Marine vet Daniel Penny's trial in death of homeless man on NYC subway begins

NEW YORK ? The manslaughter trial in the death of Jordan Neely began in Manhattan Supreme Court on Monday with jury selection more than a year after Marine veteran Daniel Penny crossed paths with the New York City street performer in a crowded subway car.

Penny, 26, faces charges of second-degree manslaughter and criminally negligent homicide and has pleaded not guilty after video of the interaction between the two appeared to show Penny place Neely in a chokehold after the 30-year-old man was yelling, saying he was hungry, thirsty and ready to kill someone.

On Monday, lawyers on each side of the case began presenting questions to potential jurors, like if they had heard of the case before. Jury selection will be tedious, as will the rest of the trial, Nicole Brenecki, a Brooklyn-based attorney who is studying the case, told USA TODAY Tuesday.

"Both sides are entitled to ask as many open-ended, in depth questions to the jurors to make sure that they form what they think is a unbiased panel," Brenecki said.

Lawyers and law enforcement have spent months analyzing bystander videos of the May 1, 2023, incident, in which Penny, who was honorably discharged from the Marines in 2021, wrapped his arms around Neely's neck, pinning him on the floor of the train.

Who was Jordan Neely? A 'young man in real crisis,' advocates say

Lawyers for Penny will argue that he did not intend to harm Neely, who advocates said experienced homelessness on and off through his life, and that several witnesses feared for their safety that day on the subway, defense lawyer Steve Raiser told USA TODAY.

"The people on that train with Danny feared for their lives. Nearly everybody there who testified that was in the reach of Mr. Neely was afraid of him," Raiser said. "We have to remember that Mr. Neely was making threats that he was going to kill people."

Opening statements are expected during the second week of November, according to Raiser. It could take six weeks to reach a verdict, the court announced this month.

What to expect at Daniel Penny trial

During the trial, lawyers will present evidence ranging from bystander videos to statements Penny made to police after the incident ? statements the defense had fought to exclude from the trial.

In one statement given to police immediately after the incident, Penny said Neely “came on the train threatening people. I put him out," court documents show.

Prosecutors are expected to argue second-degree manslaughter is the appropriate charge for Penny because he acted "recklessly" when he caused Neely's death.

According to court documents filed by the prosecution, the law defines "reckless" behavior as someone ignoring "substantial and unjustifiable risk."

The prosecution also argues in court documents that manslaughter is the correct charge because the medical examiner ruled Neely's cause of death was "compression of the neck."

In a unique move, Brenecki said, Penny is also expected to testify on his own behalf, taking the stand and undergoing cross-examination.

"This is a very rare thing," said Brenecki, who is an expert trial attorney. "This is very ballsy ? he can be accused of being a racist vigilante, he's taking the risk of having to handle that question with his own words, by himself on stand."

A Marine with a black belt in karate is scheduled to take the stand as an expert, Raiser said, and is expected to explain to the jury that the restraining hold Penny applied to Neely was not fatal and technically not a chokehold.

The man trained Penny in the Marines years ago, alongside many other Marines, and the two did not have a personal relationship, Raiser said.

Brenecki said Tuesday she thinks the trial could become a "battle of expert witnesses."

The defense's argument will hinge around the idea that many subway passengers, including a mother and her child, were fearful of Neely, who was shouting and saying he would kill someone seconds before Penny grabbed him from behind and took him to the floor.

"When somebody like Mr. Neely is screaming and speaking with such conviction that he's going to kill somebody, you tend to believe he has the means in which to do that," Raiser said.

The Manhattan District Attorney's Office told USA TODAY it could not comment further on the case beyond what prosecutors have laid out in court filings.

Prosecutors have argued in court documents that accounts from subway passengers vary widely, including some who said Neely's outbursts were not out of the ordinary on New York City public transit.

Videos support Penny's actions, defense says

A video circulated online shows part of the incident and begins with Penny holding Neely in a chokehold on the floor after several minutes of holding him down off-camera. The two are in a locked position for about seven more minutes, when Penny releases Neely, who remains crumpled on the floor.

"The video we have right now we believe is helpful to Danny," Raiser said, explaining that Neely is obviously conscious. If Penny had administered a more forceful chokehold, Neely would have been unconscious in seconds, Raiser said.

Police who responded to the scene told investigators Neely was not breathing, and he was pronounced dead at a local hospital. Penny was taken to a police station, questioned and released that day. He surrendered more than a week later. In June 2023, Penny was indicted by a grand jury on a charge of second-degree manslaughter.

In the following days, lawyers in New York City advocating for Neely's family decried the New York Police Department's decision to release Penny after initial questioning and not hold him in custody.

"He should have been arrested on the spot," Lennon Edwards, a lawyer for Neely's relatives, said at the time.

This article originally appeared on USA TODAY: Daniel Penny trial: Jury selection begins in case on NYC subway death