A Preview From the Forthcoming Winter 2025 Issue
November 1, 2024. It’s 70 degrees in Manhattan—and getting warmer. A drought has set in since summer; the downtown breeze feels less like an East River gust than a Santa Ana wind.
On the 13th floor of Manhattan’s criminal court, at 100 Centre Street, Judge Maxwell Wiley’s courtroom is stagnantly hot. Chants from outside are audible through an open window, as Daniel Penny, the defendant in this manslaughter case, on trial for allegedly killing Jordan Neely on the subway in spring 2023, enters the building: “Daniel Penny has got to pay!” As the protesters disperse following their morning session, jackhammers from New York’s progressive public works project—demolishing the Manhattan jail to make room for a citywide jail system that can hold far fewer inmates, even as the number of inmates rises—compete with courtroom voices.
After nearly two weeks of voir dire, just after 10 am this Friday morning, Wiley pronounces himself “so happy” to have finally assembled a jury. The silver-haired judge has the mien of a high school teacher who, decades ago, realized that his students wouldn’t be Shakespeare scholars and who affably, if resignedly, has adopted the stripped-down goal of getting everyone through the school year without incident.
The jury of Manhattanites consists of seven women and five men. Two jurors are foreign-born—one from Ukraine, the other from the Philippines; another’s father served in the IDF. Two jurors are civil lawyers. One juror looks like Penny. During voir dire, Wiley noted the hobbies that they professed to enjoy—from biking to poker—instructing them to “be careful” in engaging in such extracurricular activities.
During jury selection, the court learned that most jurors take the subway. All but three had witnessed “outbursts” from disturbed individuals underground. One juror recalled a recent incident when a man accosted him and a friend on the subway, “acting erratically . . . swearing at us, calling us names.”
The prosecution presumably would have preferred a jury without widespread experience of subway disorder, given the defense’s argument that Penny, now 26, used justified physical force to protect passengers from the threat posed by Neely, 30, a troubled fellow rider. However, after interviewing hundreds of potential jurors, selecting such a panel proved impossible.
The people—the County of New York, under the authority of progressive district attorney Alvin Bragg—begin opening statements. The prosecution must prove three things: that Penny killed Neely, by strangling him; that he did so recklessly, knowing the risk of his actions; and that he was not justified in doing so. Alternatively, the jury can consider a lesser charge—criminally negligent homicide—which requires the prosecution to prove not that Penny knew the risk of his actions but only that he should have known.
Dafna Yoran is the lead assistant district attorney, Jillian Shartrand her junior co-prosecutor. Yoran will come across to a Manhattan jury as a familiar type: the competent professional woman who, because she’s so busy, doesn’t worry much about her appearance—tousled hair, muted pantsuits—but ends up looking good anyway, fit, well tailored, self-possessed. Yoran wears flat, round-toed shoes; Shartrand often wears heels.
Yoran lays out the case against Penny. On the afternoon of May 1, 2023, in lower Manhattan, Neely “took his last breaths on the dirty floor of an uptown F train.” Penny killed him, using his arm as a vise to choke him for five minutes and 53 seconds. Thanks to two videos taken by civilians, “you will see Mr. Neely’s life being snuffed out before your very eyes,” Yoran asserts. As a trained former Marine, Penny knew exactly how deadly his chokehold could be, she continues, yet he showed “indifference toward Mr. Neely, the man whose life he was literally holding in his hands.” Penny faces a potential 15-year sentence.
Why did Penny, whom Yoran describes as a “nice young man,” kill Neely? Anticipating the defense’s argument—that Neely, a homeless man with untreated mental illness and signs of psychosis and K2 intoxication, posed an imminent threat—Yoran concedes that Neely acted erratically, and even threateningly, on the subway. But Neely’s behavior, she argues, was society’s fault, including the jury’s. “As New Yorkers, we train ourselves not to engage, not to make eye contact, to pretend people like Jordan Neely aren’t there,” she says. That day, however, “Jordan Neely demanded to be seen.” Penny, she acknowledges, started with good intentions. But he went “way too far” by holding Neely in a chokehold, long after he was unconscious. Penny, she charges, failed to recognize Neely’s humanity. Why “is not something we can ever know or need to know,” she says. The implication, though, is race. Yoran—an ADA with a long record of murder convictions—never appears angry; her every word and gesture are measured.
