Prosecutor tells jury that veteran showed 'indifference' to man he choked to death on subway

Daniel Penny returns to the courtroom after a break in New York, Oct. 21. Opening statements have started in the trial of Penny, the white veteran accused of choking a distressed Black subway rider to death.

Daniel Penny returns to the courtroom after a break in New York, Oct. 21. Opening statements have started in the trial of Penny, the white veteran accused of choking a distressed Black subway rider to death. (Seth Wenig, Associated Press)


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NEW YORK — Marine veteran Daniel Penny didn't intend to kill a distressed man on a New York subway, but Penny "went way too far" in trying to neutralize someone he saw as a threat and not as a person, a prosecutor told jurors Friday.

"The manner in which the defendant permanently silenced Jordan Neely evinced the defendant's belief that Mr. Neely didn't deserve even the minimum modicum of humanity," prosecutor Dafna Yoran said in an opening statement at Penny's manslaughter trial.

Penny's "indifference toward Mr. Neely, the man whose life he was literally holding in his hands, caused him to disregard the most basic precautions and needlessly kill him, long after any threat he posed had dissipated," she added.

Defense lawyers were due to give their opening later Friday.

An anonymous Manhattan jury is deciding the manslaughter case surrounding Neely's 2023 death, which prosecutors call a reckless killing but Penny claims was self-defense. The case has rattled fault lines surrounding race, homelessness, perceptions of public safety and bystanders' responsibility.

Penny's critics see him as a white vigilante killer of a Black man who was behaving erratically and making dire statements but wasn't armed and hadn't assaulted anyone in the subway car. Supporters credit the 25-year-old Penny with taking action to protect frightened subway riders — action that he has said was meant to defuse, not kill.

Both camps have held demonstrations; Penny arrived at the courthouse Friday to critical chants from a small group of protesters.

"This is not an easy case of a bad man doing a bad thing," Yoran told prospective jurors during the selection process.

Penny's lawyer Steven Raiser, meanwhile, has said that a conviction "will have a chilling effect on every New Yorker's right and duty to stand up for each other."

Jurors, who were quizzed about their own subway experiences, could hear some witness testimony after opening statements Friday. It's not clear who the prosecutors' first witness will be.

Neely's life was tattered by mental illness and drug use after his mother was murdered and stuffed in a suitcase when he was a teen, his family has said. By 30, he sometimes entertained subway riders as a Michael Jackson impersonator, but he also had a criminal record that included assaulting a woman at a subway station.

Penny, who served four years in the Marines, has said he was going from a college class to a gym when he encountered Neely on a subway on May 1, 2023.

Neely was begging for money, shouting about being willing to die or go to jail, and making sudden movements, according to witnesses. Some were alarmed, others blasé, court filings said.

Penny, who has said Neely was threatening people, put his arm around the man's neck and took him to the floor.

With a bystander recording some of the encounter on video, Penny held Neely for about six minutes, prosecutors wrote in court papers. The hold continued as the train stopped, many people got off, two others helped restrain Neely, and another warned Penny, "If you don't let him go now, you're going to kill him."

Penny ultimately released Neely nearly a minute after his body went limp, prosecutors said.

"I put him out," Penny told police. He later added that he had simply wanted to "de-escalate" the edgy situation and wasn't trying to injure Neely but rather "to keep him from hurting anyone else."

City medical examiners determined that Neely died from compression of the neck. Penny's lawyers have indicated they plan to question that finding.

They have sought unsuccessfully to keep jurors from hearing some evidence, including Neely's lack of a weapon and Penny's station-house statement to detectives.

Contributing: David R. Martin

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