The jury has begun deliberating whether the Marine veteran, Daniel Penny, is guilty of either recklessly or negligently causing the death of a Michael Jackson impersonator, Jordan Neely, after he put the street performer in a chokehold on the floor of a New York subway car last year.   

On Tuesday at about 1:15 p.m., after the prosecution had finished its closing argument, and the presiding judge, Maxwell Wiley, had instructed the jury, the seven women and five men, retreated from the courtroom where they had heard testimony by more than 40 witnesses, including bystanders, police officers, medical personnel, and experts in the course of the four week trial. 

The lunch break at Manhattan criminal court usually lasts an hour, falling between 1:15 p.m. and 2:15 p.m. Judge Wiley gave the jurors the option to start deliberating right away, while they ate, or to eat first and then discuss the case. Either way, he said, any notes they had wouldn’t be answered before 2:30 pm. 

At 3 p.m. the foreman sent the first note, requesting a readback of the second part of the jury instructions, the explanation of the law as it applies to the crime. 

“They cut right to the chase,” a man, who would not give his name and is part of Mr. Penny’s security detail, told the Sun in the hallway outside the courtroom. The high-profile defendant moves through the courthouse surrounded by security guards. When Mr. Penny is in the hallway on the 13th floor, the hallway is frozen, meaning no one can leave the courtroom, and for those who happen to be standing in the hallway, they are confined to waiting behind the same metal barricades used during President Trump’s hush money trial this past spring. 

On Tuesday, the New York police department increased security measures outside the courthouse in anticipation of protests that could erupt once a verdict is reached.  

Since the day of the incident, last May, the racially charged case has triggered protests from social justice activists who demand “Justice for Neely” and punishment for Mr. Penny. Meanwhile, supporters of the 26-year-old veteran, who is originally from Long Island, have raised more than $3 million in an online campaign for his legal fees, allowing him to afford a thorough defense team that includes the jury expert Jo-Ellan Dimitrius, who worked successfully with Kyle Rittenhouse and O.J. Simpson. 

The case has divided the public. One side calls Mr. Penny, who is white, “the subway strangler,” a vigilante, who took the law into his own hands, when he “strangled” Neely, who is Black, to death on the subway. Others see Mr. Penny as a hero for protecting fellow citizens from a dangerous aggressor. The verdict is now in the hands of the jury.     

Mr. Penny is charged with second-degree manslaughter and negligent criminal homicide, but before the judge repeated the legal parameters for these felonies, as the jury had asked, he addressed the meaning of  “justification,” also known as self defense, and/or the defense of others.

“As you know, the Defendant has raised the defense of justification,” Judge Wiley read from his instructions. 

Last week, one of the defense attorneys, Thomas Kenniff, asked the judge to instruct the jury that his client had attempted to prevent an armed robbery when he put the homeless street performer in the chokehold, as the Sun reported. The attorney argued, it was not “until he (Neely) started threatening people, to kill if he didn’t get this, this and this” that Mr. Penny acted, as his client told detectives at the police precinct later. 

The judge denied the defense’s request. Yet he included their argument of “justification.” 

“Now, the definition of justification depends on the type of force the defendant used in order to defend himself or others,” the judge explained.  “As you will see, the law describes certain circumstances in which a person may use physical force to defend himself or others, and it describes more limited circumstances under which that person may use what the law calls deadly physical force,” Judge Wiley read. 

Mr. Penny told police officers that Neely entered the subway car and aggressively threatened passengers, a description corroborated by multiple eyewitnesses who testified at the trial. Because Mr. Penny perceived Neely to be a threat, he told law enforcement, he decided to grab him from behind, place him in a chokehold, bring him to the floor of the subway car, and hold him in the chokehold for about six minutes, in order to secure him, as he told officers, until police would arrive. When first responders finally got to the scene, Neely was unresponsive. He was pronounced dead at the hospital an hour later.       

“So, one of your first tasks in determining whether the Defendant’s actions were justified in this case, will be to determine whether you believe the Defendant used ordinary physical force, or whether he used deadly physical force,” the judge read. Physical force, he clarified, has a “plain ordinary definition,” while “deadly force” is a bit more complicated under the law.  

