NEW YORK CITY—A Manhattan jury on Dec. 9 acquitted Daniel Penny of criminally negligent homicide over the death of Jordan Neely, a mentally ill homeless man whom Penny put in a chokehold and wrestled to the ground on a subway in May 2023.
On Dec. 6, Judge Maxwell Wiley agreed to dismiss the top charge of manslaughter in the second degree when the jury could not reach a unanimous decision after three days of deliberation.
As soon as the jury foreperson said “not guilty,” cheers and applause briefly rang out near the front of the courtroom before the court officers told everyone to quiet down under threat of removal.
The verdict brings a conclusion to a closely watched trial that took a little more than one month, from voir dire and the seating of a jury at the end of October to witness testimony throughout November up to last week’s closing statements and jury deliberations.
Witnesses all agreed that Neely got onto an uptown F train at Manhattan’s Second Avenue station and immediately began screaming that he was hungry, homeless, and did not care if he went back to prison.
Their testimony differed slightly as to the explicitness of Neely’s threats. Some said he had cried out that he was willing to hurt others if they did not give him what he sought.
Lori Sitro, who had her small son with her on the train when Neely got on, said Neely’s conduct made her fear for the boy’s safety so much that she placed his stroller in front of the boy to shield him from Neely.
The boy was too small to move quickly off the train with her, according to Sitro. She expressed gratitude toward Penny for taking swift action to protect passengers.
Sitro’s testimony was consistent with that of others present, such as Yvette Rosario, who said Neely’s conduct scared her so badly that she thought she might pass out, and she placed her head on a friend’s chest.
Dan Couvreur said the incident went far beyond other tense moments that he had experienced on the subway.
Another witness, Alethea Gittings, called Neely’s words “very loud, very menacing, very disturbing” and thanked Penny for stepping in to protect her and others on the train.
The lead prosecutor, Dafna Yoran, noted in her closing statements to the jury on Dec. 3 that some of the jurors might now feel grateful to Penny for springing into action to protect passengers and that weighing his potential guilt or innocence would not be easy.
Yoran said it might be hard to convict a man who had tried to do the right thing and did not act with the intent to take someone’s life.
The defense argued that, in light of the testimony of those present on the F train, Penny had acted bravely and selflessly and that the government was trying to make a scapegoat of a good man.
A Parade of Witnesses
During the trial, the jury heard from an array of witnesses including people who were present on the F train and saw Penny and Neely struggle; two medical experts who contradicted each other’s accounts of how Neely had died; and Penny’s former Marine comrades, one of his friends, and his mother.Prosecutors brought Dr. Cynthia Harris, a New York City medical examiner who had performed Neely’s autopsy, to the stand.
Harris said she had found synthetic cannabinoids in Neely’s body that were more potent than marijuana and were, in fact, on par with cocaine in terms of their ability to make someone aggressive.
She said the vascular compromise and airway compromise that Penny’s chokehold inflicted were the causes of Neely’s death. These resulted in “a low-oxygen state for the brain to be at,” a condition “sufficient to cause death,” Harris testified under oath on Nov. 15.
The defense sought to counter those claims and raise reasonable doubts about the prosecution’s theory by putting on the stand Satish Chundru, a certified forensic pathologist.
Under direct examination from defense lawyer Steve Raiser, Chundru said that a number of factors, acting in concert, had brought about the death of Jordan Neely.
Chundru said Harris should have considered the role of other factors, such as the drugs in his system, his schizophrenia, and a sickle cell trait that became a crisis under the stress of the chokehold.
He said red blood cells in the body of someone with this trait change shape under stress. Instead of their usual round form, they take on what Chundru described as a “crescent moon or banana shape” and no longer carry out their critical life-supporting function of conveying oxygen to tissue cells.
During the chokehold, Neely suffered a sickle cell crisis, and he died as a direct consequence of it, Chundru testified.
He argued that blaming the death solely on the chokehold ignored the extent of Neely’s sickle cell condition and its propensity to have fatal complications during an incident that would not be deadly for the average person.
Differing Theories
The prosecution and defense clashed repeatedly over what cellphone footage taken at the scene of the incident did or did not capture.Lawyers for both sides continually played this footage on screens in the courtroom and shared conflicting theories as to when Neely lost consciousness and the meaning of nonverbal evidence, such as the position of his tongue and motions of his legs while he lay prone in Penny’s chokehold.
Yoran sought to impeach testimony from Chundru that depicted Neely as conscious and still struggling at a point in a video when Yoran argued that Penny had made Neely lose consciousness.
Yet another aspect of the case had to do with Penny’s character.
The judge leaned in favor of the prosecution’s arguments that character witness testimony was immaterial in a case of this kind, but Wiley briefly allowed Penny’s lawyers to put witnesses on the stand who had served with Penny in the Marines.
These witnesses attested to his character as a decent, responsible person who followed rules, got along well with others, and, at least in their personal experience, was never the subject of complaints or negative comments.
Yoran used the testimony of Joseph Caballer, who had taught Penny combat techniques during their time together in the Marines, to try to strengthen her case that Penny’s actions went beyond what his training authorized or condoned.
The chokehold that Penny applied to Neely, Yoran repeatedly asserted, was proper neither from the point of view of Penny’s and Neely’s bodily positioning nor the amount of time that Penny kept Neely in the hold.
According to Yoran, Penny should have quickly released Neely as soon as Neely lost consciousness and was no longer capable of harming anyone, but instead kept Neely in the hold for about six minutes, causing an asphyxial death.
