Subway chokehold trial: Daniel Penny acquitted of criminally negligent homicide in Jordan Neely's death

A Manhattan jury acquitted Long Island native Daniel Penny Monday in the chokehold death of Jordan Neely, a homeless man, on a city subway train last year, a case that brought into sharp contrast New Yorkers’ opinions on race, public safety, mental health and economic inequality.

After eight weeks of trial, the dismissal of the top count of second-degree manslaughter, a deadlock and multiple jury notes, the panel of seven women and five men found Penny not guilty of criminally negligent homicide.

After the verdict was read, a shout went up in the courtroom and several Penny supporters clapped. Neely's father, Andre Zachery, cursed repeatedly and was led out of the room.

Penny, 26, who had been stone-faced throughout the trial, gave a slight smile and hugged his lawyer. The jury was led from the courtroom quickly by court officers to speak to the judge. About an hour later, court officers escorted them from the building into an awaiting van. They ignored reporters' questions.

"I miss my son," Zachery said outside the courthouse. "This hurts. This really, really hurts. I've had enough of this. The system is rigged."

Prosecutors noted they introduced medical records, videos, bodycam footage and testimony from more than 30 witnesses during the trial.

"The jury has now spoken. At the Manhattan D.A.’s Office we deeply respect the jury process and we respect their verdict," read a prepared statement from Manhattan District Attorney Alvin L. Bragg, who prosecuted the case.

Penny and his attorneys could not be reached for comment at the courthouse or via telephone calls on Monday. He was facing up to 4 years in prison if he had been found guilty of the charge.

From the beginning, there was sharp public criticism over how Bragg and police officers handled the case.

Police released Penny after his initial interrogation on May 1, 2023. After a wave of protest from the New York chapter of Black Lives Matter and the Rev. Al Sharpton’s National Action Network, Bragg took the case to a grand jury and, more than a week later, the Marine veteran was indicted.

Nassau County Executive Bruce Blakeman shuttled supporters to a rally outside the Manhattan courthouse to protest the charges against Penny at his arraignment.

"I was confident from day one Daniel Penny was a hero, not a villain, and I am extremely grateful that a Manhattan jury saw through all the political nonsense and determined Daniel Penny had no culpability in the death of Jordan Neely," Blakeman said Monday after the verdict.

Sharpton, who did not attend any of the trial, also put out a statement.

"This verdict represents the blatant legalization of civilian vigilantism, sending a dangerous message that citizens can now take matters into their own hands, even if it leads to someone’s death," he said. "That is a threat to all of us ... When I eulogized Jordan in Harlem last May, I made it clear that his family wasn’t asking for favors — they wanted justice. Jordan’s loved ones were denied justice today."

Before the verdict came out, defense lawyer Thomas Kenniff requested a mistrial, citing the effects of the audible protests outside the courthouse.

For the first time since the trial began, counterprotesters stood outside the courthouse Monday in support of Penny. Some held signs that said "Penny = Hero."

Black Lives Matter protesters stood penned off just feet away chanting slogans against the West Islip man.

Kenniff said he recorded on his cellphone the protesters outside chanting "Justice for Jordan Neely," "Daniel Penny subway strangler" and "murderer."

"There can’t be a fair trial," Kenniff told the judge Monday, noting appellate courts have determined "the court must ensure that the trial does not take place in a circus-like atmosphere."

Manhattan Assistant District Attorney Dafna Yoran countered that she has been the subject to online vitriol.

"I would just like to point out that there are numerous threats from the other side going on," she said. "This is a two-way street."

The argument between Kenniff and Yoran became more and more heated, with the defense lawyer raising his voice in protest when the prosecutor began talking over him.

Supreme Court Justice Maxwell Wiley offered to bring the jury out and direct them to let the court know if they felt the demonstration influenced their deliberations, but both sides declined the offer and the jury continued its deliberations. Shortly after, the jurors came back with a verdict.

On Friday, Wiley approved the district attorney’s request to drop the second-degree manslaughter charge because the panel of seven women and five men could not come to a unanimous decision after four days in the jury room.

The judge ordered them to return on Monday to continue deliberations on the criminally negligent homicide charge.

Most of the witnesses of the initial outburst testified they felt threatened by Neely, 30, who struggled with schizophrenia and chronic synthetic marijuana use, until Penny came up behind him, put him in a chokehold and brought him down to the subway floor.

