How Daniel Penny Was Found Not Guilty in a Subway Killing That Divided New York

The men’s bathroom on the thirteenth floor of the state courthouse at 100 Centre Street, in Manhattan, has doorknobs that are engraved “CITY OF NEW YORK,” and pink soap in dispensers that are manufactured upstate, by incarcerated men, many of whom have been found guilty in the courtroom down the hall. There are no mirrors in the men’s bathroom, but there are windows, one of which is usually open, and so, for the past several weeks, as an ex-marine named Daniel Penny, who is white, stood trial for the death of a Black man named Jordan Neely, the chants of the dozen or so Black Lives Matter demonstrators who had assembled on the sidewalk, behind police barricades, could be heard clearly near the sink. One protester would shout, “Hey, hey, what do we say?,” to which a chorus would reply, “Daniel Penny has got to pay!”

The case, in which Penny put Neely into a choke hold on the subway, had become a local and national fixation, pitting progressives against right-wing supporters, who portrayed Penny as a maligned crime-fighting hero. The sound of the protesters on the street often carried into Judge Maxwell T. Wiley’s courtroom. On November 1st, two weeks into the proceedings on the day of the Manhattan Assistant District Attorney’s opening statement, the chants were particularly loud. Judge Wiley swivelled in his leather chair toward the sixteen jurors seated in his jury box. “If you hear people expressing ideas outside”—he paused a moment, listening to the protesters—“ignore it. Anything outside this courtroom, as far as you’re concerned, is noise.” He paused again, leaned back in his chair, then leaned forward and said, “What matters to you, and to us, is what happens in this courtroom.”

Judge Wiley’s courtroom has high ceilings, fluorescent lights, peeling white paint, and seven rows of dark wooden benches, some filled with reporters, others with spectators (college students, Black Lives Matter activists, a man wearing a “Trump” kippah), and members of the defendant’s private security detail. That morning, Penny sat near the front of the courtroom, listening as Assistant District Attorney Dafna Yoran said, “Jordan Neely took his last breaths on the dirty floor of an uptown F train.” On May 1, 2023, Neely, a Michael Jackson impersonator who often busked in Times Square, and who had a history of homelessness, substance abuse, and schizophrenia, boarded a moderately crowded train and, as Yoran explained, began shouting:

His voice was loud and his words were threatening. And in immediate response to these menacing words, the defendant, Daniel Penny, this man, took it upon himself to take down Jordan Neely, to neutralize him. Without hesitation, he grabbed Mr. Neely from behind in a choke hold and brought him down to the ground.

Penny, an architecture student from West Islip, on Long Island, did not look at Yoran as she said, “His initial intent was even laudable, to protect fellow subway riders from a man he perceived to be a threat.” But the law does not permit “laudable behavior” when it is also “unnecessarily reckless,” Yoran went on. Her opening statement—in which she described how Penny held Neely in a choke hold for almost six minutes, even after the train doors had opened and the other straphangers had fled to safety—concluded, “The defendant was not justified in these deadly actions. He used far too much force for far too long. He went way too far.” Later, the jury—twelve jurors and four alternates, all hailing from Manhattan—would need to decide for themselves whether the Assistant District Attorney was correct. Did Daniel Penny, who had a green belt in Marine Corps martial arts, go too far? Or did he do what the jurors would have wanted him to do if they had been on that uptown F train? Shortly before lunchtime, the judge looked toward them and said, “Stretch your legs. Think about something else. And don’t talk about the case yet, with each other or anyone else.”

Along with the sound of the protesters outside, the courtroom was often filled with the sound of sneezing and coughing (a case of bronchitis was going around), and with the sound of death. Eight JBL speakers and six large television screens broadcast the moments on the train before Neely’s death, and during it, and afterward. There were videos captured by eyewitnesses—Darrick Clay, Moriyela Sanchez, Ivette Rosario—and body-cam footage from police officers: Tejada, Ceesay, Kang, Ortiz, Joefield, and Johnson. There were also videos from detectives at the Fifth Precinct. (“I wasn’t trying to injure him,” Penny said, during his interrogation. “I’m just trying to keep him from hurting anybody else. He’s threatening people!”) The most important video, four minutes and fifty-seven seconds long, was shot by a passenger named Juan Alberto Vasquez. It clearly shows Penny’s left arm wrapped around Neely’s neck.

