that Neely’s prior conduct and substantive issues are irrelevant to the case, but the confession gave the defense ammunition to argue that drug use played a factor in how he was treated by officials at his dying moments.
Nation divided
The case shocked America and divided the public.
Some agree that Penny acted heroically in that moment, while others say it was a blatant excessive display of power against a mentally ill, homeless black man.
Supporters have rallied behind Penny and supported a fundraising campaign in his name.
On the day he returned to court in early October, new donations poured in.
One donor said Penny “back in the day would have been considered a Good Samaritan.”
The campaign has raised $3.098 million for Penny’s legal fees with thousands of donations ranging from $5 to $20,000.
One of the most generous donors was former Republican presidential candidate Vivek Ramaswamy, who donated $10,000 to the cause last year.
Penny, a former infantry unit leader, said he did not mean to kill Neely but felt he had to intervene to protect fellow passengers.
State accuses Penny of excessive force
Although prosecutors have previously accepted that Neely’s behavior frightened some passengers, they allege Penny kept him for significantly longer than necessary.
Assistant District Attorney Joshua Steinglass wrote in an earlier court filing that at least one witness described Neely’s wanderings as “like a typical day in New York.”
He argued that the F train they were traveling on arrived at the Broadway-Lafayette station and the door opened less than 30 seconds after the chokehold began.
“Passengers who were scared because they were stuck on the train were now able to get off the train,” Steinglass said.
“The defendant continued to hold Mr. Neely’s neck.”
Steinglass said second-degree manslaughter only requires prosecutors to prove that Penny acted recklessly, and not intentionally.
NYPD officers attempt to revive Jordan Neely as he lies on the floor of an F train on May 1
Connections between prosecutor and Penny’s defense
Penny’s attorney has a personal history with Manhattan District Attorney Alvin Bragg.
Thomas Kenniff was the Republican candidate who campaigned for district attorney against Bragg in 2021, following the retirement of Cyrus Vance Jr.
Kenniff was always a long shot, as Democrats significantly outnumbered Republicans in Manhattan.
He tried to argue that Bragg was too soft on crime for the office, and worried that he would implement “lenient” policies that could ultimately worsen crime.