In Subway Chokehold Trial, Lawyers Spar Over Daniel Penny’s Intentions

Mr. Penny is charged with manslaughter in the May 2023 killing of Jordan Neely, a homeless man menacing passengers in a subway car.

Prosecutors and defense lawyers agreed on a couple of points as they opened a closely watched trial in Manhattan on Friday: Jordan Neely, a 30-year-old homeless man, had been menacing passengers in a subway car. And Daniel Penny, a former Marine, put him in a chokehold to subdue him.

On whether Mr. Penny was guilty of manslaughter after Mr. Neely died, they very much disagreed.

Prosecutors with the Manhattan district attorney’s office argued that Mr. Penny’s actions during the altercation, on May 1, 2023, became “unnecessarily reckless” and criminal when he refused to let go of Mr. Neely long after he had gone limp, after the train doors had opened and after passengers were able to leave the subway car.

As a former marine with a green belt in martial arts, Mr. Penny should have known when his chokehold had become deadly, prosecutors said.

Mr. Penny’s legal team told the jury that he had stepped in to protect his fellow riders and that he did not squeeze Mr. Neely’s neck hard enough to kill him.

Mr. Penny, 26, is charged with manslaughter and criminally negligent homicide. He told detectives at the time that he had stepped in to restrain Mr. Neely, who had a history of mental illness, after he started threatening passengers on the train.

The former Marine’s behavior doesn’t “have to make him a hero,” Thomas A. Kenniff, Mr. Penny’s lawyer, said. “But it sure doesn’t make him a killer.”

The case centers on what happened as an F train traveled between stations and in the minutes after it stopped at the Broadway-Lafayette Street station that day.

The case highlights two related challenges in New York City: transit crime and mental illness.

The case has also drawn comparisons to the 1984 shooting of four Black teenagers by a white passenger, Bernhard Goetz, who said he believed he was about to be mugged. Mr. Penny is white and Mr. Neely was Black. Mr. Goetz was found guilty of a weapons charge but acquitted of attempted murder. The teenagers survived, but one was paralyzed.

In the weeks after video of Mr. Penny choking Mr. Neely on the floor of the subway car reverberated across the internet, New Yorkers became divided. For some it was a criminal act that highlighted the city’s failure to address mental illness and homelessness. Others saw Mr. Penny’s actions as the manifestation of transit riders’ fears and frustrations.

Although the city’s transit system is relatively safe, recent high-profile crimes have unsettled New Yorkers, as has the experience of seeing homeless, mentally ill people on the trains. Mayor Eric Adams has responded in recent years by flooding the system with police officers, using gun-detecting technology to scan riders and dispatching teams to remove mentally ill people from the system.

The opening statements on Friday took place in a stuffy Manhattan criminal courtroom, where protesters gathered outside could be heard throughout the morning.

At the hearing, lawyers on both sides started laying out their cases to the 12 jurors and four alternates who will spend the next several weeks listening to witnesses and experts. The trial is expected to last through Thanksgiving.

Dafna Yoran, an assistant district attorney, told the jurors in her opening statement that Mr. Penny’s actions showed his belief “that Mr. Neely did not deserve even a minimum modicum of humanity.”

“As New Yorkers, we train ourselves not to engage, not to make eye contact, to pretend that people like Jordan Neely are not there,” she said, adding that on that day: “Jordan Neely demanded to be seen.”

Mr. Kenniff, a former Republican candidate for Manhattan district attorney, began his opening statement by describing Mr. Penny’s background. He said that Mr. Penny had grown up in Nassau County, on Long Island, before joining the Marines and, recently, becoming an architecture student.

On May 1, 2023, Mr. Penny was having an “ordinary day,” his lawyer said. He had just left class and was on his way to the gym when he boarded a crowded F train, Mr. Kenniff said.

Mr. Penny and his fellow passengers had no way of knowing that their afternoon was about to be “shattered,” Mr. Kenniff told the jurors, when “a seething, psychotic Jordan Neely” entered the train and began shouting.

At first, Mr. Penny ignored Mr. Neely, but then Mr. Neely began moving through the subway car, lunging at terrified passengers, Mr. Kenniff said.

Mr. Neely approached a woman who was protecting her son from behind a stroller and Mr. Penny, his lawyer said, heard Mr. Neely say “I will kill.” That’s when Mr. Penny acted. Mr. Kenniff argued that Mr. Penny had held onto Mr. Neely as they struggled on the floor and that his client did not squeeze Mr. Neely’s neck with sufficient force to kill him.

In that moment, Mr. Penny only cared about the “safety of his neighbors above that of himself,” Mr. Kenniff said.

Many problems could have led to Mr. Neely’s death, Mr. Kenniff told the jurors, including cardiac arrest “likely induced by the drugs in his system.” He suggested that Mr. Neely’s sickle cell gene could have also been a cause.

Eyewitnesses at the scene and people who called 911 that day did not identify Mr. Penny as the aggressor, according to Mr. Kenniff.

A four-minute video captured by a freelance journalist at the scene shows Mr. Penny on the floor of the subway car, his arms and legs around Mr. Neely. After the train stops, Mr. Neely is held down and two other men grab his arms. Ms. Yoran on Friday said that the footage would be “the most critical piece of evidence at this trial.”

Later, according to body-worn police camera footage, arriving officers found Mr. Neely sprawled on the floor, unresponsive. The footage shows one officer asking, “How did he end up in this condition?”

Mr. Penny, standing close by and watching, can be seen responding, “I just put him out,” and holding up his hands in an X crossed in front of him.

Mr. Neely was high on synthetic marijuana at the time and suffering from mental illness, Ms. Yoran said. When he entered the subway car that day, Ms. Yoran said, Mr. Neely started screaming.

“He talked about being hungry, he talked about being thirsty, he also made threats about hurting people and wanting to go back to jail for life,” Ms. Yoran said. She acknowledged that people in the car had felt frightened.

Mr. Penny’s initial intent to keep people safe was “even laudable,” she said, and he did not at first mean to kill Mr. Neely.

But Mr. Penny’s actions became criminal when he kept a chokehold on Mr. Neely after he was no longer a threat, she said. Mr. Penny kept Mr. Neely in a chokehold for nearly six minutes, she said.

The courtroom was full on Friday. Throughout the day, Mr. Penny sat with a straight back, his head forward, impassively looking at the lawyers and the witnesses who spoke.

At one point, prosecutors showed body-worn camera footage in which officers can be seen trying to revive an unresponsive Mr. Neely. His father sat in the back row of the gallery with his head down, wiping away tears.