Update: People v. Daniel Penny
The Prosecution Has Rested In The “Subway Chokehold” Case
AUTHOR’S NOTE: This is an update in a series of articles covering the trial of Daniel Penny in Manhattan.
On May 1, 2023 Jordan Neely, an African American man, demonstrated odd and possibly threatening behavior in a NYC subway car in Manhattan. Daniel Penny, a white man and former Marine, placed Neely in a chokehold which led to his death.
As a former prosecutor and criminal defense attorney with two decades of trial experience, I am following the case closely.
The series proceeds below in reverse chronological order.
I have opened the comments to all. Please feel free to post any questions.
UPDATED November 20, 2024
The prosecution has rested its case. This means that it has put on all of the evidence it intends to in support of the charge that on May 1, 2023 Daniel Penny recklessly (or negligently) caused the death of Jordan Neely by choking him to death.
To prove that Mr. Penny acted recklessly, the government argued that Penny, a former Marine, held Mr. Neely in a chokehold for too long when he restrained him. What was helpful became criminal when Mr. Penny didn’t release Mr. Neely after he was no longer a threat.
The government’s case included 30 witnesses over a period of eight days. Their case included nine eyewitnesses who were present in the subway car during the incident.
Testimony of Mr. Penny’s Marine Corps Martial Arts Trainer
In an effort to prove that Mr. Penny acted recklessly or negligently (as discussed below), the prosecutor called his Marine Corps marital arts trainer, Joseph Carballer, as a witness.
Mr. Carballer was shown video of the incident and offered his opinion that Mr. Penny was trying to use a “blood choke” to restrain Jordan Neely as opposed to an “air choke,” a maneuver in which takes longer to achieve submission but which is safer for the individual being choked.
Put simply, Mr. Carballer testified that Mr. Penny was acting outside of his Marine training. If the jury credits that testimony, it bolsters the prosecution’s argument that Mr. Penny’s actions were reckless or negligent.
The Medical Examiner’s Testimony
The government concluded its case with the testimony of Dr. Cynthia Harris, the Medical Examiner, who performed the autopsy on Mr.. Neely and made the cause of death determination of “homicide” caused by “compression of the neck.”
Dr. Harris testified for three days and discussed what was happening to Mr. Neely’s body second-by-second as he was pinned to the floor of the subway car. She said that Mr. Neely’s flailing legs and spasms as seen in the video were involuntary movements indicative of brain damage caused by “air hunger.”
Mr. Penny’s defense counsel challenged this testimony on cross-examination, noting that toxicology tests found the presence of a synthetic cannabinoid known as “K2” in Neely’s system, suggesting that the K2 rather than Mr. Penny caused Mr. Neely’s death.
Dr. Harris insisted this was not the case, testifying “he could have come back with enough fentanyl to put down an elephant,” she said at one point. “No toxicologic result would have changed my opinion.”
What Happens Next
After the government rests its case, the defense has the opportunity to present its case. The defense never bears the burden of proof and is under no obligation to call witnesses on its own behalf.
That said, I believe Mr. Penny will present a case.
It is likely his attorneys will call expert witnesses to challenge the government’s evidence that Mr. Penny improperly administered a “blood choke,” and likely expert, medical testimony challenging Dr. Harris’ determination that Mr. Penny choked Mr. Neely to death.
I believe it is likely that Mr. Penny will testify on his own behalf.
Testimony continues. Watch this space.
UPDATED November 14, 2024
The government has begun its case-in-chief, during which they must prove beyond a reasonable doubt that Daniel Penny recklessly caused the death of Jordan Neely by choking him to death.
As discussed below, Mr. Penny’s state of mind is the key issue at trial. If the jury believes he acted recklessly, he is guilty of Manslaughter 2º; if the jury decides he acted negligently, Mr. Penny is guilty of Criminally Negligent Homicide, a Class E felony.
