A Manhattan prosecutor admitted Friday that it may be hard for jurors to convict former Marine Daniel Penny of “recklessly” choking mentally ill subway busker Jordan Neely to death on a crowded train.
“This is not an easy case… of a bad man doing a bad thing,” Assistant District Attorney Dafna Yoran told a group of 16 prospective jurors who may be chosen to decide if Penny is guilty of manslaughter and criminally negligent homicide in the May 2023 caught-on-camera killing.
Penny, 25, craned his neck and stared at the potential panelists as Yoran explained that prosecutors won’t argue that he intended to kill Neely, 30, when he placed him in a chokehold for more than six minutes on a northbound F train as it approached the Broadway-Lafayette station.
“It’s not easy finding someone guilty of killing somebody when you know they didn’t mean it,” Yoran said during the fifth day of jury selection in Manhattan Supreme Court.
Yoran also asked the group if they could decide on the legal issues in the case even after hearing “nice things” about Penny, including that he served in the US Marines for four years.
“You’re not here to judge the defendant as a person … You are here to figure out what happened and did he commit this crime,” she said.
The prosecutor noted that the tragic episode started after the unarmed Neely, who suffered from mental illness and “self medicated” with the synthetic marijuana drug K2, was “acting erratically and menacingly” toward straphangers before Penny restrained him.
“So he’s the one who really set into motion,” Yoran said, of Neely. “It could be tempting to think he brought this upon himself and he’s responsible for his own death.”
But “under the law, all life is the same,” the prosecutor said.
After being questioned by Justice Maxwell Wiley and the DA’s Office, more than a half dozen of the potential jurors also said that they’ve felt “personally threatened” while riding city subways.
One prospective juror, an older white man who lives in Battery Park City, said he experienced “aggressive panhandling” in the 1980s.
Another possible panelist, a younger black man who moved to the New York from Atlanta three years ago, was later asked whether he could, if the evidence supports it, find that Penny was “reckless and unjustified” in his actions.
He seemed uncertain in his answer.
“It’s two people, but it’s one that you don’t really know in the moment what the person is going to do,” he responded.
No jurors have been chosen yet to serve on what’s expected to be a six-week trial.
The process will continue on Monday, with Penny’s attorneys getting their chance to question potential jurors.
Penny faces up to 15 years in prison if convicted of the manslaughter charge.