On Monday, attorneys for the defense and for the prosecution made their closing arguments in the trial of Daniel Penny, the Marine veteran who put a Michael Jackson performer, Jordan Neely, in a chokehold on a New York subway last year. After the defense worked assiduously to plant a seed of reasonable doubt in jurors’ minds, the prosecution called Mr. Penny a liar.     

“We have two sides to this trial,” defense attorney Steven Raiser told the jury in the morning. “We are not equal here in a certain sense, the burden is at this table,” he said, pointing to the prosecution, “not at that table” and he pointed to the defense table, where his client sat, a 26 year old man from Long Island, who was living in the East Village at Downtown Manhattan, studying architecture and engineering at City Tech in Brooklyn, where he also worked as a barback, according to media reports, when he encountered Neely on a Northbound F-train last year.

 “The reason why that is important,” Mr. Raiser said, “as I begin to talk about the evidence, I bring up certain possibilities that may bring up reasonable doubt.” He paused. “The district attorney doesn’t have that luxury. They can’t build their case on probability and speculation.” 

The Manhattan district attorney, Alvin Bragg, has charged Mr. Penny with second-degree manslaughter and negligent homicide in the death of Neely, a street performer known for his Michael Jackson impersonations on subways and subway platforms all over New York, including in Times Square.  

“It’s May 1st, 2023. The F train enters the Second Avenue station,” the defense attorney recounted while sound bites of an arriving train were played in the courtroom. Setting up this dramatic effect had prolonged the entire summation process by over an hour.        

“Imagine you are on the train too,” the defense attorney went on. “Strangers brought together by fate. Suddenly a hand reaches in and opens the door.  You see a look in Mr. Neely’s eyes that have been described as both violent and desperate.” 

Later the defense attorney added that Neely was “looking to hurt people, that’s just the truth.” After citing witness testimony, who had described Neely’s behavior as so threatening that one woman said she feared for her life, while another hid her five year old son behind her stroller, Mr. Raiser turned his attention to his client. 

“All of those riders and more – Daniel Penny was the one who moved to protect them. Why? Because he had something the others didn’t, something unique to him. His training. Because Danny acted to save those people. And there’s no dispute that when Danny acted he didn’t know whether Jordan Neely was armed.”

But the prosecution never argued that Mr. Penny did not have what assistant district attorney Dafna Yoran described– in her opening statement – as a “laudable” intention. She alleges that Mr. Penny went, as she would later tell the jury, “way too far,” when he grabbed Neely from behind and placed him in a chokehold, which he held for about six minutes. 

Neely was unresponsive when officers arrived at the scene, and pronounced dead at the hospital an hour later.  

But his attorney argued that the chokehold did not in fact cause Neely’s death. According to an expert, the defense had called, the forensic pathologist, Satish Chundru, a chokehold death occurs in two phases: first a person falls unconscious and second, if the pressure is held continuously and sufficiently firmly, the person asphyxiates and dies. Mr. Raiser argued that Neely never went unconscious. 

A video of the incident, recorded by a freelance journalist who also happened to be in the same subway car, shows Mr. Penny holding Neely in a tight embrace on the subway floor for about six minutes. At minute 3:09 Neely’s body appears to go limp. According to the defense expert, Neely went straight into dying, and his death was caused by a sickle cell crisis that was later found in his body. This crisis, when red blood cells morph into sickle shaped cells and thus cannot pass through the veins and deliver oxygen and nutrients to the cells, was triggered, the expert testified, by various factors. Neely had consumed the synthetic cannabinoid K2; he was also, the expert testified, suffering from a schizophrenic episode (he had a history of mental illness and hospital records presented at trial show he was often described as suffering from schizophrenia). Last but not least, the exertion from the struggle added to the overall stress in Neely’s body and triggered the cells to sickle.

His client, the defense attorney argued, could not have known that Neely was suffering from a sickle cell crisis, when he held him down. 

“Danny,” he said as both attorneys, Mr. Raiser and Thomas Kenniff, refer to their client, “cannot be responsible for his sickling death… The government needs to prove Danny knew of the risk and ignored it. There is no possible way Danny could have known he would enter into a sickling crisis.” 

He called Neely’s death “unfortunate, tragic but not foreseeable.” 

Another question the defense raised was if Mr. Penny actually squeezed Neely’s neck while he was holding the chokehold, or if he was restraining the Michael Jackson impersonator. The video does not indicate how much pressure Mr. Penny was putting on Neely’s neck.

The trainer who had taught Mr. Penny various chokehold techniques while he was in the Marines, had testified before the jury that he could not see, by looking at the video, if Mr. Penny was exerting pressure for six minutes or if he was releasing the pressure and then enforcing it again, depending on Neely’s struggle. 

“This case is about a broken system. The broken system that does not help our mentally ill or unhoused. It’s that broken system that led us here,” Mr. Raiser told the jury. “It was over seven minutes for the police to arrive after the 911 call, without even arriving with a simple rescue breath mask … The government is scapegoating the one man who was willing to stand up at the moment he was needed.” 

Ms. Yoran, the prosecutor, who had objected quite a few times, but been struck down by the judge, began her opening statement in the afternoon. Mr. Bragg was sitting in the courtroom during her summation, next to his attorneys, Joshua Steinglass and Susan Hoffinger, who both prosecuted President Trump.

She did not agree that Neely never fell unconscious. “The chokehold,” she told the jury, “continued for another two minutes going forward – the last  51 seconds, Mr. Neely was already unconscious. There was no conceivable justification under the law, and human decency to hold an unconscious man in a chokehold.” 

She also believed that Mr. Penny was aware that Neely did not carry a weapon, and was thus not as dangerous as the defense claimed. She showed the jury the interview that was recorded when detectives spoke to Mr. Penny at the precinct right after the incident.  

“Did he have anything that could hurt somebody?” one of the two officers asked Mr. Penny in the video.   

“I don’t remember.” Mr. Penny answered. 

Ms. Yoran then argued that if Penny had believed Neely were armed, he would not have put him in  “this weird chokehold that he put him in…” which is  “not a good maneuver for someone that is armed… Why? Because it leaves his hands completely free.”  

Neely, Ms. Yoran went on, would have been able to reach into “his own pocket” and reach “for the knife and stabbed him” or “taken the gun and shot him.” And if Mr. Penny was so concerned about Neely carrying a weapon, Ms. Yoran argued he would have asked one of the two men helping him restrain Neely to search his pockets, which he did not. 

Ms. Yoran also pointed out inconsistencies in Mr. Penny’s statements. “He lies in the video,” she told the jury. Mr. Penny told the officers that he let Neely go, as soon as he had gotten “confirmation” from the guys that their hold on Neely was secure. But the video shows a different reality. 

Ms. Yoran will resume her summation on Tuesday morning.