Both sides gave opening statements Friday in a manslaughter trial that has rattled fault lines surrounding race, homelessness, perceptions of public safety and bystanders' responsibility.
Penny’s critics see him as a white vigilante killer of a Black man who was behaving erratically and making dire statements but wasn’t armed and hadn’t assaulted or even touched anyone in the subway car. Supporters credit the 25-year-old Penny with taking action to protect frightened riders — action that he has said was meant to defuse, not kill.
Prosecutor Dafna Yoran told the anonymous jury that the trial isn’t “a referendum on our society’s failure to deal with mental illness and homelessness on the subway" or on police response. Nor is the case about whether Penny had a right to intervene or about his decision to try a chokehold, she said.
Rather, she said, “He used far too much force for far too long. He went way too far.”
She said he showed “indifference” toward Neely and “didn’t recognize his humanity.”
Not so, said defense lawyer Thomas Kenniff. He told jurors that Penny applied only as much force as needed to contain a “seething, psychotic” man who had lunged toward a woman with a small child and declared, “I will kill.”
“In that moment, Danny could look away and pray, or he could summon the courage to put the safety of his neighbors above that of himself, to protect those who could not protect themselves,” and he did the latter, Kenniff said.
“It doesn’t make him a hero. But it doesn’t make him a killer.”
Jurors, who were quizzed earlier about their subway experiences, later saw police body camera video of officers performing some lifesaving techniques on Neely after Penny calmly explained he had "put him out," describing Neely as a "crackhead" who was "going crazy."
The case has been absorbed into the United States' fractious politics, with Republican officials speaking up for Penny and Democratic ones attending Neely's funeral. Both supporters and critics of Penny have held demonstrations; Penny arrived at the courthouse Friday to critical chants from a small group of protesters.
Once in court, Penny sat straight up in his seat at the defense table, mostly looking directly ahead. A member of Neely's family who was in the audience sometimes sniffled with tears.
“We know who the victim is in this case, and we know who the villain is," family lawyer Donte Mills said outside court.
Neely's life was tattered by mental illness and drug use after his mother was murdered and stuffed in a suitcase when he was a teen, his family has said. By 30, he sometimes entertained subway riders as a Michael Jackson impersonator, but he also had a criminal record that included assaulting a woman at a subway station.
Penny, an architecture student who served four years in the Marines, was going from class to a gym when he encountered Neely on a subway May 1, 2023.
Neely was begging for money, shouting about being willing to die or go to jail, and making sudden movements, according to witnesses. Yoran said Neely talked about hurting people.
Penny put his arm around the man's neck, took him to the floor and held Neely there, with Penny's legs around him.
With bystanders recording some of the encounter on video, Penny held Neely for about six minutes, Yoran said. The hold continued as the train stopped at a station, all but two fellow riders got off, those two helped restrain Neely, and another warned Penny to let Neely go or he'd die, according to Yoran's statement and court papers.
Kenniff said Penny pleaded with fellow passengers to call police and that he kept holding Neely because the man periodically flailed or tried to get up.
Penny ultimately released Neely nearly a minute after his body went limp, prosecutors said. He waited for police, but Yoran noted that despite being trained in first aid, Penny didn’t check Neely’s breathing or pulse or try to revive him.
Officers arrived about seven minutes after 911 calls started coming in, their description as varied as harassment and a gun-toting man.
Over about four minutes, officers talked to Penny, searched Neely — finding nothing but a muffin in his pockets — and determined he had a faint pulse but wasn't breathing. Then they did chest compressions and administered an overdose-reversal drug but didn’t attempt mouth-to-mouth resuscitation.
Asked why, Sgt. Carl Johnson testified Friday that Neely was “very dirty,” and the sergeant feared the man might have a disease or wake up and vomit.
“The motto is ‘serve and protect,’ right?” Kenniff said. He asked whether Johnson would have ordered rescue breaths if the officers had a protective mask.
“No,” Johnson replied, adding: “There’s a certain line where you have to protect your officers."
Neely's pulse soon faded away.
Penny told police that he had simply wanted to “de-escalate” the edgy situation and wasn’t trying to injure Neely but rather "to keep him from hurting anyone else.”
City medical examiners determined Neely died from compression of the neck. Penny's lawyers question that finding.
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Associated Press journalists Joseph Frederick and David R. Martin contributed.
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