Prosecutor says veteran's subway chokehold went 'too far.' Defense says
his 'courage' helped others
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[November 02, 2024]
By JENNIFER PELTZ
NEW YORK (AP) — Prosecutors and defense lawyers agree on this about
Marine veteran Daniel Penny's encounter last year with a distressed,
angry man making ominous remarks on a New York subway: Penny didn't mean
to kill him.
But a prosecutor told jurors Friday that Penny “went way too far” in
trying to neutralize someone he saw as a threat and not as a person. A
defense attorney countered that Penny showed “courage" and put others'
welfare ahead of his own when he placed Jordan Neely in a chokehold that
ended with Neely limp on the floor.
Both sides gave opening statements Friday in a manslaughter trial that
has rattled fault lines surrounding race, homelessness, perceptions of
public safety and bystanders’ responsibility.
Penny’s critics see him as a white vigilante killer of a Black man who
was behaving erratically and making dire statements but wasn’t armed and
hadn’t assaulted or even touched anyone in the subway car. Supporters
credit the 25-year-old Penny with taking action to protect frightened
riders — action that he has said was meant to defuse, not kill.
Prosecutor Dafna Yoran told the anonymous jury that the trial isn’t “a
referendum on our society’s failure to deal with mental illness and
homelessness on the subway" or on police response. Nor is the case about
whether Penny had a right to intervene or about his decision to try a
chokehold, she said.
Rather, she said, “He used far too much force for far too long. He went
way too far.”
She said he showed “indifference” toward Neely and “didn’t recognize his
humanity.”
Not so, said defense lawyer Thomas Kenniff. He told jurors that Penny
applied only as much force as needed to contain a “seething, psychotic”
man who had lunged toward a woman with a small child and declared, “I
will kill.”
“In that moment, Danny could look away and pray, or he could summon the
courage to put the safety of his neighbors above that of himself, to
protect those who could not protect themselves,” and he did the latter,
Kenniff said.
“It doesn’t make him a hero. But it doesn’t make him a killer.”
Jurors, who were quizzed earlier about their subway experiences, later
saw police body camera video of officers performing some lifesaving
techniques on Neely after Penny calmly explained he had “put him out,"
describing Neely as a “crackhead” who was “going crazy.”
The case has been absorbed into the United States’ fractious politics,
with Republican officials speaking up for Penny and Democratic ones
attending Neely’s funeral. Both supporters and critics of Penny have
held demonstrations; Penny arrived at the courthouse Friday to critical
chants from a small group of protesters.
Once in court, Penny sat straight up in his seat at the defense table,
mostly looking directly ahead. A member of Neely's family who was in the
audience sometimes sniffled with tears.
“We know who the victim is in this case, and we know who the villain
is," family lawyer Donte Mills said outside court.
Neely's life was tattered by mental illness and drug use after his
mother was murdered and stuffed in a suitcase when he was a teen, his
family has said. By 30, he sometimes entertained subway riders as a
Michael Jackson impersonator, but he also had a criminal record that
included assaulting a woman at a subway station.
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Daniel Penny, accused of choking a distressed Black subway rider to
death, arrives for opening statements in New York, Friday, Nov. 1,
2024.(AP Photo/Kena Betancur)
Penny, an architecture student who served four years in the Marines,
was going from class to a gym when he encountered Neely on a subway
May 1, 2023.
Neely was begging for money, shouting about being willing to die or
go to jail, and making sudden movements, according to witnesses.
Yoran said Neely talked about hurting people.
Penny put his arm around the man's neck, took him to the floor and
held Neely there, with Penny's legs around him.
With bystanders recording some of the encounter on video, Penny held
Neely for about six minutes, Yoran said. The hold continued as the
train stopped at a station, all but two fellow riders got off, those
two helped restrain Neely, and another warned Penny to let Neely go
or he'd die, according to Yoran's statement and court papers.
Kenniff said Penny pleaded with fellow passengers to call police and
that he kept holding Neely because the man periodically flailed or
tried to get up.
Penny ultimately released Neely nearly a minute after his body went
limp, prosecutors said. He waited for police, but Yoran noted that
despite being trained in first aid, Penny didn’t check Neely’s
breathing or pulse or try to revive him.
Officers arrived about seven minutes after 911 calls started coming
in, their description as varied as harassment and a gun-toting man.
Over about four minutes, officers talked to Penny, searched Neely —
finding nothing but a muffin in his pockets — and determined he had
a faint pulse but wasn't breathing. Then they did chest compressions
and administered an overdose-reversal drug but didn’t attempt
mouth-to-mouth resuscitation.
Asked why, Sgt. Carl Johnson testified Friday that Neely was “very
dirty,” and the sergeant feared the man might have a disease or wake
up and vomit.
“The motto is ‘serve and protect,’ right?” Kenniff said. He asked
whether Johnson would have ordered rescue breaths if the officers
had a protective mask.
“No,” Johnson replied, adding: “There’s a certain line where you
have to protect your officers."
Neely's pulse soon faded away.
Penny told police that he had simply wanted to “de-escalate” the
edgy situation and wasn’t trying to injure Neely but rather "to keep
him from hurting anyone else.”
City medical examiners determined Neely died from compression of the
neck. Penny’s lawyers question that finding.
___
Associated Press journalists Joseph Frederick and David R. Martin
contributed.
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