In coming weeks, a jury in Manhattan will decide whether a 26-year-old former Marine should go to prison for putting another man in a fatal chokehold on the subway and squeezing his neck for about six minutes.

Daniel Penny will go on trial this month on charges of manslaughter and negligent homicide in the death of Jordan Neely, a homeless man who witnesses say shouted that he was hungry and ready to go to jail while boarding a ship in May 2023 F train in uptown. Manhattan prosecutors say Penny should have known the chokehold could endanger Neely’s life. Penny’s lawyers say he was trying to help subway commuters who felt unsafe, and that he did not mean to hurt or kill anyone.

A video showing several minutes of the chokehold and its aftermath went viral after Neely’s death, underscoring the deep rifts in the debate over homelessness, mental illness and subway safety. Some called Penny a hero and donated to a multimillion-dollar legal defense fund, while others characterized him as an overzealous vigilante.

As Penny’s trial gets underway this month, legal experts say, prosecutors will likely try to convince jurors that his individual actions for a few minutes caused Neely’s death — and that he went beyond what a reasonable person would do. Penny’s lawyers, on the other hand, will have to convince jurors that his actions were justified. To that end, experts expect one key witness will play a key role in Penny’s case: New York City’s public transportation system.

Fears of subway crime have persisted on public transportation in recent years, especially after ridership declined during the pandemic. A handful of high-profile acts of violence by people with serious mental illness on subway platforms and in train cars have also raised concerns — even as researchers have found it is uncommon for people with serious mental illness to commit violent crimes.

Legal observers say jurors’ perception of the subway’s safety will likely be a key factor in the case. Jurors will have to determine whether it’s reasonable for commuters like Penny to take matters into their own hands when they feel unsafe on the nation’s largest subway system.

“The subway is a microcosm of all this,” said Todd Spodek, an attorney not involved in the case. “You are not in a large area where you can just walk away. You’re stuck.”

The Manhattan district attorney’s office declined to comment on their legal strategy for the lawsuit. One of Penny’s attorneys, Steve Raiser, said in a text message that their case will focus on the government’s failure to address mental health and homelessness in the metro.

“The (g)overnment failed Mr. Neely and every passenger on that train,” he said.

The Prosecutor: Zooming in on Penny’s decisions

There’s still a lot we don’t know about the moments that led to Neely’s death. But according to court papers, Neely boarded an uptown F train at 2nd Avenue on the Lower East Side, threw away his jacket and screamed. Witness accounts to the grand jury varied, but several people on the subway that day said Neely said he was hungry and thirsty. Some said Neely shouted that he was willing to die or go to prison for life if he didn’t get what he wanted. Penny then put his arm around Neely’s neck, the suspect later told police.

Although prosecutors declined to comment ahead of the trial, their arguments in the lawsuits have focused on the minutes and seconds that passed after Penny decided to strangle Neely on the train. They say Penny continued to restrain Neely after the subway pulled into the Broadway-Lafayette station and passengers were able to exit the car, after Neely stopped moving, and after another passenger warned that Penny would kill Neely if he didn’t let go.

Legal experts and court papers suggest prosecutors will likely focus on whether Penny knew he was endangering Neely’s life as he continued to squeeze the man’s neck. Spodek said he expects prosecutors to question Penny’s decision-making process “minute by minute, second by second.”

‘They are going to try to tailor their theory about the case to the immediate circumstances. What’s happening in the greater New York City area is irrelevant,” the attorney said. “All that matters is what happened when they got on the train at that moment and nothing more.”

Vinoo Varghese, a former Brooklyn prosecutor who now works in criminal defense, said he expects the prosecutor’s office will also highlight Penny’s experience in the Marines.

“He kept detaining this man, and he is a trained military man,” Varghese said prosecutors will likely tell the jury. “He is not an ordinary citizen, and so he should have known he was going to kill this man.”

The Defense: Tapping into Jurors’ Fears of Subway Crime

Penny’s attorneys, Spodek and Varghese both said, will likely focus more broadly on the daily environment in the New York City subway, which could have influenced Penny’s decision to put Neely in a chokehold.

In a motion to dismiss the case filed last year, Penny’s lawyers described an atmosphere of “traumatizing” fear on the subway after Neely boarded. They quoted passengers as saying that Neely’s behavior was “insanely threatening” and “satanic,” that he was yelling “somebody’s going to die today” and that he was “ready to go to Rikers.” They quoted a longtime subway commuter’s statement to the grand jury that she had encountered many things on the train, “but nothing that scared me that much.”

Spodek said jurors will have to ask whether Penny reasonably believed people on the F train were in danger.

“Was this unique? Were the circumstances so high that he had no choice but to do this?” he said. “And I think the answer, from a defense perspective, is absolutely. And there are witness observations that support that.”

Varghese said he expects Penny’s attorneys will try to pick jurors who can empathize with Penny and other passengers who were scared on the subway that day. He said finding those jurors in a largely Democratic district could be more challenging.

“Among New Yorkers who are concerned with these kinds of political issues, in a city that is overwhelmingly left and blue-leaning — especially in Manhattan — it will be difficult for him,” Varghese said.

“But,” he added, “I think people are fed up with what they have to experience on the subway.”

‘What should I do?’

Another central aspect of the case is Neely’s psychiatric history. According to court records, he was diagnosed with schizophrenia and used synthetic cannabinoids – also known as K-2. Experts and court records show that information is likely to come up at trial as attorneys try to convince jurors that Neely scared subway passengers.

Neely’s death sparked debates over the city’s treatment of people with serious mental illness, especially in the subway system. Mental health advocates told Gothamist they worry the trial will fuel rhetoric about subway crime and reinforce misconceptions about mental illness and violence.

“It will perpetuate this stigmatization of people with mental illness,” said Melissa Beck, who has worked as both a prosecutor and defense attorney and now advocates for mental health reform. “It will perpetuate the status quo of criminalizing people with mental illness, and it will do nothing to increase access to culturally competent, evidence-based care for people with mental illness.”

On a recent evening at the Broadway-Lafayette station, lifelong New Yorker Nadya Belov said she’s not sure what she would decide if she were a juror in Penny’s case.

“I would really have to look at the evidence,” she said, “because I wasn’t there. I don’t know what happened.”

Belov said her first instinct is to help when she sees people in need on the subway, but she’s often unsure how to do that. And often, she said, she feels scared.

“Sometimes people scream,” she says. ‘I saw a man throwing stuff. And then you are in the moving car and someone throws something, and at that moment you no longer know what that person is going to do. So you’re thinking, ‘What should I do?’ Like, I don’t want to be in the middle of this if something happens.

Belov said when something like this happens, she normally switches cars at the next stop. That includes Alve Al, a friend of Neely’s who was sitting on a bench at the Broadway-Lafayette station last week. He said there was “no need” for Penny to strangle Neely.

“I would have run away,” he said. “Life is more worth living. But if he wants to do what he did, he will have to pay the price.”