Daniel Penny tells police 'I put him out' in never-before-seen video shown at subway chokehold trial

NEW YORK CITY -- Prosecutors and defense lawyers agree on one thing about Marine veteran Daniel Penny's encounter last year with a distressed, angry and threatening man on a New York subway: Penny didn't mean to kill him.

But a prosecutor told jurors Friday that Penny "went way too far" in trying to neutralize someone he saw as a threat and not as a person, while a defense attorney said Penny showed "courage" and put others' welfare ahead of his own when he placed Jordan Neely in a chokehold that ended with Neely limp on the floor.

Both sides gave opening statements Friday in the manslaughter trial surrounding Neely's death.

On the first day of the trial, jurors also saw body camera video that had not yet been publicly released of Penny's initial encounter with police, four and a half minutes after letting go of Neely.

The case has rattled fault lines surrounding race, homelessness, perceptions of public safety and bystanders' responsibility.

Penny has pleaded not guilty to the charges of second-degree manslaughter and criminally negligent homicide in Neely's death.

Twelve Manhattanites have been selected to sit on a jury panel made up of seven women and five men.

The judge estimated the trial could last between four to six weeks.

Prosecution gives opening statement

On May 1, 2023 Daniel Penny was indifferent to Jordan Neely, disregarded basic precautions and human decency and needlessly killed him aboard a subway car by placing him in a chokehold that lasted "way too long," a prosecutor said Friday in an opening statement at Penny's manslaughter and negligent homicide trial.

"Jordan Neely took his last breaths on the dirty floor of an uptown F train," the prosecutor, Dafna Yoran, told a rapt jury. Penny, she said, believed "Mr. Neely didn't deserve even the minimum modicum of humanity." At the time he died, Neely was 30 years old, homeless and suffering from mental illness.

"We pass people like Jordan Neely every day in our city. As New Yorkers we train ourselves not to engage, not to make eye contact, to pretend that people like Jordan Neely are not there," Yoran said. "On May 1 Neely demanded to be seen."

Neely entered a moderately crowded subway car at the 2nd Av stop and began making threats about hurting people, scaring many of the passengers, Yoran said. "His voice was loud and his words were threatening."

She pointed at Daniel Penny as she told the jury "This man, took it upon himself to take down Jordan Neely. To neutralize him."

30 seconds later, the train arrived at the next station, Broadway-Lafayette, and all the passengers left the train car, except two men who were helping Penny restrain Neely.

"No longer was there anyone left on the train for the defendant to protect," Yoran said. "He continued to choke Jordan Neely even after Mr. Neely had lost consciousness."

Penny has pleaded not guilty. His attorneys have said Neely was "insanely threatening" but Yoran said Penny's actions were unnecessarily reckless because he continued the chokehold for 5 minutes and 53 seconds after the subway car was empty of passengers. "A grasp that never changed," Yoran called it.

"The defendant did not intend to kill him. His initial intent was even laudable," Yoran said. "But under the law, deadly physical force such as a chokehold is permitted only when it is absolutely necessary and for only as long as is absolutely necessary and here the defendant went way too far."

The prosecutor told jurors they would see video of the chokehold. "You will see Mr. Neely's life being sucked out before your very eyes," Yoran said, appearing to upset one of the jurors who grimaced and briefly shut his eyes.

Defense gives opening statement

Daniel Penny stood up to "protect thy neighbor" after Jordan Neely's threats echoed through the closed confines of a subway car that he spoke with "unhinged rage," defense attorney Thomas Kenniff said during an opening statement Friday.

"This is a case about a young man who did for others what we would want someone to do for us," Kenniff said. "It doesn't make him a hero, but it doesn't make him a killer."

Penny was on the F train headed to 23rd street to swim at the gym when a "seething, psychotic Jordan Neely storms on and announces his presence," the defense lawyer said, "Neely whips his jacket over his head and slams it to the ground with such force that even those who don't see it hear it."

