Daniel Penny plans to testify before the Grand Jury in the Subway Chokehold Case

The man accused of killing a homeless subway passenger in a minute-long stranglehold on video plans to tell his story before a grand jury in an effort to avoid a manslaughter charge, people in the know said.

The man, Daniel Penny, was scheduled to testify in his defense next month. The move appears to reflect his lawyers’ confidence that Mr. Penny, a Navy veteran, can control the way jurors view the highly publicized and politically charged episode on an F train earlier this month.

The grand jury, assembled by the Manhattan district attorney’s office, may vote to indict 24-year-old Penny in the death of Jordan Neely, a 30-year-old former Michael Jackson impersonator who family members say has long been battling a serious illness. mental illness.

The racial dynamics of the case—Mr. Neely was black and Mr. Penny is white—and the police decision not to immediately arrest Mr. Penny made it an instant focal point in New York City and beyond.

Mr. Penny’s case has been championed by some conservatives and has become a talking point for Republican contenders for the 2024 presidential nomination. Mr. Penny, they allege, was protecting his fellow passengers and his prosecution is unjust.

Progressive leaders have said that the murder and delayed arrest of Mr. Penny are evidence of a racist justice system — a position echoed by protests in the wake of Mr. Neely. And many have pointed to structural issues they say the murder has highlighted: inadequate care for people with mental illness and New York City’s failure to fully address subway safety.

Mr. Penny surrendered to police 11 days after the murder. He was charged with manslaughter by the Manhattan district attorney’s office, which began preparations to present evidence to the grand jury.

Although Mr. Penny has been arrested and charged, prosecutors still need to press charges to move forward with the case. To do that, they must convince a majority of the grand jurors that there are reasonable grounds to believe that Mr. Penny has committed a crime. The grand jury of 23 randomly selected people from Manhattan will meet behind closed doors in the coming weeks, though the exact timing of the trial is unknown.

For the vast majority of defendants, a grand jury indictment is anything but a foregone conclusion. Under New York law, defendants have the right to answer questions under oath before the grand jury before being charged, but rarely do so. Defendants’ grand jury testimony may be admitted as evidence at any trial, whether or not they choose to testify at trial themselves.

Mr. Penny’s plan to testify indicates that his lawyers are confident that he can properly represent himself in front of a grand jury.

Former prosecutors said that given the unusual circumstances surrounding Mr. Penny’s indictment, the plan to have him testify made sense.

“They’re going to play off this man’s humanity 100 percent,” said Thomas Schiels, a 30-year veteran of the Manhattan district attorney’s office. “He has a great military background, he has apparently never been arrested before, he will be quite eloquent and his claim, while perhaps not legal self-defense, will certainly appeal to a large segment of the general public.”

A spokesperson for the Manhattan district attorney declined to comment, as did the law firm that served Mr. Penny, Raiser and Kenniff represented.

On May 1, Mr. Neely became noticeably upset on an F train in SoHo, screaming that he was hungry and that he didn’t care about going back to prison or even dying, witnesses told police. He had a long history of arrests and had pleaded guilty three months earlier to assaulting a 67-year-old woman, a stranger, in the street, leaving her with a broken nose and eye socket and other injuries.

But while witnesses have said Mr Neely’s behavior on the train was “hostile and erratic”, there is no indication that he made any physical threats to anyone, and it is highly unlikely that the other passengers knew of his criminal past. The moments leading up to Mr. Penny’s actions are a likely focus for the grand jury.

Mr. Penny placed Mr. Neely in a chokehold similar to the non-lethal maneuver taught to trainee Marines. Known as a blood choke, it is designed to cut off circulation — not airflow — to the brain. Done correctly, a blood choke can knock an opponent unconscious in just eight seconds.

But a passenger started filming the two men on his phone after Mr Penny’s stranglehold was already in place, and the video shows it lasted about four minutes – and continued after Mr Neely went limp and passed out. The length of the stranglehold was noted by the prosecutor leading the case, Joshua Steinglass, during the arraignment of Mr. Penny on May 12. It is likely another source of interest to the grand jurors, as well as Mr. Penny for it.

Little is known about Mr. Penny beyond his military service, a four-year enlistment in the Marines that sent him on two deployments to the Mediterranean. In 2021, he was honorably discharged at Camp Lejeune in North Carolina. He settled for a while in nearby Wilmington, a beach town popular with surfers and newly independent naval veterans. He was both.

He walked into a surf shop looking for work in late 2021 and was immediately hired, said a former employee there, Sam Santaniello, 20. He recalled Mr. Penny’s somewhat complicated relationship with the Marine Corps.

“He said, ‘It was the worst but best time in my life,'” Mr Santaniello recalled in an interview. “I think the Marine Corps was just a way for him to travel. He loves to travel and we’ve all talked about it.”

Penny’s lawyers have refused to make him available for interviews with the news media, with the exception of The New York Post, which spoke to him on May 20 on Long Island. Mr. Penny then said that he regularly uses the subway and that the May 1 incident was unlike “anything I’d experienced before.”

“This had nothing to do with race,” he told The Post, declining to discuss the murder itself.

Mr. Santaniello described his friend as a detached centrist. “Some people in our generation are just engrossed in politics. I don’t think we both are,’ he said. “He’s kind of in between. I’m sure there are ideas he likes that are on the left, and he likes ideas that are on the right.”

But he added: “I think he’s super thankful now just for the support he’s been getting.”

Mr. Neely’s history was much more accurately documented, and his behavior and actions were regularly recorded by outreach workers in the subway system, usually providing aid and moving on, but sometimes taking him to shelters.

After his arrest in the 2021 attack on the woman, he spent months in jail and was released to a mental health facility in February, with medication and a specific 15-month rehabilitation plan. But he walked away from the program just 13 days later.

Kevin Maurer contributed reporting from Wilmington, NC