Six jurors were seated on Monday in the trial against Daniel Penny, a Marine veteran who put a homeless Michael Jackson impersonator into a fatal chokehold on a New York subway last year.   

On Monday, six Manhattan residents raised their hands to be sworn as the first jurors of a twelve-member panel, along with four alternates, that will listen to evidence and then decide on a verdict in the case that has sparked protests and outrage on both sides.

The day had started off with a slight delay. The presiding judge, Maxwell Wiley, told the court that many of the prospective jurors, who were returning to Manhattan criminal court for voir dire, the process where residents are questioned by the judge and the attorneys to determine their suitability to judge the case impartially, were running late because they were having issues with the subway. 

“The trains were being a real problem this morning,” Judge Wiley said. While the court waited for the potential jurors to arrive, the judge addressed a concern he had with one candidate last week. “He had a bit of an outburst,” the judge explained, adding that the Manhattan resident “was a problem” for the court officers, and that “he’s become a security risk.” 

The judge wanted to dismiss the man, because “I am just afraid he may do something else.” After prosecutors and defense attorneys consented, the judge instructed the court officers to thank the man for his services and to excuse him from the courthouse. 

Jury selection, which is now in its second week, is no easy task in a case that touches on many sensitive issues, such as mental illness, drug addiction, homelessness, military service and the hazards of the New York City subway, which has a long history of mentally ill homeless people causing disruptions.

All these factors are being considered by both the defense attorneys and prosecutors as they question Manhattan residents. The goal is to find twelve impartial jurors, who can listen to the evidence and then deliver a just verdict on the charges Mr. Penny faces second-degree manslaughter and negligent homicide charges, which combined carry a maximum sentence of 19 years in prison. He has pleaded not guilty. 

According to witnesses, Neely, who was 30 years old and a well-known Michael Jackson impersonator, boarded an F train at the Second Avenue stop at Manhattan on May 1, 2023, and immediately began threatening passengers, tossing his jacket to the ground, yelling 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.

Toxicology reports found that Neely had K2 in his system, a synthetic drug also known as spice that can cause violent behavior. It’s not been made clear how much K2 Neely had in his system. He had a long history of drug abuse, homelessness and 42 arrest warrants at the time of his death.      

After the prospective jurors entered the courtroom, defense attorney Thomas Kenniff asked them about their personal experiences with harassment on the subway. One person said he had been threatened, a man had started yelling and swearing at him. 

“Do you feel that that behavior will have an effect on assessing this case,” Mr. Kenniff asked.   

“No it will not,” the prospective juror responded. 

Another potential juror was asked the same question by an assistant district attorney, Dafna Yoran, who is prosecuting the case on behalf of the Manhattan district attorney, Alvin Bragg. Would a personal bad experience on the subway lead to impartiality on judging this case?    

“I don’t know,” the potential juror said carefully, “if I can be impartial to this. Sometimes I feel people should step in.” 

“In this case,” Ms. Yoran clarified, “we are not gonna be arguing that he (Mr. Penny) shouldn’t have stepped in, it’s what happened afterwards.” 

The prosecution alleges that Mr. Penny held the chokehold recklessly for six minutes, “well past the point at which Neely had stopped purposeful movement.”

By Monday afternoon, after numerous potential jurors had been excused, six were sworn in.   

One of the selected jurors is a woman, who lives near Lincoln Center, has a master’s degree in theater management and works for an arts organization in marketing and communications. She told the court last week that she takes the subway three to four times a week, and that she has witnessed outbursts. When asked if she had ever felt personally threatened, she was apprehensive when she answered, yes. 

The next juror that was sworn in is a man, who has lived in Washington Heights since 1993, was born in the Philippines, works in healthcare, and lives with his parents. He also told the court that he takes the subway three to four times a week, and that he had seen people throw fits but that he never felt personally threatened. 

One man, however, who has lived on the Upper West Side for 32 years, and is retired, told the court about an incident he experienced on the Q train. “There was a homeless gentleman on the platform,” he said, and “for some reason he spotted me and decided that he was going to harass me for no particular reason. I had no idea what he was talking about,” the man added.

Both the defense and the prosecution found the man to be impartial regardless of this experience, and he was sworn in. 

Voir dire will continue on Tuesday.