Daniel Penny’s subway drowning attempt: Key takeaways

(NEW YORK) — The prosecution and defense are preparing for closing arguments on Monday in the Daniel Penny trial, which is nearing its conclusion after a break for the Thanksgiving holiday.

Penny subjected a homeless man, 30-year-old Jordan Neely, to a fatal asphyxiation for 6 minutes after Neely acted erratically and boarded a subway car.

Penny, 25, is charged with involuntary manslaughter and negligent homicide in the May 2023 strangulation death of Neely on a New York City subway. He pleaded not guilty.

Key results from the trial so far include:

Prosecutor’s claim

Prosecutors argue that Penny, a former Marine trained in martial arts, should have known the chokehold maneuver had become fatal and argued that Penny held Neely “for too long” for more than 5 minutes after the train entered the station and passengers entered. They were able to exit.

Neely entered a moderately crowded subway car on an uptown F train at the Second Avenue stop and began yelling and acting erratically as Penny choked Neely. Thirty seconds later the train arrived at the next station and in fact all the passengers got out of the train car.

Footage of the interaction between Penny and Neely, which began approximately 2 minutes after the incident began, shows Penny holding Neely for approximately 4 minutes and 57 seconds on a relatively empty train with few passengers nearby.

“He was aware of the risk that his actions would kill Mr. Neely, and he did it anyway,” Deputy District Attorney Dafna Yoran said in her opening statement. “Jordan Neely took his last breath on the dirty floor of an uptown F train.”

Prosecutors also argued that although Penny was an “honorable veteran” and a “good young man,” he used too much force for too long and was reckless with Neely’s life because he “did not recognize her humanity.”

He then continued: “Under the law, lethal physical force, such as strangulation, is allowed only when absolutely necessary and only when absolutely necessary. And here the defendant went too far.”

The second-degree manslaughter charge only requires prosecutors to prove that Penny acted carelessly rather than deliberately, according to prosecutors.

defense argument

Defense attorney Thomas Kenniff countered that Penny was trying to protect the passengers, claiming she was responding to Neely’s “irrational rage.”

“This is a case about a young man who did for others what we would want someone to do for us,” Kenniff said. “That doesn’t make him a hero, but it doesn’t make him a murderer either.”

Penny claims she heard Neely say, “I’m going to kill”; Kenniff said there was no opportunity for his client to de-escalate tensions or stop Neely from the harm he threatened.

The defense said Penny, drawing on “some” martial arts training she received in the Marine Corps, strangled Neely without intending to kill him, but held him until police arrived.

“His behavior was consistent with someone who values ​​human life, and that’s why he was trying to protect her so fiercely,” the defense attorney said.

Kenniff insisted his client “did not mean to use any more force than necessary,” but Neely “aggressively resisted” while under Penny’s control. He said Penny thought Neely, who police said was unarmed, might have had a gun while waiting for police.

Daniel Penny’s police interview

Jurors saw body camera video, which has not yet been made public, of Penny’s first encounter with police, 4 minutes after she dropped Neely off.

On the first day of the trial, the jury saw body-worn camera footage that showed the officer’s attempts to save Neely and her lifeless body on the subway floor.

When searched for weapons, all officers found in Neely’s pocket was a donut. Officer Teodoro Tejada confirmed that nothing else was found in the jacket.

When the police officer asked what happened, Penny was heard saying, “I took him out.” According to prosecutors, the footage, which was not made public until the trial, is evidence that Penny disregarded Neely’s basic humanity.

The defense used Tejada’s testimony to argue to the jury that Penny did not act like a criminal by fleeing the scene.

“Did he seem cooperative?” the lawyer asked.

“Yes,” the officer replied.

“Didn’t he look like he had something to hide?” Kenniff asked.

“No,” Tejada said.

Video of Jordan Neely drowning in the subway

In the video taken by then-17-year-old high school student Ivette Rosario, a witness can be heard calling out to Penny, “She’s dying… you’ve got to let her go.” Others can be heard in the clip shouting “call the police!” They can be heard shouting.

Rosario testified that she didn’t hear anyone say Neely was “dead” at the time, and it wasn’t clear whether Penny heard that either.

Man who helped subdue Nely testified
A Bronx man who helped Penny restrain Neely “jumped in and tried to help” so Penny could release the chokehold, according to the man’s statement.

When Eric Gonzalez, who was seen holding Neely by the wrist in the video footage, got on the subway, he noticed Penny was holding Neely “with her legs around his waist and her arm around his neck.” Gonzalez testified that he didn’t know why Penny restrained Neely, but he heard people yelling to call the police.

Gonzalez said he waved his hands in front of Penny’s face to get her attention.

“I said, ‘I’m going to hold your hands so you can let go,'” Gonzalez told the jury. “I’m just giving him a different option to keep his arm; to restrain him until the police arrive.”

Prosecutors asked Gonzalez for an explanation: “If I held his arm down, he could release his neck,” he said.

Gonzalez said she watched Neely’s body relax and let go before Penny did the same.

“I tried to shake Jordan Neely to get a response from him, to get his pulse, and then I walked away,” Gonzalez said.

Conflicting statements about the cause of death

Dr. of the city’s Chief Medical Examiner. Cynthia Harris performed Neely’s autopsy in 2023 and ruled Neely’s death a homicide and the cause of death was “Neck compression (strangulation).”

He testified at the hearing that there was “unanimous consensus” from the medical examiner’s office that Neely died of asphyxiation, according to the Associated Press: “There is no alternative reasonable explanation,” he said.

Forensic pathologist Satish Chundru disputed that determination in his testimony in defense of Penny, arguing that Neely died from the “combined effects” of schizophrenia, synthetic marijuana, a blood disorder and efforts to combat Penny, according to the AP.

“Do you think Mr. Penny strangled Mr. Neely to death?” defense attorney Steven Raiser asked, according to the AP.

“No,” replied Chundru.

Prosecutors argued that Chundru’s testimony deviated from medical literature and his own views on similar cases, but Chundru said the cases were not comparable, according to the AP.

Marine Corps instructor who trained Penny testifies

Joseph Caballer, the combat instructor who trained Penny, said Penny was taught how to hit an unconscious person, but that technique could kill someone if held for too long, according to the AP. He argued that anyone performing the technique should have released the person once they were unconscious, and testified that Penny had used the choke “inappropriately” when asked by prosecutors.

However, the defense claims that Penny did not use a strong enough grip to kill him, AP reported.

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