NEW YORK CITY—The defense in the Daniel Penny trial pressed ahead on Tuesday, calling to the witness stand two Marines who served with Penny, as well as a close friend from Long Island, and his mother, all of whom described Penny as a dutiful and responsible person who followed rules and went out of his way to help others.
Their testimony contrasted sharply with the prosecution’s portrayal of the defendant as an aggressor who was unwilling or unable to recognize the humanity of the victim, Jordan Neely.
Penny is on trial on charges of manslaughter and criminally negligent homicide related to the death of Neely, who boarded an uptown F train at Manhattan’s Second Avenue station on May 1, 2023, and, according to witnesses, began shouting threats and lunging at other passengers before Penny stepped in to restrain him using a chokehold.
Nolan Drylie, a former platoon sergeant who had oversight of Penny in the First Battalion of the Second Marine Division, took the stand. He testified that Penny fit right into a military culture where those who followed orders and worked collaboratively with people from widely disparate backgrounds flourished, and those who could not do so were not needed.
The character witness testimony took place only after vigorous arguments from both the prosecution and the defense.
Prosecutor Dafna Yoran objected to hearing the Marines’ testimony and tried to discredit Drylie and a second Marine witness by citing posts they had made on Facebook and TikTok, respectively. Yoran also argued that the evidence the defense wanted to show in court today was not timely.
“It’s outrageous that we’re discussing this today,” Yoran said. “For them to ... spring on us at the last minute, military records, there’s no basis for that whatsoever in the law.”
Yoran seemed to take exception to the display of medals and the use of the word “valor” in reference to Penny’s military service. She said defense motions to introduce this evidence were no more appropriate than earlier moves to present Neely’s psychiatric records to the jury.
Judge Maxwell Wiley granted the defense’s request to put the witnesses on the stand but issued a stern warning about reservations that he shared with the government lawyers.
“The people object strenuously. This goes beyond the rules about what character witnesses can testify to and what they can’t,” the judge told defense lawyer Thomas Kenniff.
Serving Together
In his testimony, Drylie described enlisted Marine personnel as a “family” dedicated to the values of “honor, courage, and commitment” and said he had served alongside people with finance backgrounds as well as recruits from severely impoverished parts of the world.Under direct examination, Drylie recalled his deployment to Okinawa, in which he, Penny, and other Marines had to undergo strict quarantine procedures upon their arrival during the COVID-19 pandemic.
When Kenniff asked whether Drylie had ever heard complaints or negative characterizations regarding Penny, Drylie replied, “Not once.”
Under cross-examination, prosecutor Yoran asked Drylie whether he remembered social media posts from the days right after the May 1, 2023, incident.
She said that following Penny’s indictment, Drylie had encouraged other Marines to join him in a motorcycle ride to New York as part of a show of support.
Yoran read a post in which Drylie allegedly wrote, “If you have a negative opinion, unfollow me. Violence begets violence.”
Kenniff objected to Yoran’s reading of another post about things the men had done as Marines, saying those statements were “clearly online hyperbole.”
The judge told Yoran not to pursue that line of questioning.
The court then heard testimony from a second defense witness, Nathaniel Dunchie, who said he had served in the Marines for 11-1/2 years and as a platoon sergeant had oversight of Penny.
Dunchie also spoke highly of Penny’s character, mentioning obedience, honesty, and compassionate actions as a member of a peacetime humanitarian mission. The prosecution again tried to discredit the witness, bringing up a TikTok post showing Dunchie holding a weapon.
Under redirect, Kenniff asked Dunchie whether people in Texas, where Dunchie now lives, tend to have different attitudes about guns from residents of other states. Dunchie said they did.
The next witness, Steve Strachan, said he had moved from Santa Barbara, California, to Long Island when he was offered a job there. That was where he said he had met Penny, whom he described as open, personable, and friendly.
Defense lawyers then called Penny’s mother, Gina, who said her son had dreamed of attending the Naval Academy before enlisting in the Marines.
The trial resumes on Nov. 21 with further testimony.