If the jury decides that Mr. Penny was neither reckless nor negligent, or that his actions were justified, then he will be found not guilty.
Opening Statements
During opening statements on November 1, 2024, prosecutors told the jury that Mr. Penny’s actions were “unnecessarily reckless” when he refused to let go of Mr. Neely long after he had gone limp.
While the prosecution conceded that Mr. Penny may have legally intervened, they argued that he went too far when he held on to Mr. Neely’s neck for about six minutes as two other men held down his limbs.
As a former U.S. Marine with a green belt in martial arts, the government lawyers argued, Mr. Penny should have known when his chokehold had become deadly.
In contrast, Mr. Penny’s defense attorneys described Jordan Neely as “seething” and psychotic,” telling the jury that their client had stepped in to protect his fellow riders, and argued that he did not squeeze Mr. Neely’s neck hard enough to kill him.
Recall that, as discussed below, the government’s own witnesses have established that Mr. Neely was alive when Mr. Penny released him and turned him over to authorities.
This fact is critical, as the government must prove that Daniel Penny caused Jordan Neely’s death. The issue of whether Mr. Neely died because Mr. Penny choked him or rather because emergency medical personnel failed to treat him properly will likely be developed during the testimony of the Medical Examiner.
On November 4, 2024, the jury heard testimony from several passengers in the subway car. One testified that when the doors opened, Mr. Neely as “threw down his jacket and screamed that he was hungry and did not care if he lived or died.”
A cell phone video of the incident was played and the jury could hear a woman call out, “he’s dying! You got to let him go!” and another passenger who shouted, “y’all gotta hold him down!”
Prosecution Witness Ivette Rosario
A key witness for the People is Ivette Rosario who, at the time of the incident, was a high school senior. She yelled, “call some cops!” after Mr. Neely burst onto the uptown F train at the Second Avenue stop.
Rosario told jurors that Mr. Neely shouted that was homeless, hungry and “didn’t care about going back to jail.”
Rosario said she’d witnessed outbursts on the train before, but that something about Neely’s “tone” made it seem like this was different, saying “I’ve been in situations on the train where stuff was said, but not like this.”
Rosario said she pressed her head into her friend’s chest and closed her eyes, waiting for the train car’s doors to open at the next stop so that she could flee. She heard a “thump,” and opened her eyes to see Penny lying on the train floor restraining Neely, his arm pressed around the homeless man’s neck.
Prosecution Witness Larry Goodson
Another witness, 51-year-old Larry Goodson, told jurors that he noticed Neely defecating and urinating on himself as Penny choked him for several minutes; he warned Penny that he’d kill Neely if he didn’t release him.
Goodson testified, “if he’s defecating or urinating on himself, you’re going to let him go, because you’re going to kill him,” Goodson said Penny, however, appeared to be in a “trance” and ignored him.
Goodson, who has ridden the subway for 50 years, also told jurors that Neely was not threatening — conflicting Penny’s lawyers’ claim that Neely was targeting specific straphangers.
“I was not threatened. I was not fearful,” Goodson said. “This individual was not threatening me.”
Prosecution Witness Eric Gonzalez
On November 12, 2024, Eric Gonzalez, told jurors he had entered the subway car and come upon Mr. Penny and Jordan Neely struggling on the floor.
Gonzalez testified that Mr. Penny had his arms around Mr. Neely’s neck and his legs around his waist. Mr. Gonzalez said he waved his hand before Mr. Penny to get his attention and let him know that he would hold Mr. Neely’s arms, thinking that if he helped, then Mr. Penny might adjust his hold.
“I said, ‘I’m going grab his hands so you can let go,’ explaining, ‘If I held his arms down, he could let go of his neck.’” Gonzalez testified that when Mr. Penny didn’t release Mr. Neely as anticipted, Mr. Gonzalez held Mr. Neely until he went limp and the men let go.
