Scared passengers and cellphone searches: what records show about NYC subway chokehold case

New court documents provide a window into both sides of the legal case against Daniel Penny, the Marine Corps veteran accused of fatally choking a homeless Black man on the subway in May.

Penny, 24, was charged with manslaughter and criminally negligent homicide after he held Jordan Neely, 30, in a fatal chokehold while fellow passengers watched. He has pleaded not guilty.

The central question of the court case is whether Penny’s actions were legally justified. Prosecutors say they were not. But Penny and his lawyers have said he didn’t mean to kill Neely, and that he and other subway riders felt physically threatened by Neely’s behavior.

The killing, which was caught on video and shared on social media, divided the city and ignited a fierce debate about how the city should treat homeless people and those with serious and untreated mental illness. Police questioned Penny immediately after the incident but let him leave the scene.

Protesters filled subway platforms and at one station even jumped onto the tracks in the days before Penny was arrested, urging prosecutors to act. When news broke that criminal charges were looming, donations to an online legal fund flooded in, including from prominent conservative politicians and influencers.

In recent months, attorneys on both sides of the case have been turning over evidence and filing motions in the case, arguing over what materials should be seen and heard by a jury if no plea deal is reached and the case goes to trial.

To make their case, prosecutors will have to convince a jury that Penny acted “recklessly,” and that his actions were a “gross deviation” from those of a “reasonable person,” according to state law. A criminally negligent homicide conviction would require jurors to believe that Penny took an “unjustifiable risk” that caused Neely’s death.

“The whole thing in this case is going to be: was Daniel Penny’s actions reasonable?” said Todd Spodek, a defense attorney who reviewed the motion for Gothamist but is not representing Penny.

A spokesperson for Manhattan District Attorney Alvin Bragg declined to comment on the pending case and said the office will respond to Penny’s motion to dismiss in court papers. But a list of the materials that prosecutors have turned over to defense attorneys, reviewed by Gothamist, offers a hint at the case the DA’s office is building against Penny.

A judge has ordered discovery materials in this case to be kept under seal, which sometimes happens in high-profile cases to prevent sensitive information from leaking to the public and potentially tainting the jury pool. That means many of the details about what happened on the subway that day and the lives both Neely and Penny led before their chance encounter are still unknown.

The discovery log mentions interviews with police and a slew of NYPD records, including arrest paperwork, body-worn camera notes and officer memo books. It also lists records from Neely’s visits to different hospitals in the city.

Prosecutors turned over notes and reports related to at least two “prior incident” witnesses, though the log does not specify the nature of those prior incidents and whether they involved Neely or Penny. The log also mentions cellphone video and photographs, as well as prosecutors’ notes from conversations with at least 17 different eyewitnesses.

The DA’s office has also delved into Penny’s history, according to the discovery log, which lists his education records, social media searches, phone searches and military records.

“Daniel Penny’s own thoughts, feelings and beliefs are relevant to this investigation as such communication may elucidate Daniel Penny’s state of mind and/or motive and intent, on the date of the crime,” law enforcement said in application for a warrant to search his phone, according to an excerpt cited by Penny’s attorneys in a recent legal filing.

A 52-page defense motion filed this month asks the judge to toss the case against Penny altogether.

The motion hinges on Penny’s argument that he used a reasonable amount of force to protect himself and others on the subway. Penny’s lawyers cite accounts from eyewitnesses who described Neely’s behavior as “sickening,” “satanic” and “absolutely traumatizing.”

“I have been riding the subway for many years,” one woman told the grand jury, according to the motion. “I have encountered many things, but nothing that put fear into me like that."

The defense could ask those witnesses to testify at trial, with the aim of convincing jurors that Penny and others on the subway felt threatened.

Penny’s attorneys also questioned whether there is enough evidence to prove that the chokehold caused Neely’s death. They tried to poke holes in the medical examiner’s grand jury testimony, arguing that she didn’t say definitively that Neely died from asphyxiation.

At the end of the motion, Penny’s attorneys asked the judge to suppress information gathered when prosecutors searched Penny’s cellphone and iCloud account. They said prosecutors missed the 10-day time limit to execute their search warrant and that they lacked sufficient probable cause to get a warrant in the first place.

Two defense attorneys who are not connected to the case said the motion is a routine filing that is unlikely to result in the case’s dismissal.

Spodek, one of those attorneys, said besides giving defense attorneys a chance to dispute what evidence will be used against their client, motions like these can also help the defense to learn more about the case, because prosecutors will have to lay out some of their own arguments in response.

Bina Ahmad, a former New York City public defender who is now a senior attorney at Civil Rights Corps, said what mainly struck her about the otherwise typical step in the defense process is that Penny has been able to craft his defense while out on bail, instead of while incarcerated. That means he can more easily meet with his attorneys, and his phone calls aren’t recorded like those made from jail, she said.

“None of my clients ever benefited from the numerous privileges Mr. Penny benefits from now,” Ahmad said in an email.