Penny, at the defendant’s bench, is statuesque—not just because, with his coiled golden curls and hypotenuse jawline, he looks like a Renaissance sculpture but also because, during jury selection, he began a regime of staying still, even with so many eyes on him. Penny’s mouth is a straight line. His eyes never dart. His only daily gestures are to nod at court officers and again at the court sergeant, an ebullient woman who yells, “Quiet down in the audience!” whenever the people in courtroom benches make the slightest stir.
If you wanted to picture a hero who put his body between a “seething” psychotic threatening women and children—as the defense describes—you’d picture Penny. But if you sought a white supremacist villain who killed a man with his bare hands and barely seemed aware of it, you’d also picture Penny. We’ll never see a living photo of Neely at this trial, but the visual contrast between him and Penny—black versus white, both 6’1”, weighing within five pounds of each other—offers another fixation as the trial dissolves into symbols.
Penny’s lawyers, Thomas Kenniff and Steven Raiser, fit the defense-attorney archetype: tailored suits and sharp haircuts. Kenniff, in a darker suit, plays bad cop to Raiser’s fair-haired, lighter-suited good cop. Kenniff’s opening is direct: “This is a case about a young man who did for others what we would want others to do for us.” His pitch to the jury is unapologetically earnest: “Danny grew up a middle-class kid.”
The prosecution calls Officer Teodoro Tejada from the NYPD’s Fifth Precinct. Tejada arrived at the Broadway-Lafayette station at 2:34 pm, about 11 minutes after Neely began screaming on the moving subway car. His bodycam footage, along with other officers’, will play repeatedly over the coming weeks, from different angles: a patrol car speeding to the station, officers running, walking, or descending subway steps, beneath a Marc Jacobs ad.
We’ll see the same brightly lit subway car: Neely lying on his side in dirty clothes on the floor, Penny standing nearby in his orange-brown jacket and cap, chewing gum. We’ll hear the bump-bump of passing trains and the faint sound of MTA announcements. Officers arrive, finding a faint pulse, administering Narcan—the opioid-overdose antidote—and trying to rouse Neely while waiting for EMTs. Officer Tejada searches Neely’s black jacket on the floor, finding only an unwrapped brown muffin—no ID.
One of train dispatcher Cecil Postel’s tasks is to ensure that a train arrives on time. Explaining train and track mechanics, Postel, another prosecution witness, assures the jury that one thing from May 1, 2023, is certain: the northbound F train departed Second Avenue at 2:23:00 pm and arrived at Broadway-Lafayette station at 2:23:30 pm.
Thirty seconds.
November 4, 2024. “All the jurors are here,” says Wiley, ever startled that something is working as it should. Wearing a long flannel shirt, Ivette Rosario, 19, speaks softly. She was heading home to the Bronx from high school last May, partly via the F train. “We were standing” near the train doors, she says of herself and her classmate. Just as the doors closed to leave the Second Avenue station, Neely stuck his hand in to reopen them and stepped inside. He threw his jacket on the floor with such force that passengers turned their heads. “He stated how he was homeless, he didn’t have any money, he didn’t care about going back to jail.” But it wasn’t what Neely said that alarmed her—it was his voice. “I got scared by the tone,” she says. “I have seen situations, but not like that.” She remembers thinking, “I just wanted the doors to open,” and burying her face in her friend’s chest. On the stand, she repeats: “It was mostly his tone . . . because of the tone, I got pretty frightened.” As the train hurtled along, she heard a sound, like “when someone falls,” and looked over to see “the white guy” now “holding” Neely. Shartrand, the prosecutor, follows Rosario’s lead, referring to Penny as “the white man.”