Again and again, jurors saw a video recording of Penny gripping Neely from behind, struggling to subdue him as more than a dozen people watched and recorded the incident with their cellphones.

Penny held Neely around the neck and chest for nearly six minutes, at times with the help of bystanders, trying to subdue him until he eventually stopped moving.

Police officers testified Neely had a pulse but was not breathing when they arrived.

Dr. Cynthia Harris, a city medical examiner, told the jury Penny’s chokehold blocked Neely’s breathing and the blood flow to his brain, causing his death. She ruled the death a homicide by chokehold. In her testimony, Harris noted the veins popping out on Neely’s forehead seen in a cellphone video taken by a freelance journalist at the scene. 

Defense lawyers Kenniff and Steven Raiser argued, with the help of a paid forensic pathology expert, that Neely’s health was already compromised when he entered the train from years of living on the street, chronic synthetic marijuana use, the effects of schizophrenia and a blood cell deficiency called sickle cell trait.

Yoran elicited testimony from all the witnesses on the train that Neely never touched any of the passengers and did not direct his threats to any one in particular. She also acknowledged in her closing arguments that Penny had "good intentions."

"I told you that it would not be easy because at the end of this case you will be asked to find a man guilty of a killing he did not intend to commit," the prosecutor told the jury.

New York law requires prosecutors to prove Penny acted unreasonably when he came up behind Neely and put him in the restraint. Self-defense doctrine allows a person to use force, even deadly force, to protect themselves or others from an equal and opposite force — or even the threat of such force.

One passenger, Caedryn Schrunk, a marketing executive for Nike, said she thought she would die that day.

"He was making life-threatening claims for his own life as well as people on the train," she said. "He was saying I don’t care if I die, I don’t care if you die, I will go to jail."

On a videotaped interview inside the Fifth Precinct station house interrogation room, Penny referred to Neely as a "crackhead" and told police investigators he felt compelled "to step in because there’s women and children on the train."

The jury also weighed testimony from Penny’s Marine Corps martial arts instructor, who had trained him on the correct techniques of nonlethal chokeholds, which are used to disable but not kill an opponent.

Under state law, a person is guilty of criminally negligent homicide when they fail to recognize that their actions could cause injury or death.

"What is so tragic about this case is that even though the defendant started out trying to do the right thing, as the chokehold progressed the defendant knew that Jordan Neely was in great distress and dying and he needlessly continued," Yoran said.

However, the assistant district attorney argued Penny held on for too long. The crime took place in the 51 seconds that Neely ceased to struggle and the Long Island man continued to restrain him.

Some passengers recorded on cellphone video at the time urged Penny to release Neely, warning that he could kill him. Others were taped expressing fear that Neely was going to get up again.

Raiser told the jury that Neely continued to be a danger to passengers on the train. Another passenger who stopped to help Penny by holding Neely’s arms, testified the  h omeless man still had the strength to break free from his grip.

Raiser explained his client was just trying to keep Neely from getting up and harming another passenger.

"It was not a textbook Marine blood choke, but a blood choke modified as a simple civilian restraint, with the intent not to render Mr. Neely unconscious, but to control his head," Raiser said.

Yoran also pointed out that Neely was unarmed, a police body camera video showed a police officer finding only an unwrapped muffin in his jacket pocket.

Trial testimony also revealed how different the lives these two men lived.

Neely dressed like Michael Jackson and made money busking in the city subway system as the pop star. Between 2015 and 2021, Neely cycled in and out of psychiatric hospitals over psychotic episodes a dozen times. He told Bellevue psychiatrists he believed that rap artist Tupac Shakur recruited him to change the world, according to records. He had hallucinations and heard "satanic" voices, according to the hospital reports.

Neely had multiple arrests, including violent assaults, but those records were barred from trial. He had an open warrant for his arrest at the time of his death.

Penny grew up in West Islip, played lacrosse and joined the Marine Corps after graduating from West Islip High School. Though his parents' divorce disrupted his family life, he still managed to get straight A's in school and played stand-up bass in two Long Island symphonies.

When Neely burst onto the F train at Second Avenue, Penny had left the service and was studying architecture in Brooklyn.

The jury spent five days deliberating over the case, asking for a second reading of the instructions on self-defense and the criminal statutes. They also asked repeatedly to see the cellphone video of the struggle inside the subway car and Penny’s police interview.

Of the 12 Manhattanites seated for the jury, most rode the subway every day and told the court they saw outbursts on the trains nearly every day.

With Ed Quinn