Daniel Penny’s lawyers will try to ‘put jurors in that train car’ and ask ‘what would you do?’ as trial begins

Jordan Neely’s death in a crowded Manhattan subway car struck a nerve with New Yorkers in May 2023, when bystander video of Daniel Penny placing the troubled homeless man in a fatal chokehold went viral.

Now, the lightning-rod case against Penny — who argues he acted to protect the other passengers from Neely, who one witness said was ranting in an “insanely threatening” way — is finally going to trial, with jury selection kicking off on Monday.

The jurors who will be tasked with deciding Penny’s fate at his manslaughter trial will essentially walk in the former Marine’s shoes before deciding whether to convict him, former prosecutors told The Post.

The panel of 12 Manhattanites will zoom in on the final moments of Neely’s life in painstaking detail – and be asked to imagine what they would do if they were in Penny’s situation, the legal observers said.

Here’s what you need to know ahead of the highly-anticipated trial:

What does the Manhattan DA’s Office have to prove?

The former infantry squad leader has repeatedly said he didn’t mean to kill Neely, a homeless former Michael Jackson impersonator who had battled mental illness in the years leading up to his death.

But prosecutors in the Manhattan District Attorney’s office don’t need to prove that Penny had the “intent” to kill in order to convict him on the charges he faces.

Instead, jurors will be asked if they believe beyond a reasonable doubt that Penny “recklessly” caused Neely’s death. If they unanimously agree on this, they can convict Penny of second-degree manslaughter.

Penny also faces another charge with a lower burden of proof: criminally negligent homicide.

To convict him of that, the jury will need to agree that Penny disregarded what the law calls a “substantial and unjustifiable risk of death” when he restrained Neely for several minutes.

What will prosecutors argue?

Manhattan District Attorney Alvin Bragg’s office has argued that Penny knew during the encounter that he might kill Neely, even if that was not his intention.

They’ve cited testimony from a Marine trainer, who told the grand jury that Marines are taught that chokeholds — which are meant to be a “non-lethal” restraint — can sometimes be fatal.

Prosecutors will also bring up evidence that Penny kept Neely in his chokehold for six minutes, continuing to restrain him even after the homeless man was no longer making purposeful movements.

“The notion that death is not a foreseeable consequence of squeezing someone’s neck for six minutes is beyond the pale,” the DA’s office wrote in a November 2023 court filing.

Defense lawyer Julie Rendelman said prosecutors will likely play the video of Neely’s death in slow-motion, and argue that Penny continued choking him for long after a reasonable person could have considered him dangerous.

“I think they really need to break down the scene, literally, second-by -second,” said Rendelman, who spent 20 years as a prosecutor.

Prosecutors will likely focus on how the unarmed Neely — despite going on a “horrifying” rant on the subway car — was not “actively assaulting anybody” when Penny restrained him, said defense attorney and former Brooklyn prosecutor Jason Goldman.

But Rendelman said prosecutors would be making a mistake if they argue that Neely was “no danger to anyone” before Penny stepped in.

“You may lose some of those jurors who have been on the train many times, threatened by different individuals on many occasions,” she said. “They really have to approach it in a way that recognizes that, but also recognizes that he went too far.”

What will the defense argue?

Penny’s lawyers, Thomas Kenniff and Steven Raiser, have argued that Penny’s chokehold was justified because of what they called Neely’s menacing behavior towards straphangers — which included ravings that “someone is going to die today” and that he was “ready to go to Rikers.”

“Penny’s defense team will put jurors in that train car and challenge them with what the safest response would be in the face of Neely’s chaos,” said Goldman.

The defense will also likely try to poke holes in the city medical examiner’s ruling that Penny’s chokehold caused Neely’s death.

The attorneys argued in an October 2023 motion that the medical examiner who testified to the grand jury never gave any specific evidence that Neely had died from asphyxiation due to the chokehold.

They may, if the judge allows, bring up Neely’s chronic abuse of the drug K2. Neely’s toxicology reports confirmed he had K2 in his system when he died, Penny’s lawyers say. But the report didn’t say how much was present.

Penny’s lawyers’ bids to dismiss the case on these grounds have been rejected so far.

But jurors could acquit him at trial if they find that they have reasonable doubts that Penny’s chokehold was the cause of Neely’s death.

Who will testify?

Several straphangers who witnessed the fatal encounter, police officers who arrived on the scene and detectives who interrogated Penny that night are set to take the stand, according to court papers.

Jurors will also hear from the city medical examiner’s office and possibly from psychological experts who could try to explain Penny’s state of mind during the episode.

One big question looming over the trial is whether Penny will testify himself. He’ll have the chance to make that decision after the prosecution rests its case.

Rendelman told The Post that, “I think he probably needs to testify.”

“This is one of the cases where it is likely that the jury is going to want to hear from Penny, because part of that justification is going to be about what he perceived at the time that the events were happening,” she said.

“What was going through his mind at every step of the way?”

How much time does Penny face behind bars?

Penny faces up to 15 years in prison if the jury convicts him of the manslaughter rap, and up to four years behind bars if he’s convicted on the lesser criminally negligent homicide charge.

The DA’s office has not indicated how stiff of a sentence it would seek against Penny, who had no prior criminal record before his arrest.

The final say on Penny’s fate in the event of a conviction would come down to Manhattan Supreme Court Justice Maxwell Wiley, who is presiding over the case.

What could complicate the case?

The Manhattanites on the jury may have had their own frightening experiences at some point on the subway, making picking the panel particularly key, Goldman said.

“Jury selection is always a big part of any case, but for this one in particular, multiply that by 10,” he told The Post.

“Outside the four corners of this case and the legal standards, there will certainly be big feelings involved,” he said.

Last summer, Goldman represented 20 year-old Jordan Williams, who stabbed a man on the subway after the man punched his girlfriend and attacked Williams himself. Williams’ case was dropped after a Brooklyn grand jury declined to indict him on manslaughter charges.

Unlike in Williams’ case, there is no evidence that Neely laid his hands on any the passengers on the train before Penny stepped in.

“I think the key is dealing with the self-defense aspect because I do think, in certain ways, they have an uphill battle,” Rendelman noted of the prosecution.

“At the end of the day, one of their arguments is going to be even if you assume that initially — Daniel Penny’s argument that self defense is true, there was a point in time where there was no longer self-defense protection.”

“That to me is what’s going to be one of the crucial things for the jury to understand so that they don’t lose them.”