Daniel Penny acquitted in New York subway choking death of Jordan Neely 

A court in Manhattan has found US military veteran Daniel Penny not guilty of criminally negligent homicide for subduing a fellow subway passenger, Jordan Neely, in a chokehold until his death.

The verdict on Monday in New York City comes after days of deliberations. Criminally negligent homicide carries a possible sentence of up to four years in prison.

Initially, the jury was asked to consider the more serious charge of manslaughter, which carried the possibility of 15 years in prison, but after a deadlock, Judge Maxwell Wiley gave the go-ahead to consider negligent homicide instead.

The decision is the culmination of seven weeks of trial, wherein jurors heard two different versions of events.

Penny’s defence team argued the veteran was simply trying to protect his fellow passengers when Neely started to act in an erratic manner. But prosecutors argued Penny behaved recklessly, choking Neely for more than six minutes despite clear indications that Neely was dying.

Neely’s death in 2023 captured nationwide attention in the United States, with critics framing the case as yet another incident of excessive force used against a vulnerable Black victim.

But Penny’s supporters have rallied to his defence, claiming he is being wrongfully prosecuted for defending himself and others from an imminent threat of violence. Penny had pleaded not guilty to all charges.

Videos of the incident went viral. On May 1, 2023, Neely, a 30-year-old street performer with a history of mental health issues, boarded the F train at the Second Avenue subway stop in New York City and began to yell.

“I don’t have food. I don’t have a drink,” passengers remember Neely saying, as he begged for money and lurched through the car. “I don’t mind going to jail and getting life in prison. I’m ready to die.”

Penny, a 24-year-old architecture student and a former US Marine, responded by pulling Neely to the floor of the subway car and placing him in a chokehold.

In one video, a bystander is heard to ask, “Where are the cops?” Neely’s legs eventually go slack as Penny holds him down. A second off-screen voice warns that Neely may be dying, pointing out that he appeared to be “defecating on himself”.

“You don’t want to catch a murder charge,” the off-screen voice tells Penny.

Neely was later pronounced dead at a Manhattan hospital. A city medical examiner ruled his death had been a homicide, resulting from compression to his neck.

That conclusion was challenged, however, over the course of Penny’s trial, as the defence team made the case that their client was acting on an imminent threat to his safety and the safety of others.

A forensic pathologist, speaking for the defence, testified that Neely’s death resulted instead from a combination of marijuana use, schizophrenia, a sickle cell condition and the struggle he faced in the subway car.

The original medical examiner in the case called such a conclusion “profoundly improbable”.

The defence also disputed the prosecution’s assertion that Penny deployed techniques he knew to be deadly from his time in the military. Defence lawyers instead described the chokehold as a “civilian restraint”.

They also argued that Penny could not have released Neely earlier than he did without risk to himself and other passengers. Lawyer Steven Raiser told jury members to put themselves in a passenger’s shoes.

“You’re sitting much as you are now, in this tightly confined space. You have very little room to move and none to run,” Raiser said. “Who would you want on the next train with you?”

Penny’s sister, friends and fellow military members testified to his character on the witness stand, and he has also received public support from prominent right-wing figures, including Florida Governor Ron DeSantis and former US Representative Matt Gaetz, who called Penny a “Subway Superman“.

But in their closing arguments on Tuesday, prosecutors claimed Penny “ignored” the telltale signs he was killing Neely.

“He kept going until a man died,” Manhattan Assistant District Attorney Dafna Yoran told the jury.

Yoran also questioned the motivations for the deadly actions on Monday. “You obviously cannot kill someone because they are crazy and ranting and looking menacing, no matter what it is that they are saying.”

She called for the jury to extend empathy to Neely, whose mother had been murdered and stuffed into a suitcase in 2007. Neely himself had been living on the streets, struggling with homelessness.

Penny, Yoran argued, may have felt the need to protect others, but he did not extend that sense of caring to Neely himself.

“He just didn’t realise that Jordan Neely too was a person whose life needed to be preserved,” Yoran said. She called on jury members to “state with your verdict that no person’s life can be so unjustifiably snuffed out”.

Separately, while the court deliberated, Neely’s father Andre Zachary filed a suit on December 5 accusing Penny of negligence, assault and battery.

“What gave Daniel Penny the right to choke Jordan nearly for six minutes?” Christopher Neely, Jordan’s uncle, asked the press outside the courtroom.

“He had an option to go to another car. He had the option to say something and not do nothing.”