Jurors in Daniel Penny case ask to rewatch subway chokehold video, precinct interview

A Manhattan jury continued deliberations on Wednesday in the case of Daniel Penny, who is accused of choking Jordan Neely to death on an uptown F train last year — and the members requested the opportunity to review key evidence in the case.

Jurors sent a note to the judge shortly before 11 a.m. on Wednesday asking to rewatch a bystander video that recorded Penny keeping Neely in a chokehold on the floor of an uptown F train for several minutes. They also asked to see a compilation of body-worn camera videos from officers who responded to the incident at the Broadway-Lafayette Street subway station on May 1, 2023, and a video of Penny’s interview with detectives at a nearby precinct several hours later.

Penny is charged with manslaughter or criminally negligent homicide, and faces a maximum of 15 years in prison if he’s convicted of the top charge against him.

Jurors started deliberating on Tuesday afternoon. They must decide whether Penny caused Neely’s death, whether he knew or should have known he was endangering Neely’s life and whether his actions were justified.

Prosecutors have argued that Penny went “way too far” and killed Neely by holding onto his neck for longer than necessary. Penny’s attorneys say he was trying to protect himself and fellow passengers, and argued that Penny’s actions may not have directly caused Neely’s death.

As jurors deliberate, Neely’s father and dozens of members of the press and public have filled the seats of the 13th-floor courtroom. Penny, his lawyers and the prosecutors have mostly been waiting for a verdict elsewhere, only returning when there’s an update from the jury.

After jurors asked to review the video evidence on Wednesday morning, defense attorney Thomas Kenniff told Justice Maxwell Wiley he was concerned about a security incident when the defense team pulled up to the courthouse that morning. He said a member of the public tried to block the car and was “repeatedly berating Mr. Penny with violent and homophobic slurs.” Kenniff also said he was worried that jurors may have heard the interaction, because the deliberation room is within earshot of the court entrance.

The judge said he didn’t want to move the jurors because he didn’t want them to think they were in danger. He has instructed them to ignore what they hear outside the courthouse. A small group of protesters has gathered outside the Lower Manhattan courthouse throughout the trial, demanding justice for Neely’s death. Their chants are often audible through the windows.

Security inside the courthouse has been tight. Penny has arrived each day with a team of private security guards. Court officers also block off the hallway while he enters the courtroom.

A spokesperson for the Office of Court Administration did not immediately respond to a request for more information about what happened outside the courthouse on Wednesday or whether Penny, prosecutors or others involved in the case have received any threats.

Around 3 p.m., jurors sent a note requesting to listen back to a portion of testimony from Dr. Cynthia Harris, the medical examiner who performed Neely’s autopsy. They asked to hear her cross-examination up to the point where some recalled her saying, “I don’t need all the facts.” But attorneys couldn’t find that phrase anywhere in the transcript, and jurors were instructed to reformulate their question.

About 15 minutes later, jurors sent a revised request to hear Harris’ cross-examination, including a portion where she said she wouldn’t have changed her mind about Neely’s cause of death even if drug testing had shown fentanyl in his system. They also wanted to listen back to an exchange where she said she had told the grand jury she didn’t know if she had observed Penny exerting “sufficiently consistent pressure” on Neely’s neck in the video to kill him.

For about 30 minutes on Wednesday afternoon, two court reporters read back that excerpt of the transcript, with one acting as Harris and the other as Penny’s defense attorney. Several jurors scribbled notes in their legal pads.

Deliberations are expected to continue on Thursday morning.

This story has been updated with additional information.