NEW YORK CITY—The trial of Daniel Penny split many observers into two camps—one passionately for and the other fiercely against the defendant, who restrained Jordan Neely in a chokehold on a New York subway in May 2023 and Neely died.
The first camp brands Penny, who was acquitted of the charges of second-degree manslaughter and criminally negligent homicide, a brave hero who was protecting others from Neely. They say Penny is a victim of overreach by Manhattan District Attorney Alvin Bragg.
The second camp calls Penny a killer with no regard for the value of a poor, ill, homeless man’s life.
Representative of the view showing disdain for Penny were public comments made by Rep. Alexandria Ocasio-Cortez (D-N.Y.), whose district includes part of Queens. Before the trial began, she called him a “murderer,” and after the verdict, she criticized him again, saying Penny “does not have remorse about taking another person’s life.”
Defense lawyers, who unsuccessfully moved for a mistrial, complained to Judge Maxwell Wiley about the “circus-like” atmosphere fostered by loud, angry, sometimes menacing protesters on the street outside the courthouse.
Protesters had made threats against their client and against jurors if they didn’t vote to convict, defense lawyer Thomas Kenniff told the judge.
The trial began in late October and ended with Penny’s acquittal on Dec. 9. Despite the acquittal, the case raises questions about the challenge of holding a fair and impartial trial in an age of 24/7 social media saturation.
David Dorfman, a professor of law at Pace University in New York City, said he believes the “toxic social media environment” and the politicization of the justice system made it difficult to have a fair trial, in a case that the government never should have brought in the first place.
Divine Pryor, executive director of the Center for NuLeadership on Urban Solutions, said he doesn’t think the 24/7 coverage of the Penny case or the street protests exerted undue influence on the course of the trial or the outcome.
“There are always non-evidentiary pressures that emerge during any high-profile trial that come from arenas outside the judicial process, and they are usually shaped and guided by the media,” he said. His organization, a New York-based nonprofit, advocates for criminal justice reform.
“Unfortunately, I was not surprised by the verdict, and I did not expect a conviction on any of the charges, because he was immediately portrayed as a ‘war hero’ who was, once again, protecting the community,” Pryor said in an email to The Epoch Times.
“He was able to make bail and obtain legal counsel, and he won the hearts of the public. The fact that he was a middle-class, white male—well, what’s understood needs no explanation,” he said.
Pryor said he views the Penny case as similar in some ways to the Bernhard Goetz case in the ‘80s. Goetz shot and injured four young black men who he believed were trying to rob him on a subway in December 1984. In that case, public perceptions of crime, and the races of the people involved, may have shaped perceptions even before the case went to trial, Pryor suggested. The jury ultimately convicted Goetz of carrying an unlicensed firearm but acquitted him of attempted murder.
As a defense lawyer, Kenniff saw it differently. He sees non-evidentiary pressures as a negative influence not just in this trial, but in a politicized justice system more generally.
“There were certainly efforts to malign our client and poison the jury pool against him. I think Steven Raiser and I were successful in beating back against much of that, but I can’t say it didn’t impact things,” Kenniff said in an email to The Epoch Times.
Intimidation of jurors from activists and protesters demanding a certain outcome presents a “real risk,” he said.
“We saw attempts at that in this trial, where witnesses admitted they were afraid to testify favorably towards Mr. Penny out of fear of retribution. However, the jury refused to be swayed by any of that, and for that we’re grateful,” Kenniff stated.
Harvey Kushner, chair of the criminal justice department at Long Island University, said the social media-driven pressures that moved Penny’s defense lawyers to argue for a mistrial may be all the more severe in years to come.
“If you look at the Penny case, you can’t compare it to other times, because the media have changed so dramatically,” Kushner said.
“This was all over the media, people were not only viewing it but interacting with it on Facebook, TikTok, and X. The way they process it is different today.”
