Opening statements began in Daniel Penny’s trial for Jordan Neely’s chokehold death during a 2023 New York City subway incident. Prosecutors allege Penny’s reckless actions led to Neely’s death. Penny’s defense may offer other potential reasons for Penny’s death. CBS News New York’s Christina Fan reports.
Be the first to know
Get browser notifications for breaking news, live events, and exclusive reporting.
NEW YORK CITY (WABC) — A judge ruled that all evidence will be permitted in the trial against Daniel Penny, the Marine veteran charged with putting Jordan Neely in a fatal chokehold on the subway last year.
Penny returned to court for the second straight day on Friday for a pre-trial hearing.
The purpose of the hearing was to sort out what evidence will be presented at trial — including new video of what happened after the incident.
Judge Maxwell Wiley on Friday denied all motions to suppress evidence.
Penny, 25, is charged with manslaughter and negligent homicide in the murder of Jordan Neely on board an F train in May of last year after the deadly chokehold was captured on cellphone video by two tourists.
Penny’s lawyers say he acted in self-defense after Neely, who suffered from mental health issues, started displaying what some described as aggressive behavior.
Penny’s lawyers say Neely had a psychiatric history of mental illness, didn’t take his medicine, and was known to scare passengers.
During Thursday’s pre-trial hearing, the court heard evidence from both sides.
The cellphone video from the incident went viral and was widely seen — but the other video evidence the jury might see in the trial could make or break the case for both the prosecution and defense.
Prosecutors from the Manhattan District Attorney’s office played video of Penny being interviewed by NYPD detectives at the 5th Precinct in Chinatown.
Throughout the video he was calm, and matter of fact, as he explained what happened. He can be heard saying, “I’m not trying to kill the guy, I’m just trying to deescalate the situation.”
The two detectives clearly tried to get a better grasp of the incident and asked what he was thinking.
“This guy was actually threatening. He said he wanted to go to prison forever,” Penny said in the interview.
During the videotaped interview, Penny went over what happened several times and twice demonstrated the grip he had around Neely’s neck and explained his decision to wrap his legs around him saying, “He starts to squirm, I hold him a little tighter.”
Prosecutors also showed several body-worn cameras from the responding officers. In the video, Penny is standing around and at one point he was asked if Neely had a gun and he responded, “I don’t know, I just put him out.”
The Manhattan District Attorney wants the jury to see the videos to hear Penny’s initial comments, but his defense said he was being treated as a witness at the time and they wanted them out.
The trial is scheduled to begin October 8 and jury selection starts on Oct. 21. If convicted, Penny faces up to 20 years in prison.
Have a breaking news tip or an idea for a story we should cover? Send it to Eyewitness News using the form below. If attaching a video or photo, terms of use apply.
He was charged with criminally negligent homicide and second-degree manslaughter.
He pleaded not guilty at State Supreme Court in Lower Manhattan.
Penny was arrested last month for second-degree manslaughter and has since been out on bond. His arrest followed protests and came 11 days after the deadly encounter.
The 24-year-old Marine veteran was seen on video holding Neely in a chokehold on the F train back on May 1 in SoHo.
Neely was a 30-year-old subway performer who had been homeless and had a history of mental illness.
Penny told investigators Neely was threatening passengers on the train and acting erratically. His lawyers say Penny was acting in self defense and never intended to kill Neely.
Sources say if found guilty of the initial manslaughter charges, Penny could face up to 15 years behind bars.
Daniel Penny, the Marine veteran who has been charged with killing 30-year-old Jordan Neely with a chokehold on a New York City subway car on May 1, was indicted by a grand jury on Wednesday, the attorney for Neely’s family told CBS New York. Penny’s attorneys said in a statement that they will “aggressively defend” him when the case goes to trial.
A law enforcement source also confirmed Penny’s indictment to CBS News.
Penny, 24, was originally charged with second degree manslaughter in May, and released on bail.