Juan Alberto Vazquez, 59, a freelance journalist, suit-clad with neat gray hair, has lived in New York for seven years. On May 1, 2023, he was on the F train to transfer to a commuter train to Yonkers. “When the doors of the train were just about to close, a person approached with the hand,” he tells the jury via a translator. “He was complaining, he was thirsty, he was hungry, he wanted to be in jail again.” Like Rosario, Vazquez focuses on Neely’s “tone”: it was “violent, aggressive. . . . Jordan Neely made his protest louder, took off his coat, slammed it to the floor.” Vazquez admits: “I was scared.” Not knowing whether Neely had a weapon, he thought of “Frank James and other incidents.” Though the judge bars the jury from hearing more, James was the assailant who shot and wounded ten people on a Brooklyn train in April 2022. After Vazquez exited the train, with Penny still struggling to restrain Neely, he recorded a video, first filming through the window, and then reentering the car through the open door.
Larry Goodson, 61, a lifelong New Yorker who leaflets for political candidates, wasn’t afraid. “I’ve been riding the subway for over 50 years,” he says. He acknowledges that time spent incarcerated may have altered his danger tolerance. After Penny grabbed Neely and the train stopped, Goodson stayed nearby, warning Penny to let go of Neely’s neck. Following real-time advice from his fiancée on FaceTime, he shouted that Neely’s soiled pants suggested impending death.
November 7, 2024. Court returns after two days off: Election Day and the day after Election Day. Donald Trump, successfully prosecuted by Bragg this past spring for felony fraud, has retaken the presidency.
Moriyela Sanchez, Ivette Rosario’s “best friend,” is on the stand. Neely had his “fist up,” she says, demonstrating. Even after Penny brought Neely down to the floor, Neely began struggling again, and “I got scared, started holding my friend.” Sanchez is crying.
Caedryn Schrunk—short blond hair, dressed in black, the type you see in Whole Foods wearing Lululemon—tells jurors that she “double-majored in exercise science and sports marketing.” As a senior corporate-brand manager at Nike, her job takes her across New York City, putting her on the F train “multiple times a day.” On May 1, she says, “this gentleman caught my attention” because he was “screaming verbal threats.” Sitting on a bench near other women and a child, she saw him “walking toward us.” His words were “very traumatic . . . making life-threatening claims . . . saying, ‘I don’t care if I die, I don’t care if you die.’ ” Neely was malodorous, his clothes soiled. “If you weren’t there, it’s hard to describe. . . . I truly thought I was going to die.” Identifying Penny in the courtroom, she smiles at him. “There was a lady shielding her child in a stroller. . . . Everyone was preparing for what was to come,” unsure “if [Neely] had a knife, if he had a gun.”
Johnny Grima, 40, a self-described “homeless advocate,” wasn’t on the F train but wandered over after it stopped, drawn by the commotion. He saw “one man being choked” by Penny, while two others helped hold him down. Though he now testifies that he believed that Neely was in mortal danger, Grima didn’t intervene. “I’m scared to maybe get stabbed on the train,” he explains. “In hindsight, I regret not stopping a man getting murdered.” Under cross-examination, Grima admits to past convictions for “nonviolent” crimes. Penny’s attorney, Kenniff, presses Grima on whether serving 13 months for “hitting your friend over the head with a baseball bat” counts as nonviolent. After the jury exits, Kenniff moves to strike Grima’s testimony, arguing that he “repeatedly referred to my client as a murderer,” despite not being asked for an opinion. The judge declines, saying that the jury can recognize the witness’s bias.
November 8, 2024. Dan Couvreur, a tech bro, had been on the F train to get to his co-working office. Watching Neely, he remembers, “I was pretty terrified.” Penny, after taking Neely to the floor, asked other passengers for help. “It was very much a struggle, and Mr. Penny did not control the situation.”
Alethea Gittings has been riding the city subways for half a century. Of May 1, on the F train with Neely, she tells the jury, “I was scared shitless. . . . He scared the living daylights out of everybody.”
