Daniel Penny acquitted of criminally negligent homicide after more serious manslaughter charge was dismissed

CNN

By Lauren del Valle, Gloria Pazmino, Eric Levenson and Celina Tebor, CNN

New York (CNN) — A Manhattan jury found Daniel Penny not guilty of criminally negligent homicide Monday in the death of Jordan Neely on a New York City subway last year.

Penny also previously faced a more serious second-degree manslaughter charge, but Judge Maxwell Wiley dismissed it Friday at the request of prosecutors after jurors twice told the court they could not come to a verdict on the count.

Penny, a 26-year-old former Marine, would have faced up to four years in prison for a criminally negligent homicide conviction and up to 15 years for a manslaughter conviction.

There was applause in the courtroom as the not-guilty verdict was read aloud. Penny locked eyes with members of the jury that acquitted him, nodding in thanks. A smile was visible on his face.

Neely’s father, who was present in the courtroom for the verdict, was escorted out of the courtroom after an audible outburst with expletives.

The jury deliberated for just over an hour on the criminally negligent homicide charge. On the second-degree manslaughter charge, they deliberated for 16 hours before telling the judge they were deadlocked, and another three hours before saying they were deadlocked again.

The case stems from the death of Neely, a 30-year-old street artist who struggled with homelessness, mental illness and drugs, on a subway car on May 1, 2023.

Neely entered the subway car and began acting erratically, as he threw down his jacket and yelled at passengers that he was hungry and thirsty and didn’t care whether he died, witnesses said. Penny, a passenger, grabbed Neely from behind in a chokehold, forced him to the train floor and restrained him there for several minutes. When Penny let go of the hold, Neely was nonresponsive. He was later declared dead.

Several minutes of the chokehold were captured on bystander video that spread widely and has been played repeatedly in court during the trial.

The case has polarized city residents, many of whom have personal experiences with disorder on the subways, and raised broader questions about mental health, race relations and the line between protector and vigilante. Black Lives Matter protesters have added Neely’s name to its roll call of victims – including just outside the courthouse – while others have praised Penny for trying to protect others.

Prosecutors said Penny acted recklessly and negligently by restraining Neely in a chokehold for so long, even after Neely stopped moving. “We are here today because the defendant used way too much force for way too long in way too reckless of a manner,” prosecutor Dafna Yoran said in closing arguments.

His defense has said he was acting to protect others from a threat.

“I wasn’t trying to injure him,” Penny said in an interview with NYPD investigators shortly after the incident. “I’m just trying to keep him from hurting anybody else. He was threatening.”

They also challenged the medical examiner’s determination Neely died from the chokehold and suggested the charges were brought because of “a rush to judgment based on something other than medical science.”

Neely’s father: ‘The system is rigged’

Outside court, Neely’s father and a family attorney expressed their disappointment with the jury’s verdict and the broader criminal justice system.

“I miss my son. My son didn’t have to go through this. I didn’t have to go through this either,” Andre Zachary said. “It hurts, it really, really hurts. What are we going to do, people? What’s going to happen to us now? I’ve had enough of this. The system is rigged.”

Donte Mills, the family attorney, said they were “devastated, upset, angry, hurt” over the verdict.

“Last week the jury couldn’t decide on the top charge, and they come back this week and they give up on us,” he said. “The district attorney did a good job, but the jury in this case let us down.”

He issued a call to action to take care of each other and help someone in need.

“Everybody who’s pissed off at this verdict, I challenge you to go outside today and help one person,” Mills said. “That’s my challenge. If you’re angry, if you’re hurt, go help one person. That’s how we beat the system. That’s how we turn this around, by being there for each other.”

What happened at the trial

The trial began with jury selection in late October and featured testimony, video and 911 calls from subway riders, responding police officers and martial arts and medical experts.

The prosecution called more than 30 witnesses to the stand, including one man who helped restrain Neely’s arms during the struggle and testified he advised Penny to loosen his grip. “I’m going to grab his hands so you can let go,” Eric Gonzalez told Penny, according to his testimony.

However, Gonzalez could be heard in video footage of the incident saying Penny wasn’t “squeezing” Neely’s neck in the 51 seconds before he released the chokehold. Gonzalez also testified he initially lied to investigators about what he saw and did on the subway out of fear he would be “pinned” for the killing. Prosecutors promised not to charge him in the case, he testified.

In addition, the Marine Corps martial arts expert who trained Penny in chokeholds testified Penny was aware the holds could be lethal.

Several subway riders testified they were terrified Neely was going to attack and they were relieved when Penny put him in a chokehold and kept him there.

“Restraining him for the moment was a relief, but if he would have gotten up, he would have done what he would have done,” subway rider Caedryn Schrunk said.

The defense’s case focused on emphasizing Neely’s threatening behavior, character witnesses from Penny’s time in the US Marines and challenges to the medical cause of Neely’s death.

Penny served four years in the Marines as a sergeant, from 2017 to 2021, with his last duty assignment at Camp Lejeune in North Carolina, according to military records.

The city medical examiner who performed Neely’s autopsy, testifying for the prosecution, ruled the cause of his death was “compression of neck (chokehold).” She made the determination after performing an autopsy and watching the cell phone video on the subway but did not wait for the toxicology report, she testified.

The defense presented its own medical expert who said Neely died of a combination of factors, including a sickling crisis linked to his sickle cell trait, a schizophrenic episode, the struggle and restraint by Penny and K2 intoxication.

Separately, Neely’s father filed a lawsuit in New York Supreme Court on Wednesday accusing Penny of assault, battery and causing Neely’s death. Andre Zachery, who is listed as the administrator of Neely’s estate, accused Penny of having caused the death “by the reason of the negligence, carelessness and recklessness.” The suit does not specify the amount of money the family is seeking.

Penny’s defense attorney Thomas Kenniff did not respond to a request for comment on the suit.

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