The jury for the Daniel Penny trial, the Marine veteran who put a homeless street performer in a fatal chokehold last year, will be anonymous due to the great sensitivity of the case, the presiding judge, Maxwell Wiley, ruled on Thursday.  

Prosecutors from the Manhattan district attorney’s office, who brought the case against 26-year-old Mr. Penny, a former infantry squad leader from West Islip, Long Island, made an oral application on Thursday to have an anonymous jury. 

The racially charged case, a white man was responsible for the death of an African American man, has been the cause of repeated protests demanding “justice” for the victim, Jordan Neely, including, most recently, activists from the Reverend Al Sharpton’s organization, who attended the court hearing on Wednesday morning in support of Neely.  

Assistant District Attorney Dafna Yoran asked the judge to shield the identities of the jurors from the public, “based on prior threats that have been received in this case by all sides.”

Defense attorney Thomas Kenniff told the court, “we have no position,” meaning the defense did not oppose the request. 

Judge Maxwell granted the motion, saying “I believe that’s wise,” and that he had been made aware of the threats over the last months.

In anonymous juries, each juror is referred to by number and not by name. The first anonymous jury, according the Cornell Law library, “was empaneled in a federal court in New York” in 1977 in a trial against a drug lord named Leroy “Nicky” Barnes, also known as Mr. Untouchable.

“They tend to be only used in very, very high-profile trials or trials in which there is a serious threat to either the safety of the jurors or the integrity of the jury process,” Paula Hannaford-Agor, who studies jury issues at the National Center for State Courts, told NPR for an article from 2015 about the trial against Baltimore police Officer William Porter, one of the six police officers charged with killing Freddy Gray, a young African American man, who sustained fatal injuries while in the back of a police van. 

In the NPR article, Ms. Hannaford-Agor cites the notorious 2011 case of Casey Anthony, a Florida woman acquitted of murdering her toddler daughter, Caylee.

“Vendors were putting up signs in their windows, ‘Casey Anthony jurors not welcome here.’ One juror essentially left the state because she was actually afraid for her life,” Ms. Hannaford-Agor told NPR.

But anonymous juries, originally intended for terrorism or gang violence trials, like the high profile New York trial against Mafia boss John Gotti, have become more common in recent years. This raises eyebrows with  First Amendment scholars, who worry it could be violating the freedom of the press.  

The NPR article further cites Gregg Leslie, legal defense director at the Reporters Committee for Freedom, who worried, “When secrecy becomes the norm, some of those jurors will be less candid in voir dire, figuring they’ll never be held accountable for it,” Ms. Leslie told NPR, “so secrecy breeds greater corruption and greater problems within the system.” 

Social media may play an essential role in the growing threats against jurors and trial participants in general, and the growing necessity to hide identities from the public. 

Judge Maxwell told the court on Thursday, “There’s not just opinions, but very, very strong opinions… There’s been people who have not been afraid to make threats.”

After pre screening more Manhattan residents on Thursday, the judge had over 150 prospective jurors who will return on Friday, when he plans to begin the voir dire, a process of questioning that will determine each potential juror’s suitability to hear the case and judge it impartially. 

Judge Maxwell conducted his pre screening process on Thursday, where he asked Manhattan residents first and foremost about their availability, like he had on the previous days, by emphasizing that jury duty is “truly a sacrifice,” which “requires that you take time away from your jobs and your families,” and by thanking people for “honoring the summons.” He compared jury duty to paying taxes. While “laws normally prohibit us from doing something,” the judge said, jury duty is an “affirmative” action, “the only other such duty is to pay taxes”, and between jury duty and paying taxes, the judge found jury duty is more “onerous” and “certainly more interesting, and certainly more important.”

Mr. Penny has pleaded innocent to the second-degree manslaughter and negligent homicide charges, which combined carry a maximum of 19 years in prison. He told police officers after the incident that he did not mean to kill Neely, whom he put in a chokehold for about six minutes, according to prosecutors, but that he was trying to protect himself and other passengers from an unpredictable aggressor on the subway.  

Neely, who was 30 years old and a well-known subway Michael Jackson impersonator, boarded an F train at the Second Avenue stop at Manhattan on May 1, 2023. According to witnesses, he threatened passengers, tossed his jacket to the ground, and yelled that he was hungry and thirsty, and “ready to die.” Mr. Penny allegedly approached Neely from behind and placed him in a chokehold on the subway floor. Two other passengers helped Mr. Penny restrain Neely. 

The street performer was pronounced dead at the hospital. A medical examiner ruled his death a homicide two days later. In medical terminology, this means that the death was caused by the actions of another person — not that the death was a criminal murder. That determination is for the jury to make.

Supporters for Neely say, he did not physically attack anyone and that Mr. Penny used excessive force, while supporters of Mr. Penny call him a good Samaritan and a hero. On Monday, he received support from Elon Musk. 

The voir dire is set to begin on Friday and last into early next week.