Prosecutor says Veterans’ stifling subway ‘went too far.’ Defense says his “courage” has helped others

NEW YORK – Prosecutors and defense attorneys agree on one thing about Navy veteran Daniel Penny’s encounter with a distressed, angry and threatening man on the New York subway last year: Penny did not intend to kill him.

But a prosecutor told jurors Friday that Penny “went way too far” in his attempt to neutralize someone he saw as a threat and not as a person, while a lawyer said Penny showed “courage” and put the well-being of others above his set when he placed Jordan Neely in a chokehold that ended with Neely limp on the ground.

Both sides made opening statements on Friday in the manslaughter trial surrounding Neely’s death. The case has shaken fault lines around race, homelessness, perceptions of public safety and bystander responsibility.

Penny’s critics see him as a white vigilante killer of a black man who behaved erratically and made horrible statements, but was not armed and had not attacked or even touched anyone on the subway. Supporters credit Penny, 25, with taking action to protect frightened subway passengers — action he said was intended to defuse, not kill.

Prosecutor Dafna Yoran told jurors that the case is not a “referendum on our society’s inability to deal with mental illness and homelessness in the subway,” nor on the police response, on whether Penny had the right to grabbing before officers arrived, or even about whether his initial decision to use a chokehold was appropriate.

She previously said: “He used far too much violence for far too long. He went way too far.”

She said he showed “indifference” toward Neely and “failed to recognize his humanity.”

That is not the case, says lawyer Thomas Kenniff. He told jurors that Penny applied only as much force as necessary to restrain a “soulful, psychotic” man who charged at a woman with a small child and declared, “I will kill.”

“In that moment, Danny could look away and pray, or he could muster the courage to put the safety of his neighbors above his own, to protect those who couldn’t protect themselves,” and he did the latter, Kenniff said.

“It doesn’t make him a hero. But that doesn’t make him a murderer.”

Both supporters and critics of Penny have held demonstrations; Penny arrived at the courthouse Friday to critical chants from a small group of protesters. The case has been absorbed into America’s fractious politics, with Republican officials standing up for Penny while Democratic officials attended Neely’s funeral.

Jurors, who were previously questioned about their experiences on the subway, began hearing Friday from the first officer who responded to Neely’s death.

Neely’s life was blighted by mental illness and drug abuse after his mother was murdered and stuffed into a suitcase when he was a teenager, his family says. At 30, he sometimes entertained subway passengers as a Michael Jackson impersonator, but he also had a criminal record, including assaulting a woman at a subway station.

Penny, an architecture student who served in the Marines for four years, says he was going from a college class to a gym when he ran into Neely on the subway on May 1, 2023.

Neely begged for money, shouted that she was ready to die or go to jail, and made sudden movements, according to witnesses. Yoran said Neely talked about hurting people.

Penny put his arm around the man’s neck, took him to the ground and held Neely there, with Penny’s legs around him.

While a bystander captured part of the encounter on video, Penny held Neely for about six minutes, Yoran said. The watch continued as the train stopped at a station, all but two fellow passengers got off, the two of whom helped restrain Neely, and another warned Penny, “If you don’t let him go now, you’re going to kill him.” according to her statement and court papers.

Kenniff said Penny begged fellow passengers to call the police and continued to hold Neely down as the man occasionally waved or tried to get up.

Penny eventually released Neely almost a minute after his body went limp, prosecutors said. He waited for the police, but Yoran noticed that even though Penny was trained in first aid, he did not check Neely’s breathing or heart rate or attempt to revive him.

“I just locked him out,” Penny told police. He later added that he simply wanted to “de-escalate” the tense situation and was not trying to injure Neely, but rather “to avoid hurting anyone else.”

City medical examiners determined Neely died of neck compression. Penny’s lawyers question that finding.

They tried unsuccessfully to prevent jurors from hearing any evidence, including Neely’s lack of a weapon and Penny’s statement to detectives.

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Associated Press journalist David R. Martin contributed.

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