Penny maintains that Neely was behaving erratically on the train and threatening to kill fellow passengers when he moved to subdue him, according to video statements released by his attorneys. After the incident, Penny was initially questioned by police and released without being charged.
Daniel Penny is escorted in handcuffs after turning himself in on May 12, 2023, in New York City. Penny was charged with to second degree manslaughter in the chokehold death of Jordan Neely on a subway train.
Alexi Rosenfeld / Getty Images
A statement released last month by Penny’s attorneys said Neely had “a documented history of violent and erratic behavior, the apparent result of ongoing and untreated mental illness.” It also said Penny “never intended to harm Mr. Neely and could not have foreseen his untimely death.”
Neely, who performed as a Michael Jackson impersonator, was homeless, and family members said he had struggled with mental health after losing his mother as a teen. At his funeral service on May 19, Rev. Al Sharpton said, “Jordan was screaming for help. We keep criminalizing people with mental illness.”
The Manhattan District Attorney’s Office declined to comment on the indictment when asked by CBS News.
WASHINGTON (AP) — Florida Gov. Ron DeSantis urged the nation to show Daniel Penny that “America’s got his back.” Former U.N. Ambassador Nikki Haley called for New York’s governor to pardon Penny, and biotech entrepreneur Vivek Ramaswamy donated $10,000 to his legal defense fund.
Republican presidential hopefuls have lined up to support Penny, a 24-year-old U.S. Marine veteran who was caught on video pinning an agitated fellow subway passenger in New York City to the floor in a chokehold. The passenger, 30-year-old Jordan Neely, later died from compression of the neck, according to the medical examiner.
He’s already become a hero to many Republicans, who have trumpeted Penny as a Good Samaritan moving to protect others in a Democrat-led city that has seen crime rates rise. The support has been unwavering, despite the fact that Neely, who was Black, never got physical with anyone on the train before he was placed in the chokehold for several minutes by Penny, who is white.
The rush to back Penny recalls how then-President Donald Trump and other top Republicans fiercely supported Kyle Rittenhouse during the 2020 presidential election. Rittenhouse, a white teenager who killed two men and wounded a third during a tumultuous night of protests in Wisconsin over a Black man’s death, was acquitted.
We must defeat the Soros-Funded DAs, stop the Left’s pro-criminal agenda, and take back the streets for law abiding citizens. We stand with Good Samaritans like Daniel Penny. Let’s show this Marine… America’s got his back. https://t.co/uQXZuT19Mo
More recently, Texas Republican Gov. Greg Abbott vowed to pardon Daniel Perry, a white Army sergeant who was sentenced to 25 years in prison for fatally shooting an armed man during a 2020 Black Lives Matter protest in the state’s capital of Austin.
Top Republicans have tried to make rising crime rates a political liability for Democrats. The Republican-controlled House Judiciary Committee traveled to New York City last month — before Neely was killed — for a hearing examining “victims of violent crime in Manhattan.”
Democrats and racial justice advocates counter that GOP messaging around restoring “law and order” plays on deep-seated racism.
“They have a playbook of winning elections that is based on really tapping into the worst parts of human nature and really driving it home with division and fear,” said Jumaane Williams, a Democrat who is New York City’s public advocate. “And, if there’s race and class played into it, then it’s like Christmastime for them.”
Neely, known by some commuters as a Michael Jackson impersonator, had a history of mental illness and had frequently been arrested in the past. Bystanders said he had been shouting at passengers, begging for money and acting aggressively, but didn’t touch anyone aboard the train.
Christopher Borick, director of the Muhlenberg College Institute of Public Opinion, said GOP presidential candidates see Penny’s cause as a way to excite their party’s base.
“There’s very little downside within the Republican electorate, given that it overlays so nicely with the issues that are incredibly salient among Republican voters in terms of law and order and fitting this narrative about the degeneration of urban life,” Borick said. “That’s the message — Trump’s and his bloc of Republicans’ message — that the ‘crazies’ are a threat, and we have to do what we can to protect ‘Americans’ any way we can.”
