The Marine veteran accused of killing a homeless man on the subway in the spring placed him in a chokehold for approximately six minutes, according to legal papers filed by prosecutors on Wednesday.
In a 32-page motion, the Manhattan district attorney’s office offered one of the clearest pictures yet of what they say happened inside the uptown F train where Daniel Penny, 25, choked Jordan Neely, 30. Footage of the fatal chokehold went viral, and the killing sparked protests and calls for better treatment of New Yorkers like Neely, who are homeless and have serious and untreated mental illness. Penny got his own groundswell of support, with a legal defense fund established on his behalf raising almost $3 million.
A grand jury indicted Penny on charges of manslaughter and criminally negligent homicide. He has pleaded not guilty. Steven Raiser, Penny’s attorney, said in a text message that he plans to file a reply in the coming weeks “to correct much of the misstatements of law and fact” in the prosecution’s motion.
Assistant District Attorney Joshua Steinglass wrote in legal papers that witnesses on the subway that day generally agreed that Neely got on the F train at Second Avenue on the Lower East Side. Right away, he started yelling about being homeless, hungry and thirsty, Steinglass said. Most witnesses also recalled he said something about being willing to go to jail or prison, he said. From there, Steinglass said, their stories diverged.
Some witnesses who testified before the grand jury said Neely threatened to hurt people, while others did not, according to Steinglass.
Penny’s defense attorneys have said that fear justified their client’s actions and that he was acting to protect himself and others. In their own legal motion filed last month, they noted witnesses who said in the grand jury that they were genuinely afraid, including one woman who said she had encountered many things in the years she has ridden the subway, “but nothing that put fear into me like that.”
But Steinglass said that argument ignores many other accounts from witnesses who said they didn’t feel afraid when Neely was yelling.
“For me, it was like another day typically in New York,” one witness told the grand jury, according to the DA’s motion. “That’s what I’m used to seeing. I wasn’t really looking at it [as] 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.”
Another witness testified that outbursts on the subway are “common.”
“I didn’t feel personally threatened by it,” the witness said.
A third witness quoted by prosecutors told the grand jury that he sees similar behavior “all the time.”
“I wasn’t really worried about what was going on,” the witness testified.
Steinglass said several witnesses described Neely’s actions as “erratic.” But no one said he came into physical contact with anyone before Penny grabbed him, according to prosecutors.
“Whatever the nature of Mr. Neely’s words and actions, his arguable provocation spanned considerably less than 30 seconds,” Steinglass wrote.
The prosecutor then described in detail what he believes happened to Neely once Penny put him in a chokehold, based on eyewitness accounts and video. According to Steinglass, Penny approached Neely from behind, grabbed him around the neck and took him to the ground. Then, while underneath Neely, he wrapped his arms and legs around the man so he couldn’t get away.
Shortly after, according to Steingold, the subway pulled into the Broadway-Lafayette station and most passengers got off. But Penny kept Neely in the chokehold for several more minutes, including for about a minute after Neely stopped moving, other than an occasional twitch. Penny kept his arms around Neely’s neck even after someone told him, “If you don’t let him go now, you’re going to kill him,” according to an eyewitness video cited by the DA’s office.
Eventually, prosecutors say, Penny let go of Neely. One of two men who helped to hold Neely’s arms rolled him onto his side, and a witness described seeing a pinkish liquid spill out of his mouth. Several minutes later when police arrived, Penny told an officer that Neely “came on the train threatening people. I put him out,” according to prosecutors.
In a videotaped interview at the Fifth Precinct that day, Penny told police that Neely got on the train and threw his jacket.
“He’s like, if I don’t get this, this, and this, I’m gonna, I could go to jail forever. He was talking gibberish,” Penny said, adding: “These guys are pushing people in front of trains and stuff.”
Penny also told police he initially “wasn’t really paying attention” to Neely, whom he described as “just a crackhead,” but decided to act after he heard Neely use language that he characterized as “threatening.”
Police let Penny go after the interview — a decision that many criticized as more than a week passed before he was arrested and charged. Prosecutors now say Penny was released because police did not yet have any video of the encounter or an autopsy.
Prosecutors also revealed that one of Penny’s former trainers from his time in the Marines testified before the grand jury about the chokehold training he received. The trainer told grand jurors that the method is meant to be used as a form of nonlethal restraint but that students are specifically told that chokeholds can be fatal. Prosecutors also cited an excerpt from a Marine Corps training manual that warns techniques “can cause serious injury or death.”
Prosecutors argue that because of the training Penny received in the military, he should have known that placing Neely in a chokehold with as much force as he did for several minutes could kill him.
“The notion that death is not a foreseeable consequence of squeezing someone’s neck for six minutes is beyond the pale,” Steinglass wrote.