Jurors were told Daniel Penny ‘knew he eliminated the threat’ when he finally released a mentally ill homeless man from a six-minute chokehold and warned not to consider whether they would have been grateful for his intervention as they were sent to deliberate his fate.
The 26-year-old Marine veteran denies charges of manslaughter and negligent homicide after the tragic May 2023 death of Michael Jackson impersonator, Jordan Neely. Twelve jurors are now locked in tense deliberations to decide his fate.
Mr Neely died on the floor of an uptown-bound F train in Manhattan after Penny placed him in a chokehold in an effort to stop him threatening commuters.
Mothers, children and students were among terrified onlookers who felt harassed by Mr Neely, who was telling them he was prepared to ‘go back to jail’ and ‘kill’ someone.
Assistant District Attorney Dafna Yoran on Tuesday displayed a graphic photo of inside Neely’s eye, taken during an autopsy after his death, toward the end of her closing remarks.
The image was blasted across four television screens covering every angle of the courtroom – two of which were positioned facing the jury, a third facing the viewing gallery and a fourth directly in front of Mr Penny.
The picture was displayed for a lengthy period during her summations, causing both jurors and members of the public to look away.
In the state’s closing arguments from Monday afternoon to Tuesday morning, Yoran accepted it was a ‘hard case’ for jurors to grapple with.
Daniel Penny arrives at Manhattan Supreme Court Monday as closing arguments in his case over the subway killing of a homeless man were heard
She warned them their verdict should not rely upon whether they themselves would be grateful for Penny’s intervention, or weigh testimony from the Marine veteran’s loved ones that he is a ‘good man.’
‘What is so tragic about this case, is that even though the defendant started out doing the right thing… a man died,’ she said.
‘He was given all the signs he needed to stop. He ignored them. He must be held accountable for that.’
She continued: ‘You’re not here to decide whether you’d want to ride alone on the train with Jordan Neely. That is not what this case is about. The only thing you need to determine here is whether or not the evidence here proves the defendant killed Jordan Neely.’
Ms Yoran implored the jury to find Penny guilty of manslaughter – a charge which carries a maximum term of 15 years behind bars.
She told jurors in great detail how Mr Neely ‘clawed at his own neck with his nails’ as he fought against the chokehold in those crucial first few minutes, before ultimately urinating on himself and losing consciousness.
She described the negligent homicide charge – the lesser of the two – as essentially a fallback charge which should be applied if the jury is not convinced Penny committed manslaughter.
‘You, the jurors, should unequivocally state with your verdict that no person’s life can be so unjustifiably snuffed out,’ she said.
A court sketch shows Penny sitting next to his defense attorney Steven Raiser as Raiser addressed jurors
‘If the defendant is not justified in killing Mr Neely, then killing him is a crime. But what crime is it? Manslaughter in the 2nd degree is a reckless killing – not intentional.’
Ms Yoran told jurors that being ‘reckless’ in this case, requires Penny to have been aware that his actions put Mr Neely at ‘substantial risk of death.’
‘You have to be aware, and that what you’re doing is a major departure from what a reasonable person would do,’ she said.
‘If you do not believe the defendant was consciously aware, that is criminally negligent homicide – that is the failure to perceive the risk,’ she said.
‘The difference is known, or should have known.’ Ms Yoran claimed the evidence shows that Penny was aware of the consequences of his actions.
‘The defendant has just spent the last six minutes glued to Mr Neely’s back… all to make sure he doesn’t attack anyone or get away,’ she said.
Sharing footage of Penny standing to the side of the train immediately after ending the chokehold, Ms Yoran asked jurors to consider why he felt comfortable at this point in stepping away.
‘Why is he not concerned about that, all of a sudden? Because he knows Mr Neely is no longer a threat. That he is out.
‘If the defendant believed that all he had done was render Mr Neely temporarily unconscious, he would have immediately moved to secure him in another way because he would have believed Mr Neely would wake up at any second and either attack someone or run away.
‘If he was going to have revived, he would have revived in a matter of seconds. The defendant clearly knows Mr Neely is not waking up any time soon.