A Fateful Ride
In making its case to the jury, the defense evoked a situation that some or all of the twelve men and women could identify with, having rode the subway themselves and having found themselves in vulnerable situations where no police officers were on hand to respond in the event of an immediate physical threat.The incident that defense lawyers Steven Raiser and Thomas Kenniff and lead prosecutor, Assistant District Attorney Dafna Yoran, debated in a lower Manhattan courtroom began on May 1, 2023, when an uptown F train pulled into the Second Avenue station.
Before the doors closed, Neely entered the train and immediately began acting in a manner that frightened and alarmed passengers, according to several who took the stand during the trial.
Neely, who had a record of 42 arrests and an outstanding warrant for his arrest on an assault charge at the time, threw his jacket onto the ground and began shouting that he was hungry, homeless, and did not care whether he went back to prison on Rikers Island.
That was when Penny, who had been listening to music on his earbuds, asked a stranger to hold the earbuds, and then got up, moved behind Neely, and applied a chokehold he had learned during his time in the U.S. Marines.
Direct and cross-examination dwelled extensively on the amount of time that Penny restrained Neely and on the physical and physiological factors that caused Neely’s death a short time later.
Nonetheless, witness after witness reiterated the sheer terror that Neely’s conduct caused them.
Though called to the stand as government witnesses, these men and women of diverse professional, personal, and ethnic backgrounds gave a version of events that could only buttress the defense position that passengers on the F train had a reasonable and immediate fear for their physical safety.
Lori Sitro, a research director at an agency in the city, described feeling particularly vulnerable because she had her small boy with her on the train. Under direct examination from a prosecutor, Sitro said that Neely’s threats were explicit, and frightening.
“He was shouting in people’s faces, ‘I don’t have water, I don’t have food, I don’t have a home, I want to hurt people, I want to go to Rikers, I want to go to prison.’ And he was getting increasingly belligerent,” Sitro recalled.
From the witness stand, Sitro performed a brief pantomime of lunges that she said Neely made toward passengers on the train. His conduct made her so fearful for the safety of her son, that she moved a stroller in front of him as an impromptu shield.
Another passenger, a teenaged student named Yvette Rosario, recalled feeling such terror that she thought she would pass out, and burying her face in the chest of a friend who stood next to her.
Dan Couvreur, the founder of a financial startup, said the incident far surpassed tense, unpleasant things he had witnessed on the subway before. “The anger, the aggressiveness, and that tone set it above these other situations that I’ve seen,” he said.
Yet another witness, Alethea Gittings, who was on her way to a dentist’s appointment when the trouble started, attributed a highly explicit threat to Neely. “If I remember correctly, he said ‘I don’t give a damn, I’ll kill a [expletive], I’m ready to die,’” she testified.
Gittings further testified not only to thanking Penny for his actions, but to agreeing, without any pressure on Penny’s part, to speak to police about what had happened.
Weighing Penny’s Actions
Even the prosecutor, Yoran, acknowledged to the jury that she understood they might feel the stirrings of sympathy for Penny, and she knew it would not be easy for them to convict a man who had attempted, at least initially, to do the right thing.But, Yoran argued that, by keeping Neely in a chokehold for about six minutes, Penny departed from his training, that he should have known his actions could be lethal, and that the chokehold alone was directly to blame for Neely’s death.
Yoran highlighted the testimony of Joseph Caballer, who had trained Penny in the Marines on the use of chokeholds and, in theory, helped instill a deep understanding of air chokes, blood chokes, and how long to apply them without killing the subdued person. It was only reasonable to expect death to result from a hold as long as the one Penny applied, and this was indeed the outcome, Yoran argued.
Prosecutors called to the stand Dr. Cynthia Harris, a New York City medical examiner who performed an autopsy on Neely.
Harris testified under oath that she found powerful synthetic cannabinoids that can cause aggression in Neely’s system, but that Penny’s compression of Neely’s neck resulted in vascular compromise and airway compromise, and such severe deprivation of oxygen as to cause an asphyxial death.
She described the brain as the most sensitive organ in the human body when it comes to the need for oxygen and said that other organs such as the heart can continue functioning for a time even after brain death, as observed sometimes in cases of drowning. Hence, it may well have been possible to detect a pulse in Neely’s body even though he had died.
