Emotions ran high at Manhattan criminal court on Monday, after the jury read the not guilty verdict in the polarizing trial of Daniel Penny, the Marine veteran accused of killing a Michael Jackson impersonator, Jordan Neely, on a New York subway last year. Outside the courthouse, one protester, angry at the verdict, was arrested by the police. Black Lives Matter activists advocated for “Black vigilantes” to retaliate. Meanwhile, Mr. Penny was enjoying a celebratory drink with his attorneys at a downtown bar.  

He had just run the gauntlet, exiting the courtroom to threats from racial justice advocates. Hawk Newsome, a co-founder of Black Lives Matter of Greater New York, called out to Mr. Penny that “it’s a small world, buddy.”

Then, outside the courthouse following the verdict, Mr. Newsome made a more direct appeal. “We need some black vigilantes,” he bellowed. “People want to jump up and choke us? And kill us for being loud? How about we do the same when they attempt to oppress us.” 

The tension was already palpable in the morning when the jury was still deliberating. “There are audible chants I recorded on my phone,” defense attorney Thomas Kenniff lamented to the judge about the protests outside the courthouse, after he had instructed the jury to deliberate on the second count.    

After dismissing the higher charge, second-degree manslaughter this past  Friday, as the Sun reported, the presiding judge, Maxwell Wiley instructed the jury to deliberate on the lesser charge, criminally negligent homicide, which carries a maximum of four years in prison.

“Welcome back to the hot courtroom,” Judge Wiley said on Monday morning, addressing the twelve Manhattenits and referring to the overheated courtroom. “Before you resume deliberations, I informed you that count one has been dismissed  … What I want to make clear is that the court has no role in deliberations.” 

Judge Wiley went on to emphasize that, “it’s certainly not the court’s role to influence deliberations by directing you to consider count two… The court is not directing you to any particular verdict.” 

He encouraged the seven women and five men to “harmonize” on a verdict but he insisted they should not boycott their beliefs and bow down to someone else’s opinion. They should stick to what they believed to be the truth the evidence and testimony had proved to them. 

Mr. Penny, a 26-year old Marine veteran from Long Island, had been charged with second-degree manslaughter and negligent homicide in the death of Neely, a street performer and Michael Jackson impersonator who was thirty years old and homeless at the time of his death. 

On May 1, 2023, Neely entered a northbound F train, and immediately began acting erratically, as he tossed down his jacket on the ground and shouted at passengers that he was hungry and thirsty and didn’t care whether he died, witnesses testified. Mr. Penny grabbed Neely from behind, placed him in a chokehold, forced him to the floor of the subway car and lay there with him for about six minutes, restraining him long after the train had stopped at the next stop. When Penny let go of the hold and law enforcement had arrived, Neely was unresponsive. He was pronounced dead at the hospital an hour later. 

Prosecutors argued that Mr. Penny acted recklessly because he held the chokehold too long, even though, having been trained in the Marines, he should have known that chokeholds can be fatal. 

 “We are here today because the defendant used way too much force for way too long in way too reckless of a manner,” an assistant district attorney Dafna Yoran, who prosecuted the case on behalf of Manhattan District Attorney Alvin Bragg, had told the jury in her closing argument last week. 

“I wasn’t trying to injure him,” Mr. Penny said to police officers after the incident at the precinct, in a recorded interview that was played to the jury. Mr. Penny’s defense argued that he was trying to protect his fellow subway riders and himself from Neely, whom he perceived to be a threat. “I’m just trying to keep him from hurting anybody else. He was threatening.” Mr. Penny said. He did not testify in his defense.

The defense also challenged the city medical examiner’s finding. Cynthia Harris had written on Neely’s death certificate, “compression of the neck (chokehold).” But an expert, the defense team called, testified that Neely’s death was caused by a various factors, including the drug intake found in his system – K2, a type of synthetic marijuana, which can trigger psychosis and aggressive behavior – his severe mental illness (he had been diagnosed with schizophrenia), the struggle with Mr. Penny and a genetic blood disorder called sickle cell trait, which can, in rare cases, cause a sickle cell crisis where red blood cells morph into sickle shaped cells and lump together, making it hard for the blood to deliver oxygen. 

