The legal team defending Daniel Penny, the Marine veteran who put a homeless Michael Jackson impersonator, Jordan Neely, in a fatal chokehold on a New York subway last year, has hired the celebrity jury consultant, Jo-Ellan Dimitrius, to assist his legal team on jury selection. Her expertise was used in the O.J. Simpson trial and many other high profile defenses. 

“Ms. Dimitirus’s reputation in the field is second to none,” Thomas A. Kenniff, Mr. Penny’s lead defense attorney told The New York Times, which first reported Ms. Dimitrius had joined Mr. Penny’s legal team. “So in a situation like this, we want to put the best team together to give our client the best defense,” Mr. Kenniff said. 

Ms. Dimitrius, whose greatest claim to fame is helping pick the jury that acquitted OJ Simpson, most recently consulted for the successful defense of Kyle Rittenhouse, whose case must have been noted by Mr. Penny’s legal team as it, too, was racially charged and highly politicized.  

Rittenhouse, then 17, was charged in the death of two protesters and wounding a third, following the riots in Kenosha, Wisconsin that ensued after a 29-year-old Black man was shot and gravely injured by a police officer.

Mr. Penny’s case, like that of Mr. Rittenhouse, was the cause of protests. A video of the subway incident, recorded by a freelance journalist, went viral and sparked city-wide outrage. People jumped onto the train tracks at the Broadway-Lafayette subway station, where Neely had died, demanding “justice” for Neely and that Mr. Penny be held accountable. 

Mr. Penny was not arrested and not charged after the incident. He went to the police station as a witness, where he told officers that he did not mean to kill Neely, that he was trying to protect himself and fellow passengers from an unpredictable aggressor. Mr. Penny went home the same day.

Ten days after the tragedy occurred, the Manhattan district attorney, Alvin Bragg, charged Mr. Penny. Media outlets reported that Mr. Bragg succumbed to public pressure, while he has stated that his office needed time to review the video footage and witness testimony before pursuing charges, second-degree manslaughter and negligent homicide, which combined, carry a maximum of 19 years in prison.         

Mr. Penny, a 26 year-old former infantry squad leader from West Islip on Long Island, has pleaded innocent for the death of Neely, who was 30 years old when he died. 

According to witnesses, Neely, who had a long history of mental illness, homelessness and arrests, boarded an F train at the Manhattan 2nd Avenue stop on May 1, 2023, behaving erratically and aggressively. Mr. Penny allegedly stood up, grabbed Neely from behind, and placed him in a chokehold on the floor of the subway car for six minutes. Two other passengers helped pin Neely down. He was pronounced dead at the hospital hours later and his death was ruled a homicide.

The case has sparked controversy. Supporters for Neely say that he did not physically attack Mr. Penny, nor anyone for that matter, and that Mr. Penny acted like a vigilante. Supporters of Mr. Penny call him a good Samaritan and hero. 

Moments after Mr. Penny’s arrest, supporters started a crowdfunding campaign to help him cover his legal expenses on a site, called GiveSendGo, a self-described Christian website, which also includes a prayer wall and prayer requests, “to let the campaign owner know you are praying for them.”  

GiveSendGo has hosted multiple crowdfunding campaigns to fund the defenses of men charged in vigilante-style killings, including that of Mr. Rittenhouse and Jose Alba, a Harlem bodega clerk who stabbed a deranged customer. Sector-leading GoFundMe will not host these fundraisers, saying they violate its “terms of service”.

By Sunday evening the GiveSendGo campaign for Mr. Penny had raised $3,145,802. Both Matt Gaetz and Florida Governor Ron DeSantis donated to the campaign, and the billionaire Elon Musk has expressed his support. Presumably, these funds have bankrolled the hiring of Ms. Dimitrius.

Last week, with Ms. Dimitrius in the pews, the presiding judge, Maxwell Wiley, began the tedious process of finding twelve impartial Manhattan residents for the jury.

On Thursday, Assistant District Attorney Dafna Yoran requested to shield the jurors’ names from the public due to threats both sides had received in the charged case. The judge agreed, saying “There’s been people who have not been afraid to make threats,” and granted the request, as the Sun reported, meaning the prospective and the selected jurors would only be referred to by number and not by name.  

