Footage of Daniel Penny’s statements to NYPD officers will remain as evidence in his upcoming manslaughter and negligent homicide trial over the alleged killing of unhoused Black New Yorker Jordan Neely on May 1, 2023, after Judge Maxwell Wiley denied Penny’s lawyers’ motion to suppress such information to a jury.
Jury selection kicks off later this month for the high-profile incident where Neely, a prominent Michael Jackson impersonator who struggled with mental health and homelessness, entered an uptown bound F train with an unprovoked outburst.
Passengers recalled Neely throwing his jacket on the ground, pleading for food and threatening willingness to go to prison, but nobody recounts Neely touching anyone during the encounter. Penny, an ex-Marine now studying engineering and architecture, allegedly intervened with a chokehold. Neely later died from compression of the neck, as determined by the city’s medical examiner.
The parties met for a pre-trial hearing about the motion on Thursday, Oct. 3, in Penny’s first in-person court appearance since this past January. Dressed in a gray suit and purple tie, Penny did not say a word as the footage played and the officers in question testified throughout the day.
“Before the prosecution can introduce statements made by the defendant into the trial…the defense has an opportunity to argue that those things should not be admitted into evidence [and] suppressed because they were obtained illegally,” said defensive attorney Ron Kuby. “Specifically, what happened here is known as a Dunaway/Huntley. What the defense is maintaining is that Daniel Penny’s statement he made to the police should not be admitted into evidence because there was no basis to arrest him, and that’s patently ridiculous.
“There was clearly a basis to arrest him. He choked a man to death. Whether he’s guilty of that crime or not, there certainly was probable cause to arrest him.”
Video from body-worn cameras and interview room recordings show Penny divulging details to police after the incident of how he put Neely in a chokehold, including physically demonstrating the maneuver to NYPD detectives after they read him his Miranda rights. The footage also confirms that Penny told police he “put [Neely] out,” which was documented in the prosecution’s omnibus motion.
The defense counters that such statements were procured through what they call a “custodial interrogation” when Penny was still a witness in the investigation. He was arrested roughly a week after.
“Given the nature of the investigation, the fact that police chose to release the defendant that day does not belie the existence of probable cause, but instead appears to have been an understandable step in an investigation into the facts and circumstances of the incident before bringing charges,” wrote Wiley.
Marq Claxton, director of the Black Law Enforcement Alliance and a former NYPD detective, said such a process is routine.
“What the investigator is not going to do is say to him, ‘Hey, wait a second before you go any further with all these beautiful spontaneous utterances that I’m going to use later on; let me Miranda you,’” said Claxton. “They will wait until an opportunity comes where they can now read your Miranda [rights], and then perhaps have you formalize your statement that you made to them verbally. We can videotape it at some point later on, so this way everything will be admissible, because what [the] defense will say, always in these cases, [is] that anything before Miranda is inadmissible.
“That’s not always the case. Sometimes people make spontaneous utterances before you’ve even established that they are the suspect, or before you’ve established probable cause.”
While the defense generally wanted to exclude body-worn camera footage obtained by the responding officers, the recordings did capture favorable witness statements on the subway platform. Fellow passengers told police they felt in danger during Neely’s outburst and defended Penny’s actions. His lawyers presented their own compilation video, stitching together those accounts, including from body-worn cameras on officers who did not testify.
Penny’s lawyer, Thomas Kenniff, hopes the witness statement footage will push back on the case’s racial narratives, since multiple Black passengers are shown animatedly vouching for Penny.
A wide divide formed from the case, with more than $3 million raised for Penny’s defense fund and many top donations coming from right-wing figures like podcaster Timothy Pool and former presidential candidate Vivek Ramaswamy. Meanwhile, justice protests sprung up citywide demanding accountability for Neely’s death, with officials like Rep. Alexandria Ocasio-Cortez and City Council Speaker Adrienne Adams pointing to anti-Blackness as a key cause.
“Mr. Penny is white, Mr. Neely was Black, but I don’t think those facts, in and of themselves, in any way make this a racial case,” said Kenniff over the phone. “I think there are people that tried to racialize the case. There are people who tried to politicize the case, on both sides…to the extent that anyone might be coming into this trial and thinking that there’s a racial component to it, the evidence is going to immediately disabuse them of that.”
To be clear, the prosecution only has to prove Penny’s recklessness, not intent, given the manslaughter charges. Deadly force can only be used in self-defense when responding commensurately to deadly physical force. When police searched Neely for weapons, they found nothing but a muffin.
While racial animus is not a factor and Penny does not face hate crime charges, Kuby said nobody “should underestimate the racism of the New York City public when they see a threat.”
“The issue in the case is who gets to kill whom over what,” said Kuby. “In the State of New York, you’re allowed to use deadly physical force if you reasonably believe that deadly physical force is about to be used against you or somebody else. Operative words are ‘reasonably believe’ and ‘imminent and deadly physical force.’ In other words, you cannot kill someone just because they’re scary. You can’t kill them because they’re Black and scary and appear to be mentally ill and homeless, so there’s no legal basis in this case for the claim of self defense. Everything that was said by everybody, including Penny himself when he was speaking to the police—no one asserted that they were afraid of getting killed.”
Claxton believes Penny’s background may have played a role in his initial police interactions, particularly during the detective interview.
“Every special kind of enforcement is going on in the Black and Brown communities, whereas the more affluent and whiter communities don’t have these special drug operations going on,” said Claxton. “They don’t have the level of street stops going on in their community, so they have limited interaction with police, and the interactions that they have with police tend to be more pleasant or innocuous.
“[Penny] was not in any way [feeling] threatened or set upon by [police], because that’s not his experience, so he was very comfortable in sharing and describing exactly what he did.”
Tandy Lau is a Report for America corps member who writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.