Lori Sitro’s shoes clack as she walks from the holding room to the witness stand. Sporting red bangs and wearing a dark brown suit, she says that she’s a research director at an “agency.” A lifelong New Yorker, she says, “before COVID, I rode [the subway] all the time.” On May 1, “I was taking my younger son, who was five, to a therapy appointment.” Sitting on the subway-car bench, she heard “a loud commotion.” Watching Neely shouting, she recalls him “lunging at people, very erratic.” With Neely close to her and her son, “it felt increasingly threatening. I actually took the stroller . . . and put it in front of my son.” Watching “a man get up from behind and hold him,” she says, “I felt very relieved, because I was scared for my son.”
All these witnesses were called by the prosecution, not the defense. The prosecution has sown doubt in the jury’s minds about whether Penny was unjustified in using force, even deadly force, against Neely.
November 12, 2024. Eric Gonzalez climbs into the witness box. A 39-year-old Bronx resident employed in retail logistics, he hadn’t been on the moving train when Neely had his outburst. Instead, he had entered the F train last May 1 after the doors had opened at Broadway-Lafayette, and had helped Penny hold Neely down. Gonzalez is heard, in one of two civilian videos, telling another witness, Goodson, who is voicing concern, that Penny is “not squeezing” Neely’s neck. Gonzalez, crouching next to Penny, is the only person who had a view of Penny’s hold on Neely to testify. (Two passengers, tourists, refused to cooperate, and, as they live in Germany, were outside the DA’s reach.) On the stand, Gonzalez says that those reassuring words were false: “I told him Daniel Penny is not squeezing, just to shut [Goodson] up.”
Gonzalez also amiably admits that he lied afterward. After helping restrain Neely, he fled the train, took a vacation from work, and hid in his apartment as police circulated his photo. When officers found him, he fabricated a story, claiming that Neely had attacked him. Confronted with evidence disproving this, he confessed, explaining, “I was scared of getting pinged for the murder charge.”
Bragg’s office has given Gonzalez immunity from prosecution in the case, but, defense attorney Raiser says, he still seems uneasy. “I’m scared for myself, scared for my family,” Gonzalez acknowledges, fearing protesters outside the courthouse. Asked whether he worries about repercussions for testifying in a way that helps Penny, he replies, “Yes.” He also confirms that, while holding Neely’s arm that day, “he broke my grip.”
Jurors aren’t allowed to read about the Penny trial. But on their way home from court, they can read the news that police have arrested a suspect in the random sidewalk strangling death of a young woman in Times Square, her body dumped in front of a glass-fronted new hotel on Eighth Avenue and 46th Street.
November 14, 2024. Joseph Caballer, sporting a mohawk and beard, takes the stand. A nine-year Marine veteran, he was Penny’s instructor in Marine martial arts. He explains that Marines are trained in a nonlethal “blood choke,” which cuts blood flow to the brain and causes temporary unconsciousness in “eight to 13 seconds.” They don’t teach the “air choke,” which can take minutes to cause unconsciousness, prolonging a struggle. Penny earned a mid-level Marine belt in martial arts. Watching a civilian video of Penny and Neely, Caballer says that it “looks like” Penny is attempting a “figure 4 variation,” though improperly executed—his “elbow is not centered on the body.” However, Caballer can’t determine from the footage whether or how hard Penny is squeezing Neely’s neck. Neely didn’t lose consciousness within eight to 13 seconds—or even the first few minutes.
Penny is on the video screen—the only time jurors will hear from him. Remaining on the train after letting go of Neely, Penny had already told cops, “I just put him out.” Hours after the incident, two detectives at the NYPD’s Fifth Precinct ask him more fully what happened. They read him his rights, but they don’t inform him that Neely is dead, or that prosecutors are behind a two-way mirror, and even, during a short break, coaching detectives on questions to ask. Penny says that Neely had “whipped his jacket off. . . . He was like, I’m gonna kill everybody, I’m going to go to jail forever.” Penny continues: “I got in a hold, got him to the ground, he’s still going crazy.” Of the “four- to six-minute” struggle, he says, Neely “calmed down, then he gets another burst of energy.” Penny calls Neely a “crackhead.” He says, “I’m not trying to kill the guy. . . . I wasn’t trying to, like, injure him.”