Inside Judge Maxwell T. Wiley’s courtroom. Illustration by Christine Cornell

It is a strange thing to sit in a courtroom and watch a man die over and over and over again. At first, the people assembled reacted to the videos with great emotion. Spectators in the gallery cried and gasped, as Neely’s legs flailed about and then slowed down and stopped moving altogether before Penny released his hold on Neely’s neck and got up, fifty-one seconds later. The jurors fidgeted in their seats. The judge stood up. Two court officers, both of whom carried guns and handcuffs and wore black bulletproof vests and otherwise stoic expressions, wiped tears from their eyes. Jordan Neely’s father, Andre Zachery, wept quietly, then loudly, then walked out of the courtroom; later, he returned to his seat and hung his head. The second time the Vasquez video played, there were more grimaces in the jury box, but in the course of the following five weeks the jurors adopted passive, detached expressions.

By the time the prosecution presented another version of the Vasquez video, broken into fourteen hundred and sixty-five frames, on PowerPoint slides, which show Penny and Neely’s struggle even more clearly, the jurors had begun to resemble listless schoolchildren. Still, to sit in the courtroom that day was to watch death in slow motion. As prosecutors clicked through the images, Juror No. 11—a young corporate lawyer from Michigan whose grandmother struggles with mental illness—calmed his nerves with chewing gum. Juror No. 9—a white woman who has lived on the Upper West Side for forty-five years—bit her fingernails. At one o’clock, during the lunch recess, just as he did every afternoon, Juror No. 5—an Upper East Side retiree who enjoys reading and video games—smoked cigarettes behind the courthouse, in Columbus Park.

Around the courthouse, especially among the court security officers, the Daniel Penny case, in Room 1313, was known as a “media trial.” Alvin Bragg, the Manhattan District Attorney, had brought a manslaughter charge against Penny on May 12, 2023, following intense criticism by protesters and left-leaning politicians; that evening, the former Republican congressman Matt Gaetz called Penny a “Subway Superman.” (Six weeks later, Bragg also charged Penny with criminally negligent homicide, a lesser offense.) Throughout the trial, everyone in town, it seemed, had an opinion about the case: “Daniel Penny is a hero”; “this was a lynching”; “the whole system just failed him”; “what a horrible thing, my God. I don’t know really what I would’ve done.” Each morning, two or three dozen reporters lined up behind a police barricade in the hallway, jockeying for a spot. Each evening, the journalists filed dispatches, or appeared on television. After testimony by a man named Eric Gonzalez, on November 12th, the following headlines appeared in the press:

The Times: “Rider Who Helped Restrain Homeless Man Testifies About Fatal Chokehold”

Fox News: “Key Witness in Marine Vet Chokehold Case Admits He Lied”

The Associated Press: “Subway Rider Who Helped Restrain Man in NYC Chokehold Says He Wanted Ex-Marine to ‘Let Go’ ”

In the Vasquez video, Gonzalez can be seen in a baseball cap, holding down Penny’s arms during the final seconds of Neely’s life. When he was first interviewed by the police, Gonzalez told detectives that he was aboard the train when Neely entered it, at the Second Avenue station, and that Neely had struck him. But that wasn’t true; Gonzalez had wandered on after the doors opened, at the Broadway-Lafayette station, as he was answering e-mails on his phone. He’d helped Penny, then went to work, read in the news that Neely had died, hid in his house for several days, then lied to the police about the sequence of events, because, as he later told detectives, he was afraid he might be charged with murder. “I fabricated a story,” he said, from the witness stand. Gonzalez also said that he attempted to persuade Penny to loosen the choke hold around Neely’s neck. “I said, ‘I’m going to grab his hands so you can let go,’ ” Gonzalez recalled. “ ‘Let him go! Get your arm away from his neck.’ ” A column in the Post about Gonzalez’s testimony read:

Both he and Penny activated their instincts to protect New Yorkers from the Gotham City-like chaos and violence that plagued the underground at the time. Now, one is facing almost two decades behind bars. And the other, it seems, did everything he could to avoid being a helper again. The perverse and dangerous lesson: Next time, don’t get involved.

