MANHATTAN (CN) — The straphanging habits of everyday Manhattanites took center stage Friday at the manslaughter trial of Daniel Penny, the ex-Marine facing charges of choking Jordan Neely to death on a New York City subway last year.
It was the fifth day of an arduous jury selection process in what’s expected to be a polarizing trial. After nearly a week of narrowing down the jury pool based purely on schedule availability, New York Supreme Court Justice Maxwell Wiley on Friday started the voir dire process.
The judge prodded at the prospective jurors’ experiences riding New York City transit, with a vast majority of them having their own tales about taking the train.
“Somebody tried to take my jacket once,” said one potential juror, a retired SoHo resident who was later excused. “Very minor. I told him to get away and that was it.”
Another possible juror recalled a time when he saw a “homeless person” get upset at a woman on the train for not responding to his “hello.” He also harked back to when he used to take the subway in the late 80s, when he said he encountered “aggressive panhandlers” at the stations. These days, he said he doesn’t ride the subway too often.
“I’ve heard of some criminal violence,” said another prospective juror, originally from South Korea, who told the court that he mostly takes Ubers to get around the city.
These past subway encounters could prove to be critical in a case where the jury must decide how threatened the other passengers felt on the train with Neely. Penny claims that Neely was threatening to kill other riders when he boarded a Manhattan-bound F train last spring, prompting him to grab Neely from behind with a chokehold to defend other passengers.
“I’m not trying to kill the guy,” Penny told detectives after the incident.
Neely was yelling and pacing up and down the train car, according to court records and eyewitnesses, but precisely what he said will be scrutinized at trial. A criminal defense attorney told Courthouse News last week that if Neely didn’t make explicit threats to kill other passengers, then Penny has an uphill battle to skirt his second degree manslaughter charge.
Prosecutors at the Manhattan District Attorney’s office agree that Neely was acting unruly on the train car and that Penny didn’t mean to kill him. They even acknowledge that Penny’s intention was to protect others on the subway. Rather, prosecutors aim to prove that Penny acted excessively in his attempt to subdue Neely, and recklessly caused the 30-year-old’s death.
“We’re not alleging, and we don’t have proof, that the defendant intended to cause death,” prosecutor Dafna Yoran told the prospective jurors Friday. “In fact we know that he didn’t. He did not intend to cause death … He’s charged with being reckless with someone else’s life.”
Yoran reminded the panel that they need to cast aside any sympathy they might have for Penny.
“I suspect you’re going to hear nice things about him,” she said.
On the flipside, Yoran told the potential jurors that they’d need to disregard certain details about Neely’s life to ensure a fair verdict. She said that Neely suffered from mental illness and self-medicated with K2, a synthetic cannabinoid. Numerous reports suggest that Neely, a fixture in the Times Square transit hub known for his Michael Jackson impersonation, was also experiencing homelessness at the time.
“Maybe some of you secretly might even think: ‘Well, so he died — not a great loss to society,’” Yoran said, as members of Neely’s family watched on from the back of the courtroom. “Under the law, all life is valued the same.”
One juror, a software engineer residing in the East Village, expressed concern over Neely’s history of drug use.
“You don’t really know what a person’s going to do on K2,” he said. “Not that he deserved it.”
Toxicology reports revealed that Neely had K2 in his system at the time of his killing. But his cause of death was ruled a homicide caused by compression of the neck.
Of the 20 potential jurors questioned on Friday, four were excused so far and none were officially seated. Wiley asked each of them if they’ve ever seen another person have an “outburst” on the train, and most agreed that they had. Roughly half of the possible jurors also said that they’ve been harassed or felt threatened personally while riding city subways.
Twelve jurors will need to be seated before testimony can begin, and Wiley hopes to seat around four alternates to boot.
The jury will be anonymous, Wiley ruled this week. Prosecutors told the court that all parties have been experiencing threats for months in the high-profile case. Shielding the jurors’ identities, Wiley said, would be “wise.”
Penny faces charges of second-degree manslaughter and criminally negligent homicide. He pleaded not guilty in January.