“I tried to shake Jordan Neely to get a response out of him,” he said. He tried to put Mr. Neely in a “recovery position” on his side, felt for a pulse, and then, he said, “I walked away.”
Testimony continues. Watch this space.
UPDATED October 15, 2024
The original article was in this series was posted May 26, 2023, following Daniel Penny’s arrest for the May 1, 2023 death of Jordan Neely on a New York City subway car. This essay has been updated as the trial has proceeded from arrest to indictment, to pre-trial hearings, to the upcoming October 21, 2024 trial.
I practiced criminal law for over two decades, both as a prosecutor and defense attorney, including several murder cases. The People of the State of New York v. Daniel Penny is compelling and instructive for several reasons.
First, a human life was taken; that life was an African-American homeless man on a Manhattan subway car.
Second, the individual who took the life is a young white man and former Marine.
Third, this case has become politicized by GOP elected officials; a legal defense fund has generated over $3 million in contributions at GiveSendGo, a right-wing, evangelical fundraising site. GiveSendGo previously raised money for the defense of Kyle Rittenhouse and the January 6 insurrectionists.
On June 15, 2023, a Manhattan Grand Jury indicted Mr. Penny, charging him with Manslaughter 2º, alleging:
Penny, a former Marine, put Neely in a fatal chokehold "that lasted approximately six minutes and continued well past the point at which Mr. Neely had stopped purposeful movement."
Coerced Statements Are Inadmissible At Trial
On October 3, 2024 a pre-trial, Huntley Hearing was held.
People v. Huntley interprets a person’s Fifth Amendment right against self-incrimination to include statements to police. A Huntley Hearing is a standard pre-trial hearing made upon defense motion to suppress statements made to law enforcement before, during, or after an arrest.
At a Huntley Hearing the government, in this case the Manhattan District Attorney, must prove that any statements Penny made while in custody were voluntary, i.e., not coerced. The standard of proof of voluntariness is the highest under the law, “beyond a reasonable doubt.”
The sworn testimony at the October 3 hearing makes clear that Penny remained at the scene of Jordan Neely’s death and volunteered to accompany police to the station.
Penny likely did this for the same reason many people make statements to police while in custody: they believe that law enforcement in engaging in a good-faith investigation of the facts and if they tell their story the police will let them go.
This is often not the case.
Unless you are a bystander or witness (and even then you should consult with counsel) it is likely unwise to talk to the police without an attorney present. Nothing good happens to an innocent person inside a police interrogation room.
In the video below, the “Pot Brothers” attorneys (joined by Actor Michael Rapaport) summarize what many criminal defense attorneys advise is the best practice when detained and questioned by the police. Foul language warning.
The testimony indicated Mr. Penny was not under arrest when he was the police station, one of the key factors which determine “voluntariness” of a statement. If an individual is in custody and under arrest, a statement is more likely to be coerced.
Mr. Penny was read his Miranda warnings and agreed to give his account to police without counsel present. Under these circumstances, the trial judge (correctly) determined that the government had proven beyond a reasonable doubt that Mr. Penny’s statements were voluntary and legally admissible.
What Daniel Penny Said
Daniel Penny spoke with NYPD for two hours inside its 5th Precinct on Elizabeth Street immediately following Mr. Neely’s death. Mr. Penny admitted he “stepped in” and placed Mr. Neely in a chokehold because he was behaving erratically and “was absolutely killing someone.”
Penny told police that he took Mr. Neely to the ground; each time he felt a “burst of energy” from Mr. Neely, he held Mr. Neely “more steadily” until two men helped pin Mr. Neely down.
Mr. Penny insisted, however, that “as soon as those guys came in and held him, I let go,” insisting that "I'm not trying to kill the guy. I'm just trying to deescalate the situation."
That account, however, may not be corroborated by security and bystander footage. Video shows that Mr. Penny had Mr. Neely in a chokehold for about six minutes — as alleged in the prosecution — even after the subway car had stopped and the doors had opened.
