Daniel Penny was acquitted Monday of criminally negligent homicide in the chokehold death of Jordan Neely, a 30-year-old homeless man with a history of mental illness whose final moments on a New York City subway train were captured on bystander video that set off weeks of protests and captured national attention.
The decision, on the fifth day of deliberations, came after the jury deadlocked Friday on the more serious charge of manslaughter, leading the judge to dismiss it. Penny faced up to four years in prison.
The anonymous jury, made up of seven women and five men, were told before they began deliberating that they had to come to a unanimous decision on the top charge of manslaughter in the second degree before moving on to consider criminally negligent homicide. But Judge Maxwell Wiley changed that order Friday after jurors twice sent a note saying they could not reach an agreement.
The judge had also instructed jurors to decide whether Penny’s actions caused Neely’s death and, if so, whether he had acted recklessly and in an unjustified manner.
Neely, a former Michael Jackson impersonator, had been shouting and acting erratically when he boarded a subway train in Manhattan on May 1, 2023. He ranted about being hungry and thirsty and said that he wanted to return to jail and didn’t care if he lived or died, witnesses testified. Penny, 26, a former Marine and Long Island native, placed Neely in a chokehold that prosecutors said lasted almost six minutes.
A New York City medical examiner ruled that Neely died from compression to his neck as a result of the chokehold.
Penny’s attorneys told jurors that he stepped in because he believed Neely might attack other passengers and he intended only to restrain him until police arrived, which Penny also told police. They also argued that Neely was not killed by the chokehold and that it was impossible to measure how much pressure Penny had applied.
A forensic pathologist hired by the defense testified that Neely died from a combination of his schizophrenia, synthetic marijuana, sickle cell trait and the struggle from being in Penny’s restraint. But the medical examiner who performed the autopsy on Neely, Dr. Cynthia Harris, told jurors it was her medical opinion “that there are no alternative reasonable explanations” for his death and that those proposed by the defense were “so improbable — that it stands shoulder to shoulder with impossibility.”
During cross-examination, one of Penny’s attorneys, Steven Raiser sought to cast doubt on Harris’ testimony about how she and her colleagues had come to a unanimous decision as to Neely’s cause of death. Raiser suggested that they had failed to consider all the facts before making that determination.
He revisited that claim in his closing argument last week.
“I submit to you there was a rush to judgment, based on something other than medical science,” he told jurors.
The case divided people in New York — and beyond — in some cases along political and racial lines. Neely was Black. Penny is white. Some people viewed Penny as callous and his actions as criminal, while others said he was selfless in his attempt to protect fellow passengers.
The case also spurred debates about safety within the city’s subway system and failures in addressing homelessness and mental illness, both of which Neely had struggled with. Jumaane Williams, a Black Democrat who is New York City’s public advocate, was among those who questioned why police let Penny go after questioning him at a precinct hours after Neely’s killing. New York Rep. Alexandria Ocasio-Cortez, also a Democrat, said Neely had been “murdered.” Prominent Republicans like Florida Gov. Ron DeSantis and Matt Gaetz praised Penny and promoted a fundraiser for his legal fund, which has raised more than $3 million. His defense team includes Thomas Kenniff, a Republican who ran unsuccessfully for Manhattan District Attorney in 2021. Vickie Paladino, a Republican city councilwoman from Queens, attended last week’s closing arguments in support of Penny.
Prosecutors did not dispute that Neely’s actions on the train scared many of the passengers or that he was on synthetic cannabinoids, which were found in his system. In her opening statement, Dafna Yoran, an assistant prosecutor with the Manhattan District Attorney’s Office, said that Neely had “demanded to be seen” and that despite his not having touched anyone and not having displayed a weapon or threatened to use one, many people in the subway car were frightened of what he might do.
She has said Penny’s “initial intent was even laudable,” but that he was reckless when he continued to choke Neely even after he posed no threat, including after the train doors had opened at the next station and passengers could exit. For some of that time, she said and video showed, two other men helped restrain Neely. One of those men testified that he believed Penny had held the chokehold for too long. At times, she said, he even ignored the pleas of bystanders to let Neely go. In her closing argument, Yoran said that “no one had to die” and that Penny was not justified in his use of physical deadly force.
“You obviously cannot kill someone because they are crazy and ranting and looking menacing,” Yoran told jurors in her closing argument. “No matter what it is that they are saying.”
She also said that Penny “could have easily restrained” Neely “without choking him to death.”
In his closing argument, Raiser prompted jurors to imagine that they were on the train the day Neely boarded “filled with rage and not afraid of any consequences.”
“With you sitting much as you are now in this tightly confined space, looking up at Mr. Neely,” he said. “You have very little room to move and nowhere to run.”
“Danny,” as the defense attorneys referred to Penny throughout the trial, “put his life on the line” and stepped up in the absence of police, Raiser said.
But Yoran challenged the portrayal of Penny as a self-sacrificing and benevolent subway rider. In her opening statement she said that Penny failed to acknowledge Neely’s humanity. She continued that thread in her closing argument, playing video of Penny twice referring to Neely as a “crackhead” in an interview with police and telling jurors that he never asked about Neely’s condition.
“There is something else that is glaringly missing from his statement. Any regret. Any remorse. Any self reflection,” she said. She added: “He never expresses any sorrow about the man’s death.”
During deliberations, jurors asked to rewatch bystander videos of Penny restraining Neely, responding officers’ body camera videos and video of Penny’s subsequent interview with two police detectives at a precinct. They also asked to rehear the medical examiner’s testimony about issuing a death certificate before Neely’s full toxicology reports were completed. They also asked for the judge to read back the definitions of recklessness and criminal negligence and to have the definitions in writing.
Penny chose not to testify. During the trial, which began Nov. 1, jurors heard from more than 40 witnesses — subway passengers who witnessed Penny restrain Neely, police officers who responded to the scene, a Marine Corps instructor who taught Penny various chokeholds, the two pathologists, a psychiatric expert and six character witnesses, who included two Marines, Penny’s mother and one of his sisters.
On Wednesday, Neely’s father, Andre Zachery, sued Penny accusing him of negligent contact, assault and battery that caused Neely’s death. The civil suit was filed in New York state’s Supreme Court, a trial-level court in New York state.