Attorneys on both sides have used the same evidence — the same live video recording of the tragic incident, when a young Marine veteran, Daniel Penny, restrained a homeless Michael Jackson impersonator, Jordan Neely, in a chokehold for about six minutes on a New York subway last year — to try to convince the jury of their case. How the jury will rule in the high-profile trial is, courtroom observers say, difficult at this point to predict.              

One would assume that a video recording, several recordings actually, taken by bystanders, as well as the body camera footage from police officers, along with numerous eyewitness accounts, would lay the facts out on the table, plain and simple. In this controversial case, though, the video footage keeps raising questions instead of providing answers. Both sides, the prosecution and the defense, played the same videos to prove their opposing arguments at Manhattan criminal court on Monday.   

The defense argues that Mr. Penny, who is charged with second-degree manslaughter and negligent homicide in the death of Neely, acted like a hero when he stood up to an unpredictable and menacing aggressor on the subway, taking him down onto the subway car’s floor and restraining him in a chokehold. The prosecution, on the other hand, alleges Mr. Penny used excessive force, and recklessly caused Neely’s death by keeping him in the chokehold too long.    

On Monday, defense attorney Steven Raiser played the core video, which was recorded by a Mexican-American freelance journalist, Juan Alberto Vazquez, who happened to be traveling in the same subway car as the defendant and the victim, to prove that his client was not intending to kill, but merely intending to restrain Neely. And that another man, who helped him hold Neely down, told another bystander that his client was not squeezing Neely’s neck, and that Neely was alive and well.        

Mr. Raiser reminded the jury, in great detail, how Neely had entered the subway. “According to the witnesses themselves… you see the doors begin to close… A hand reaches in… It’s a man… described… as tall, thin, but muscular. It’s Jordan Neely.” Mr. Raiser’s closing argument was written and presented in a rather dramatic, almost theatrical fashion, which even included playing audio of familiar subway sounds (how effective this type of dramatization is with jurors remains to be seen).        

“He is filled with rage. The subway car is packed,” the attorney went on, referring to Neely. He showed excerpts from a 50 page dossier, which a defense expert, a forensic psychiatrist named Alexander Bardey, had compiled after studying almost 5,000 pages of Neely’s psychiatric records, stemming from dozens of hospitalizations. Dr. Bardey, who never met Neely in person, testified during the trial that he found descriptions of delusional thinking and paranoias such as Neely believing people wanted to hurt him.

“He had changed the world with Tupac Shakur,” the defense attorney cited one of reports, “and that now his life was being threatened, 

the entire hospital is against him… People are targeting him… He reports hearing voices… Devil’s voices.” The hospital reports also showed that Neely had been diagnosed as schizophrenic, and that had admitted to heavy use of the synthetic marijuana K2, also known as spice. 

After he established that Neely may have been experiencing a schizophrenic episode, and was also high on K2, which can cause aggressive behavior and was found in his toxicology report, Mr. Raiser cited eyewitness testimony of people who had told the jury how scared they were after Neely entered the subway car and began shouting. Though Neely did not physically attack anyone, the tone of his voice, most witnesses agreed, was extraordinarily frightening, and he verbally threatened that someone was going to die “today.” 

“Danny,” the defense attorney said, referring to his client, “saved everyone on the train,” when he placed Neely in a chokehold, brought him down onto the subway car floor, and “held him and waited.”  He didn’t choke him, Mr. Raiser argued, he held him “just enough to secure him.” 

Mr. Penny, his attorney went on, “laid with him (Neely) on the dirty subway floor… while the smell of sweat and feces envelops him… in a simple civil restraint.. With the intent not to render Neely unconscious but to control his head.”  

Eyewitnesses had testified, for the prosecution, about the overwhelming stench of feces combined with body odor that filled the subway car when an enraged Neely entered, shouting that he was tired, hungry and homeless.

Then Mr. Raiser played the video of the incident, which at the time of its release went viral, and sparked protests. Social justice advocates jumped onto the train tracks at the subway station, where Neely had died, demanding “justice for Neely,” that is, punishment for Mr. Penny.   

The video shows another two passengers who helped Mr. Penny restrain Neely. One man, a German tourist, who has refused to return to New York to testify, only lightly touches Neely’s shoulder and takes his hand at one point. The other man, Eric Gonzalez, got more involved, grabbing Neely’s arm and securing him. He testified at trial that he “jumped in to try to help.” 

“‘I am going to grab his hands so you can let go,’” Mr. Gonzalez said in court that he told Mr. Penny, adding, “There was another time where I said, ‘You can let go, I’m holding onto him.’”

Mr. Gonzalez said Neely was trying to signal that he wanted Penny to let go. “He wanted to be released,” Mr. Gonzalez testified. Yet Mr. Penny did not release the chokehold.  

That was “because,” his attorney explained to the jury on Monday, “he had to make sure Neely wouldn’t break free… And Danny was right. Mr. Gonzalez was wrong.” He then indicated how in the video Neely could be seen writhing in Mr. Penny’s embrace, turning to the side and trying to grab onto the subway car seat, all while Mr. Penny was trying to control him.     

“After Mr. Gonzalez said he had him, Neely lifted Danny off the ground,” the attorney argued. The journalist, who recorded the video, was filming from the subway platform, outside the train, through the car’s window. The footage doesn’t show Mr. Penny being lifted off the ground, but it shows Mr. Penny’s face, which is tense and visibly engaged in a struggle that is not easy. 

About two minutes and 45 seconds into the video, the freelance journalist enters the subway car through another door, further down from the struggle, filming the scene from the perspective of Neely’s feet.

