Daniel Penny's defense is likely to rely on the New York subway as a key “witness” in the fatal chokehold trial

In the next few weeks, a jury in Manhattan will decide whether a 26-year-old former Marine should go to prison for putting another man in a fatal chokehold on the subway and continuing to squeeze his neck for about six minutes.

Daniel Penny goes on trial this month on manslaughter and involuntary manslaughter charges in connection with the death of Jordan Neely, a homeless man who witnesses say was screaming from aboard a downtown F train in May 2023 that he was hungry and ready to go to jail The Manhattan District Attorney's Office says Penny should have known the chokehold could put Neely's life in danger. Penny's lawyers say he was trying to help subway commuters who felt unsafe and that he did not intend to hurt or kill anyone.

A video showing several minutes of the chokehold and its aftermath went viral after Neely's death, highlighting deep fissures in the debate over homelessness, mental illness and subway safety. Some called Penny a hero and donated to a multimillion-dollar legal defense fund, while others called him an overzealous vigilante.

As Penny's trial begins this month, legal experts say prosecutors will likely try to convince jurors that his individual actions over a few minutes were responsible for Neely's death – and that he went beyond what a reasonable person could do would do. Penny's lawyers, on the other hand, must convince the jury that his actions were justified. To achieve this, experts expect a key witness to play a starring role in Penny's case: New York City's public transportation system.

Fears of subway crime have persisted on public transit in recent years, especially after ridership fell during the pandemic. A handful of high-profile acts of violence by people with serious mental illness on subway tracks and in train cars have also raised concerns – although researchers have found that it is unusual for people with serious mental illness to commit violent crimes.

Legal observers say the jury's perception of subway safety will likely be a key factor in this case. Jurors must decide whether it makes sense for commuters like Penny to take matters into their own hands when they feel unsafe on the nation's largest subway system.

“The subway is a microcosm of all of this,” said Todd Spodek, a defense attorney unrelated to the case. “You’re not in a big area where you can just walk away. You’re stuck.”

The Manhattan district attorney's office declined to comment on its legal strategy for the trial. One of Penny's lawyers, Steve Raiser, said in a text message that her case will focus on the government's failure to address mental health and homelessness in the metro.

“The government failed Mr. Neely and every passenger on that train,” he said.

The Prosecution: A Look at Penny's Decisions

We still don't know much about the moments that led to Neely's death. But according to court documents, Neely boarded an uptown F train at 2nd Avenue on the Lower East Side, threw away his jacket and screamed. Grand jury testimony varied, but several people on the subway that day said Neely expressed that he was hungry and thirsty. Some said Neely shouted that he was ready to die or go to prison for life if he didn't get what he wanted. Penny then put his arm around Neely's neck, the defendant later told police.

While prosecutors declined to comment before trial, their arguments in court filings focused on the minutes and seconds that passed after Penny decided to put Neely in a chokehold on the train. They say Penny continued to hold Neely after the subway pulled into the Broadway-Lafayette station and passengers were able to exit the car, after Neely stopped moving and after another passenger warned that Penny would kill Neely could if he didn't let go.

Legal experts and court records suggest prosecutors will likely focus on whether Penny knew he was endangering Neely's life when he continued to squeeze the man's neck. Spodek said he expects the DA's office to question Penny's decision-making process “minute by minute, second by second.”

“They will try to adapt their theory of the case to the immediate circumstances. That what is happening in the New York City metropolitan area is irrelevant,” the attorney said. “The only thing that matters is what happened when they got on the train at that moment and nothing more.”

Vinoo Varghese, a former Brooklyn prosecutor who now works in criminal defense, said he expects the DA's office will also highlight Penny's experience in the Marines.

“He held this guy down, and he's a trained military man,” Varghese said prosecutors are likely to tell jurors. “He's not a normal citizen, and so he should have known he was going to kill this guy.”

The Defense: Exploiting jury fears about subway crime

Penny's lawyers, Spodek and Varghese, both said they will likely focus more broadly on the day-to-day environment in the New York City subways that may have influenced Penny's decision to put Neely in the chokehold.

In a motion to dismiss the case filed last year, Penny's lawyers described an atmosphere of “traumatizing” fear in the subway car after Neely boarded. They quoted passengers who said Neely's behavior was “insanely threatening” and “devilish,” that he had yelled, “Someone is going to die today” and that he was “ready to go to Rikers.” They cited a longtime subway commuter's testimony to the grand jury that she had encountered many things on the train, “but nothing that scared me that much.”

Spodek said jurors must ask whether Penny reasonably believed the people on the F train were in danger.

“Was that unique? “Were the circumstances such that he had no choice but to do this?” he said. “And I think the answer is absolute from a defense perspective. And there are eyewitness accounts to back that up.”

Varghese said he expects Penny's defense attorneys to try to select jurors who can empathize with Penny and other passengers who were afraid on the subway that day. He said it might be harder to find those jurors in a predominantly Democratic district.

“It will be difficult for him among New Yorkers on these types of policy issues in a city that is overwhelmingly left-wing and blue — especially in Manhattan,” Varghese said.

“But,” he added, “I think people are tired of what they have to do on the subway.”

'What am I doing?'

Another key aspect of the case is Neely's psychiatric history. He was diagnosed with schizophrenia and used synthetic cannabinoids — also known as K-2, according to court documents. Experts and court records show information is likely to emerge at trial as defense attorneys try to convince jurors that Neely frightened subway riders.

Neely's death sparked debates about the treatment of people with serious mental illness in the city, particularly in the subway system. Mental health advocates told Gothamist they fear the trial will fuel rhetoric about subway crime and reinforce misconceptions about mental illness and violence.

“It will perpetuate this stigmatization of people with mental illness,” said Melissa Beck, who has worked as both a prosecutor and defense attorney and now advocates for mental health reform. “It will perpetuate the status quo of criminalizing people with mental illness and does nothing to improve access to culturally competent, evidence-based care for people with mental illness.”

On a recent evening at Broadway-Lafayette, longtime New Yorker Nadya Belov said she wasn't sure what she would decide if she were a juror in Penny's case.

“I would really have to look at the evidence,” she said, “because I wasn’t there. I don’t know what happened.”

Belov said her first instinct is to help when she sees people in need on the subway, but she is often unsure how to do that. And often, she said, she was afraid.

“Sometimes people scream,” she said. “I saw a guy throwing stuff. And then you're sitting in a moving car and someone throws something and then you don't know what they're going to do. So you’re like, ‘What should I do?’ I don’t want to be in the middle of something going wrong.”

Belov said when something like this happens, she usually changes cars at the next stop. This also applies to Alve Al, a friend of Neely's, who was sitting on a bench at the Broadway-Lafayette station last week. He said there was “no reason” for Penny to choke Neely.

“I would have walked away,” he said. “Life is more worth living. But in order for him to do what he did, he must pay the price.”