Daniel Penny trial: Opening statements begin Friday

Opening statements begin Friday in the trial of Daniel Penny, who is charged in the death of Jordan Neely, a homeless man who was acting erratically on a New York City subway car, by putting him in a fatal choke hold on May 1, 2023.

The trial is expected to last between four and six weeks, according to Judge Max Wiley.

Penny, a former Marine, has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in Neely's death. Wiley denied Penny's bid to dismiss his involuntary manslaughter case in January.

The jury of seven women and five men, four of whom are people of color, will be asked to do something prosecutors concede is difficult: convict someone of an unintentional crime.

To convict, prosecutors must prove Penny’s use of lethal force was unjustifiable and that Penny acted recklessly and consciously disregarded the substantial risk of putting Neely in the choke hold for so long. Prosecutors do not have to prove Penny intended to kill Neely, which defense attorneys have said that Neely did not intend to do.

The case has fueled political narratives about urban crime and captivated a city in which the subway is indispensable.

What happened that day

While there is no doubt that Penny's actions led to Neely's death, witness accounts differ regarding the events that led up to Penny applying the fatal choke hold, according to various sources.

Many witnesses reported that Neely, 30, who was homeless at the time of his death and was known to perform as a Michael Jackson impersonator, had expressed that he was homeless, hungry and thirsty, according to prosecutors. Most of the witnesses also recounted that Neely indicated a willingness to go to jail or prison.

Some witnesses also reported that Neely threatened to hurt people on the train, while others did not report hearing those threats, according to police sources.

Additionally, some witnesses told police that Neely was yelling and harassing passengers on the train. However, others have said that while Neely had exhibited erratic behavior, he had not been threatening anyone in particular and had not become violent, according to police sources who spoke with ABC News following the incident.

According to prosecution court filings, some passengers on the train that day said they didn't feel threatened. One said they weren't "really worried about what was going on," while another called it "like another day typically in New York. That's what I'm used to seeing. I wasn't really looking at it if I was going to be threatened or anything to that nature, but it was a little different because, you know, you don't really hear anybody saying anything like that."

Other passengers, however, described being fearful, according to court filings. One said they "have encountered many things, but nothing that put fear into me like that," while another said Neely was making “half-lunge movements” and coming within a “half a foot of people."

Neely had a documented history of mental health issues and arrests, including alleged instances of disorderly conduct, fare evasion and assault, according to police sources.

Less than 30 seconds after Penny allegedly put Neely into a choke hold, the train arrived at the Broadway-Lafayette Station, according to court records.

"Passengers who had felt fearful on account of being trapped on the train were now free to exit the train. The defendant continued holding Mr. Neely around the neck,” said prosecutor Joshua Steinglass in a court filing objecting to Penny's dismissal request.

According to prosecutors, footage of the interaction, which began about two minutes after the incident started, captures Penny holding Neely in the choke hold for about four minutes and 57 seconds on a relatively empty train, with a couple of passengers nearby.

Prosecutors said that about three minutes and 10 seconds into the video, Neely ceases all purposeful movement.

"After that moment, Mr. Neely's movements are best described as 'twitching and the kind of agonal movement that you see around death,'" prosecutors said.

The case is expected to feature testimony of passengers who were aboard the subway at the time, as well as a roughly six-minute video of the choke hold.

Jury will see evidence that Neely did not have weapon

Ahead of opening statements, the judge ruled that the jury will see evidence that shows Neely was unarmed.

Penny's defense had sought to preclude evidence or testimony about the lack of a weapon recovered from a search of Neely’s body but in a written opinion issued Thursday, the judge said such evidence and testimony is relevant to the case.

“The fact that Mr. Neely was unarmed provides additional relevant information to aid the jury, namely, it clarifies what could have been perceived by someone in the defendant's position," the judge wrote. "The possibility that a person in the defendant's situation could have been reasonable in mistakenly believing that Mr. Neely had been armed is appropriate for consideration by the jury and well within their capability."

The defense worried that including evidence that Neely was unarmed could bolster sympathy for the victim but the judge said it would help the jury decide whether Penny’s actions were justified.

Penny's lawyers and Neely's family speak ahead of the trial

Prosecutors in the Manhattan district attorney’s office are expected to concede that Neely may have seemed scary to some subway riders, but will argue Penny continued the choke hold well past the point where Neely stopped moving and posed any kind of threat.

Penny's attorneys have said that they were “saddened at the loss of human life,” but that Penny saw “a genuine threat and took action to protect the lives of others," arguing that Neely was "insanely threatening" to passengers aboard the subway train.

While Penny's defense will argue that he had no intent to kill Neely, prosecutor Steinglass has noted that the second-degree manslaughter charge only requires prosecutors to prove Penny acted recklessly, not intentionally.

"We are confident that a jury, aware of Danny's actions in putting aside his own safety to protect the lives of his fellow riders, will deliver a just verdict,” Penny's lawyers, Steven Raiser and Thomas Kenniff, said earlier this year, after Penny’s request to dismiss the charge was denied.

"This case is simple. Someone got on a train and was screaming so someone else choked them to death," Neely family attorney Donte Mills said in a past statement to ABC News. "Those two things do not and will never balance. There is no justification."

"Jordan had the right to take up his own space. He was allowed to be on that train and even to scream. He did not touch anyone. He was not a visitor on that train, in New York, or in this country," Mills added.