New evidence was presented during a pre-trial hearing Thursday in the case of Daniel Penny, the ex-marine accused of killing a homeless street performer, Jordan Neely, on a New York subway in May 2023. 

Mr. Penny, 25, a former infantry squad leader from Long Island, returned to Manhattan criminal court on Thursday for an evidentiary hearing before his trial, which is scheduled to begin on Oct 21. He has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in the subway chokehold death of Neely. His attorneys say he acted in self-defense. 

A video was played in court on Thursday, in which a NYPD detective at the 5th Precinct in Chinatown interviewed the Marine veteran after the incident. In the recording, Mr. Penny told the detective that Neely was acting aggressively, throwing things and threatening to kill people on the subway. He said that only after Neely approached him did he put him in a chokehold.

“This guy was actually threatening. He said he wanted to go to prison forever,” Mr. Penny said to the detective in a calm and composed manner.

Prosecutors also showed police body cam videos from responding officers who asked Mr. Penny if Neely had a gun. “I don’t know, I just put him out.” Mr. Penny answered.  

During the interview, Mr. Penny also demonstrated the chokehold he used on Neely. Prosecutors, who argue that Mr. Penny used excessive force, could use the footage as key evidence to show he was being negligent.  

Mr. Penny’s defense attorneys argued that the video of the chokehold demonstration as well as their client’s statement to police are not admissible because he was being treated as a witness at the time. Prosecutors disagreed and said that his comments should be used at trial to show the jury Mr. Penny’s initial comments. 

“I’m not trying to kill the guy, I’m just trying to deescalate the situation,” Mr. Penny told officers, according to court documents. “He’s like: ‘I’m ready to go to prison for life. I’m ready to die, I’m ready to die,’” Mr. Penny said. “And I was standing behind him. I think I might have just put him in a choke, put him down. We just went to the ground. He was trying to roll up. I had him pretty good. I was in the Marine Corps.”

Prosecutors have also argued that Mr. Penny’s prior experience in the military should have equipped him with the knowledge that chokeholds can be deadly.

On May 1, 2023, Neely, who was 30 years at the time of his death, entered the F-train at the Second Avenue stop at downtown Manhattan. According to freelance journalist Juan Alberto Vazquez, who recorded the incident on his phone, Neely was irate and yelling that he was “fed up”. He then took off his jacket and “aggressively whipped it to the floor”. 

“I don’t have food, I don’t have a drink, I’m fed up,” Neely screamed, according to Mr. Vazquez, adding “I don’t mind going to jail and getting life in prison. I’m ready to die.”

Video footage recorded at the scene, which went viral afterwards and shocked the nation, shows how Mr. Penny held Neely on the ground of the train car in a chokehold as Neely tried to break free by kicking his legs and moving his arms. Two other passengers helped restrain Neely, while Mr. Penny kept the chokehold around his neck. 

Prosecutors allege that Mr. Penny continued to choke Neely “well past the point at which Neely had stopped purposeful movement.” Once Mr. Penny loosened his grip, he rolled a motionless Neely onto his side. 

On Thursday, a first responder, who had rushed to the Manhattan subway station, testified that he treated the unconscious Neely with Narcan – a nasal spray used to revive someone passed out from opioid overdose – rather than performing CPR.

Under cross examination, the first responder was asked whether or not he performed CPR on Neely, and told the court, “We didn’t.”   

The first responder further said it “seemed like” Neely was still breathing, and still had a pulse when they treated him. 

Neely was pronounced dead at the hospital. The city medical examiner’s office ruled Mr. Neely’s 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 is for the courts to decide.

Mr. Penny has insisted that he did not mean to kill Neely and was merely trying to protect himself and his fellow subway passengers from an unpredictable aggressor. Police initially released him immediately without charges. After the video footage of the incident spread like wildfire online, an uproar ensued, many people demanded that Mr. Penny be arrested. The Manhattan District Attorney’s Office reviewed video footage and spoke to witnesses over the course of ten days before they charged Mr. Penny with second degree manslaughter.

After he surrendered to the police, eleven days after the incident, supporters rallied around Mr. Penny and backed a fundraiser in his name to help cover his legal fees. As of Thursday, the fund has raised over 3 million dollars (the exact amount is $3,099,562). Former Republican presidential nominee, Vivek Ramaswamy, donated $10,000 last year.

Mr. Penny has also received strong support from government officials from overwhelmingly white Nassau County on Long Island, Bruce Blakeman, the powerful Nassau County executive, came to Collect Pond Park across from the courthouse to support Mr. Penny in May of 2023. 

Indeed, the case is deeply controversial. While many defend Mr. Penny, especially in light of the mass subway shooting in 2022 and countless other violent incidents on New York’s trains, others believe that Neely deserves retribution. 

The video of the incident sparked demonstrations in New York City that lasted for two weeks after Neely’s death. Protesters jumped onto the train tracks and blocked incoming trains at the Broadway-Lafayette subway station, underneath downtown Manhattan, where Neely had died.

Neely, who was known for his moonwalking Michael Jackson impersonations on New York subway stations, had a long history of severe mental illness and homelessness. He had a criminal record with 42 arrests, including for drugs, disorderly conduct, petty larceny, and jumping subway turnstiles. 

In June 2019, Neely attacked a 68-year-old man on the platform of the W. 4th St. Station in Greenwich Village, court records show. Two years later, he assaulted a 67-year-old woman in Manhattan’s East Village, breaking her nose, fracturing her orbital bone, and causing bruising, swelling and substantial pain to the back of her head. He admitted the felony assault in exchange for a 15-month alternative-to-incarceration program. 

At the time of his death, Neely was experiencing homelessness and had an open arrest warrant. Multiple media sources reported that he was in and out of homeless shelters and mental institutions for years.  

The defense wants to leverage Neely’s lengthy prior criminal history in the subway system, as well as his mental illness and drug use at trial. But prosecutors argue that Neely’s drug use and mental health challenges are irrelevant to the case.

“The psychiatrist’s testimony and the unredacted psychiatric records are inadmissible, and their suggested introduction is a transparent attempt by the defense to smear the victim’s character so that the jury will devalue his life,” prosecutors wrote in court papers.

On Thursday, assistant district attorney, Joshua Steinglass, who also prosecuted President Trump in the Stormy Daniels case, told the court that the F train where Neely was acting up  arrived at the Broadway-Lafayette station and the door opened less than 30 seconds after the chokehold started. 

“Passengers who had felt fearful on account of being trapped on the train were now free to exit the train,” Mr. Steinglass said. “The defendant continued holding Mr Neely around the neck.”

Mr. Steinglass also reminded the defense that second degree manslaughter only requires prosecutors to prove that Mr. Penny acted recklessly, not intentionally.

The trial is set to begin with jury selection on October 21.