If the jury determines that Mr. Penny used physical force, they must then ask if the physical force was in fact necessary, and that “requires the application of a two-part test,” the judge explained. 

First, the jury must decide if Mr. Penny believed that Neely was about to attack him, or someone else, using physical force, and that his reaction, placing Neely in a chokehold, was “necessary” to defend himself or others. Second, the jury must decide if any other reasonable person put into that situation would have had “the same beliefs as Mr. Penny did.” 

It doesn’t matter, the judge pointed out, if Mr. Penny was wrong to assume Neely would, for example, pull out a knife and stab everyone, which he did not, but that any reasonable person would have seen the same threat in Neely that Mr. Penny saw.

The prosecution has argued that Neely did not physically attack anyone. He shouted, he screamed, he made threats, but he did not actually hit anybody. However, in self-defense cases, the person who, as the judge said, “strikes the first blow” or inflicts the “first wound,” does not have to be the instigator. If a person “reasonably believes” an opponent is about to use physical force on him, or on someone else, he “need not to wait until he or another person is struck or wounded. He may, in such circumstances, be the first to use physical force.” 

Mr. Penny presented that he believed Neely was about to attack someone, and so he stepped in to prevent that. The question is, do the jurors agree and find what Mr. Penny believed to be reasonably believable? 

The same two-part test, the judge instructed, should be applied in questioning the use of “deadly force.” 

Deadly force, the judge read, is “readily capable of causing death or other serious physical injury,” which he defined as the “impairment of a person’s physical condition which creates a substantial risk of death; or which causes death… or the loss of function of any bodily organ.” 

First, the jury must ask if Mr. Penny believed that Neely was about to apply “deadly force” on him or others, and according to Mr. Penny (and other eyewitnesses), Neely threatened to kill someone. The jury should consider, if the “deadly force” Mr. Penny used was in fact the necessary means to defend himself and the other passengers. Second, would any other reasonable person also have perceived Neely to be a threat to their own or others’ lives?  

Most witnesses agreed that Neely’s tone of voice was menacing; one woman said she was scared for her life, one man said he was frozen with fear. A high school student, Ivette Rosario, testified that she buried her face in her friend’s chest as Neely, who, according to one witness, reeked of feces, and who had violently thrown his jacket on the floor, was shouting. 

But how terrifying was his behavior? Despite the abundant video footage in this case, there is no video of Neely’s outburst, which must have lasted about 15 to 20 seconds, before Mr. Penny, as he told the cops, “took him down” and “choked him out.” 

An assistant district attorney, Dafna Yoran, who is prosecuting the case on behalf of Alvin Bragg, described Mr. Penny’s initial action as “laudable” in her opening statement. She did not deny that Neely was aggressive and threatening. Yet she argues Mr. Penny’s force was excessive, because he held the chokehold too long, and having been trained in the Marines, he knew that chokeholds can be deadly. 

If the jury dismisses the argument of defending himself, or others (and Mr. Penny also told detectives that he was worried about women and children on the subway), and believes the prosecution, it must consider the two charges, one or the other, not both at the same time, as the judge explained. 

The first charge is manslaughter in the second-degree, which carries a maximum of 15 years in prison, and no minimum sentence, meaning one can be found guilty of manslaughter and never see the inside of a prison cell. The second charge is negligent homicide, which carries a maximum of four years behind bars.     

Surprisingly, Ms. Yoran told the jury, in her closing argument on Tuesday, that “in the event of a conviction, it is the Judge who decides the appropriate sentence, including whether or not jail is warranted in this case.” She seemed to be suggesting to jurors that they could convict Mr. Penny and he would not necessarily be incarcerated.

Defense attorney Thomas Kenniff was outraged. As soon as the jury left the courtroom for its morning break, he told the judge, “It was improper for them (the prosecutors) to call the jury’s attention to punishment, particularly in the way that they did it, which was to telegraph to the jury that your Honor might not impose a jail sentence in this case.”  

He went on, “It should never have been brought up. And it will be interesting to see that if, in the event that there is a conviction, what the People are going to ask for in this case,” he said, referring to the district attorney’s office.  