In 2023, the New York Senate passed a bill to amend New York state’s criminal law and increase the identity protection of jurors (The bill has not been sent to the governor yet). For now, defense attorneys and prosecutors are allowed to know jurors’ names even while they were kept from the public. But this new legislation aims to obstruct “a defendant from receiving the names, and consequently, the personal information of jurors serving the courts.” 

As stated in the justifications for the bill, “In this age of technology, it is effortless to find a person’s personal information from their name alone. This information can be inherently dangerous if it reaches the hands of a defendant who holds hostility towards jurors.” 

The growing threats against trial participants was also an issue in President Trump’s New York trials, which led to gag orders against Trump, such as threats against Allison Greenfield, the principal clerk to New York Supreme Court Justice Arthur Engoron, who presided over Trump’s civil fraud trial, which he has appealed.       

Some Manhattan residents have shown signs that they are scared to serve on Mr. Penny’s jury. Last week, one prospective juror asked to be dismissed because she was having a panic attack. Another Manhattan resident told the judge that she was “nervous” about serving. 

On Friday, the voir dire began, a process where potential jurors are first questioned by the judge, then by prosecutors and then by defense attorneys to determine their impartiality. Both sides are also given three peremptory challenges, meaning each side can strike potential jurors they deem unfit to judge the case. And that’s where Ms. Dimitrius comes into play. The jury consultant aides the defense attorneys in deciding who to keep and who to strike. 

According to her website, Ms. Dimitrius first appeared in court in 1984, and  “has consulted in over 1,000 trials… picked over 600 juries… evaluated over 10,000 jurors, witnesses, lawyers and even judges during trial,” and has been “nicknamed ‘The Seer’ by the American Lawyer Magazine.” 

“The Seer”, though, is not a lawyer. She does not appear to have a law degree. The website writes “her doctoral dissertation” for her Ph.D. in 1984 from Claremont Graduate School was “The Representative Jury: Fact or Fallacy”. The biography adds, “the course of study leading to her doctorate was wide ranging—from psychology to sociology to criminology to government.”   

In addition to Simpson and Mr. Rittenhouse, she helped get Jayson Williams acquitted of his manslaughter charge, after he shot the limousine driver Costas Christofi. She also consulted for Brazil’s former leftist president Luiz Inácio Lula da Silva and “Godfather” director Francis Ford Coppola who sued Warner Brothers for blocking his efforts to make a movie about Pinnocchio (the jury awarded Mr. Coppola $80 million).

“It’s really a matter of combining art and science,” Ms. Dimitrius told then-special contributor at Court TV, Ashleigh Banfield, in May 2020. She then explained that she works with focus groups and mock trials, “where we have a number of people and we usually do statistical analysis to see how people react to certain case facts, and if we see patterns.” 

“The art of what we do is once we get into the courtroom,” Ms. Dimitrius elaborated during her interview on Court TV, “and being able to apply what we learned statistically and scientifically to the folks that show up in the courtroom.”  

Ms. Dimitrius also told Ms. Banfield that is “truly difficult” to spot and eliminate stealth jurors, people who try to get on a case to decide it a certain way before hearing any evidence. “It’s difficult to ascertain that,” Dr. Dimitrius said. “Fortunately, though, our little antennas go up,” she added, if the potential jurors answered a certain way when asked a question by the judge, and then gave a different answer, when asked “basically the same question” by the attorneys. That kind of inconsistency, Ms. Dimitrius found, was an indication that the potential juror may be biased, or as she phrased it, “that’s an automatic clue that something isn’t quite right here.”  

On Friday, the prosecution asked 16 prospective jurors, seated in the jury box, about their backgrounds and their experiences on taking the subway. 

Mr. Penny’s attorneys will get their chance to ask their questions on Monday, prepared and aided by Ms. Dimitrius, who has so far attended every trial day, taken attentive notes and joined the attorneys next to the bench, when jurors came to speak to the judge in private to talk about their scheduling issues. 

The trial is expected to last six weeks.