But the GOP defense of white people after Black people are killed is often very different from incidents in which white people are killed. A key example is Ashli Babbitt, the white former Air Force veteran who was shot to death by a Black police officer while trying to climb through a broken window at the U.S. Capitol during the Jan. 6, 2021, insurrection.
Trump called Babbitt an “innocent, wonderful, incredible woman” and labeled the Black officer who shot her a “thug.” Other Republicans have mourned her as a martyr.
Adrianne Shropshire, executive director of Black PAC, said the issue goes beyond the presidential race, noting that some Republican-controlled legislatures passed measures after the wave of protests in 2020 against institutional racism and police brutality, seeking to more severely punish demonstrators.
Shropshire, whose group works to increase African American political engagement and voter turnout, said the issue reinforces the GOP’s long-standing commitment to “protecting whiteness, which is what this is fundamentally about.”
A safer city is one with fewer people suffering from homelessness – not because they’ve been displaced, but because they have been housed.
As for Democrats, Rep. Alexandria Ocasio-Cortez of New York tweeted before charges were filed that Neely’s “murderer” was being “protected” while “many in power demonize the poor.” New York Mayor Eric Adams called Neely’s death a “tragedy that never should have happened” but warned against irresponsible statements before all the facts are known.
Rafael Mangual, head of research for policing and public safety at the Manhattan Institute, a conservative New York think tank, said the case features deep legal ambiguity that many people from both parties are overlooking.
“I’ve been very put off to the degree by which politicians on the left have decried Daniel Penny a murderer and politicians on the right have come out and said, ‘This is what we need to do,’ Mangual said. “I don’t want to live in a world in which maintaining public order falls to everyday straphangers.”
There was no such hesitation from Georgia Republican Rep. Marjorie Taylor Greene, who called Penny a “hero,” or Florida Republican Rep. Matt Gaetz, who dubbed Penny a “Subway Superman” and once offered an internship to Rittenhouse.
Trump, now running for president for a third time, said this week that he hadn’t seen the video but told The Messenger that he thought Penny “was in great danger and the other people in the car were in great danger.”
Helping fuel Republican anger is the fact that Penny’s case is being handled by Manhattan District Attorney Alvin Bragg, who is leading the prosecution of Trump on charges he paid hush money to cover up an affair during his 2016 presidential campaign.
“We must defeat the Soros-Funded DAs, stop the Left’s pro-criminal agenda, and take back the streets for law abiding citizens,” tweeted DeSantis, who is preparing to announce his 2024 presidential bid, repeating false claims that billionaire investor and philanthropist George Soros orchestrated Trump’s indictment.
“We stand with Good Samaritans like Daniel Penny,” DeSantis wrote, including a link to a fundraising page for Penny. “Let’s show this Marine… America’s got his back.”
Rev. Al Sharpton, right, and Rev. Dr. Johnnie Green, left, is seated listening as Mildred Mahazu, center, grand aunt of Jordan Neely—the victim of a deathly chokehold on a subway, speak during Neely’s funeral service at Harlem’s Mount Neboh Baptist Church, Friday May 19, 2023, in New York. (AP Photo/Bebeto Matthews)
Former ambassador Haley told Fox News Channel that New York Gov. Kathy Hochul, a Democrat, should pardon Penny. Ramaswamy donated to the defense fund for Penny via GiveSendGo, a site that also raised funds to support the insurrectionists who attacked the Capitol on the day Babbitt was killed. It has collected around $2 million in donations for Penny.
During Neely’s funeral Friday, the Rev. Al Sharpton offered an indirect response to Penny’s supporters, saying that “a Good Samaritan helps those in trouble, they don’t choke them out.”