A Marine Corps martial arts expert, who trained Mr. Penny in chokeholds,  testified during the trial that Mr. Penny was aware the holds could be lethal, but he also said, that he was unable to judge, from the video footage, if Mr. Penny was applying pressure during the entire time he held Neely on the floor. 

Last week, the jury deadlocked twice over the top count, second-degree manslaughter. Then, in a surprise move Friday afternoon, the judge dismissed the count. Monday morning, the jurors retreated to deliberate the second, lesser count, criminally negligent homicide. 

Mr. Kenniff raised the issue of the protesters outside the courthouse, saying Monday wasn’t the first time they had chanted, but the chants were especially problematic for the defense in this critical time, while the jury was deciding on a verdict for his client. 

Protesters, Mr. Kenniff complained, had hurled insults at Mr.Penny, such as  “murder” and “subway strangler.” Their slogan, “if we don’t get no justice, they don’t get no peace,” he said, could be interpreted as a threat. 

“The court must assure that the trial does not take place in a circus-like atmosphere,” Mr. Kenniff added, citing an appeal’s court case. Then, he filed an oral motion for a mistrial  

Ms. Yoran interjected, saying that there had also been threats coming from the other side, “constantly” she said, “numerous threats about what will happen if Penny is found guilty.” She said the threats were a “two-way” problem. 

A statement, released after the verdict by Mr. Bragg’s office, echoed Ms. Yoran’s sentiment. “Unfortunately, over the duration of this trial, talented career prosecutors and their family members were besieged with hate and threats – on social media, by phone and over email. Simply put, this is unacceptable, and everyone, no matter your opinion on this case, should condemn it.” 

Judge Wiley agreed with the defense that the chants on Monday had been especially loud and lasted longer than on previous days.  “For the first time, I heard these chants this late into the morning,” he said. “It lasted for about ten minutes. I timed it.” 

On Monday, two groups of protesters could be heard yelling insults at each other. One group, supporting Mr. Penny held up signs reading “Free Penny.” While the other group, supporting Neely, called out “Justice for Neely.” Police separated the two groups with metal barricades, but they kept shouting at each other, amplified by megaphones. 

Eventually the chants died down. The judge denied the defense’s mistrial motion, reasoning that the chants had stopped. Though he reiterated what he said last week, that if the chants were to get loud again, he would consider moving the jury to a different room to deliberate. 

Mr. Kenniff, still throwing any possible argument into the fire to keep his client out of prison, attempted to insinuate that the district attorney’s office had an ability to “influence what’s going on in the streets,” but the judge shut that theory down very quickly. 

“There is no way the district attorney is behind this,” the judge said. He then excused the parties and the waiting began. The jury, who had been deliberating since last Tuesday, had asked to see key evidence and to hear readbacks of testimony, did not need long to reach its verdict on count two. At about 11:20 am the twelve Manhattanites sent a note. 

“We the jury have come to a unanimous decision on count two,” the note said. The judge called the jury into the courtroom and asked, “Has the jury reached a verdict?” 

The forewoman, who is originally from New Jersey, but lives near Lincoln Center and has a degree in theater management, stood up and said, “Yes, your honor. Not guilty.”  

In that moment, applause erupted in the courtroom, the loudest cheer coming from one woman, who could not be identified, who was sitting behind Mr. Penny’s security detail. She had attended the court proceedings last week together with Republican city councilwoman Vickie Paladino, who represents the northeast of Queens. The woman raised her hands over head and applauded. 

On the other side of the courtroom, where family members and supporters of Neely were seated, Neely’s father, Andrew Zachery, uttered “you clapping when my son got f***ing killed,” according to notes shared in the media pool. 

Sensing the rising tensions, Judge Wiley ordered Mr. Zachery to be escorted out of the courtroom. “Out, you’re out.” he said. Also escorted out of the courtroom were Mr. Newsome of Black Lives Matter and his sister, Chivona Newsome, also a co-founder of New York’s Black Lives Matter chapter. As she was removed from the courtroom, Ms. Newsome cried out, “racist f— country.”  

