Defense attorneys in the trial of Daniel Penny, a Marine veteran, argued before the judge on Monday that their client was trying to prevent an attempted robbery, when he put a homeless Michael Jackson impersonator, Jordan Neely, in a fatal chokehold on a New York subway last year. 

This sharpened line of argument came as the defense was seeking to influence the judge’s instructions to the jury, who was not present. The defense hopes that if it can convince the jury that Mr. Penny was preventing a robbery when he subdued Neely, it could make his actions seem more justifiable, also under New York law, more than if Mr. Penny was just acting as a result of Neely threatening violence.

On Monday, the judge, Maxwell Wiley, who presides over the high-profile case, asked the parties if they had any “particular instructions” they would like him to give to the jury before they go into deliberations next week. Both the defense and the prosecution have rested their cases. After their closing arguments, which will begin next Monday, December 2, the jury will deliberate on a verdict for Mr. Penny.  

The 26-year-old, who is from West Islip on Long Island but was living in downtown Manhattan at the time of the incident, is charged with second-degree-manslaughter and negligent homicide in the death of Neely. If convicted, he faces a maximum of 19 years in prison. He has pleaded not guilty. The defense argues he did not intend to kill Neely, but was trying to protect himself and fellow riders from an unpredictable and menacing aggressor on the subway.

When Neely, a 30-year old street performer, who was homeless at the time and had a long history of drug use and mental illness, boarded a subway in lower Manhattan, he immediately began shouting at passengers that he was thirsty, hungry, ready to go prison and ready to die. Though Neely did not physically attack anyone, and did not carry a weapon, the tone of his voice, according to witnesses, was extremely menacing. So much so that one witness testified that she feared for her life. 

Mr. Penny grabbed Neely from behind, put him in a chokehold, brought him to the ground and held him on the floor of the subway car for about six minutes. Two other men helped Mr. Penny restrain Neely. 

A video, recorded by a freelance journalist who was also on the train, shows how Mr. Penny holds Neely in the chokehold, how he wrapped his legs around Neely’s legs to secure him, and how Neely’s body eventually goes limp as the two men lay entangled on the floor of the subway car. When officers arrived at the scene, Neely was unresponsive but for a slight pulse. He was pronounced dead at the hospital about an hour later.

Manhattan district attorney Alvin Bragg, whose office is prosecuting the case, accuses Mr. Penny of using excessive force and recklessly killing Neely by holding the chokehold too long, something he should have known can have deadly consequences, after training as a Marine for four years.   

The prosecution and defense  will both hold their closing arguments next week. Before the jury heads into deliberations, the judge will charge them, meaning he will give specific instructions on how to interpret the law, the testimony they heard, and the evidence they have seen and read.    

On Monday, defense attorney Thomas Kenniff asked the judge to tell the jury that his client’s actions were justified because he was trying  “to prevent a robbery or attempted robbery” because “statements” made by Neely after he entered the subway “are at least an attempted robbery.” 

Mr. Kenniff cited several examples from the video that was recorded when Mr. Penny spoke to police officers at the precinct on the day of the incident.   

“Mr. Penny tells the officers,” the defense attorney said, “that Mr. Neely says, in sum and substance: ‘If I don’t get this, this and this, I’m going to go to jail forever,’”  The attorney was referring to eyewitness testimony. Several people who were on the train on that tragic day testified that Neely entered the train and tossed his windbreaker to the ground. Mr. Penny told officers that after throwing the jacket, Neely said, “If I don’t get this, this and this, I will kill everyone. I am prepared to go to jail for life.” 

“And as he’s doing this,” the attorney detailed on Monday, “Mr. Penny describes Mr. Neely getting in people’s faces and people getting out of the way, which is consistent with them taking his threats to, what we would submit, rob them or hurt them in the course of a robbery, quite seriously. That’s obviously also consistent with the trial testimony, which I will get to.” 

Importantly, the attorney argued, it was not “until he (Neely) started threatening people to jail and to kill if he didn’t get this, this and this and that Mr. Penny indicates to the detectives, that’s when I acted.” 

