The highly anticipated trial against Daniel Penny, a Marine who is accused of killing a homeless street performer, Jordan Neely, after he put him in a chokehold on the New York City subway in May 2023, began with jury selection at Manhattan criminal court on Monday morning.     

Mr. Penny, who pleaded not guilty to second degree manslaughter and negligent homicide charges, entered the courtroom shortly before 10am, wearing a navy blue suit, a light blue shirt and a maroon tie. 

“It’s gonna be clunky and awkward,” said the New York Supreme Court Judge, Maxwell Wiley, who presides over the case, of the jury selection process. “There’s no such thing as people in Manhattan willing to give us pieces of their lives that easily,” he added. 

Outside the courthouse, a crowd of Black Lives Matter protesters seeking retribution for Neely’s death waved flags and chanted “no justice, no peace.” 

The judge anticipates the trial to last roughly six weeks, until December 9. The prosecution said it would need approximately eight trial days to present their case. The defense did not disclose how long it would need. 

The judge explained that he would first prescreen the jurors over the next three days to weed out the ones, who had scheduling conflicts, before he would begin the voir dire on Friday, a process during which prospective jurors are asked questions to determine if they can judge the case fairly and impartially. 

The case touches on a sensitive issue for New Yorkers, crimes on the subway. Millions of people take the subway to and from work every day. In 2022, New Yorkers experienced a mass shooting on a subway in Sunset Park, Brooklyn. Though no one died, the shooter injured 29 people, threw smoke grenades and fired his handgun 33 times. According to the New York Post, violent crime on the subway has surged. City and state officials have dispatched officers into the subway stations to try to protect passengers. At some stations police officers have even begun to conduct random bag checks. 

Mr. Penny, a 25 year-old former infantry squad leader from West Islip, Long Island, has stated repeatedly that he did not intend to kill Neely and that he put him in a chokehold because he wanted to protect himself and his fellow passengers from what he deemed to be a potentially dangerous stranger on the subway.    

Neely, who was 30 years old at the time of his death and known for his Michael Jackson impersonations, entered the F-train at the Second Avenue stop at downtown Manhattan, in, as witnesses describe it, an irate state. He tossed his jacket on the ground and yelled that he was “fed up” and that he didn’t “mind going to jail and getting life in prison.” Neely also said, “I’m ready to die.” 

A Spanish freelance journalist, Juan Alberto Vazquez, recorded a video on his phone, which went viral afterwards, that shows Mr. Penny holding 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. 

Neely was taken to the hospital, where he was pronounced dead. The city medical examiner’s office ruled Neely’s death a homicide two days later.

On Monday, Judge Wiley reminded defense attorneys that he had ruled against using Neely’s criminal history as evidence in the trial. Neely had a criminal record with about 42 arrests, including for drugs, disorderly conduct, petty larceny, and jumping subway turnstiles. He spent over a year in jail for assaulting a 67-year-old woman in Manhattan’s East Village, and had an open arrest warrant at the time of his death. Multiple media sources reported that he was in and out of homeless shelters and mental institutions for years. Prosecutors argued that sharing Neely’s criminal history with jurors would create a prejudice against Neely, while the defense wanted to use it to show that Neely was a potentially dangerous person.     

After addressing administrative issues, the judge called the first 86 prospective jurors into the courtroom for the morning session; about 50 people were called in the afternoon. 

Both in the morning and in the afternoon, Mr. Penny turned to prospective jurors, who filled the courtroom pews, waived his hand and greeted them in a friendly, slightly shy manner. “Good morning,” he said around 11am, and “Good afternoon” at around 3pm.  

Judge Wiley asked the Manhattan residents to raise their hands if they had heard about the case. In the morning, the hands of nearly everyone in the jury pool went up. 

“Almost everybody. Not a surprise,” Judge Wiley said and added, “even if you have formed an opinion about it, that does not disqualify you from serving on this case… If you have formed an opinion on this case, you have to be prepared to change it.” 

In the afternoon, only about a dozen people had heard about the case, and Judge Wiley told them, “No matter how closely you follow the news… nobody on earth has heard all of the evidence yet.” 

“So long as you can tell yourself, well, let me just look at the evidence … if you’re prepared to do that, you can serve as a juror.”

One by one Manhattanities with scheduling issues walked up to the bench. One elderly man told the judge he fell last spring and had been to the hospital over 40 times in the last months, another man said he was moving to a new apartment in November, someone else had a faraway wedding to attend to. By the end of Monday, 45 Manhattan residents had been prescreened and were told to return on Friday. Almost one hundred were excused.         

None of the prospective jurors had raised their hands, when asked if they knew any of the potential witnesses, the judge listed. Among the civilians on that list was the Spanish journalist, Juan Alberto Vazquez, who recorded the choking on his cellphone, who is expected to testify.  

His video sparked an uproar and triggered city-wide demonstrations, including protesters who jumped onto the train tracks and blocked incoming trains at the Broadway-Lafayette subway station, underneath downtown Manhattan, where Neely had died.

To counter the protests demanding justice for Neely, supporters of Mr. Penny from Long Island, including the powerful Nassau County executive, demonstrated in his favor at Collect Pond Park.

The case has divided the public. Mr. Penny’s supporters call him a hero, who risked his own life to protect other passengers. After he surrendered to the police, supporters backed a fundraiser in his name to help cover his legal fees. The fund has raised 3,129,084 million dollars as of Monday afternoon. Former Republican presidential nominee, Vivek Ramaswamy, donated $10,000 last year. 

Meanwhile, social justice advocates say that Neely had not actually physically attacked anyone, and that he was held for too long in the chokehold. 

Prosecutors allege that Mr. Penny held Neely for six minutes. If found guilty, Mr. Penny faces a maximum of 19 years in prison, though the Manhattan district attorney, Alvin Bragg, who brought the case against him, has not said what penalty he seeks. In his November 2021 election, Mr. Bragg, who is a Democrat, ran against Mr. Penny’s lead defense attorney, Mr. Kenniff, a Republican. Mr. Bragg won with 83 percent of the vote and became the first African American elected to that office.

Judge Wiley will continue to screen Manhattan residents tomorrow to look for twelve impartial jurors who will decide whether Mr. Penny is guilty or not.