‘There is only one explanation for that: he knows Mr Neely is not going to wake up. He knows he has eliminated the threat.’
Ms Yafna also cited Penny’s Marine Corps training, arguing that he should have had a clearer understanding of the risks of his actions given his military experience.
‘Beyond that, she said it is ‘common sense.’ ‘We all know we need air to breathe and that it goes through your throat.
Penny is pictured holding Jordan Neely in a chokehold on a NYC subway train on May 1 2023
‘You know how fragile throats are. It’s hard to imagine that there is anyone out there who wouldn’t be aware of that possibility – if not probability.’
While Ms Yafna argued she does not have to prove a motive, she said it was clear based on the evidence that Penny had overlooked Mr Neely’s ‘humanity.’
She shared footage from Penny’s police interview in which he repeatedly referred to Neely as ‘just a crackhead.’
At the time, Penny did not know Neely was dead. He also was not aware that police had brought in the District Attorney’s office, who were behind double-sided glass and instructing police which questions to ask, according to the defense.
But Ms Yoran said it telling that Penny never once asked about Neely’s wellbeing during this interview.
‘During his whole interview, the defendant never says ‘oh hey, how is that guy doing? Is he okay? Did he make it?’ Imagine not even caring enough to ask that. The defendant, as empathetic as he may be, seems to have a real blind spot for Mr Neely,’ she said.
‘Maybe we, too, have othered them. Lumping them all together like this the way he does. But the context is telling here.
‘When the defendant is talking like this, he knows he very likely killed him. Can you imagine a reasonable person speaking like this about a human being that he or she had just killed?
‘There is something else that is glaringly missing in this statement. Any regret. Any remorse. Any self-reflection of ‘maybe I went too far.’ Earlier on Monday, the defense rested their case.
Defense attorney Steven Raiser told jurors that closing first put his case at a slight disadvantage – because he would have no further opportunity to respond to the claims Ms Yoran would make in her own closing arguments.
As such, he urged jurors to consider what he and his legal team would say in response if given the opportunity, based on the evidence presented.
He had earlier asked jurors to imagine they themselves were on the train when Neely approached.
Raiser argued that even the state’s own expert witnesses couldn’t prove key elements beyond reasonable doubt.
‘If their own experts have doubt… why shouldn’t you?’ He asked the 12 jurors who have listened to four weeks of intense testimony.
Raiser showed footage of the train carriage and used audio of train doors opening and closing, helping to set the scene he was trying to get jurors to envision.
‘Imagine you’re on that train too. Strangers brought together by fate,’ he said.
‘The doors begin to close, but a hand reaches in and pries the doors open again… you see a look in Jordan Neely’s eyes described… as violent and desperate.
‘Where do you go? Nowhere. There is nowhere to go. Who will he hurt? Will it be me? Will it be my child? Will it be my friend?’
Raiser described those commuters as ‘frozen in fear.’ He told jurors there was an obvious reason that there was no footage of Neely’s outburst – they were too scared to move.
The first video evidence begins a minute after Penny got Neely to the ground, and captures much of the remainder of the ordeal, including the distressing moments Neely took his last breath.
Raiser quoted several experts and witnesses who testified during the trial. He reminded the jurors that Neely was described as one of ‘the most severely psychotic cases’ one medical professional has ‘ever seen.’
He also noted that Neely had synthetic drugs in his system – namely K2 – and that first responders opted to issue Narcan, used to reverse the effects of opioids, before they administered CPR.
Beyond those details, Raiser told the jury that the state failed to prove their case beyond a reasonable doubt.
He said there were doubts about Neely’s cause of death, and about whether the threshold of what constitutes a chokehold death had even been met.
Raiser argued that the state’s own witness, the medical examiner, had raised doubts about whether he fell unconscious first or if Neely was in the early stages of dying during the time frame the state argues he first fell unconscious.
‘Unconsciousness always precedes death in a chokehold death,’ he told the jury. ‘Why are we here with such an utter lack of evidence?’ Raiser asked.
Answering his own question, Raiser accused the government of bowing to public pressure, and feeling compelled to make a quick arrest due to the media attention and widespread protests the case sparked.
‘The case was marked as high profile,’ he noted.
