The prosecution’s main argument in the trial of Daniel Penny, the Marine veteran who fatally choked a homeless Michael impersonator, Jordan Neely, on a New York subway last year is that Mr. Penny held the chokehold too long. time. As the trial enters its fourth week, an expert is due to testify on the matter soon.

Last week, witnesses spoke of the terrifying moment street artist Neely boarded a northbound F train and began yelling that he was hungry, thirsty, ready to go to jail and even ready to die. Witnesses gave conflicting accounts of whether Neely threatened to kill the passengers in the train car. Mr. Penny’s lawyer, Thomas Kenniff, who spoke to reporters on Friday, said the testimony proved his client “got up when other people ran” and “did something to protect” other subway passengers when he decided to put Neely in a chokehold and restrain him on the floor of the subway car.

The racially charged case — Neely was black and Mr. Penny is white — drew protesters from groups such as Black Lives Matter and the Rev. Al Sharpton’s National Action Network, who spoke at Neely’s funeral. Protesters are demanding that Mr Penny be punished. Mr. Penny, on the other hand, has been the beneficiary of protests on his behalf from residents of Long Island, where he is from. Supporters across the country have raised more than $3 million for Mr. Penny’s legal fees.

Mr. Penny is charged with second-degree manslaughter and negligent homicide in the death of Neely, who died on that tragic day of May 1, 2023. Combined, the charges carry a maximum of 19 years in prison. Mr Penny’s defense team argues that he did not intend to kill Neely, but instead tried to defuse what he believed to be a dangerous situation and prevent an unpredictable assailant from causing serious injury.

In her opening statement, Assistant District Attorney Dafna Yoran, who is prosecuting the case for Manhattan District Attorney Alvin Bragg, agreed, saying, “The defendant did not intend to kill. His original intention was indeed laudable, to protect other subway riders from a man he perceived to be a threat. But under the law, deadly physical force, such as choking, is permitted only when absolutely necessary and only for as long as absolutely necessary. And here, the defendant went way too far.”

Video footage, recorded by freelance journalist Juan Alberto Vazquez, which was shown to the jury, shows that Mr Penny did indeed hold Neely for five minutes and 53 seconds. Moreover, it showed that the subway had already reached the next station, that the doors were open and that the passengers had left the subway car. That way, the prosecution argued, there was no longer any danger of being stuck on a moving train with an aggressive man, whom witnesses described as “threatening”, some saying he made them fear for their lives and had no need mr. Penny to keep the victim going.

Reverend Ronald McHenry, who spoke on behalf of the victim’s family and represents Mr Sharpton. National Action Networktold reporters on Friday: “We have to understand that chokeholds should never be used. Deadly force was used in this case and should never be used. If we go back a few years, Eric Garner was choked by the police, and we have the Eric Garner law, because we decided as a city that it shouldn’t be used.

Mr. McHenry was referring to the Eric Garner Anti-Chokehold Act, a New York state law that makes it a Class C felony for police officers to injure or kill someone in a chokehold or similar restraint. The law was passed by the state assembly in 2020 and signed into law by Governor Andrew Cuomo. The penalty for violation is up to 15 years in prison.

Eric Garner died in 2014 after being pulled over by police on Staten Island for illegally selling individual cigarettes. An officer, Daniel Pantaleo, choked Garner for resisting arrest, according to the NYPD. Before he died, Garner said the words, “I can’t breathe,” eleven times. They became a rallying cry for Black Lives Matter movements across the country.

Despite nationwide protests, Mr. Pantaleo was not charged in the case (although he was eventually fired years later). But unlike Mr. Pantaleo, who was an acting police officer when he detained Garner, Mr. Penny was a citizen when he detained Neely.

“So who are we talking about here?” Mr. McHenry told reporters outside Manhattan Criminal Court on Friday afternoon. “We’re talking about Daniel Penny… He’s not an officer. He has no authority whatsoever to do what he did that day. He decided to take justice into his own hands… That’s what the case is about. He had no authority to do what he did that day and we are facing the family’s anger.” The reverend made his remarks while sitting next to Neely’s uncle, Christopher Neely.

In her opening remarks, Ms. Yoran addressed the issue of suffocation in detail. “A choke is something that all Marines, like the defendant was for four years, are trained for,” she said, referring to Mr. Penny’s time in the Marine Corps, from which he was honorably discharged.

“You will learn that the defendant earned his green belt in the Marine Corps. martial arts program, which is the third level up,” she explained. “Choke is now taught for situations where you want to disable your opponent temporarily, but not kill them… Your opponent will pass out. You’ll let go, and that will give you the tactical advantage of otherwise holding him back in the few seconds he has to come back; that is the purpose of a choke.”

Ms Yoran argued that Mr Penny acted recklessly when he held the chokehold because he should have known that force could be deadly when applied for too long. The defense countered in its opening statement that Mr. Penny had no intention of removing Neely.

“But Danny,” argued Mr. Kenniff, referring to his client, “he had no interest
rendering Mr. Neely unconscious, even though it would do him no harm, his purpose in using the hold was – simply to keep him under control until the police arrived and took over, something that took longer than anyone on that train would have expected.

The defense also argued that Mr Penny tried to hold Neely in a harmless chokehold, saying witnesses would “use terms like safe, respectful and non-aggressive to describe how Danny tried to subdue Neely Jordan Neely”.

On Friday, the defense showed body camera footage from NYPD Officer Jonathan Tand during cross-examination of one of the witnesses, during which a woman told the officer that “the guy … took him down very respectfully.” That woman was Caedryn Schrunk, who is originally from the Midwest and works for the sports brand Nike. She testified earlier as the Sun reportedthat Neely was “having a mental breakdown” when she boarded the train and was “making life-threatening demands on herself,” saying, according to her, “”I don’t care if I die. I don’t care if you die. Kill me, lock me up.” Ms Schrunk described the outburst as “satanic” and confessed: “There was a moment when I really thought I was going to die.”

Prosecutors are not denying Neely’s frightening behavior. They are the ones who, interestingly, call these witnesses, who were in the train when the tragedy unfolded. But they are asking every witness if Neely touched anyone or physically assaulted anyone or if he carried a gun, which he did not. However, the prosecution strongly disagrees with how Mr. Penny applied the chokehold and claims that after being trained in the Marines, he “was aware of the risk he posed to Jordan Neely’s life by holding him in a chokehold for nearly six minutes, including the 51 seconds after he was unconscious.”

Ms. Yoran announced in her opening remarks that the prosecution would call to the witness stand the martial arts instructor who trained Mr. Penny during his service in the Marines. It is unclear when the prosecution will call this witness. But as the trial heads into its fourth week, it’s highly likely that experts will start taking the stand soon.

The trial continues on Tuesday and is expected to last until December 9.