A prospective juror may have lied under oath in the trial of Daniel Penny, the Marine veteran, who put a Michael Jackson impersonator in a fatal chokehold on a New York subway last year. Prosecutors and defense attorneys appeared to disagree.

Assistant District Attorney Dafna Yoran, who is prosecuting the case on behalf of the Manhattan district attorney, Alvin Bragg, told the court on Tuesday morning that a potential juror had not been sincere in her answers about her experience with martial arts, research on her social media accounts had disclosed. This is important because the martial arts aspect of the jury questions relates to the chokehold Mr. Penny held around Neely’s neck. 

Mr. Penny, a 26 year-old former infantry squad leader from West Islip on Long Island, is charged with second-degree manslaughter and negligent homicide in the death of Neely, who was a 30-year-old street performer, known for impersonating Michael Jackson on subways and at subway stations around New York City. 

Neely, who had a criminal record of 42 arrests, a history of homelessness, drug abuse, and allegedly suffered from mental illnesses (though that has not been proven nor argued in court yet), boarded an F train at the Manhattan 2nd Avenue stop on May 1, 2023, and according to witnesses, acted 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. Two other passengers helped pin Neely down. He was pronounced dead at the hospital hours later and his death was ruled a homicide.

Mr. Penny, who enlisted in the Marine Corps when he was teenager, spending four years there before being honorably discharged, has pleaded not guilty. He insists that he did not mean to kill Neely and was instead trying to protect himself and fellow passengers from what he deemed to be a dangerous person on the subway. 

The racially charged case — Mr. Penny is white and Neely was Black — has led to vociferous protests and nationwide media coverage, and has also been highly politicized. Supporters of Mr. Penny call him a good Samaritan and have raised over $3 million in funds to help him pay for his legal expenses. Supporters of Neely say that he did not physically attack Mr. Penny, nor anyone for that matter, and that Mr. Penny acted like a vigilante. 

The prosecution alleges that Mr. Penny was reckless because he held the chokehold around Neely’s neck for six minutes, “well past the point at which Neely had stopped purposeful movement.” 

“The notion that death is not a foreseeable consequence of squeezing someone’s neck for six minutes is beyond the pale,” the district attorney’s office wrote in a court filing. 

The prosecution further argues that Mr. Penny, having been trained in the army, should have known that chokeholds can be deadly. The New York Post reported that a Marine trainer “told the grand jury that Marines are taught that chokeholds — which are meant to be a ‘non-lethal’ restraint — can sometimes be fatal.” 

Because the chokehold will come up in arguments by the prosecution and also by the defense, the judge has been asking the jury candidates if they, or anyone close to them, have had any experience with martial arts and/or wrestling. 

And here is where Ms. Yoran expressed the concern that the prospective juror, B91, lied. 

The jurors are referred to by numbers only, because the jury is anonymous. Last week, Judge Wiley granted the prosecution’s request, saying that threats had been received by both parties. 

On Tuesday, Ms. Yoran told the court that juror B91 had lied to the judge the day before when she said she knew no one who had any experience with martial arts or wrestling. 

“We were shocked to find,” Ms. Yoran said, “that her husband’s Instagram, open to the public Instagram,” displayed “numerous references” to martial arts. Photos on the instagram account, Ms. Yoran explained, showed the juror’s husband and her sons attending events or participating in Muay Thai, which is sometimes referred to as Thai boxing and includes full-contact combat, Ju-jitsu, a Japanese martial art, which also involves close body combat, as well as wrestling.  

Another lie, the prosecutor alleged, was that juror B91 told the court that no one she knew had been arrested. Her husband, Ms. Yoran said, had indeed been arrested. 

The judge called the juror in for questioning. 

The middle aged woman with blonde hair, who walked up to the bench, had previously told the court that she is not a native New Yorker but has been living in the Manhattan neighborhood of Hell’s Kitchen for the last 26 years. Hell’s Kitchen borders the theater district and is located on the West side of Manhattan.

She held various jobs, she had said, working as a journalist, a radio host, a saleswoman in a gift shop, and was now an audiobook producer. Her father, she further said, had been a doctor in the Air Force for two years. Regarding her experiences on the subway, she mentioned that she had witnessed outbursts but had never felt personally threatened. 

When the judge asked her about her husband’s martial arts Instagram posts, she downplayed the question, saying she thought she was being asked about her own experience. It was difficult for the media to hear exactly what she was telling the judge, but the judge did not allow the prosecution to dismiss the juror on a challenge for cause.

Ms. Yoran handed the judge a folder with the Instagram pictures her team had printed out, but the judge did not look at it. Ms. Yoran addressed the issue again from her table, telling the judge that “virtually every picture on her husband’s instagram has to do with his and his son’s martial arts. It’s so extreme.” 

The judge did not change his ruling. He did not accept Ms. Yoran’s arguments and did not dismiss the juror on a challenge for cause. Both the prosecution and the defense can dismiss jurors on peremptory challenges and challenges for cause. Peremptory means the attorneys don’t have to say why they want a certain person off the jury, (each side has 15 such challenges in this case.)

The challenges for cause are unlimited because they’re based on something the juror said during voir dire that revealed some kind of bias but they have to be approved by the judge. 

The defense attorneys, like the judge, did not find the juror’s alleged untruthfulness to be a problem. A juror’s experience with martial arts, which can include chokeholds, could be seen as favorable to Mr. Penny’s team, because the defense will argue that he placed Neely in a chokehold not with the intention to kill him but as a defense move to suppress his aggressive behavior.

Ultimately, the prosecution used one of their peremptory challenges to strike the juror and the juror was dismissed. 

By the end of Tuesday, two more jurors had been selected. Eight of the twelve seats on the jury have now been filled, meaning the judge needs four more jurors and four alternates to complete his jury. 

Judge Wiley said he hopes to have the entire jury seated by Wednesday and hold opening arguments on Thursday.