Williams, an ombudsman who can investigate citizen complaints about agencies and services, said prominent Republicans have been capitalizing politically on violence with racial overtones since 1988 political ads featuring Willie Horton, a Black murderer who raped a white woman while on a weekend furlough from prison. He also noted that many of the people now contributing to Penny’s defense fund also are likely to have supported cutting social programs that might have benefited people like Neely.
“These folks are not saying, ‘Let’s let it play out, see what happens,’” Williams said. “They’re immediately making someone a hero who killed someone on a train who was screaming and yelling about being hungry.”
Associated Press writer Luke Sheridan contributed to this report from New York.
At the funeral for Jordan Neely, the man who Daniel Penny put in a fatal chokehold on a New York City subway train earlier this month, the Rev. Al Sharpton said Neely was “screaming for help” as he struggled with mental illness. Sharpton also doubted Penny would have been initially released by police if he was Black.
“Jordan was not annoying someone on the train,” Sharpton said during Friday’s service at Mount Neboh Baptist Church in Harlem. “Jordan was screaming for help. We keep criminalizing people with mental illness.”
Neely, a 30-year-old Black man who was a former Michael Jackson impersonator and homeless, was acting erratically on a train and screaming about being hungry and tired but didn’t attack anyone during the May 1 incident, according to witnesses. Penny, a 24-year-old Marine veteran who is White, was initially questioned by police and released without being charged.
Penny placed Neely in a chokehold from behind, killing him, according to authorities. Penny has been charged with manslaughter, and his attorneys said he was protecting himself and others on the train.
Pallbearers carry the casket of Jordan Neely ahead of his funeral in New York City, May 19, 2023.
Daniel Penny, the 24-year-old military veteran facing criminal charges for putting a New York City subway rider in a fatal chokehold earlier this month, was acting as a “Good Samaritan” in the eyes of hard-right Florida Gov. Ron DeSantis.
He shared a link to where Penny is collecting funds for his legal defense on Twitter Friday evening.
In the same post, the governor — rumored to be launching his bid for the Republican presidential nomination any day now — ranted against “the Soros-Funded DAs” in reference to popular right-wing boogeyman George Soros, an elderly Jewish billionaire who supports progressive causes.
Penny surrendered on a manslaughter charge this week. The former U.S. Marine claims he acted in self-defense against Jordan Neely, a homeless Black man who openly addressed other passengers in the car.
The 30-year-old’s death set off protests in New York, which struggles to provide adequate services to people without housing, disproportionately represented by people of color, many of whom experience mental health problems.
“We stand with Good Samaritans like Daniel Penny. Let’s show this Marine… America’s got his back,” DeSantis wrote on Twitter.
In Neely’s case, the freelance journalist who filmed the incident, Juan Alberto Vasquez, has said Neely had been complaining that he did not have food and did not care about being sent to jail. Some people in the car moved away from him out of caution, but some did not, Vasquez told Curbed.
“They were just standing, watching him. They stayed there as if to say: ‘Well until we see that there is some kind of risk,’” Vasquez told the outlet. “To me, when Jordan throws his jacket, it is a way of saying: ‘There could be an act of violence here,’ because those things do happen all the time because just a year ago, there was a guy who went in and shot a lot of people on the train.”
He added: “And obviously, the marine, in the end, went too far. But the police also went too far in not arriving on time.”
Seeing people without homes in New York City’s subway system is commonplace. While the city contracts with teams to provide treatment and resources to the homeless people on the streets, advocates say the resources are not enough.
Marine veteran Daniel Penny will be charged with second-degree manslaughter in the chokehold death of Jordan Neely earlier this month aboard a subway train in New York City.
Be the first to know
Get browser notifications for breaking news, live events, and exclusive reporting.
John Dickerson reports on the pending expiration of Title 42, manslaughter charges brought in the New York City subway chokehold death, and a massive Peloton recall.
Be the first to know
Get browser notifications for breaking news, live events, and exclusive reporting.
