NY Jury Acquits Daniel Penny in Death of Deranged Man on Subway

A New York jury found Daniel Penny not guilty for the death of Jordan Neely, a homeless Michael Jackson impersonator whom Penny put in a chokehold on a Manhattan subway car last year.

After a seven-week trial that involved over 40 witnesses, the jury found Penny, a former Marine sergeant, not guilty of criminally negligent homicide.

The case earned national coverage in part because many saw the incident as indicative of general social dysfunction in cities around the country and of the woes of New York City’s subway system—by far the country’s biggest—which has been plagued by mentally ill homeless people. Some, including New York City mayor Eric Adams (D.), lauded Penny as a hero, whereas others, including Rev. Al Sharpton and New York’s Black Lives Matter chapter, saw him as a reckless vigilante who must be punished. Supporters of Penny, a Long Island native who was living in downtown Manhattan, donated more than $3.2 million to his legal defense fund.

After the jury verdict was read, cheering erupted in the courtroom from Penny’s supporters, along with jeers from advocates for Neely. Mr. Neely’s father, Andre Zachary, shouted out in protest and was removed from the courtroom by court officers. Also removed were the brother and sister Black Lives Matter duo, Hawk and Chivona Newsome. As she was removed from the courtroom, Chivona Newsome yelled, “racist f— country.”

On May 1, 2023, Penny was riding the F Train to the gym when Neely pried open the subway car’s door at the Second Avenue stop under Manhattan’s East Village and began a threatening rant that terrified passengers, according to witness testimony. Neely shouted that he was hungry, ready to go to jail, and ready to die.

Neely, who a toxicology report would later show was high on K2, or synthetic marijuana, had a long history of mental illness and homelessness as well as an extensive arrest record. On his better days, he could be seen doing Michael Jackson impersonations on the subway. The judge did not allow his criminal record to be used as evidence.

As Neely, who was unarmed, ranted and raved on the train, emitting an overwhelming odor of feces, according to witness testimony, Penny, who’d been trained in the Marines on how to subdue a dangerous person, put Neely in a chokehold for nearly six minutes, according to videos captured by bystanders. Exactly when Neely lost consciousness and stopped struggling was a matter of dispute at trial. But police intervened at the next subway stop, and Neely was pronounced dead at the hospital an hour later.

Penny told police detectives after the incident that he put Neely in the chokehold to defend himself and other passengers on the train and did not intend to kill the homeless man. During the interview, Penny described Neely as “a crackhead” (the defense tried unsuccessfully to have the videotaped interview removed from evidence). Penny was initially released and not charged, but several days later, after coming under public pressure from racial justice advocates who held protests and blocked the subway tracks, Manhattan district attorney Alvin Bragg charged Penny, who is white, in the death of Neely, who was black. Penny pleaded not guilty to the charges in June 2023.

Jurors deliberated for more than six days and, at one point, told the judge that they were unable to reach a unanimous verdict on the manslaughter charge, which hinged on whether Penny acted “recklessly” when he restrained Neely. Penny’s attorneys requested a mistrial during the deadlock, although the judge declined and ordered the jurors to continue deliberating.

The judge overseeing the murder case against Daniel Penny dropped the second-degree manslaughter charge against Penny on Friday after the jury came back again and said they were deadlocked.

Penny’s lawyers argued during the trial that the ex-Marine’s chokehold was not what killed  Neely and that Penny was regularly relaxing the chokehold during the struggle. The defense’s expert witness said that Neely’s compounding health issues—including schizophrenia, synthetic marijuana use, and a sickle cell trait that restricted the blood’s ability to bring oxygen to the brain—combined with the struggle with Mr. Penny and led to his death.

The defense accused the prosecution of changing its conclusions about Neely’s death as political pressure mounted. The medical examiner admitted that she ruled Neely had died from asphyxiation before she saw the toxicology results and that she wouldn’t have changed her conclusions if Neely had enough fentanyl in his system “to kill an elephant.”

Prosecutors, in a legal maneuver, didn’t contest that Penny did not intend to kill Neely. Rather, they countered that he acted “recklessly”  by keeping his hold for well beyond a reasonable amount of time, thus causing an unnecessary death. The lead attorney on the case, Assistant District Attorney Dafna Yoran, emphasized the racial dynamic between the two men as well and repeatedly described Penny as a “white man.” She also used language that echoed the rhetoric of the Black Lives Matter protesters who were in regular attendance outside the courthouse.

“Danny acted when others didn’t,” Penny’s defense attorney, Steven Raiser, said during closing arguments. “He put his life on the line. He did that for perfect strangers.”