A Possible Defense
As below, the government must prove beyond a reasonable doubt that Daniel Penny recklessly caused Jordan Neely’s death. His statements in custody did little to help his defense, as his account of how long he maintained the chokehold runs counter to the video evidence, indicating consciousness of guilt.
That said, the hearing revealed a fact which may complicate the government’s case. Several officers testified they felt “a faint pulse” when they arrived at the scene, so they did not perform CPR right away. Mr. Neely was given Narcan and eventually CPR was administered, but he later died. The Medical Examiner ruled the death a homicide.
Thus, according to the government’s own witnesses at the scene, Jordan Neely was alive when the NYPD arrived. This opens to the door for Mr. Penny’s counsel to challenge the government’s assertion that Mr. Penny “caused the death” of Jordan Neely, one of the elements of manslaughter.
How, they may argue, can Mr. Penny have caused Jordan Neely’s death when Mr. Neely was alive when Mr. Penny released him to emergency personnel?
Mr. Penny’s counsel may use the critical fact that Jordan Neely was alive when he disengaged to argue that their client was a good samaritan seeking to deescalate a dangerous situation in the absence of law enforcement.
To this end, Mr. Penny applied only as much pressure as required to subdue a strong, young man in the throes of a euphoric drug episode (as evidenced by the administration of Narcan) and then released him to law enforcement - alive and breathing - upon their arrival.
Defense counsel may further argue that if emergency personnel had simply administered CPR right away as medically indicated, Mr. Neely would have likely survived, and it was this failure — not Mr. Penny — that caused Jordan Neely’s death.
They may, in fact, explicitly argue that charging Mr. Penny with manslaughter in a high-profile, racially-charged case is a cynical attempt by the government to distract from the fact that it was the government’s own failure to act that killed Mr. Neely.
It is possible that Mr Penny will call an expert medical witness who will challenge the Medical Examiner’s “homicide” determination.
Trial begins with jury selection October 21, 2024. Watch this space.
UPDATED May 26, 2024
As a county prosecutor in New York for ten years and a defense attorney for another ten, I know that the legal issues related to the prosecution of Daniel Penny for Manslaughter in the Second Degree [New York Penal Law 125.15(1)] may be opaque to many citizens who have little or no contact with the criminal justice system.
I seek to make this case easier to understand and I begin with two simple points. One, I discuss the elements of the crime; two, (and the only issue in dispute) the issue of criminal intent.
The video of Jordan Neely’s death can be seen here. Watching it is informative but disturbing, and largely unnecessary to the issues I will be discussing.
First, Mr. Penny has been charged with Manslaughter in the Second Degree, recklessly causing the death of another person.
Section 125.15 - Manslaughter in the Second Degree
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person.
A person guilty of Manslaughter in the Second Degree is Subject to a Sentence of 3 1/2 - 15 years.
Second, the government (Manhattan District Attorney) must prove three (and all three) elements beyond a reasonable doubt:
Daniel Penny — not someone else — is the person we see in the video who interacted with Jordan Neely May 1, 2023 on the F Train. Mr. Penny concedes this.
Daniel Penny caused the death of Jordan Neely. Mr. Penny likely will likely deny this, as Mr. Neely was alive when Mr. Penny released him.
Daniel Penny acted recklessly in causing the death of Jordan Penny. Mr. Penny denies this.
Daniel Penny is not contesting the fact that it was he (not someone else) choking Mr. Neely on the subway when he died, likely admitting 2 of the 3 elements of 125.15-1. Thus, Mr. Penny’s intent is the only relevant element of the Manslaughter charge, the only one the government must prove.
The government has alleged that Mr. Penny acted recklessly and must prove that element at trial beyond a reasonable doubt or Mr. Penny goes free.
Recklessness as a Matter of Law
There are three levels of intent or “state of mind” that one must have to be found guilty of a crime. The most serious is intentional, then reckless, and the least serious is negligent.
