Daniel Penny “literally went for the jugular,” remarked assistant district attorney Dafna Yoran in her opening statement as she described Jordan Neely’s last moments on May 1, 2023.
The Manhattan prosecutor exchanged arguments with Penny’s defense attorney Thomas Kenniff as trial over Neely’s death got underway this past Friday, Nov. 1. They presented to the mostly white jury, dressed in a variety of layers to accommodate 70-plus degree weather on a late fall day. Judge Maxwell Wiley asked them to block the outside noise — both literally and figuratively — given national media attention on the case and direct protests outside the courthouse.
Penny faces manslaughter and negligent homicide charges stemming from the 2023 incident on a northbound F train. Neely, an unhoused Black New Yorker who battled serious mental health conditions following his mother’s death, entered the subway car and pleaded for food and water as well as made threats against passengers.
He approached passengers aggressively throughout the outburst, but did not touch them according to witnesses. Then, ex-marine Penny allegedly locked Neely in a chokehold, and Neely ultimately died following the encounter. The Office of the Medical Examiner (OCME) ruled the death a homicide.
Yoran avoided commenting on the fierce national debate on Penny’s extrajudicial intervention in her opening statement and instead focused on pointing out his recklessness (manslaughter convictions do not require proving intention). She even acknowledged the situation was likely scary for passengers.
To the prosecution, whether Penny was right or wrong to initially intervene remains irrelevant to the charges. Instead, they want the jury to consider how long he maintained pressure after subduing Neely and the steps he did not take to de-escalate the situation. Yoran says Neely was likely unconscious in the last 51 seconds of the chokehold, which went on for nearly six minutes after the subway doors opened. Simply put, she believes Penny “way too far.”
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She also alluded to his military background, particularly his green belt — a third tier requiring extensive hours — in the Marine Corps Martial Arts program. Such training includes extensive chokehold instruction, particularly when to let go before seriously injuring the recipient, according to Yoran.
The prosecution refused to make direct assumptions for Penny’s alleged recklessness, but directed to attitudes against unhoused New Yorkers, particularly those experiencing mental health conditions. Yoran argued he never saw Neely’s humanity as he walked away from his unconscious body to retrieve his hat without checking on his condition. She questioned how much danger Neely posed, as Penny did not check for weapons after he “put him out” and deadly force as self-defense can only be used in New York State in life-and-death situations.
While defendant opening statements are optional, Kenniff passionately painted Penny as a good Samaritan who protected his fellow passengers from an unknown, imminent danger. He described the ex-marine stepping into action after seeing a mother protecting her child, illustrating a desperate fight-or-flight ordeal underground in a cramped space that left no time for de-escalation.
The defense has long maintained that New Yorkers would want someone like Penny as a fellow passenger in such a situation.
Additionally, Kenniff shared stories about the Long Islander’s upbringing to the jury, talking about how he left the military to pursue architecture studies. However, the defense also pushed back on the hero/villain narratives debated by the public, including prominent officials like Florida Gov. Ron DeSantis and Rep. Alexandria Ocasio-Cortez.
Kenniff also denied the OCME’s findings by pointing to Neely’s medical history and drug use as death factors rather than Penny’s prolonged chokehold. To be clear, police administered narcan when attempting to revive Neely without success.
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.