Cynthia Harris, in a festive green dress and heels, long brown hair falling straight, takes the stand. She is the good doctor: Columbia, Harvard, Mount Sinai, three fellowships, board certifications. On May 2, 2023, as a new fellow in the city’s medical examiner’s office, she performed Neely’s autopsy, under senior-doctor supervision. Armed with charts and a pointer, Harris gives the jury an anatomy lesson from the neck up: two sets of tubes to bring blood up to the head and back down; and a trachea and related apparatus to breathe. The neck is delicate; it’s not a good idea to compress it. Many in the audience touch their necks.
November 15, 2024. Harris applies these lessons to Neely’s corpse. Neely had been well nourished, well hydrated, and in good health. His body showed signs of asphyxia. Scratch marks on one side of his neck suggest that he tried to remove Penny’s arm—a common reaction to strangulation. He also had petechiae—tiny red dots caused by burst blood vessels—in his eyes. Viewing photos of Neely’s lifeless eyes, held open with tweezers, we can count the specks. His neck showed internal hemorrhaging, highlighted by vivid red tissue. Most spectators avoid looking, eyes downcast. Neely’s father, Andre Zachery, leaves the courtroom.
Neely’s spleen appears abnormal on the screen, crisscrossed with broken vessels, due to “sickling” of his blood cells—a complication from a genetic disorder called sickle-cell trait, triggered by acute physical stress. However, the sickling didn’t cause his death, Harris says; it resulted from hypoxia from strangulation. Despite all this evidence, Harris had initially listed Neely’s cause of death as “pending further study” on his death certificate. Harris explains why, a day after issuing that preliminary death certificate, she altered the document to read, “compression of neck (chokehold).” By May 3, she has seen the civilian videos taken by Vazquez.
Harris takes the jury through that video, four minutes and 57 seconds, frame by frame. Penny and Neely are on the floor, locked together; the video begins only after the train had stopped. We watch Penny’s arm around Neely’s neck, as Neely intermittently struggles, at one point reaching up to grab a bench. Neely is using his “accessory muscles, to breathe—that is, heaving, indicating distress,” Harris says. “His entire face is uniformly purple, indicating ‘congested veins’ ”—that is, blood can’t leave the head. Harris stops at three minutes and nine seconds. There, she asserts, Neely stops “all purposeful movement.” With air cut off, his brain is dead or dying, even as his heart beats, explaining why police officers found a pulse. “Symmetrically and slowly, both toes turn upwards . . . both feet, both legs,” a sign of neurological damage. Penny continues to hold him for 51 seconds. It’s these moments that caused her to conclude that “the cause of death is compression. . . . There are not alternative reasonable explanations.” Harris issued her final death certificate, though full test results on whether Neely had been high on drugs weren’t available for weeks.
The jury sees a photo of Neely’s lower back and backside, the latter caked with fecal matter. This image proves nothing about whether Penny knew he was dying during his hold: as other witnesses have said, Neely had entered the train with soiled pants.
After lunch, the good doctor meets the good-cop defense attorney. Harris explains why she had changed the death certificate. She had been “confused,” she testifies, by a police report that had described Neely as a “screaming male”; if he had screamed throughout the chokehold, he wouldn’t have died from asphyxia.
Yes, she agrees, exertion from a struggle that doesn’t involve choking could cause a purple face and could create petechiae. Injuries from attempted resuscitation—paramedics and doctors tried to intubate Neely four times—could produce hemorrhaging. No, she maintains, it wasn’t necessary to wait for drug-test results before issuing a verdict. Fatal overdoses of K2, the drug found in Neely’s blood, are not unheard of, but they’re rare. And no, Harris, as a new doctor, had faced no pressure from the medical examiner’s office, in a high-profile case in which the DA was already involved, to amend the death certificate. Yes, her ultimate boss, the chief of the office, had added the word “chokehold,” but she had autonomy to disagree.
