In the trial of Daniel Penny, the Marine veteran who put a homeless Michael Jackson impersonator, Jordan Neely, in a fatal chokehold on a New York City subway last year, one witness said the victim had a “satanic” outburst while another witness called the defendant a “murder” [sic]. At the end of a contentious court day, the defense filed an oral motion for mistrial, a request to end a trial before a verdict is reached, which the judge denied.       

On Thursday, prosecutors called more witnesses to tell the jury what happened in the subway car and on the platform on May 1st, 2023, the day Neely and Mr. Penny had their tragic encounter.        

“This was the first time in my life where I thought I was going to die,” Caedryn Schrunk, who is originally from the midwest and works for the sports brand Nike, told the jury as she was describing Neely’s menacing behavior when he boarded the train in the afternoon, around roughly 2pm.  

“Once the doors closed, five or ten seconds later, this gentleman caught my attention… absolutely screaming, making threats… I would assume,” Ms. Schrunk told an assistant district attorney, Jillian Shartrand, who is prosecuting the case on behalf of the Manhattan district attorney, Alvin Bragg. “He was having a mental breakdown,” Ms. Schrunk said about Neely. 

The 30 year-old Neely, who had a history of homelessness, drug abuse and 42 criminal arrests, was homeless on the day he died. Ms. Schrunk testified that the street performer emitted an overpowering stench, as if he’d defecated on himself. 

“His scent took over the subway. Mr. Neely may not have been showering,” Ms. Schrunk told defense attorney Thomas Kenniff, adding later that, “He smelled like he was soiled. It was a smell that I still think about to this day.”  

Ms. Schrunk gave a detailed description of what she called Neely’s “outburst” and said it was a “traumatic” experience for her. She told the court that she takes the subway daily to go to work, and often several times a day due to her community outreach work. “I ride it daily to and from work, and my work is community work, so I take the train a lot.”

Homeless people with apparent mental illness – who’ve sometimes soiled themselves and smell so bad that people gag – are a familiar feature of the New York subway. The situation has gotten worse since the COVID pandemic. Ms. Schrunk said she has witnessed a lot of situations on the subway that were frightening, but when Neely yelled on the subway car, it was different. “The severity of this was, people froze,” Ms. Schrunk said.   

“I don’t remember verbatim,” Ms. Schrunk testified, “but I do remember he was making life threatening demands… ‘I don’t care if I die. I don’t care if you die. Kill me, lock me up.’ Everything was so real and so believable.” She described the outburst as “Satanic.” 

“The tone was so believable,” she elaborated. “There was a moment when I truly thought I was going to die.” She said that when there’s a dangerous and mentally unstable person in her subway car, she usually calmly waits until the doors open and exits, but during this incident, she was “truly fearful.”  

Unlike other witnesses, who previously testified that Neely did not physically touch nor directly attack any of the passengers, Ms. Schrunk said he was merely one foot away from passengers, and “slowly moving towards us.”  She also said there was a woman shielding her child behind her stroller. 

Then, “at the highest level of the outburst,” Mr. Penny stood up and “put his arm around Neely” and “they went down in a very controlled manner,” Ms. Schrunk told the court. “After I saw him [Neely] on the ground, the train doors opened… I ran out and ran to the conductor and said we need help.” 

Ms. Schrunk immediately informed the conductor of the situation. Then she went back to the subway car after and looked through the open doors. “They,” she said, referring to two other men who had come to help Mr. Penny restrain Neely, “were holding his feet down, because his legs were still moving.”  

This was probably the most important piece of her testimony: when Ms. Schrunk told the defense attorney, Thomas Kenniff, that Neely was still moving even after Mr. Penny had let him go. Someone killed by suffocation would presumably no longer be moving after they were released.