One of the arguments the defense has raised is that it is not possible to see, from that far back, if Mr. Penny was in fact squeezing Neely’s neck during that latter period of the struggle and actually choking him. 

Then another subway rider, Larry Goodson, enters the frame. He was on the phone with his wife, who was in the military. Mr. Goodson can be heard telling Mr. Penny and Mr. Gonzalez, “you gotta let him go, you’re killing him.” 

The defense focused on the moment that followed, when Mr. Gonzalez tells Mr. Goodson that Mr. Penny “was not squeezing no more” and that Neely “is fine.” The attorney zoomed in, showing a close up of Mr. Gonzalez’s smiling face. The prosecution later pointed out, when Assistant District Attorney Dafna Yoran played the same exact clip, that “Gonzales was annoyed at Goodson, why is he talking to his wife, why is he not calling the police?”  

During her closing argument, Ms. Yoran also referred to the video. She sought to show that while Mr. Gonzalez checked for Neely’s pulse, Mr. Penny, once he had gotten up from the floor, did not make any attempts to address Neely’s condition.  

“Look at how Gonzalez reacted,” Ms. Yoran told the jury. “He raised his (Neely’s) legs…He shakes him a bit… Then he checks for a pulse a few times… He tries to put him on his side.. (into) the recovery position.”  

“What did the defendant do?” She asked, “the man who put him out… What does he do? Nothing. He doesn’t check to see if he has a pulse, he doesn’t do a sternum rub, which you,” she addressed the jury, “heard the Marines are taught… Undoubtedly, if one of his Marine fellows would be lying there, he would have tried something… He doesn’t even yell out, is there a doctor or nurse on the train… He just stands there, waiting for the police, continuing to chew his gum.” 

Meanwhile, the defense described the same scene, where Mr. Penny stands next to Neely as “everybody is relaxed in that video… Standing around… Because nothing is happening to Neely…” 

Ms. Yoran must prove to the jury that Mr. Penny acted recklessly, and her argument is that he was reckless “with Mr. Neely’s life because he didn’t recognize his humanity… He just didn’t recognize that Neely was a person too…  He simply saw him as a threat to be eliminated.”  

Her characterization of Neely as “a person” echoed the outcry from protesters from the Black Lives Matter movement and the Rev. Al Sharpton’s National Action Network who pressured the Manhattan district attorney, Alvin Bragg, to charge Mr. Penny.

Furthermore, Ms. Yoran argued that having been trained in the Marines, Mr. Penny should have known that a chokehold can be fatal, and he should have known how to restrain someone without killing him.  

“Let’s talk about other alternatives Penny could have used…” to hold Neely down, she argued, listing a “bear hug”, to “sit on him”, to “hold his hands behind his back… The Marine Corps martial arts program… has many options.” She pulled up the manual on the screen. “For unarmed manipulation,” the manual  cited multiple ways to take someone to the ground and restrain him: “the basic wrist take down… the reverse wrist lock takedown…the arm bar takedown… And those are just the three (examples) under the gray belt, and there are more under the tan belt and more under the green belt,” Ms. Yoran said, referring to the belt Mr. Penny had earned during his service, the third trier of five.  

To further prove her point that Mr. Penny did not “recognize Neely’s humanity” she played the video that was recorded at the police precinct after the incident, when Mr. Penny volunteered to be questioned by the police.    

“The defendant, as nice as he can be,” she said, spoke dismissively of Neely. “He’s a crackhead, you know what I mean.” Mr. Penny told the detectives. “You know these guys, they’re pushing people in front of trains and stuff.” When asked what Neely was doing, Mr. Penny can be heard answering, “Just doing what crackheads do… He was just a crackhead, you know what I mean?” 

“We have all spoken dismissively about people like Jordan Neely,” the prosecutor admitted, but she noted that Mr. Penny had shown no remorse, and had not inquired if Neely was alive or dead, or what condition he was in. “Any remorse, self reflection, he makes it clear that he didn’t intend to kill Mr. Neely or even hurt him, but he never expresses any sorrow about the man’s death.”  

Only Mr. Penny, during the interview at the police station, had not been told that Neely had been pronounced dead at the hospital. Whether he knew Neely was dead remains unclear.

Ms. Yoran argued that he didn’t care what (had) happened to Mr. Neely… Because of the lies he chose to tell the detectives.”  

He told the officers that he had let go of Neely “immediately” after the two other men had given him confirmation that they had him under control. Yet the video recording showed that Mr. Penny held on for several minutes after Mr. Gonzalez and the German tourist had begun to help him restrain Neely. He further assured the detectives that Neely was still moving after he had let him go, which again, the video shows was not the case. 

“And he’s still moving?” One of the detectives asked. “Yes,” Mr. Penny replied. And the detective asked again if Neely was moving after Mr. Penny released him, and for a second time, Mr. Penny said, yes.” 

Mr. Penny’s statements at the precinct could be seen as an intentional lie or could be excused for some inaccuracies, considering that he was, after all, in a state of shock. Especially, if, as the prosecution argues, he was aware that a man had just died in his arms. 

The cause of death has yet to be argued by the prosecution in the ongoing closing statement. The defense raised arguments on Monday, insinuating that the chief medical examiner bowed down to the pressure of public outcry when he added the word “chokehold” in parentheses on the death certificate, before his office had received the toxicology report and other tests which the city pathologist who performed the autopsy, Cynthia Harris, had ordered. 

“The case brought media attention,” the defense attorney said on Monday, “and the case would be marked by the medical examiner’s office as high profile.”  He reminded the jury, as he showed an excerpt of the death certificate on the screen, that the “imminent cause of death” had originally been ruled as “Pending Further Study.”  

Ms. Yoran will address the cause of death on Tuesday, when she finishes her closing argument.