After hours of interrogation, she grows piquant. Even if Neely had “enough fentanyl in his system to put down an elephant,” she would have found that he was strangled, she shoots back after one question. As to how she can know that Penny applied what she calls “consistently sufficient pressure” to Neely’s neck, she acidly replies, “he dies.”
November 18, 2024. As court begins, news filters in that a man has spent the morning randomly stabbing to death three people across Manhattan. Over the next few days, news breaks that the suspect had recently spent less than a year in jail for a string of Manhattan thefts, having served a plea-bargain sentence that Bragg’s office approved. At the time of the stabbing, he was free on supervised release, awaiting prosecution on a charge stemming from a different Manhattan theft; he had absconded from his supervised-release program. In other news, a female prosecutor in Bragg’s office, entering her apartment building over the weekend, was robbed by a man, who also committed a lewd act. The suspect is a recent Venezuelan migrant.
Confronted with bodycam statements from two officers in the subway car that May 1, who said that Neely was breathing, Harris, back for a third day of testimony after the weekend, brushes this off. “He [was] diffusely sickled,” she says, and “those red blood cells are unable to deliver oxygen. It is theoretically possible that he is breathing . . . but . . . any breath he is able to take in, any oxygen that it contains is not going to be able to be effectively utilized.” She adds: “Had the chokehold been released and he was still breathing, his red blood cells would have been unable to deliver oxygen.” Is it “possible” that Neely, at that three minutes and nine seconds, in Raiser’s words, is “not merely unconscious,” after being choked, “but dying due to a sickling crisis” caused by a struggle? She agrees. The defense has sown doubt as to cause of death.
Penny’s first two of six character witnesses testify. During cross-examination, prosecutor Shartrand asks Penny’s childhood friend, Alexandra Fay, whether Fay knows how much money he has raised for his defense. Defense attorney Kenniff objects, and the judge instructs the witness not to answer. With the jury dismissed, Kenniff renews his long-standing motion for a mistrial, accusing prosecutors of wielding a “pickax to fairness.”
November 19, 2024. Penny’s Marine comrades testify, calling him “calm” and “peaceful.” The prosecution tries to make them into MAGA cartoons. “You have a Facebook account,” Yoran says to one, a disabled former Marine living on an Alabama farm. On May 24, 2023, she accuses about a post, “you tried to organize a ride upon NYC,” encouraging biker friends “to support Danny.” The post, she says, contained the phrase “violence begets violence” in capital letters. The witness allows that “the V is capitalized.” Shartrand confronts the next witness, an active-duty, Texas-stationed Marine, with a TikTok video he made of a gun inside a fanny pack, in which “you point the gun at the camera.” On redirect examination, the witness, a black man, affirms that the gun is legal and that he has no criminal record.
Penny’s mother, who hasn’t attended the trial, testifies to her son’s character; her carefully applied makeup can’t conceal her distress. She says that “Danny’s” traits include “honesty, humility, kindness, treat[ing] others as you would like to be treated.”
Alexander Bardey, former chief of psychiatry at New York’s Rikers Island jail and an NYU professor, reviewed Neely’s medical records for the defense. They document more than a dozen hospitalizations over six years, many at city-run hospitals. Bardey tells the jury that Neely suffered from “severe, persistent mental illness,” one of the most extreme cases of schizophrenia he ever studied. In a psychotic state—worsened by K2 drug use—Neely likely experienced “paranoid fears that people want to hurt him.” In such a state, Bardey explained, attempts to engage or calm him would have been futile: “He is caught in his own head; he is not able to interact.”
