Daniel Penny back in court for pre-trial hearing in subway chokehold death case

It's a case that captured headlines nationwide: Daniel Penny, a retired Marine, charged in the subway chokehold death of Jordan Neely.

Dressed in a gray suit, Penny was back in court on Thursday for a hearing involving evidence that could be presented at trial in just days from now. Different angles of body camera footage was shown during the hearing, as was Penny's interview in the police stationhouse the day that Neely died in May 2023.

Both are videos that the defense does not want the jury to see.

"I'm not trying to kill the guy, I’m trying to deescalate the situation," Neely could be heard saying during the interrogation by police.

When asked what made him get involved, Penny responded, "He was threatening people… there were women and children on the train."

Penny's defense wants part of the exchange suppressed, but it will be up to the judge to see if it will be allowed.

Witness video from the day of the incident shows Penny, a Long Island native and Marine veteran, restraining Neely. Prosecutors have said the chokehold, which Penny held for several minutes, killed Neely, a 30-year-old homeless man and former Michael Jackson impersonator.

Body camera footage showed Neely laying on the ground. Officers could be seen saying he had a faint pulse, and then shown giving him CPR about four minutes after they arrived. Witnesses were also seen talking to police.

Several passengers on the northbound F train told police they were concerned about Neely being erratic, and the 24-year-old Penny stepped in.

"Almost stopping Neely from behaving the way he was, he was screaming, which was adding to erratic behavior," said an officer who took the stand, summarizing what two women had told him.

The trial for Penny is slated to begin later in October. He faces charges of second-degree manslaughter and criminally negligent homicide. 

During the hearing, Penny darted his attention from the judge, the attorneys and the videos broadcasted in the courtroom. In one of the videos, Penny was seen telling an officer "I just put him out."

Also shown was the moment inside the police station when Penny waived his Miranda rights in the interrogation room. He went on to describe what he said happened, saying the train door closed, Neely threw his jacket and then yelled, "I'm going to kill everyone and I don't care if I go to jail forever."

During his interrogation, Penny stood up to show the officers how he held his arm against Neely, then used his leg to drop him to the ground.

"I was not trying to injure him, I was trying to keep him from hurting anyone else. That's what we learn in the Marine Corps," he later told officers.

Penny served in the Marines for four years and was discharged in 2021.

The defense said none of the interaction between Penny and cops should go to the jury because it was evidence from an illegal arrest. Penny's attorneys maintain that the officers should have read Penny his rights sooner.

The chokehold death, which was caught on bystander video, prompted fierce debate in 2023, with some praising Penny as a good Samaritan while others accused him of racist vigilantism. Penny is white and Neely was Black.

Neely lost consciousness during the struggle. Family members and their supporters have said Neely, who struggled with mental illness and homelessness, was crying out for help and was met with violence.

To get a manslaughter conviction, which carries a prison sentence of up to 15 years, prosecutors would have to prove Penny recklessly caused Neely's death while being aware of the risk of serious harm. A conviction for criminally negligent homicide would require the jury to find that Penny unjustifiably put Neely at risk of death, but failed to perceive that risk. The maximum penalty would be four years in prison.