Let us take an unrelated factual scenario to illustrate, someone killed with a car.
If you drive your car into another person with the intent of killing them, you have acted intentionally and committed murder. This is what happened in 2017 when avowed white supremacist James Alan Fields, Jr., drove his car into a group of Black Lives Matter protestors in Charlottesville, Virginia, killing Heather Heyer.
Fields is currently serving a life sentence for murder.
If you engaged in a drag race on public streets and killed someone, you have acted recklessly and committed manslaughter. That is, you knew (or should have known) the risks of racing in public and that you could kill someone, but you did it anyway.
If you were driving down the street and killed someone because you were texting you will likely be charged with criminally negligent homicide. Criminal negligence means you engaged in a gross deviation from the way a responsible driver should drive.
The Critical Issue: What was Daniel’s Penny’s State of Mind?
Daniel Penny may seek to distance himself from extremist forces, but those forces have embraced him, adding an irrational and volatile element to the case when public scrutiny is at its zenith.
Did Daniel Penny act recklessly, as alleged? Did he know he could have killed Jordan Neely by choking him and then choked him anyway?
Mr. Penny has publicly distanced himself from intentional murder, insisting that he is “not a white supremacist.”
It is interesting that he has publicly made this statement, as he has not been accused of acting intentionally, the most serious of three states of mind. As we see above, Manslaughter in the Second Degree alleges only the less culpable, “reckless” state of mind.
By defending himself against allegations that have not been made, Mr. Penny and his attorneys demonstrate that they understand this case is highly politicized and they are likely trying to humanize him in the eyes of potential grand jurors.
Penny wants everyone to know that although we live in a time when white supremacists are escalating violence, he is not part of that loathsome category and should not be judged as one.
This is certainly an understandable strategy, but it is not one he can control. Daniel Penny may seek to distance himself from extremist forces, but those forces have embraced him, adding an irrational and volatile element to the case when public scrutiny is at its zenith.
We Don’t Know What Happened
While we may know what people have said about what happened and maybe watched the video, we don’t know what happened and will never know that evidence the grand jury hears. What we see in the news is NEVER the whole story and the whole story must come out for Mr. Penny to have a fair trial. He is presumed innocent as a matter of law until proven guilty by a jury of his peers.
As I used to tell trial jurors, innocent until proven guilty means just that. No one is using air quotes around the word “innocent.” He is innocent until the jury sees all the evidence, hears both sides of the story and unanimously decides his guilt beyond a reasonable doubt. This is not a game, my client’s life depends of it, and every one of you (jurors) swore to follow that law.
Grand Juries Are Nothing Like A Trial
The history of grand juries is a fascinating one, but I will not dwell on it here. Grand Juries are still active in twenty-two (22) states and (in theory) act as a check against a prosecutor abusing his power to charge people with felonies and lock them up for months absent proof of guilt (as King John was fond of doing before the Magna Carta in 1215).
If you are charged with a felony in New York, the prosecutor can bring you to trial only if a grand jury has screened the case and made sure there is enough evidence to charge you.
Grand Jury proceedings are nothing like a trial. They are secret proceedings, there is no judge, the only person (besides witnesses) who may speak are prosecutors, and only twelve (12) of the the twenty-three (23) grand jurors have to find “reasonable cause” (rather than proof “beyond a reasonable doubt”).
Grand Juries indict between 95% and 99% of cases presented to them, and the small percentage of cases which grand juries dismiss are almost always dismissed at the request of the prosecutor.
Indeed, former Chief Judge of New York’s highest court once remarked that a grand jury would indict a ham sandwich.
Defendants Have the Right to Testify on Their Own Behalf in the Grand Jury but Almost Never Do
The legal issues in People v. Penny are complicated by political ones, as a white, former marine killed an unarmed black man in the subways of New York during the racially charged climate of 2023 America. In this context, it is interesting that Mr. Penny announced that he will testify in the grand jury considering the charges against him.