Jurors can’t peruse Neely’s medical records—but reporters can. On March 23, 2020, during Covid-19 lockdown, Neely’s Bellevue Hospital doctors added a note to his chart: using “continued restraints” on him was “justified” because of his “ongoing potential for violence.” Jurors never hear about Neely’s 42 arrests as an adult, including for punching and severely injuring a woman on the subway stairs. Neely’s father and his uncle often attend court. But in his medical records, Neely said that his maternal grandmother had raised him, after his mother was murdered, by a boyfriend, when he was 14. He also spent time in foster care.
November 21, 2014. If Harris was the good doctor—Ivy, prim, and precise—Satish Chundru is the rogue expert: tieless in an open-necked shirt, sporting a trimmed beard and mustache. A defense witness, Chundru testifies that Neely died from the “combined effect of sickle-cell crisis, schizophrenia, the struggle, the restraint, and synthetic marijuana.” He also cites rare cases of exertion-related deaths linked to sickle-cell trait. When the prosecution counters with a New England Journal of Medicine article disputing such deaths, Chundru notes that the authors are Ph.D.s, not MDs, and therefore “don’t know how to read death certificates.” Skeptical of medical literature, he adds, “There’s tons of journal articles, and most of them have flaws.”
Chundru focuses on a key point: if Penny had choked Neely to death, Neely “should have been unconscious when the Vazquez video starts,” since it begins after the restraint was already under way. He should certainly have been unconscious before three minutes and nine seconds into the video. According to Chundru, Harris misinterpreted the video. “A chokehold death has two phases,” he explains. “Unconsciousness always precedes death.” He argues that Harris never demonstrated that Neely was consistently unconscious before showing signs of dying. As the jury watches the video of Neely again, Chundru points out the lack of visible pressure on Neely’s neck. Chundru dismisses police officers’ reports of feeling a pulse in Neely’s neck minutes after Penny released him—a detail suggesting asphyxia—noting that the officers were “nonmedical people” and that two of them also said that Neely was breathing, which contradicts an asphyxia-related death. Gently criticizing Harris’s death certificate, he remarks: “In a complicated case such as this, you want to make sure you have all the facts,” including drug-test results.
Yoran, the lead prosecutor, explains why the jury should ignore these arguments. Through her questions, she reveals that Chundru runs a private-sector business with revenue in the millions—in Texas, no less—that, she implies, is an autopsy mill, performing more of these than a trade group of medical examiners deems proper. He boasts no Ivy League education. He’s also getting paid—$90,000 or so—for his work on this case. Chundru, unperturbed, says that the autopsy-limit suggestion is a ploy to spread work among more doctors and that there’s nothing wrong with doing lots of autopsies.
November 22, 2024. The defense presents its final exhibit: a warrant issued by Manhattan criminal court for Neely’s arrest. He had absconded from a residential-treatment program tied to a previous plea deal for a violent assault, though the jury doesn’t hear this detail. The warrant, dated February 23, 2023, remained active that May 1.
December 2, 2024. Outside, temperatures hover at 39, but inside, the judge greets jurors with: “Welcome to the boiling-hot courtroom.” After 90 minutes of technical issues and lawyer disputes, closing statements begin. The jurors have endured a month of failing infrastructure—a reflection of the city’s priorities. The art deco courthouse, opened in 1941, resembles a truncated Rockefeller Center. But New York has let it deteriorate: collapsing bathroom ceilings, uncontrollable heat, and a ventilation system requiring a window to stay open. As a result, jurors often hear the protesters outside calling Penny the “subway strangler.”
Administrative neglect extends to court logistics. Each morning, about two dozen spectators line up, ranging from Ariel, a man wearing a “Trump”-embroidered yarmulke, to elderly women with canes and walkers. They chat politely while waiting but must stand or sit on the floor for hours. Has no one thought to provide a bench?
Defense attorney Raiser makes his closing argument. After Neely stopped struggling, he says, “Danny” held Neely for “less than a minute,” and not in a chokehold. By then, Penny had “been struggling a long time” to restrain Neely, “and Danny does not have endless energy to continue to restrain someone high on K2 and going through a psychotic episode. When he was sure it was safe, he got up.” Of the prosecution’s video evidence, he says, “they failed to offer any proof that Danny choked Mr. Neely to unconsciousness at 3:09 . . . and they failed to offer any proof that Danny choked Mr. Neely to death for that remaining 51 seconds.”