The defense said things on the train escalated from "concern to fear" as they sought to portray Neely as far scarier than a prosecutor described in her opening statement.

"Neely sets his sights on a bench of female passengers," Kenniff said. "Danny sees a mother barricading her son behind a baby stroller in fear of Mr. Neely."

Penny heard Neely say "I will kill" and the defense said there was no opportunity for him to deescalate or stop Neely from the harm he was threatening.

"What Danny does do is leap into action," Kenniff said. Borrowing from "a bit" of martial arts training he received in the Marine Corps, Penny put Neely into a chokehold without intending to kill him but, the defense said, to hold him until police arrived.

"His conduct was consistent with someone who values human life and that's why he was trying to protect it so fiercely," the defense attorney said.

Kenniff insisted his client "does not want to use any more force than is necessary" but Neely "aggressively resisted" while in Penny's grip. He said Penny thought Neely, who was unarmed, might have a weapon as he waited for police.

"The evidence will show that this struggle did indeed between 5 and 6 minutes," but Kenniff said Penny "was not squeezing." Instead, the defense suggested Neely's death may have been caused by cardiac arrest, a genetic condition or some other reason that was not asphyxiation. The defense said risk of Neely's death was not something Penny could have perceived or anticipated.

Body-camera footage shown for 1st time

The first witness, a New York City police officer, was among those who tried unsuccessfully to revive Neely. The officer, Teodoro Tejada, testified that Neely did not have a pulse.

The jury saw the officer's body-worn camera footage that captured the attempts to save Neely and showed his lifeless body on the subway floor. When searched for weapons, the only thing officers found in Neely's pockets was a muffin. Nothing else was found in the jacket, Tejada confirmed.

Penny is heard saying, "I put him out," when the officer asked what happened.

To prosecutors, the footage -- which had not been seen publicly until now -- is evidence Penny disregarded Neely's basic humanity.

Jurors attentively studied the video that shows officers frantically trying to revive Neely. At one point, a juror had her hand over her mouth watching as the camera bounced when Tejada joined the chest compressions. Neely's body is seen splayed on the subway floor, sneakers, jeans and grimy, white T-shirt still on.

On cross-examination, Kenniff asked if the officer responded to any calls "of a white male causing any trouble," which Tejada confirmed he did not. The defense also used Tejada's testimony to suggest to the jury Penny did not behave like a criminal by fleeing the scene.

"Did he appear cooperative?" the lawyer asked.

"Yes," the officer replied.

"It didn't appear that he had anything to hide?" Kenniff asked.

"No," Tejada said.

Protesters rally outside courthouse

The sounds of a sidewalk protest over the death of Jordan Neely were audible in the 13th floor courtroom. Protesters were heard calling Penny "subway strangler."

The judge said he would instruct jurors to ignore "noise outside the courthouse."

Penny, in a slate blue suit, strode confidently into the courtroom and took his seat at the defense table.

Members of Neely's family are seated with the spectators.

"I loved Jordan. And I want justice for Jordan Neely. I want it today. I want justice for everybody and I want justice for Jordan Neely," his uncle, Christopher Neely, said before entering court.

Before opening statements, Judge Maxwell Wiley granted a defense request to allow some statements eyewitnesses to the May 1, 2023 chokehold made to police that were captured on body worn cameras.

One witness, a Ms. Rosario, was captured on body worn camera 15 minutes after the incident aboard the F train. "I can see most of that statement coming in as an excited utterance," Wiley said. He declined to allow a part of her statement in which an officer is heard asking whether she thought Neely was on drugs.

A Mr. Latimer is captured a minute later and Wiley said his statement is "well within the immediacy of the event" and could be admitted.

"This person displays emotion, excitement as he's describing what happened. It's narrative," Wiley said.

Most of the passengers who were aboard the train and who witnessed the event are expected to testify at trial

(The Associated Press and ABC News contributed to this report)