Meanwhile, Mr. Penny could be seen smiling and hugging his attorney, Mr. Kenniff. The defense did not address reporters outside the courthouse after the verdict and quickly disappeared. Soon after, Mr. Kenniff posted a photograph on his Instagram account, showing Mr. Penny, his partner Steven Raiser, and himself sharing a drink at Stone Street Tavern, a bar in the financial district. In his first public display of any emotion in the seven week ordeal, Mr. Penny, in the photo, was giving a “thumbs up” sign.

Meanwhile, outside of the courthouse, police arrested one protester who got into a scuffle with someone who appeared to be a supporter of Mr. Penny. The young man was handcuffed and taken into custody by officers. 

The brother and sister duo, Hawk and Chivona Newsome, took time to address reporters and protesters. 

“These issues will not be fixed.” Mr. Newsome said. “America will never fix these issues of black people because America needs a punching bag. And they have designated us as that punching bag… How dare you turn your back on people who fought in every war for this country… I don’t wanna march. I wanna step. What you all need to do is step up in your community… I just want our people unified. And the story of unification is one that the American media will never tell… “ 

Mr. Newsome would later make his remarks, which would be widely circulated on social media, encouraging retaliation by “Black vigilantes.”

The racially charged case has divided the public since the tragic incident occurred last year. Before Mr. Penny was charged, protesters, demanding “Justice for Neely” jumped onto the train tracks at the station, where Neely had died. While supporters for Mr. Penny raised more than three million dollars on an online campaign, with money still being donated after the verdict was read. Mr. Penny was able to fund a five star defense, including the noted jury consultant, Jo-Ellan Dimitrius, who recently consulted on the Kyle Rittenhouse case.

“FREEDOM for Daniel Penny! Great news for Daniel and America. He’s a hero who saved lives. That trial should’ve NEVER HAPPENED in the first place,” the speaker of the House, Mike Johnson, posted on X. 

Vice President-elect JD Vance applauded the not-guilty verdict. “I have not said much about this case out of fear of (negatively) influencing the jury. But thank God justice was done in this case. It was a scandal Penny was ever prosecuted in the first place,” Mr. Vance posted on X.

Maud Maron, a 53-year-old mother who used to work as a legal aid attorney, and ran for Congress as a Democrat two years ago, but changed her registration first to independent and then to Republican in October 2023, is running against Mr. Bragg in the upcoming election. Ms. Maron released a statement. “The NYPD Officers who initially interviewed Daniel Penny and declined to arrest him got it right,” Ms. Maron wrote. “The Manhattan jury who heard all the evidence, deliberated and returned a verdict of not guilty got it right. The New Yorkers and their fellow Americans who were rooting for Daniel Penny as a hero and understood he should never have been charged in the first place got it right. The only person who got this wrong was Alvin Bragg. DA Bragg has pursued a reckless ideological agenda since his first day in office. Manhattan deserves a district attorney who will defend all New Yorkers, apply the law fairly and make Daniel Penny’s heroism unnecessary by cleaning up the subways and streets of New York City.”

An American attorney and legal analyst, Jonathan Turley, wondered if Mr. Bragg would move to open the case again and charge Mr. Penny with the higher charge again, writing on his X account, “with the unanimous verdict, the question is whether Bragg would or could bring the more serious offense. I am very doubtful. This was the lesser offense of the prosecution with the dismissal of the first count. A double jeopardy claim could be raised. However…” 

It seems highly unlikely that Mr. Bragg will open the case again. The statement his office published on Monday, said, “The jury carefully deliberated for four days. They requested readbacks of testimony and asked for video footage to re-watch, as well as written definitions of the law. Their lengthy deliberation – and the totality of the facts and the evidence – underscored why this case was put in front of a jury of Mr. Penny’s peers. The jury has now spoken. At the Manhattan D.A.’s Office we deeply respect the jury process and we respect their verdict.”  

Neely’s father, who was estranged from his son at the time of his death and who attended every court proceeding, and stomped his foot on the ground inside the courtroom when Judge Wiley dismissed the manslaughter charge last week, spoke for the first time to reporters outside of the courthouse on Monday. 

“I just wanna say,” Mr. Zachery said in his very faint and hardly audible voice, “I miss my son. My son didn’t have to go through this. I didn’t have to go through this either. It hurts. Really, really hurts.”  

Mr. Zachery last week filed a civil suit against Mr. Penny, seeking financial remuneration for his loss.