The Marine veteran, Daniel Penny, who’s charged with manslaughter in the  death of a street performer, Jordan Neely, on a New York City subway in May of 2023, is scheduled for a pre-trial hearing at Manhattan criminal court on Thursday morning. The trial itself is due to start October 21.

Last year, Mr. Penny, 26, a former infantry squad leader from Long Island, pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in the death of Neely.    

In January, the presiding judge, Maxwell Wiley, had declined a motion by Mr. Penny’s defense to dismiss the charges. Mr. Penny’s attorneys had argued that the ex-Marine had “risked his own life and safety” to protect other subway passengers from Neeley, whom they described as “insanely threatening.” 

Neely, who was 30 years old at the time of his death, was known for his moonwalking Michael Jackson impersonations on New York subway stations. He also had a long history of severe mental illness and homelessness, and was reportedly shouting and acting erratically in the leadup to the tragic May 1, 2023 incident, much of which was caught on camera. 

According to a freelance journalist, Juan Alberto Vazquez, who recorded the incident on his phone, Mr. Neely got on the F train on the Second Avenue Manhattan train station and immediately started yelling that he was “fed up”. He then took off his jacket and “aggressively whipped it to the floor”. 

“I don’t have food, I don’t have a drink, I’m fed up,” Neely screamed, according to Mr. Vazquez, adding “I don’t mind going to jail and getting life in prison. I’m ready to die.”

As Neely’s erratic behavior escalated, several passengers moved away, some leaving the subway car, Mr. Vazquez further reported. Video footage shows how Mr. Penny, who would tell investigators that he had moved to protect his fellow passengers, then toppled Neely to the ground and placed him in a chokehold. Neely tried in vain to break free by kicking his legs and moving his arms. Two other passengers helped restrain Neely, while Mr. Penny kept the chokehold around his neck. 

Prosecutors allege that Mr. Penny continued to choke Neely “well past the point at which Neely had stopped purposeful movement.” Once Mr. Penny loosened his grip, he rolled a motionless Neely onto his side. He was pronounced dead at the hospital. His death was ruled a homicide. 

The New York Police Department took Mr. Penny in for questioning, but released him without charging him a few hours later. But news reports that a white man had not been charged in the death of a Black man triggered outrage across the city. Protesters demanding Mr. Penny’s arrest jumped onto train tracks and blocked incoming trains at the Broadway-Lafayette subway station, underneath downtown Manhattan, where Neely had died. 

Ten days later, the Manhattan District Attorney’s Office, under pressure, filed the manslaughter charges against Mr. Penny. He turned himself into police custody and was released on a $100,000 bond at his arraignment.    

The incident continued to spark nation-wide controversy, with Mr. Penny’s supporters calling him a hero who tried to protect fellow passengers from a dangerously unstable aggressor, while social justice advocates argued that Neely had not actually physically attacked anyone, and that he was held for too long in an unnecessarily forceful chokehold.                

Neely had a criminal record with 42 arrests, including for drugs, disorderly conduct, petty larceny, and jumping subway turnstiles. He spent over a year in jail for assaulting a 67-year-old woman in Manhattan’s East Village, and had an open arrest warrant at the time of his death. Multiple media sources reported that he was in and out of homeless shelters and mental institutions for years.   

Neely’s aunt told the New York Post that her nephew became a “complete mess” after his mother was brutally murdered by her boyfriend in 2007. She added that he was “schizophrenic and suffered from PTSD and depression.”    

Meanwhile, Mr. Penny, who grew up at West Islip, Long Island, served four years in the Marines, was deployed twice, rose to the rank of sergeant and was honorably discharged in 2021, according to his attorney, Thomas Kenniff, a former Republican candidate for Manhattan district attorney. 

After he was charged, Mr. Penny explained his actions in a prerecorded video statement, saying he didn’t mean to kill Neely, that Neely had appeared to be on drugs and that Neely had scared him as he repeated three main threats over and over again: “I am gonna kill you,” and “I am prepared to go to jail for life,” and “I am willing to die.” 

In September, The New York Post reported that a European couple, who was sitting in the fateful subway car, also filmed the incident and that their video and testimony “could be extremely favorable” to Mr. Penny, but that the couple had refused to cooperate and so far did not want to testify at trial. 

During a lawyers-only-conference, the Post wrote, Judge Wiley said that the couple “apparently took a video of the incident, and since that time have declined to testify in the grand jury, and have gone back to their home, which apparently is in Europe someplace.” 

The judge asked the attorneys if they would accept remote testimony from Europe but, according to the New York Post, Mr. Penny’s defense team hopes the couple will travel to New York and testify in person.

In pretrial motions, prosecutors and the defense have been dueling about how much testimony the jury will be allowed to hear about Neely’s history of mental illness. Mr. Kenniff wants to call a psychiatrist to testify at length about Neely’s medical history. He also says that forensic evidence will show that at the time of the subway incident, Neely was under the influence of K2, a synthetic drug also known as spice, and that he was in the throes of a drug-induced psychotic episode. The prosecution has been trying to limit psychiatric testimony, saying the defense is seeking to malign the victim.

If convicted Mr. Penny could serve up between five and fifteen years in prison for the manslaughter charge, and up to four years for negligent homicide.

The trial, which was originally scheduled for October 8, is now set to begin with jury selection on October 21, and is expected to last several weeks.