Mr. Penny is charged with manslaughter in the second-degree and negligent homicide; combined, these charges carry a maximum of 19 years in prison. He has pleaded not guilty and insists that he did not mean to kill Neely when he put him in a chokehold, but that he was trying to deescalate the situation and protect himself and his fellow passengers from what he claims was an unpredictable and wholly hostile aggressor. 

Prosecutors are not arguing that Mr. Penny intended to kill Neely but that he acted recklessly when he held the chokehold around his neck, allegedly for six minutes.    

On Thursday, Ms. Schrunk testified that Neely did not appear to be dead after Mr. Penny had loosened the chokehold, and turned Neely onto his side; instead he was, as she said, “still moving.” 

“One of the men,” she said, referring again to the two other passengers who had helped Mr. Penny pin Neely down, “I believe had his hands on Neely’s feet… Neely was lying on the train, his legs were still wobbling a bit.”    

She also told the defense that she felt “safe” after Mr. Penny had brought Neely to the ground. “At the moment when Penny took him, I felt safe because the threat was under control but the situation was not under control.” 

“Once he took him,” she said, meaning once Mr. Penny placed Neely into a chokehold, “Mr. Neely was still squirming and trying to get up.”  

“Do you think it would have been safe to let him go?” Mr. Kenniff asked the witness. 

“Absolutely not,” Ms. Schrunk replied. “We didn’t know if he had a gun, if he had a knife. If he would have gotten up, we wouldn’t have known what he would have done.” 

The next witness seemed to disagree profoundly. He referred to Mr. Penny as “a murder [sic].”    

Johnny Grima, a 40 year-old man, who now lives in the Bronx, was formerly homeless like the victim. He told the court that he works as a volunteer to help homeless people, and had been “making his rounds” and checking on vagrants in Tompkins Square Park, a squalid park frequented by homeless drug users in Manhattan’s East Village neighborhood. 

Mr. Grima got on the same F-train that Mr. Penny and Neely were on but was not seated in the same subway car. After the F-train had already pulled into the Broadway-Lafayette station, he got out and saw a commotion on the platform. 

“When we go up to the front of the train… there was a crowd outside… I couldn’t quite see what was going on, and so I squeezed through the crowd. I saw… one man being choked and being held by the two men. Daniel Penny had him in a chokehold,” Mr. Grima testified, adding that he could see “Jordan Neelys face and his eyes were staring off.” 

After Mr. Penny released the chokehold on Neely, the witness said he told Mr.Penny to “flip him on the side.” Then Mr. Grima attempted to pour water on Neely’s forehead, but, he claimed, Mr. Penny told him to stop.

“I walked in,” Mr. Grima said, referring to the subway car of the train, which was being held at the station with open doors, “with the water bottle in my hand with the intention to help, to pour some water on his forehead, probe his condition, check his pulse and stuff like that. I didn’t know he was dead at that point. And Daniel Penny said, stop, he said, stop.”

Mr. Grima said, Mr. Penny acted like an abuser. “When you have an abuser not letting anyone near the abused… The guy who’s choking him out won’t let anyone near? That’s weird. That’s wrong.” Mr. Grima said, “I felt a certain way about it. I feel bad that I didn’t try to interact more. I feel guilty about that.”  

Mr. Grima further testified that Mr. Penny “played with his [Neely’s] dead body a bunch of times… He flung his limbs around a bunch of times, when he was already dead.” This directly contradicted the previous witness.   

When he referred to Mr. Penny as a “murder,” the defense attorney, Mr. Kenniff, objected. The presiding judge, Maxwell Wiley, did not strike the accusation from the record, but said he would give the jury instructions regarding the inappropriate phrasing. Mr. Kenniff addressed the matter again after the jury had been excused for lunch, telling the judge that he didn’t know what instruction could possibly “cure” the damage his client had suffered when he was referred to as a murderer. But Judge Wiley assured him that the witness, as a former unhoused person and career advocate for the homeless, was “clearly biased” and that the jury understood that.       

