Opening statements were held on Friday 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. The jury also heard testimony from five witnesses and saw body camera footage from first responders, which included harrowing close-ups of the victim on the subway floor.  

On Friday morning, protesters gathered outside the Manhattan criminal courthouse at Centre Street, demanding “Justice for Jordan Neely” and “Convict Daniel Penny,” whom they call the “Subway strangler” in the controversial case.

Mr. Penny, a 26 year-old man from West Islip on Long Island, walked by the protesters without showing any emotional reactions, flanked by his lawyers Thomas Kenniff and Steven Raiser, who told reporters, “We’re excited to get started today.” Mr. Penny has pleaded not guilty to the second-degree manslaughter and negligent homicide charges, which combined carry a maximum of 19 years in prison. 

Assistant District Attorney Dafna Yoran, who is prosecuting the case on behalf of the Manhattan district attorney, Alvin Bragg, told the jury in her opening remarks that, “you will see Mr. Neely’s life being snuffed out with your own eyes,” when they watch video footage that was recorded of the incident by a freelance journalist named Juan Alberto Vasquez. Ms. Yoran called the footage “the most critical piece of evidence at this trial.” After the incident, the video, which is still watchable online, went viral and sparked outrage. 

On May 1, 2023, Neely, a 30 year-old street performer known for his Michael Jackson impersonations on New York subways, boarded an F train at the Second Avenue stop at Manhattan and according to witnesses acted erratically, yelling he was hungry and thirsty and “ready to die.” Mr. Penny stood up, grabbed Neely from behind and placed him in a chokehold. The video footage shows Mr. Penny holding the chokehold around Neely’s neck while two other passengers help to restrain Neely. Prosecutors allege Mr. Penny held that chokehold for six minutes. The street performer was pronounced dead at the hospital, and the medical examiner ruled his death a homicide two days later.

“You will see how unnecessary this chokehold was,” the prosecutor told the jury on Friday, adding that Mr. Penny “took it upon himself to take down Mr. Neely, to neutralize him” and “to choke Mr. Neely even after Mr. Neely had lost consciousness.” 

“Jordan Neely took his last breaths on the dirty floor of an uptown F train,” Ms. Yoran said to the jury. “At the time he died, he was homeless… we pass people like Jordan Neely, we train ourselves not to engage, to pretend that people like Jordan Neely are not there.” 

The prosecution argued that Mr. Penny was indifferent to Neely’s life. He “was so reckless with Mr. Neely’s life because he didn’t recognize his humanity,” Ms. Yoran said. 

Mr. Kenniff, the defense attorney, argued in his opening statement that his client may not be “a hero” to everyone but he is definitely “not a killer.” Mr. Penny, his lawyer insisted, did not continuously hold the chokehold for six minutes, and that he “was not squeezing” Neely’s neck. Every time Mr. Penny loosened his grip, his attorney argued, Neely put up a strong struggle, thus forcing Mr. Penny to tighten the grip again. And he did so, Mr. Kenniff told the jury, to protect himself and other passengers from what he described as a “seething psychotic” aggressor on the subway. 

At the time he died, Neely was homeless and had a criminal record of 42 arrests. The presiding judge, Maxwell Wiley, ruled, much to the defense’s objection, that Neely’s criminal history cannot be used as evidence in the trial. Friday was the first time Neely has been described as “psychotic,” which is a severe mental illness in which a sufferer has difficulty distinguishing reality from fantasy. It’s yet unclear if Mr. Kenniff’s use of the term was medical, or if he was using the term colloquially, as popularized in the Hitchcock movie “Psycho”, to describe Mr. Neely as depraved and homicidal. Some media reported that Neely suffered from mental illness, but it has yet to be proven if that was actually the case, or if he had taken drugs.  

“As the subway doors close, a seething psychotic Jordan Neely comes on board and announces his presence,” Mr. Kenniff said. Neely then, the defense said, “whips his jacket over his head and slams it to the ground with such force that even people who don’t see it, hear it.”

