The prosecution’s main argument in the trial of Daniel Penny, the Marine veteran who put a homeless Michael impersonator, Jordan Neely, in a fatal chokehold on a New York subway last year, is that Mr. Penny held the chokehold for too long. As the trial enters its fourth week, an expert is due to testify on the issue soon. 

Last week, witnesses spoke about the frightening moment when the street performer, Neely, boarded a Northbound F-train and began yelling that he was hungry, thirsty, ready to go to prison and even ready to die. Witnesses told conflicting accounts of whether Neely threatened to kill passengers on the train car. Mr. Penny’s defense attorney, Thomas Kenniff, who spoke to reporters on Friday, said the testimonies proved that his client “stood up, when other people ran away” and “did something to protect” fellow subway passengers, when he decided to put Neely in a chokehold and restrain him on the subway car’s floor.     

The racially charged case – Neely was Black and Mr. Penny is white – has attracted protesters from groups including Black Lives Matter and the National Action Network of the Reverend Al Sharpton, who spoke at Neely’s funeral. The protesters demand that Mr. Penny be punished. Mr. Penny, on the other hand, has been the beneficiary of protests on his behalf by residents of Long Island, where he is from. Supporters across the country  have raised over $3 million dollars for Mr. Penny’s legal fees. 

Mr. Penny is charged with second-degree manslaughter and negligent homicide in the death of Neely, who died on that tragic day of May 1, 2023. Combined, the charges carry a maximum of 19 years in prison. Mr. Penny’s  defense team argues that he did not intend to kill Neely, but was instead trying to deescalate what he deemed to be a dangerous situation and stop an unpredictable aggressor from causing serious harm. 

In her opening statement, assistant district attorney Dafna Yoran, who is prosecuting the case for the Manhattan district attorney, Alvin Bragg, agreed, saying, “The Defendant did not intend to kill. His initial intent was even laudable, to protect fellow subway riders from a man he perceived to be a threat. But under the law, deadly physical force such as a chokehold, is permitted only when it is absolutely necessary, and only for as long as it is absolutely necessary. And here, the defendant went way too far.” 

Video footage, recorded by the freelance journalist Juan Alberto Vazquez, which was played to the jury, shows that Mr. Penny did indeed keep Neely in the chokehold for five minutes and 53 seconds. Furthermore, it showed that the subway had already arrived at the next station, that the doors were open, and that passengers had left the subway car. Thus, the prosecution argues, there was no more danger of being stuck on a moving train with an aggressive man, who witnesses described as “menacing,” with some saying, he was making them fear for their lives, and no need for Mr. Penny to keep holding the victim in the chokehold.  

Reverend Ronald McHenry, who spoke on behalf of the victim’s family, and represents Mr. Sharpton’s National Action Network, told reporters on Friday, “We have to understand that chokeholds should never be used. Deadly force was used in this case, and it should never be used. If we go back a few years, Eric Garner was choked out by the police, and we’ve got the Eric Garner chokehold law, because we’ve decided as a city that chokeholds should not be used.” 

Mr. McHenry was referring to the Eric Garner Anti-Chokehold Act, a New York state law that makes it a class C felony for police officers to injure or kill someone with a chokehold or similar restraint. The law was passed by the state assembly in 2020, and signed into law by Governor Andrew Cuomo. The penalty for a violation is up to 15 years in prison.

Eric Garner died in 2014 after he was stopped by police on Staten Island for selling individual cigarettes illegally. An officer,  Daniel Pantaleo, placed Garner in a chokehold for resisting arrest, according to the NYPD. Before he died, Garner said the words, “I can’t breathe”, eleven times. They became a signature rallying outcry for Black Lives Matter movements across the country. 

Despite nationwide protests, Mr. Pantaleo was not indicted in the case (though he was eventually fired years later). But unlike Mr. Pantaleo, who was an acting police officer when he restrained Garner, Mr. Penny was a citizen when he held Neely.     

“So who are we talking about here?” Mr. McHenry told reporters outside of the Manhattan criminal courthouse on Friday afternoon. “We’re talking about Daniel Penny… He’s not an officer. He doesn’t have any type of authority to do what he did on that day. He decided to take justice in his hands… That’s what this case is about. He had no authority to do what he did that day, and we stand with the family’s outrage.” The Reverend made his remarks while standing next to Neely’s uncle, Christopher Neely. 

In her opening remarks, Ms. Yoran addressed the chokehold issue in great detail. “A chokehold is something that all Marines, such as the defendant was for four years, get trained on,” she said, referring to the time Mr. Penny served in the Marine Corps, from which he was honorably discharged. 

“You will learn that the defendant had attained a green belt in the Marine Corps. martial arts program, which is the third level up,” she explained.  “Now, chokes are taught for situations where you want to disable your opponent temporarily, but not kill him… Your opponent will pass out. You will let go and that will give you the tactical advantage to restrain him another way in the few seconds that it will take him to revive; that is the purpose of a chokehold.” 

Ms. Yoran argued that Mr. Penny acted recklessly when he held the chokehold because he should have known the force can be deadly when applied too long. The defense countered in its opening statement that Mr. Penny had no intention of knocking out Neely.

“But Danny,” Mr, Kenniff argued, referring to his client, had “no interest in
rendering Mr. Neely unconscious even if it would not cause him harm, his purpose of using the hold was — simply to contain him until the police arrived and took over, something that took longer than anyone on that train could have ever expected.”

The defense further argued that Mr. Penny attempted to hold Neely in a harmless chokehold, saying witnesses would “use terms like safe, respectful, and non-aggressive to describe the way in which Danny tried to subdue Jordan Neely.” 

On Friday, the defense showed body camera footage from NYPD officer Jonathan Tand during cross examination of one of the witnesses, during which a woman told the officer that “the guy… did take him down very respectfully.” That woman was Caedryn Schrunk, who is originally from the midwest and works for the sports brand Nike. She had testified earlier, as the Sun reported, that Neely was “having a mental breakdown,” when he boarded the train, and was “making life threatening demands”, saying according to her, “‘I don’t care if I die. I don’t care if you die. Kill me, lock me up.’” Ms. Schrunk described the outburst as “Satanic,” and testified, “There was a moment when I truly thought I was going to die.”    

Prosecutors are not denying Neely’s frightening behavior. They are the ones, interestingly, calling these witnesses, who were in the train car when the tragedy unfolded. But they ask every witness, if Neely touched anyone, or physically attacked anyone, or if he carried a weapon, which he did not. However, the prosecution vehemently disagrees with the way Mr. Penny enforced the chokehold, and argues that having been trained in the Marines, he “was aware of the risk he posed to Jordan Neely’s life by keeping him in a chokehold for almost six minutes, including the 51 seconds after he was no longer conscious.” 

Ms. Yoran announced in her opening remarks that the prosecution would call the martial arts trainer to the witness stand who trained Mr. Penny during his service in the Marines. It is not clear when the prosecution will call this witness. But as the trial heads into its fourth week, it is highly likely that experts will begin taking the stand soon.   

The trial continues on Tuesday and is expected to last until December 9.