Mr. Kenniff implied that the prosecution was trying to signal to the jury that they would ask for a lenient sentence, which is improper because, it’s like saying, don’t worry, if you convict, we won’t send him to prison.   

Should the prosecution win a conviction, Mr. Bragg could come under intense pressure to seek severe punishment from the same social justice activists who successfully pressured him to bring charges against Mr. Penny in the first place. Though, Mr. Bragg has always reasoned that he took more than a week to charge Mr. Penny, because he needed to review the evidence and eyewitnesses accounts. 

Perhaps that is one reason Mr. Kenniff was so displeased with the prosecution’s closing arguments. He further lamented that Ms. Yoran told the jury that “they are not here to judge character.” 

Ms. Yoran did in fact tell the jury on Tuesday morning that “this case would not be easy” because they would “hear that the defendant is a good man, and that the man he killed, on the other hand, was a person with mental illness on drugs and who was threatening people on the train.” She argued that the jury’s obligation was not to judge the two men’s characters, but to judge Mr. Penny’s “actions on that day.” 

Mr. Kenniff complained that referring to Neely’s character was improper because the judge had ruled that “character evidence” like Neely’s criminal record was not admissible, or, as Mr. Kenniff said, “character isn’t in evidence here.” He asked for a mistrial, which the judge denied.   

Explaining the charges, the judge told the jury later, “Under our law, a person is guilty of manslaughter in the second degree when that person recklessly causes the death of another person.” Recklessly, he said, means engaging in conduct that “creates or contributes to… a substantial risk that another person’s death will occur.” 

For Mr. Penny to be guilty of this crime, the judge said, the jury must find three elements: Mr. Penny caused Neely’s death; Mr. Penny did so recklessly; and Mr. Penny was not justified.  

The defense has argued that Mr. Penny did not cause Neely’s death, because he did not apply pressure on his neck during the entire six minutes that he held him. On Tuesday, Ms. Yoran fired back. 

“When asked (by detectives) if he held him in a choke the whole time  …  he said, ‘Yeah, I mean, with plus or minus some force’. With some force. ‘When he starts to squirm, I hold him a little tighter,’” she said Mr. Penny had told the detectives. “No doubt the Defendant releases some of the pressure, he probably released some of the pressure when Mr. Neely passed out, but he certainly did not pull his arm back to give him room to breathe. Instead, he continued to hold him in a chokehold, still applying some pressure to Mr. Neely’s neck, pressure that was sufficient to prevent Mr. Neely from being able to breathe.”  

The defense also argued that there was not sufficient medical proof that Neely died from “compression of the neck” as the medical examiner had written on his death certificate. If the jury agrees, and finds Mr. Penny did not commit manslaughter, then they may consider if he is guilty of the criminally negligent homicide charge. 

In New York, criminal negligence is defined in the Penal Law as failing to perceive a substantial and unjustifiable risk. Prosecutors argued that Mr. Penny, having been trained in the Marines, should have been aware of the fatal risks of chokeholds.      

Bigger picture, to convict Mr. Penny on either charge, the jury must find that Mr. Penny caused Neely’s death. The defense argued various factors came together: Neely’s drug abuse, his severe mental illness, and the struggle with Mr. Penny, which ultimately triggered a sickle cell crisis, in which his red blood cells were unable to deliver oxygen to his body. 

The prosecution insisted that Mr. Penny’s chokehold caused the death. Ms. Yoran said in the morning, “I’m sure that you had absolutely no question in your mind about what caused Jordan Neely’s death. It’s too obvious… When you saw that video,” she said, referring to the video a freelance journalist recorded on the subway as Mr. Penny held Neely in a strange embrace on the subway floor, “I’m sure that you had absolutely no question in your mind before what caused Jordan Neely’s death. It’s too obvious… He (Neely) is very much alive prior to being put in the chokehold. In fact, you heard he was screaming. And then the defendant puts him in a chokehold for about six minutes and when the defendant finally lets go, he’s completely unresponsive; he never revives; and dies.” 

Only is it that obvious? 

After 4 pm, the jury sent another note, requesting to continue their deliberations on Wednesday.