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Daniel Penny's trial for New York subway murder begins Friday

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NEW YORK – Opening arguments begin Friday in the trial of Daniel Penny, a former Marine charged with involuntary manslaughter in the death of a homeless man and beloved street performer aboard a New York City subway car last year.

The video of Jordan Neely's violent death drew national attention and sparked days of protests in the city after police questioned Penny and initially released him from custody.

Jury selection in the case began Oct. 21. The twelve-member jury and four alternates sat together on Wednesday.

Over the next few weeks, the jury will be tasked with deciding whether Penny, 26, acted recklessly when he held Neely, a former Michael Jackson tribute artist, in a chokehold for several minutes on the floor of a hospital on May 1, 2023 Clinging to wagons, which led to his death.

During opening arguments Friday in Manhattan Criminal Court, attorneys on both sides of the case are expected to tell a detailed story about what happened on the subway that day and delve into Penny's previous experiences in the Marines, said Nicole Brenecki, a Brooklyn-based trial attorney who is investigating the case.

Defense attorneys are expected to argue that Penny acted in the interests of others when he grabbed Neely from behind after the man screamed on the subway that he was hungry, thirsty and ready to kill someone, court documents show . Because crimes have been committed in New York City's vast subway system in recent years and in the past, the jury could conclude that Penny acted appropriately when he held Neely in a chokehold, said Brenecki, a veteran Litigator who is not involved in the case.

Prosecutors will argue that Penny acted recklessly and was aware of the danger to Neely when she restrained him, court records show.

“In our opening, we look forward to highlighting the flaws in the government's case that will ultimately lead to an acquittal of all charges against Danny,” defense attorney Steve Raiser told USA TODAY on Thursday.

Prosecutors Dafna Yoran and Jillian Shartrand will argue the case against Penny for the Manhattan District Attorney's Office, which told USA TODAY it cannot comment on open and pending cases.

“This is a trial that you could make a movie about because it has all of these elements that are typically considered very difficult for lawyers,” Brenecki said.

Who was Jordan Neely? A “young man in real crisis,” advocates say

The street artist Neely had become homeless

Neely's erratic behavior and the threats she made in the crowded subway car left passengers fearing for their safety, attorneys for Penny told USA TODAY. After Penny intervened to restrain Neely, who had struggled with mental health issues and drug use, a medical examiner concluded his death was caused by “compression of the neck,” court records show.

“The people on that train with Danny were afraid for their lives,” Raiser told USA TODAY.

Neely, who was 30 when he died, experienced homelessness on and off throughout his life, starting in his childhood when he and his mother lived in New Jersey. When Neely was 14, his mother was brutally murdered by her boyfriend, her body stuffed into a black duffel bag and thrown off a highway in the Bronx.

“This is the kind of trauma that can unnerve anyone,” Lennon Edwards, an attorney for Neely's family, said last year in the days after the man's death.

Defendant hires high-profile lawyer

The case gained greater attention in recent weeks when Penny hired Jo-Ellan Dimitrius, a jury selection consultant who helped OJ Simpson select jury members for his 1995 murder trial, in which he was acquitted. In the case against Penny, the judge decided that jury members would remain anonymous to the public, The New York Times reported.

During jury selection in October, potential jurors were asked whether they regularly commuted by subway and what experiences they had on the subway system, the Associated Press reported.

“The subway is a very unusual place,” said Bennett Gershman, a law professor at Pace University Law School in White Plains, New York, who is not involved in the case. “People may even be scared, they don’t know who someone is, they don’t know what could happen.”

Gershman told USA TODAY he expects the defense team will have an easier time proving that Penny did not act recklessly when he grabbed Neely and pinned him to the subway car floor.

The trial is expected to last five or more weeks, the court said.

“I assume that the jury will not be able to make a decision or that there will be an acquittal,” Gershman said.

After reviewing court documents, Brenecki said the defense could argue that both Penny and Neely were victims of a social system in which people in dire need of psychological support are left to fend for themselves and often end up in danger.

“I'm not saying what he did was right – I don't know if what he did was right,” Brenecki said. “But it's a very good argument because if the victim was struggling so much and they weren't given resources and had to live a nightmarish life out on the streets, then that's a failure of the system.”

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