Daniel Penny tells police ‘I put him out’ in never-before-seen video as subway chokehold trial gets underway

Prosecutors said Daniel Penny may be an “honorable veteran” and “nice young man” but he used too much force for too long and was reckless with Jordan Neely’s life because “he didn’t recognize his humanity,” as the highly publicized trial over Neely’s death on a New York City subway train got underway Friday. The defense, meanwhile, argued in opening statements that the former Marine stood up to “protect thy neighbor.”

Penny is charged with manslaughter and negligent homicide in the May 2023 death of Neely, a homeless man who was acting erratically on a subway car.

“He was aware of the risk his actions would kill Mr. Neely and did it anyway,” Assistant District Attorney Dafna Yoran said of Penny in her opening statement.

“Jordan Neely took his last breaths on the dirty floor of an uptown F train,” she told a rapt jury.

Defense attorney Thomas Kenniff countered that Penny sought to protect passengers as Neely’s threats echoed through the closed confines of a subway car and he spoke with “unhinged rage.”

“This is a case about a young man who did for others what we would want someone to do for us,” Kenniff said. “It doesn’t make him a hero, but it doesn’t make him a killer.”

On the first day of the trial, jurors also saw body camera video that had not yet been publicly released of Penny’s initial encounter with police, four and a half minutes after letting go of Neely.

Penny ‘went way too far,’ prosecutor says

Neely entered a moderately crowded subway car at the Second Avenue stop and began making threats about hurting people, scaring many of the passengers, Yoran said.

She pointed at Penny as she told the jury, “This man, took it upon himself to take down Jordan Neely. To neutralize him.”

Thirty seconds later, the train arrived at the next station and all the passengers left the train car, except two men who were helping Penny restrain Neely. The prosecutor said Penny hung onto Neely for 51 seconds after Neely’s body went limp.

“By doing so, he pushed Mr. Neely to the point of no return,” Yoran said. “He left Mr. Neely lying on the floor unconscious and didn’t look back.”

Penny has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in Neely’s death. His attorneys have said Neely was “insanely threatening,” but Yoran said Penny’s actions were unnecessarily reckless because he continued the chokehold for 5 minutes and 53 seconds after the subway car was empty of passengers. “A grasp that never changed,” Yoran called it.

“The defendant did not intend to kill him. His initial intent was even laudable,” Yoran said. “But under the law, deadly physical force such as a chokehold is permitted only when it is absolutely necessary and for only as long as is absolutely necessary. And here, the defendant went way too far.”

The prosecutor told jurors they would see video of the chokehold.

“You will see Mr. Neely’s life being sucked out before your very eyes,” Yoran said, appearing to upset one of the jurors who grimaced and briefly shut his eyes.

Penny heard Neely say ‘I will kill’: Defense attorney

Penny was on the F train headed to swim at a gym when a “seething, psychotic Jordan Neely storms on and announces his presence,” Kenniff said in his opening statement. “Neely whips his jacket over his head and slams it to the ground with such force that even those who don’t see it hear it.”

The defense said things on the train escalated from “concern to fear” as they sought to portray Neely as far scarier than a prosecutor described in her opening statement.

“Neely sets his sights on a bench of female passengers,” Kenniff said. “Danny sees a mother barricading her son behind a baby stroller in fear of Mr. Neely.”

Penny heard Neely say “I will kill,” the defense said, and said there was no opportunity for him to de-escalate or stop Neely from the harm he was threatening.

“What Danny does do is leap into action,” Kenniff said.

Borrowing from “a bit” of martial arts training he received in the Marine Corps, Penny put Neely into a chokehold without intending to kill him but, the defense said, to hold him until police arrived.

“His conduct was consistent with someone who values human life and that’s why he was trying to protect it so fiercely,” the defense attorney said.

Kenniff insisted his client “does not want to use any more force than is necessary,” but Neely “aggressively resisted” while in Penny’s grip. He said Penny thought Neely, who was unarmed, might have a weapon as he waited for police.