Mr. Penny demonstrated the chokehold he placed Neely in to the officers and further told them Neely was “squirming” and “resisting” and he was trying to “hold him down” until the police arrived, and that he “wasn’t trying to injure him.”

“Mr. Penny says, in sum and substance,” the attorney went on, that Neely was “threatening” and that his client was, as he told officers, “concerned he would actually lash out… if he doesn’t get this, this and this.” Mr. Kenniff cited the defendant. There are “at least a half a dozen times where Mr. Penny contextualizes Mr. Neely’s threats to take and harm if he doesn’t get (what he is asking for),” the defense attorney said, citing testimony from several witnesses to bolster his argument that Neely’s threatening words could be perceived as an attempted robbery.  

A high school student, Yvette Rosario, who testified during trial, told the jury, the attorney said, that she was so scared “She thought she was going to pass out and started praying, as she put her head in her friend’s chest.” 

Ms. Rosario’s friend, Moriyela Sanchez, the attorney argued, “was saying if no one gave him (Neely) water or food he is going to start putting hands on people… And, obviously, describes his frightening mannerisms, that he was shaking as he spoke, and so forth. And that while he didn’t get very close to her, she admitted that he got close to people as he was making these threats.” 

“I would say that these statements made by Mr. Neely are at least an attempted robbery,” the attorney said. He cited several more witnesses. He didn’t bring up Alethea Gittings, an older woman, who was on her way to the dentist, and who thanked Mr. Penny after the police had arrived. She testified that Neely shouted “I don’t give a damn. I will kill a motherf—er. I’m ready to die.” 

The attorney concluded that “from a subjective and objective standpoint… there was a reasonable belief on the part of my client that Mr. Neely was attempting to carry out a robbery.” 

Then he cited a case from 1980, where a bus driver shot a passenger after he refused to pay his fare, People v. Davis, “where the Court was compelled to give the robbery charge or found it an error not to have given it where somebody walks onto a bus refusing to pay the fare, and then makes threats in that context, and the bus driver actually shot the individual.” 

The judge put the case on the record, and asked the prosecution to respond. 

An assistant district attorney, Dafna Yoran, told the court that the prosecution did not disagree that Neely exhibited threatening behavior.

“We are not contesting the threatened force. So most of what he talked about was the threat of force. Obviously, we are not testing the threat of force. What we are contesting is that the threat of force was in order to get something.” 

Interestingly, Ms. Yoran reminded the court of what a medical expert, whom the defense had called, testified last week that Neely was undergoing a psychotic episode and was not sober. The toxicology report showed that he had the synthetic marijuana K2 in his system.    

“What the witnesses described — and they put on an expert to confirm — is a man in the middle of a psychotic attack who was threatening to force people.” She also reminded the court that Neely had asked for food and water, “most people talked about I am hungry, I am thirsty, and that it was an expression of his frustration.” 

“I think if you look at the context of the entire interaction, we are talking about a man who is having a psychotic attack, who is on K2, who is unhinged.” 

The defense disagreed, arguing that “The fact that he was mentally unstable does not make him incapable of a robbery.” 

But Ms. Yoran insisted, though she acknowledged “the threat of force is real”, this situation was “not a robbery.”

“I would just like to point out,” she argued, “if we take it to another context, how absurd this would sound if, you know, if somebody comes onto the train and asks for food and drink and makes a threat behind it and then somebody could just get up and shoot them.”    

It increasingly seems like the attorneys, on both sides, are very particular about semantics. Did Neely have what New York law calls “larcenous intent” and, therefore, had it coming to him? And then, was what Mr. Penny did justified by New York state law? 

Judge Wiley told the parties he would at the case law the defense cited and  make a decision tomorrow. 

“I mean, what’s going on here basically is that… if the jury finds the the person on trial was using deadly physical force to ward off a forcible felony, then there are fewer limitations than that person’s use of deadly physical force, than there are in other sections of justification in the statute; in any event, so I will give you a decision on that.”