Penny, Raiser continues, desperately waited for first responders to relieve him. In the final moments, as 911 calls poured in, it took police “12 minutes” to arrive, and 20 minutes for EMTs to get there. “What did that broken system do for Jordan Neely’s chances of surviving this medical occurrence? . . . The government is scapegoating one man right there, the only guy that was brave enough to stand up the very moment that he was needed. The government wasn’t there . . . not for him, and certainly not for Mr. Neely.”
Yoran begins her closing argument. “No one had to die on May 1, 2023,” she says. “So much less than deadly physical force would have done the job.” Penny “could have easily restrained Mr. Neely without choking him to death.” He chose to keep choking Neely, after he had ceased to be a danger, because “Mr. Neely just doesn’t register somehow as deserving of life-preserving care.”
December 3, 2024. Finishing her closing argument, Yoran calls Harris, the medical examiner, a “clearly brilliant young doctor, Columbia, Mount Sinai, Harvard.” All she had to do, in finding that Neely died from a chokehold, was to confirm the “obvious.” Chundru, on the other hand, is based in “north Texas.” Chundru’s argument, she reminded the jurors, was: “Don’t believe your eyes. Everyone is wrong. I know better.”
December 4, 2024. As the public and press await a verdict, news breaks that UnitedHealthcare CEO Brian Thompson was fatally shot outside Manhattan’s Hilton Hotel before dawn by a masked assailant.
The jury, in its second day of deliberations, requests a read-back of Harris’s cross-examination, mentioning what jurors remember as her remark “I don’t need all the facts.” The judge, noting that Harris never used those words, asks for clarification. The jury adjusts its request, asking for testimony “where she admits that she . . . did not know if she observed sufficiently consistent pressure.”
December 5, 2024. The jury sends another note, asking the judge to define a “reasonable person,” central to deciding whether Penny reasonably perceived Neely as a threat. The judge responds that the jury must interpret the term themselves.
Later that evening, a migrant teen fatally stabs another, blocks from the courthouse. Manhattan’s murder count for the year stands at 69, up 77 percent from the pre-2020 five-year average, before criminal-justice reforms discouraged incarceration. Bragg, who advocates leniency in many violent cases, took office in 2022.
December 6, 2024. The temperature outside is 32 degrees, but the packed courtroom is still overheated. The jury is deadlocked on the top charge of manslaughter. The judge instructs the jurors to keep deliberating. “It’s bizarre they keep hanging on this count,” prosecutor Yoran complains. “It’s not bizarre,” the judge replies. “They’re following my instructions.”
Yoran paces, leaving to confer with “my team.” Returning, she says, “Your honor, we move to dismiss the top count of manslaughter in the second degree.” Steven Wu, the DA’s appeals chief, affirms that the DA will not retry Penny on that charge. The judge, over defense objections, grants the request, and tells jurors to return Monday to deliberate on the remaining charge—criminally negligent homicide—urging them to “think about something else” over the weekend.
Outside the courthouse, a Black Lives Matter protester, Hawk Newsome, says that “today, white supremacy got another victory. . . . No way you could put nine white people in a room that would find Daniel Penny guilty.” A juror strides by.
December 9, 2024. The defense renews its motion for a mistrial, citing street protests audible inside the jury room. The judge declines. At 11:26 am, the jury announces that it has reached a verdict. Two minutes later, the foreperson declares: “Not guilty.” Penny smiles. The courtroom erupts in applause, screams, wails, and one shouted threat. Judge Wiley addresses the former defendant: “Mr. Penny, you have no further business before this court. You are discharged.” Penny exits through a side door, allowed by the court to avoid the public hallway for the first time in the trial. Outside, as drizzle begins, a Black Lives Matter protester, Chivona Newsome, says of the jurors, “I hope these white people enjoy their Christmas.”
Illustrations by Garry Brown