“The evidence will show that this struggle did indeed last between 5 and 6 minutes,” but Penny “was not squeezing,” Kenniff said.

Instead, the defense suggested Neely’s death may have been caused by cardiac arrest, a genetic condition or some other reason that was not asphyxiation. The defense said the risk of Neely’s death was not something Penny could have perceived or anticipated.

Body-camera footage shown for 1st time

The first witness, a New York City police officer, was among those who tried unsuccessfully to revive Neely. The officer, Teodoro Tejada, testified that Neely did not have a pulse.

The jury saw the officer’s body-worn camera footage that captured the attempts to save Neely and showed his lifeless body on the subway floor. When searched for weapons, the only thing officers found in Neely’s pockets was a muffin. Nothing else was found in the jacket, Tejada confirmed.

Penny is heard saying, “I put him out,” when the officer asked what happened.

To prosecutors, the footage — which had not been seen publicly until now — is evidence Penny disregarded Neely’s basic humanity.

Jurors attentively studied the video that shows officers frantically trying to revive Neely. At one point, a juror had her hand over her mouth watching as the camera bounced when Tejada joined the chest compressions. Neely’s body is seen splayed on the subway floor, sneakers, jeans and grimy, white T-shirt still on.

On cross-examination, Kenniff asked if the officer responded to any calls “of a white male causing any trouble,” which Tejada confirmed he did not. The defense also used Tejada’s testimony to suggest to the jury Penny did not behave like a criminal by fleeing the scene.

“Did he appear cooperative?” the lawyer asked.

“Yes,” the officer replied.

“It didn’t appear that he had anything to hide?” Kenniff asked.

“No,” Tejada said.

Protest audible from courtroom

The sounds of a sidewalk protest over the death of Neely were audible in the 13th-floor courtroom ahead of opening statements. Protesters were heard calling Penny a “subway strangler.”

Judge Max Wiley said he would instruct jurors to ignore “noise outside the courthouse.”

Penny, in a slate blue suit, strode confidently into the courtroom and took his seat at the defense table ahead of opening statements.

The jury of seven women and five men, four of whom are people of color, will be asked to do something prosecutors concede is difficult: convict someone of an unintentional crime.

To convict, prosecutors must prove Penny’s use of lethal force was unjustifiable and that Penny acted recklessly and consciously disregarded the substantial risk of putting Neely in the chokehold for so long. Prosecutors do not have to prove Penny intended to kill Neely, which defense attorneys have said Neely did not intend to do.

Wiley denied Penny’s bid to dismiss his involuntary manslaughter case in January.

The trial is expected to last between four and six weeks, according to Wiley.

The case has fueled political narratives about urban crime and captivated a city in which the subway is indispensable.

Differing accounts of the incident

While there is no doubt that Penny’s actions led to Neely’s death on May 1, 2023, witness accounts differ regarding the events that led up to Penny applying the fatal chokehold, according to various sources.

Many witnesses reported that Neely, 30, who was homeless at the time of his death and was known to perform as a Michael Jackson impersonator, had expressed that he was homeless, hungry and thirsty, according to prosecutors. Most of the witnesses also recounted that Neely indicated a willingness to go to jail or prison.

Some witnesses also reported that Neely threatened to hurt people on the train, while others did not report hearing those threats, according to police sources.

Additionally, some witnesses told police that Neely was yelling and harassing passengers on the train. However, others have said that while Neely had exhibited erratic behavior, he had not been threatening anyone in particular and had not become violent, according to police sources who spoke with ABC News following the incident.

According to prosecution court filings, some passengers on the train that day said they didn’t feel threatened. One said they weren’t “really worried about what was going on,” while another called it “like another day typically in New York. That’s what I’m used to seeing. I wasn’t really looking at it if I was going to be threatened or anything to that nature, but it was a little different because, you know, you don’t really hear anybody saying anything like that.”

Other passengers, however, described being fearful, according to court filings. One said they “have encountered many things, but nothing that put fear into me like that,” while another said Neely was making “half-lunge movements” and coming within a “half a foot of people.”