Three New York police officers were called to the witness stand, the first officers testified about answering various 911 calls that came in about the incident on the subway that day. The jury had heard one of these calls from the high school student, Moriela Sanchez, who had testified Thursday morning.      

Ms. Sanchez had been on the subway with Ivette Rosario, who took the stand on Monday, as the Sun reported. Like her friend, Ms. Sanchez was scared by Neely’s outburst and said that the street performer had his fists raised and was “screaming” that “he was going to put hands on people.” She called 911 and asked the operator to send an ambulance because Neely was “trying to attack everybody.”

“There’s one white man holding him down,” Ms. Sanchez said on the phone recording that was played in court. During her testimony, she told the jury that Mr. Penny had put his hands around Neely’s neck, and then dropped down to the ground, so “he [Neely] wouldn’t attack any people.” 

At that moment a woman in the audience broke down crying. Court officers led her outside to the hallway. The Sun went out to ask the woman for her name, but court officers did not allow anyone near her. Sitting on a bench, the woman cried, “This is not right. This is not ok. Why do they keep doing this to us?… The migrants get food. The migrants get money. Jordan got choked to death. They keep doing this to us. They keep choking us…” 

After the lunch break, the presiding judge told the audience to “do their best to not visibly react or audibly react” in front of jurors. However there was yet another loud outburst in the audience later in the day.

Defense attorney Mr. Kenniff referred to Neely, as described by witnesses, as an “unhinged nutjob” and this triggered a loud moan from the row, where Black Lives Matter Greater New York co-founder Hawk Newsome was sitting next to Neely’s uncle, and a row behind Neely’s father, Andrew Zacahery, who has been attending every court hearing. 

The racially charged case — Mr. Penny is white and Neely is Black — has attracted protesters representing both sides of the case. Since the video of Neely’s death went viral, social justice advocates have been advocating for retribution for Neely’s death. Mr. Penny’s defenders, however, including the powerful Nassau County Executive from Long Island, where Mr. Penny lives, says he is being persecuted by identity-obsessed constituencies for being a Good Samaritan.

Mr. Kenniff, who was furious by the end of Thursday, asked the judge for a mistrial. He reminded the court of the  “incendiary opening statements” Assistant District Attorney Dafna Yoran made on Friday, when she said his client did not “recognize” Neely’s “humanity.” Mr. Kenniff also sharply criticized again that a witness had been permitted to call Mr. Penny a “murderer.”             

But the biggest trigger for a mistrial request came during yet another testimony on Thursday. New York police officer Oswaldo Ortriz told the jury that after his partner brought Mr. Penny to the police precinct to question him, Mr. Penny told his partner about “his desire to join the NYPD.” 

So far, there is little information about Mr. Penny’s background. Media outlets have reported, he was studying architecture. Now the witness was testifying that Mr. Penny wanted to be a police officer. The defense attorney shouted “objection” and argued later that the prosecutor was trying to portray Mr. Penny as “a vigilante, a white vigilante.” 

“Now the DA has put that right in front of them [the jurors] to reinforce a narrative… that this architecture student who served his country admirably that was on the train with an unhinged nut job – according to witnesses… is a vigilante,” the defense attorney fumed.

“There’s no longer any way that my client can get anything resembling a fair trial at this point given what has happened over the last few days,” Mr. Kenniff added.

The judge dismissed the motion for mistrial. “I understand what you are getting at,” he told the defense, “But I’ll deny the motion.”  

Outside the courthouse, Mr. Newsome, the Black Lives Matter executive, told reporters, “I have sat in these Black Lives Matter type trials across the country, and very seldom have I ever been this mad.” 

Jordan Neely’s uncle, Christopher Neely, said he felt “the prosecution is doing a lovely job, actually. I think that no matter how much somebody tells a lie, the truth will always come out, and that’s exactly what happened today.” 

Witness testimony will continue on Friday. The trial is expected to last until early or mid December.