The defense countered this version of events by putting on the stand Dr. Satish Chundru, a forensic pathologist, who said a multitude of factors were to blame.
These factors included Neely’s schizophrenia, the presence of the drug known on the street as K2 in his system, and, most critically of all, a sickle cell trait that metastasized into full-blown sickle cell crisis under the stress of Penny’s hold—which, Chundru said, would not normally have been fatal.
Chundru described red blood cells in a healthy body as having a round shape as they convey oxygen to the capillaries. But in the body of someone with sickle cell trait, those cells will mutate at a time of stress into a crescent, or as Chundru put it, banana-like shape, and will come to occlude blood vessel walls rather than conveying the oxygen on which the body depends.
When defense attorney Raiser asked him whether he believed Penny choked Neely to death, Chundru answered, “No.”
Reasonable Doubt
While the jury conducted its deliberations under strict privacy, it was clear from developments in the courtroom that arguments about the basis of Harris’s medical opinion of Neely’s death, and about whether she had given due consideration to other factors before issuing her opinion, weighed heavily on the minds of jurors.The judge received notes from the jury asking for clarification of certain instructions he had given, for a reply of cell phone footage of parts of the incident and its aftermath, and—crucially—for a chance to review portions of Harris’s testimony.
After the judge and lawyers were unable to find a passage in that testimony that exactly matched what the jury had requested to review, the judge on Dec. 5 had the jury return to the courtroom so that two re-enactors could reread a lengthy part of the defense cross-examination of Harris.
The defense sought to raise reasonable doubt as to the prosecution’s account of how Neely died. The portions of the testimony that the jurors reheard on Dec. 5 contained admissions from Harris that she had not waited for all of the pending tests to come back before classifying Neely’s death.
Harris said that Chief Medical Examiner Jason Graham’s agreement on certain aspects of Neely’s autopsy satisfied her that her classification was correct, with no need for further tests.
“Dr. Graham agreed with my medical opinion. It was not necessary to wait for forensic anthropology to get back to us about their findings,” Harris said.
Harris also stated, “The histology was still pending, and it was not until I looked at the histology that I did initiate the tests for the sickle cell [condition].”
Pressed by the defense on this critical point, Harris said, “Again, I would clarify wording. Dr. Graham agreed with my assessment. I did not wait for toxicology to come back before certifying the case of Mr. Neely’s death.”
Prosecutorial Missteps
Trial testimony, including accounts from the government’s own witnesses, helped jurors come to see Penny as a helpful bystander, according to his lawyers and criminal justice experts.Kenniff, one of Penny’s two defense lawyers, said that the government lawyers made many mistakes, and one of the most serious was to undermine their own case through what amounted to a self-contradictory argument about Penny and his actions.
“I think trying to argue in one breath that Mr. Penny’s actions here were initially laudable, while in the next breath portraying him as a remorseless killer, was a big mistake,” Kenniff said in an email to The Epoch Times.
David Dorfman, a professor of law at Pace University in New York City, echoed the view that the prosecution put itself in an awkward, legally untenable position.
“Once they conceded that Penny was justified up front, the prosecution had to prove beyond a reasonable doubt that he somehow lost his prior justification because he continued to restrain the victim longer than what was necessary. That’s very tough to prove—really second-guessing someone who they conceded was a quasi-hero,” Dorfman said in an email to The Epoch Times.
Robert Blecker, a professor of criminal law at New York Law School, said that the jury in its deliberations probably focused largely on Penny’s motives, and that the prosecution simply could not meet the very high bar of guilt beyond a reasonable doubt.
“To be guilty of reckless manslaughter, you must consciously disregard a substantial unjustifiable risk, and the risk must be such as to be grossly deviant from what a normal person would do,” Blecker told The Epoch Times.
“If the jury finds that it was not grossly deviant from what a normal person would do, they should acquit.”
The same standard applies to the lesser charge of criminally negligent homicide, Blecker said.
Though the trial ended in the dismissal of the first charge and an acquittal on the second, Penny still faces a civil lawsuit lodged by Neely’s father.