Neely had a documented history of mental health issues and arrests, including alleged instances of disorderly conduct, fare evasion and assault, according to police sources.

Less than 30 seconds after Penny allegedly put Neely into a chokehold, the train arrived at the Broadway-Lafayette Station, according to court records.

“Passengers who had felt fearful on account of being trapped on the train were now free to exit the train. The defendant continued holding Mr. Neely around the neck,” said prosecutor Joshua Steinglass in a court filing objecting to Penny’s dismissal request.

According to prosecutors, footage of the interaction, which began about two minutes after the incident started, captures Penny holding Neely in the chokehold for about four minutes and 57 seconds on a relatively empty train, with a couple of passengers nearby.

Prosecutors said that about three minutes and 10 seconds into the video, Neely ceases all purposeful movement.

“After that moment, Mr. Neely’s movements are best described as ‘twitching and the kind of agonal movement that you see around death,'” prosecutors said.

The case is expected to feature testimony of passengers who were aboard the subway at the time, as well as a roughly six-minute video of the chokehold.

Jury to hear eyewitness statements

Before opening statements on Friday, Wiley granted a defense request to allow some of the statements that eyewitnesses to the chokehold made to police that were captured on body-worn cameras.

One witness, a Ms. Rosario, was captured on body-worn camera 15 minutes after the incident aboard the F train.

“I can see most of that statement coming in as an excited utterance,” Wiley said.

The judge declined to allow a part of her statement in which an officer is heard asking whether she thought Neely was on drugs.

A Mr. Latimer is captured a minute later and Wiley said his statement is “well within the immediacy of the event” and could be admitted.

“This person displays emotion, excitement as he’s describing what happened. It’s narrative,” Wiley said.

Most of the passengers who were aboard the train and who witnessed the event are expected to testify at trial.

Jury will see evidence that Neely did not have a weapon

The judge also previously ruled that the jury will see evidence that shows Neely was unarmed.

Penny’s defense had sought to preclude evidence or testimony about the lack of a weapon recovered from a search of Neely’s body but in a written opinion issued Thursday, Wiley said such evidence and testimony is relevant to the case.

“The fact that Mr. Neely was unarmed provides additional relevant information to aid the jury, namely, it clarifies what could have been perceived by someone in the defendant’s position,” Wiley wrote. “The possibility that a person in the defendant’s situation could have been reasonable in mistakenly believing that Mr. Neely had been armed is appropriate for consideration by the jury and well within their capability.”

The defense worried that including evidence that Neely was unarmed could bolster sympathy for the victim but Wiley said it would help the jury decide whether Penny’s actions were justified.

Penny’s lawyers and Neely’s family speak ahead of the trial

Members of Neely’s family were seated with the spectators for opening statements Friday.

“I loved Jordan. And I want justice for Jordan Neely. I want it today. I want justice for everybody and I want justice for Jordan Neely,” his uncle, Christopher Neely, said before entering court.

Prosecutors in the Manhattan district attorney’s office are expected to concede that Neely may have seemed scary to some subway riders, but will argue Penny continued the chokehold well past the point where Neely stopped moving and posed any kind of threat.

Penny’s attorneys have said that they were “saddened at the loss of human life,” but that Penny saw “a genuine threat and took action to protect the lives of others,” arguing that Neely was “insanely threatening” to passengers aboard the subway train.

While Penny’s defense will argue that he had no intent to kill Neely, prosecutor Steinglass has noted that the second-degree manslaughter charge only requires prosecutors to prove Penny acted recklessly, not intentionally.

“We are confident that a jury, aware of Danny’s actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict,” Penny’s lawyers, Steven Raiser and Thomas Kenniff, said earlier this year, after Penny’s request to dismiss the charge was denied.

“This case is simple. Someone got on a train and was screaming so someone else choked them to death,” Neely family attorney Donte Mills said in a past statement to ABC News. “Those two things do not and will never balance. There is no justification.”

“Jordan had the right to take up his own space. He was allowed to be on that train and even to scream. He did not touch anyone. He was not a visitor on that train, in New York, or in this country,” Mills added.