Judge Wiley regularly instructed the jurors to ignore these and other news reports, but his courtroom is only one room in a city full of them; during the trial, the jurors frequently found themselves, in the course of their “real lives,” as the judge put it, surrounded by opinions and the news. The other morning, before the defense called another witness, a Fox News daytime host, said, “While Daniel Penny returns to court, career criminals continue to cause chaos across city streets.” A few days earlier, a man who had recently been released from Rikers Island had stabbed three people across Manhattan. Afterward, Mayor Eric Adams stood behind a lectern at City Hall and said, “This is the result of not taking actions and ignoring people who need help.” He went on, “The street corner is not a psychiatric ward.” On Friday, November 22nd, in Judge Wiley’s courtroom, as an expert witness spoke to jurors about a photograph of Neely’s spleen, the suspect in the stabbing spree was indicted in another courtroom on the second floor.

Among the prosecution’s many witnesses—patrol cops, detectives, a train conductor, a 911 record keeper—Yoran brought forward passengers who were aboard the train on the afternoon that Neely staggered through the doors and began shouting. Ivette Rosario said, “I was worried.” Larry Goodson said, “He wasn’t threatening me, nor did I notice him threaten anyone else.” Lori Sitro said, “I actually took the stroller that I had and put it in front of my son to create a barrier of sorts because I didn’t know what was going to happen.” Alethea Gittings said, “I was scared shitless.” The defense called witnesses who spoke to Penny’s character. (Penny’s lawyers—and the Fox News personality Jeanine Pirro, who sat in the courtroom scribbling on a yellow legal pad most days—referred to the defendant as “Danny” throughout the trial.) Jacqueline Penny, the defendant’s older sister, said, “He was always very sweet to my friends.” Gina Maria Flaim-Penny, his mother, said, “He was always an A-plus student.” Gunnery Sergeant Nathaniel Dunchie said, of Penny’s time in the Marine Corps, “Working with him was a breath of fresh air.” The defense also hired a forensic psychiatrist, a former director of mental health on Rikers Island, who reviewed five thousand pages of Jordan Neely’s medical records:

Q: Would you agree that he was perhaps one of the most severely psychotic individuals that you ever evaluated?

A: I have not evaluated him.

Q: Based on his history?

A: Based on his history, yes.

Each lawyer, then, in his or her own way, played a part in creating a caricature: Danny, the kid in a tough situation trying his best to do the right thing; Mr. Neely, that malodorous man with schizophrenia stoking passengers’ fears on the subway. As the jurors scribbled notes on their court-issued legal pads, their difficult task was to look past these caricatures. That Daniel Penny acted to defend others from a frightening figure on the train was of no legal relevance, from the prosecution’s point of view, given that Neely did not have a weapon or threaten a specific passenger directly. Yoran’s argument was, in part, that Penny acted with “reckless” disregard for Neely’s life, that the deadly choke hold continued long after Penny had rendered Neely unconscious. That Penny—“Danny”—was an upstanding young man trying to protect a woman and child was, on the other hand, of the utmost importance to the defense. Their argument relied primarily on the jury’s fear and sympathy: the police were too slow to arrive—it took them seven minutes and thirty-five seconds after the first 911 call—and Penny was thus legally justified to hold Neely in the choke hold to protect other riders. The defense asked many witnesses from the train whether they ever heard Neely gasping or gagging, or if he said, “I can’t breathe.” (If he couldn’t breathe, then why didn’t he say so?)

The defense also did its best to discredit the determination, made by Cynthia Harris, one of the city’s medical examiners, of the cause of Neely’s death: “Compression of Neck (Chokehold).” If Neely hadn’t died from Penny’s choke hold but from another cause, any other cause, then a reasonable jury would have no choice but to acquit the defendant. Steven Raiser, one of the defense lawyers, who later referred to Penny’s choke hold as “a civilian restraint,” pointed out that Harris made her opinion on the cause of death before the toxicology report, the molecular genetic report, the anthropology report, and the neuropathology report had been reviewed. His insinuation was that she—and her colleagues, including many of the city’s top medical examiners, who also reviewed the case—had rushed to judgment. Raiser asked, “How could you determine whether the results of those tests were unimportant before knowing what the results of those tests were?” Harris said, “No toxicological result would have changed my opinion.” She went on, “He could have come back with, you know, enough fentanyl to put down an elephant, and I would have just thought that he walked onto the subway with a huge amount of fentanyl in his system, and then put in a choke hold, in which he died.” A juror laughed. Jordan Neely’s father lifted his head and sat upright in his seat; an almost-smile crept across his face.

