Penny found Not Guilty

NEW YORK (AP) — A Marine veteran who used a chokehold on an agitated subway rider was acquitted on Monday in a death that became a prism for differing views about public safety, valor and vigilantism.

A Manhattan jury delivered the verdict, clearing Daniel Penny of criminally negligent homicide in Jordan Neely’s death last year. A more serious manslaughter charge was dismissed earlier in deliberations because the jury deadlocked on that count.

Both charges were felonies and carried the possibility of prison time.

Penny, 26, gripped Jordan Neely around the neck for about six minutes in a chokehold that other subway passengers partially captured on video.

Penny’s lawyers said he was protecting himself and other subway passengers from a volatile, mentally ill man who was making alarming remarks and gestures. The defense also disputed a city medical examiner’s finding that the chokehold killed Neely.

Prosecutors said Penny reacted far too forcefully to someone he perceived as a peril, not a person.

The case amplified many American fault lines, among them race, politics, crime, urban life, mental illness and homelessness. Neely was Black. Penny is white.

There were sometimes dueling demonstrations outside the courthouse, and high-profile Republican politicians portrayed Penny as a hero while prominent Democrats attended Neely’s funeral.

The verdict capped a trial that took a tumultuous turn last Friday, when jurors said they couldn’t reach a unanimous verdict on the manslaughter charge. The judge then dismissed it at prosecutors’ request — a rare one for prosecutors to make in the thick of a trial.

Penny served four years in the Marines and went on to study architecture.

Neely, 30, was a sometime subway performer with a tragic life story: His mother was killed and stuffed in a suitcase when he was a teenager.

As a younger man, Neely did Michael Jackson tributes — complete with moonwalks — on the city’s streets and subways, building a reputation among the artist’s fans and impersonators. But Neely also struggled with mental illness after losing his mother, whose boyfriend was convicted of murdering her.

Hospitalized for depression at age 14, Neely later was diagnosed with schizophrenia that at times made him hallucinate and become paranoid, according to medical records seen at the trial. Neely also used the synthetic cannabinoid K2 and realized it negatively affected his thinking and behavior, according to a 2019 hospital record. The drug was in his system when he died.

Neely told a doctor in 2017 that being homeless, living in poverty and having to “dig through the garbage” for food made him feel so worthless and hopeless that he sometimes thought of killing himself, hospital records show.

About six years later, he boarded a subway under Manhattan on May 1, 2023, hurled his jacket onto the floor, and declared that he was hungry and thirsty and didn’t care if he died or went to jail, witnesses said. Some told 911 operators that he tried to attack people or indicated he’d harm riders, and several testified that they were nervous or outright feared for their lives.

Neely was unarmed, with nothing but a muffin in his pocket, and didn’t touch any passengers on the train. Multiple riders testified that he didn’t even approach anybody. But one said he made lunging movements that alarmed her enough that she shielded her 5-year-old from him.

Penny, who was on his way from a college class to the gym, came up behind Neely, grabbed his neck, took him to the floor and “put him out,” as he told police at the scene.

Other passengers’ video showed that at one point during the roughly six-minute hold, Neely tapped an onlooker’s leg and gestured to him. At another juncture, Neely briefly got an arm free. But he went still nearly a minute before Penny released him.

“He’s dying,” an unseen bystander said in the background of one video. “Let him go!”

A witness who stepped in to hold down Neely’s arms testified that he told Penny to free the man, though Penny’s lawyers noted the witness’ story changed significantly over time.

Penny told detectives shortly after the encounter that Neely threatened to kill people and the chokehold was an attempt to “de-escalate” the situation until police could arrive. The veteran said he held on after the train stopped because he wasn’t sure the doors were open and Neely periodically squirmed.

“I wasn’t trying to injure him. I’m just trying to keep him from hurting anyone else. He’s threatening people. That’s what we learn in the Marine Corps,” Penny told the detectives, who had read him his rights.

However, a Marine Corps combat instructor — who trained Penny — testified that the veteran misused a chokehold technique he’d been taught. Prosecutors also argue that any need to protect passengers quickly ebbed when the train doors opened at the next station, seconds after Penny took action.

Although Penny himself told police he’d used “a choke” or “a chokehold,” one of his lawyers, Steven Raiser, cast it as a Marine-taught chokehold “modified as a simple civilian restraint.” The defense lawyers contended that Penny didn’t consistently apply enough pressure to kill Neely, and they brought their own forensic pathologist to the stand to buttress their claim.

Contradicting the city medical examiner’s ruling, the defense pathologist said Neely died not from the chokehold but from the combined effects of K2, schizophrenia, his struggle and restraint, and a blood condition that can lead to fatal complications during exertion.

Penny decided not to testify. But several of his relatives, friends and fellow Marines did, describing him as an upstanding, patriotic and empathetic man.

“He was always a very calm, soft-spirited person,” sister Jacqueline Penny told jurors.

Prosecutors never accused Penny of deliberately killing Neely. The eventually dismissed manslaughter charge required proving a defendant recklessly caused another person’s death. Criminally negligent homicide involves engaging in serious “blameworthy conduct” while not perceiving such a risk.

While the criminal trial played out, Neely’s father filed a wrongful death suit against Penny.

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