“Their fear turns to outright panic,” the attorney said, referring to the other passengers, when Neely told people in the subway car, “I will kill.” 

“When Neely threatened to kill, there was only one thing that Daniel Penny could do,” Mr. Kenniff added, and his client “did for others what we would want someone to do for us,” he stepped up and tried to prevent Neely from causing serious harm. 

The defense attorney argued that it was uncertain if Neely did indeed die from the chokehold, or if other pre existing medical conditions, that Neely suffered from and of which Mr. Penny was not aware, such as the “sickling of his cells,” played a factor in the death. Mr. Keniff appeared to be claiming that Neely had sickle cell anemia, a devastating genetic disease that primarily affects Black people. Though it is unclear if Neely carried the trait or if he suffered from the disease. Toxicology reports also showed that Neely had the synthetic drug K2 in his system at the time of his death, though it has not been exposed, how much. However, the defense has suggested that the drug intake could have been a comorbidity.

After the opening statements, the prosecution brought out five witnesses, three of whom were police officers, who first responded to the scene.   

The first witness was a New York Police Department officer, Teodoro Tejada. The jury watched footage from his body camera, taken while Mr. Tejada, after rushing to the scene, tried to revive a motionless Neely with chest compressions, CPR, a defibrillator, and even a dose of Narcan, meant to reverse an opioid overdose, but nothing brought the street performer back.  

Mr. Tejada testified that there seemed to be a faint pulse on Neely, when he first checked for it. “I assisted my partners in rending aid, checked for pulse,” Mr. Tejada told the prosecutor, and when asked if he felt a pulse, he said, “I felt a faint pulse, yes.” But when the first responders checked for the pulse again, after they had performed a sternum rub, “there was no pulse.”

During Mr. Tejada’s testimony, the jury also learned that Neely had carried a muffin in his jacket pocket, which the defense described as a “bulging item,” hinting that Mr. Penny could have possibly mistaken it for a weapon. 

The defense asked if Mr. Penny was at the time considered the aggressor, which the officer denied. “They were pointing to Mr. Neely as perpetrator, as the aggressor,” Mr. Kenniff added. 

More body camera footage was shown during the two witness testimonies that followed. Mr. Penny can be seen in those videos standing in the subway car, observing the first responders trying to resuscitate Neely, while he chews gum. Most of the other passengers had exited the train car and were standing on the platform, some looking through the window.  

The defense asked another responding officer, Sergeant Carl Johnson, while footage from his body camera was shown, if he heard another passenger leave the subway car and thanking Mr, Penny, and then Mr. Penny answering “I appreciate it.” But the sergeant said he could not remember that, and the alleged words that were exchanged were not clearly audible from the video played in the courtroom. 

The last two witnesses on Friday worked for the MTA: a maintenance supervisor, Michael Ramjattan, and a train dispatch employee, Cecil Postell. They confirmed to the prosecution that the amount of time it takes the train to get from the Second Avenue stop (where Neely boarded the train) to Broadway Lafayette (one stop away, where officers responded) takes about 30 seconds. This means that if Mr. Penny held the chokehold for six minutes, this mostly took place while the train was holding at the station.

Neely’s father, Andre Zachery, who was in the courtroom on Friday, accompanied his attorney, Daniel Mills, when he spoke to reporters outside the courthouse during the lunch break. Neely’s uncle, Clarence Neely, was also present. 

“It’s clear after hearing opening statements in this case that Daniel Penny is a villain,” Mr. Mills said. “A lot of the time that he (Neely) was lifeless, he did not let him go… after he did let him go, he stood over him for another four minutes and did not render any aid to the person he just choked… It’s important to note that Daniel Penny is a Marine trained in martial arts… 

It’s also important to note that Daniel is trained through the Marines in first aid. He used his martial arts training to kill Jordan Neely and did not use his first aid training at all. Because he didn’t think Jordan was worth it.. and that’s why he is gonna be found guilty after this trial.”

Witness testimony will continue on Monday.