Daniel Penny’s decision to testify in the Grand Jury is a bold legal strategy that carries with it a great deal of risk. Although New York law allows people charged with felonies to appear in the grand jury and give their side of the story, it is exceedingly rare for a defendant to actually do so.
This is because a grand jury proceeding has no judge presiding and it is completely controlled by the prosecutor. The District Attorney impanels the grand jury, decides which cases it hears, decides which witnesses appear against a defendant, and acts as the legal advisor to the grand jury.
Further, the prosecutor is the only attorney who is allowed to even speak in a grand jury proceeding. If a defendant testifies, his defense lawyer is present but may cannot utter a word under penalty of Contempt of Court. A defendant is therefore subject to unlimited cross-examination by the prosecutor, all of which will be admissible at trial against the accused unless the grand jury decides to dismiss the case.
This, combined with the fact that the grand jury only needs a majority (12) of the 23 Grand Jurors to find “reasonable cause,” makes testifying in the grand jury a big swing. If Mr. Penny testifies in the grand jury and gets indicted anyway, his grand jury account will be the one he has to defend, narrowing his options at trial.
Finally, Penny will be also be stuck at trial with whatever sworn admissions he makes under the grand jury cross-examination of skilled prosecutor who will have had weeks to prepare. That cross-examination will have no safeguards, as there is no judge in the room and your lawyer can’t object to anything.
The government completely controls the jurors, the government may question you as long as they wish, and after you testify the government may call any witnesses and use any evidence to rebut your side of the story.
For these reasons, testifying in a grand jury subjects defendants to powerful forces seeking to convict you in a forum which it cannot influence. It is a risky strategy.
Justification: Self-Defense/Defense of Another Person
It is possible that Mr. Penny is hoping that his testimony will persuade the grand jury that he acted in self-defense or was defending others in the subway car. Under Article 35 of the New York Penal Law, deadly physical force may be legally used in self-defense or the defense of others, only under one of four conditions.
First, deadly force in self-defense can only be used if you have a reasonable fear that you are about to be the victim of murder, rape, kidnapping, or robbery. Mr. Penny will have to persuade the jury that he thought Mr. Neely was about to kill, rape, kidnap, or rob him or another person.
Second, deadly force can only be used as a last resort; that is, you have a duty to retreat from danger if you can safely do so. We don’t know what happened, but the evidence thus far suggests that Mr. Neely was unarmed and irrationally shouting at passengers when Mr. Penny engaged Mr. Neely.
Third, you may only use the minimum force needed to repel the threat. For example, if it looks like someone is about to punch you, you can punch him back in defense but you can’t shoot him.
Thus, even if the jury believes Mr. Penny was legally defending himself, Penny would still be criminally liable if the jury decides he could have successfully defended himself and others with non-lethal force.
Finally, you may not claim self-defense (the justification defense is unavailable at trial) if you were the initial aggressor. That is, you weren’t defending yourself if you started the fight. Mr. Penny will have to persuade the grand jury he didn’t initiate the confrontation with Mr. Neely.
No “Stand Your Ground” Laws In New York
In many states, self-defense laws have omitted the “duty to retreat” requirement. These “Stand Your Ground” (also called “shoot first”) laws make deadly force defensible under many more circumstances, such as ringing a doorbell by mistake. There is no such defense in New York.
That said, “Stand Your Ground” remains a high-profile political issue all over the nation. While some believe it is necessary in an increasingly violent society, others (including myself) believe that it results in unequal justice due to institutional racism.
It is likely that the Manhattan District Attorney will (correctly) advise the grand jury of this and tell the Grand Jury they may credit Mr. Penny’s (possible) self-defense claim only under the narrow circumstances enumerated above.
This tragic case tells us a great deal about our criminal justice system and who we are as a society right now.
Thank you for this. Lots to learn including "SFU"