‘Most New Yorkers’ have opinions on subway crime. Does that affect Daniel Penny’s jury?

A retired lawyer who lives in Yorkville with her husband and their mini golden retriever. A Lincoln Center woman who works in marketing and teaches yoga. An East Village software engineer who reads the New York Times and plays video games.

These are some of the Manhattanites who will decide whether a former Marine is guilty of manslaughter and criminally negligent homicide for putting a homeless man in a chokehold on an uptown F train in May 2023. Prosecutors, defense attorneys and a Manhattan judge spent nearly two weeks selecting 12 jurors and four alternates for the high-profile trial of Daniel Penny, the 26-year-old white man charged in the death of Jordan Neely, a 30-year-old Black man with schizophrenia. The final jurors were selected Wednesday, and their identities will be kept anonymous. Opening arguments are slated to begin Friday morning.

Penny has said Neely was yelling on the subway and that he was trying to subdue Neely — not kill him — and protect scared passengers. Prosecutors argue that Penny was reckless with Neely’s life. A video that captured several minutes of the chokehold went viral and became a Rorschach test, with some praising Penny as a hero for scared subway riders and others protesting the death and urging prosecutors to bring charges.

The case touches on some of the most personal and politically charged issues facing New Yorkers: subway safety, homelessness, mental illness and race, to name a few. Over days of intense questioning, Justice Maxwell Wiley and attorneys on both sides prodded dozens of people on their personal experiences and deep-seated beliefs, in the hopes of finding 12 jurors and four alternates who can hear the evidence with an open mind and reach a just verdict.

“What we need is your unequivocal assurances that you can be a fair and impartial juror in this case,” Assistant District Attorney Jillian Shartrand told prospective jurors on Monday. “Can you assure us?”

Many nodded their heads and pledged to follow the facts and the law as attorneys repeatedly asked them versions of this question. Others wavered as they shared personal stories of harassment on the subway or praised family members who served in the military.

“I don’t know if I could be impartial to this,” said one native New Yorker who lives in Midtown East with her cat. “Sometimes I feel like people should step in when they see a woman getting harassed.”

She was dismissed soon afterward.

More than 100 prospective jurors streamed through Wiley’s 13th floor courtroom in Lower Manhattan, some reading books as they waited for their numbers to be called, others leaning forward in their seats and listening intently to the questioning. Reporters and members of the public, including Neely’s father, filled the few extra seats at the back of the courtroom. At the front, Penny sat quietly beside his defense attorneys, his neck craned toward the jury box to watch the questioning.

Assistant District Attorney Dafna Yoran described Penny to prospective jurors as a “nice young man” with “very good” intentions.

“But,” she said Tuesday, “he went way too far. He went way too far and unnecessarily and unjustifiably took another life. And that is what you are being asked to consider.”

Penny’s defense attorneys frequently referred to their client as “Danny” and emphasized that he is presumed innocent. They also hinted at other potential causes of death they may mention at trial, including, they said, that Neely had sickle cell trait and that he may have had drugs in his system when he died. They described Neely as “threatening” and “menacing.” The lawyers also urged potential jurors not to rush to a verdict if their deliberations last into the Thanksgiving holidays.

“I don’t think it gets much more serious than what’s going on in this courtroom,” defense attorney Thomas Kenniff told the prospective jurors.

‘Most New Yorkers have experienced that’

After the judge spent several days winnowing down the jury pool to those who could sit in court for six weeks straight, he asked one prospective juror after the next the same set of questions. Some inquiries were more benign, like questions about where the jurors live and whether they’d ever served on juries before. Others were more closely related to the case.

Wiley asked everyone whether they ride the subway — and if so, how often. Many said they use public transit frequently, while one Chinatown resident said he stopped taking the train during the pandemic. A SoHo man said he hadn’t ridden the subway since the 1980s.

The judge also asked the subway riders if they had ever witnessed an outburst or felt personally harassed or threatened. Many said yes, and some shared stories of people yelling at or near them or shoving them.

“Most New Yorkers have experienced that at least once in their life,” said one man who told the judge he’d felt threatened on the train, but not particularly scared, and moved to another car at the next stop.

A woman who lives in Chelsea said someone hit her on the subway a year ago and that the experience would affect her ability to be fair. She was dismissed.

Because Penny was in the Marines, Wiley asked everyone if they or anyone close to them had ever served in the military. Several said they were veterans or mentioned family members who had served. Kenniff asked if anyone might be biased for or against Penny because of his service. One prospective juror with a relative in the Marines said: “No, sir.”

The judge also asked everyone if they had personal connections to drug addiction, mental illness or homelessness. A host of prospective jurors said they did. One Upper West Side woman told the judge her niece has been hospitalized for psychotic breaks. A Harlem man said his son is in therapy and had twice been arrested for driving while impaired. A military veteran who now lives on the Lower East Side said she had been homeless in the past. None of them made it onto the jury.

Because Penny is white and Neely was Black, race has also been part of the discourse about the case and was discussed during jury selection. On Wednesday morning, prosecutors accused Penny’s attorneys of illegally striking people of color from the jury, according to pool reports. Prosecutors said eight of the nine people the defense had screened out for discretionary reasons were people of color. It’s prohibited for jurors to be removed based on their race.

Penny’s lawyers called the allegation “outrageous” and provided reasons other than the prospective jurors’ races, including that a man affiliated with the Green Party might not be favorable to their case and that a woman who was homeless might sympathize with Neely, according to pool reports.

The judge decided to let the strikes stand, and the questioning continued.