Ex-Marine acquitted of negligent homicide after applying chokehold on NYC subway car

A jury has acquitted former Marine Daniel Penny of criminally negligent homicide in the death of Jordan Neely, in a case that raised questions about self-defence and vigilantism on New York's subway system.

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 years of prison time.

Penny, 26, has said he never intended to kill Neely, a 30-year-old with a history of mental illness, during their encounter on an uptown train on May 1, 2023.

Penny did not testify during the trial, which began in October, though the jury saw an interview he gave to police immediately after the incident.

The killing gained widespread public attention, with some viewing Neely, who was Black, as a victim of a white vigilante. Others, including some Republican politicians, called Penny a hero.

As well, duelling demonstrations supporting both Penny and Neely's family played out in front of the Manhattan court building, including on Monday.

"It really, really hurts," Neely's father, Andre Zachery, said outside the courthouse. "I had enough of this. The system is rigged."

Prosecutors from the Manhattan District Attorney's Office did not dispute that Neely was loud, angry and threatening as he boarded the train, shouting that he was hungry, thirsty and wanted to be sent back to jail.

But they told jurors that Penny, who grabbed Neely from behind with an arm around Neely's neck and brought him to the floor, used deadly physical force without justification and for far longer than necessary.

Dafna Yoran, an assistant district attorney, said Penny was warned by people around him about risks to Neely's life and intentionally ignored them.

"He didn't recognize that Mr. Neely, too, was a person," she said during her closing argument last week. "He didn't care what happened to Mr. Neely."

Continued applying pressure after passengers left

Penny continued to choke Neely on the floor of the subway car for nearly six minutes after the train pulled into the station and other passengers left, prosecutors said.

"He's dying," an unseen bystander said in the background of one video. "Let him go!"

Penny's defence lawyers told jurors that Penny, a student on his way to a gym, acted out of alarm that Neely might hurt a woman and a child he was approaching. Neely was unarmed.

Lawyer Steven Raiser said his client held Neely "until he knew that he was no longer a threat," but did not apply pressure on his airway during the last crucial moments.

"What happened on May 1, 2023, was not a chokehold death," Raiser said on Monday. "He was controlling Mr. Neely's body, not choking him."

Penny's lawyer theorized that Neely died from another cause, possibly a drug overdose or a sickle cell crisis. Prosecutor Yoran rejected those scenarios, telling jurors it is extremely rare for sickle cell, a genetic blood disorder, to lead to a fatal crisis, and that it also was unlikely Neely died from a drug overdose at exactly the same moment he was being held in a chokehold.

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, and that they didn't consider their lives threatened. But one said he made lunging movements that alarmed her enough that she shielded her five-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.

But Penny's former Marine Corps combat instructor testified that the veteran misused a chokehold technique he'd been taught.

Nevertheless, New York City Mayor Eric Adams in a radio interview on Nov. 30 appeared to back Penny.

"You have someone [Penny] on that subway who was responding, doing what we should have done as a city," told the Rob Astorino Show.

"Those passengers were afraid," Adams added.

Neely was a sometime subway performer with a tragic life story. He struggled with mental illness after losing his mother, whose boyfriend was convicted of murdering her and putting her remains in a suitcase.

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.