Prosecutors are trying to ban testimony at Daniel Penny’s upcoming trial that would detail Jordan Neely’s psychiatric history and chronic abuse of the drug K2 — something Penny’s lawyers argued “goes to the heart of any justification defense” in the lightning-rod subway chokehold case.
Defense attorneys for the ex-Marine — who faces manslaughter charges for allegedly choking Neely to death on a Manhattan train car in May 2023 — want forensic psychiatrist Dr. Alexander Bardey to testify about Neely’s abuse of the synthetic cannabinoid at next month’s trial.
They also want to introduce Neely’s voluminous psychiatric records, which include 6,000 pages’ worth of material that detail the homeless man’s family history, surgeries, prior “bad acts” and more, according to court documents.
Prosecutors from the Manhattan District Attorney’s Office said in a recent filing that the testimony and records would only serve to batter Neely’s reputation before the jury.
“Their suggested introduction is a transparent attempt by the defense to smear the victim’s character so that the jury will devalue his life,” Assistant District Attorney Dafna Yoran wrote about the defense’s request.
The doctor’s proposed testimony about Neely’s past volatile behavior and aggressive tendencies is “clearly impermissible” because it’s not related to the fatal encounter, the prosecutor wrote.
“The only thing relevant to the justification defense is the victim’s behavior at the time of the incident,” Yoran continued.
“Numerous witnesses will testify regarding Mr. Neely’s aggressive behavior on the date of the incident. The jury does not need and cannot be permitted to hear Dr. Bardey’s opine as to why Mr. Neely was aggressive.”
In a response dated Tuesday, Penny’s attorney, Thomas Kenniff, wrote that the defense had no intention of trying to smear Neely’s reputation in open court.
“Instead … it is the Government’s motives that should be examined, as they seek to impede the jury’s truth-seeking function by suggesting that jurors be barred from considering facts relevant to issues material to this case,” Kenniff wrote in the filing.
The attorney also argued that the testimony and evidence would “demonstrate that Mr. Neely was likely under the influence of K2 and experiencing a psychotic episode when he boarded the Queens-bound F train on May of last year, the manifestations of which made his appearance and affect more pronounced and hence more threatening to Mr. Penny and his fellow riders.”
That information, he continued, would “inform the jurors’ understanding as to the plausibility of the witness accounts and the degree of hostility that Mr. Neely exhibited.”
Neely’s toxicology reports confirmed he had K2 in his system when he died, Kenniff said. But the report didn’t say how much was present.
The expert testimony would show that Neely was using the drug right before his fatal encounter with Penny, and that he was showing the same behavioral traits of someone mired in the throes of a K2 high, the attorney said.
“Mr. Neely’s actions at the time of this incident, when viewed through the lens of his treatment history, suggest that he was off his medications, abusing K2, and experiencing a psychotic episode,” the attorney wrote.
“Concepts like proportionality, de-escalation and, of course, reasonableness, are woven into the very fabric of this case,” Kenniff continued.
“It is impossible for the jury to fairly weigh the evidence, and to afford Mr. Penny the fair trial he is constitutionally guaranteed, unless permitted a full understanding of the aggression, irrationality and terror that Mr. Neely was manifesting.”
Penny, a former infantry squad leader, was indicted on charges of second-degree manslaughter and criminally negligent homicide for the caught-on-camera confrontation that left Neely dead on the floor of a Manhattan F train.
Penny’s attorneys had tried to get the case dismissed in October, claiming there were issues with the prosecutors’ instructions to the grand jury and that the city medical examiner never conclusively established that Penny’s actions killed the homeless man during the struggle.
But Manhattan Supreme Court Justice Maxwell Wiley waved that off, ruling the examiner’s testimony and Neely’s death certificate were more than enough to “establish that [the] defendant’s actions caused the death of Neely.”
Penny — who is free on $100,000 bail — faces up to 19 years behind bars if convicted of killing Neely, who witnesses say launched into an explosive tirade during a train ride on May 1, 2023.
A former Michael Jackson impersonator, Neely had a lengthy history of mental illness and was allegedly threatening other straphangers before Penny stepped behind him and sunk the chokehold that eventually killed him, according to the medical examiner.
Penny has said he didn’t mean to do it.
But he thought he needed to step in and shield his fellow subway riders from Neely, who witnesses say was tossing trash and screaming that he was willing to “kill a motherf—er” and go to jail.
A lawyer for Neely’s family said earlier this year that Neely was riding the train unarmed and asking for food that day.
“He had no gun, he had no knife, he was hungry,” attorney Lennon Edwards said. “In his desperation, he was emotional. But distress does not mean dangerous.”
“So we’re asking you to keep an open mind — and remember the pain that this family is suffering.”
The trial is expected to start Oct. 21.