The defense attorneys, for their part, brought forward Dr. Satish Chundru, of theforensicdoc.com, who argued that the cause of Neely’s death was the “combined effects” of the street drug K2, acute schizophrenic psychosis, and physical exertion, which all contributed to a death by sickle-cell crisis, in which one’s red blood cells clump together and stop moving, leading, in this instance, to asphyxiation. (In a pretrial motion in the case of Derek Chauvin, the former Minneapolis police officer who murdered George Floyd, defense attorneys also argued that Floyd died from a combination of drug use and complications from sickle-cell trait, rather than neck compression.) Asked about the purple discoloration in Neely’s face, which Harris had explained as a sign of “congested veins” resulting from “a sufficient amount of pressure” on Neely’s neck, Chundru replied that perhaps Neely had a sun tan. In the men’s bathroom, a white-haired man in a black sweater attending the trial said, of Chundru, “He’s coming off like a gun for hire.”

Several days later, after Thanksgiving, on the first morning of the lawyers’ closing arguments, the chants of protesters could again be heard through an open window. Raiser asked the jurors to picture the jury box as the uptown F: “Imagine for the moment, that you are on that train, too—strangers brought together by faith, much like you are here.” Several jurors fidgeted in their seats as Raiser again described Neely boarding the train—“screaming threats that he will hurt you and even kill you”—and frightening the passengers. He went on, “The subway car falls silent. Where do you go? You go nowhere, because you can’t.” Juror No. 11 scratched his nose.

“You are not here to decide whether you want to ride alone on the train with Jordan Neely,” Yoran said, during her own closing argument. “That’s not what this case is about.” The actual task at hand was to determine, beyond a reasonable doubt, whether Penny’s actions were “reckless” and “not justified,” and Yoran acknowledged that it was a difficult one. “As I’ve said to you all along, this is a hard case,” she said. “It’s hard to find someone guilty of a killing they did not intend.”

As the jurors deliberated, Jordan Neely’s father filed a civil suit against Penny, and Judge Wiley’s regular court docket proceeded: motions were agreed upon, hearings were scheduled, a young Rastafarian man was sentenced to five years in state prison for a firearm charge. “Good luck,” the judge told him. In the jury room, the jurors again watched the Vasquez video, the police body-cam footage, and the detective’s interview of Penny on a court-issued laptop.

On Friday, December 6th, the jurors sent Judge Wiley a note. Despite their best attempts, the twelve Manhattanites—the retired public librarian, the young corporate lawyer, the gray-haired Ukrainian woman who often wore an elaborate hat—could not set aside their differences of opinion to reach a unanimous verdict on the first charge, manslaughter in the second degree. Judge Wiley instructed them to try again—“jury deliberations aren’t intended to be easy,” he said—but, around three o’clock that afternoon, the jurors again announced that they were deadlocked. The defense moved for a mistrial; Yoran responded with a motion to dismiss the manslaughter charge, and, over the defense’s strong objection—in a move criticized by some legal scholars, several right-wing commentators, and even Elon Musk—the judge instructed the jury to consider the lesser charge, criminally negligent homicide. The following Monday, the jurors returned to the courthouse to deliberate.

At around 11:30 A.M., they filed into the courtroom, and the jury foreperson announced that Penny had been acquitted. Several people in the gallery broke into applause, and Judge Wiley shouted, “Quiet!” Neely’s father stared ahead blankly, then looked around the courtroom, in disbelief. Penny grinned. Still, the case that had divided New York City for more than a year and a half would continue to divide it. To some, Penny was a triumphant hero; others saw a villain let go. The jurors, for their part, filed out of the courtroom and, perhaps, boarded the subway home. ♦