How ex-Marine who fatally strangled black man on New York subway walked free from courtroom in case that polarised America over race as soon as once more: TOM LEONARD

New Yorkers on the city’s dirty, noisy and teeth-grindingly unreliable subway system try to steer clear of trouble if they can possibly help it.

With passengers sometimes thrown on to the tracks, stabbed or even shot, the risks of intervening to deal with threatening or violent behaviour are well known.

Far better to change carriage or even take another train, especially given the notorious unpredictability of the usual troublemakers: mentally ill, and usually drug-addicted, homeless people.

And discretion has invariably proved the better part of valour in such situations – until one day in May last year when a passenger named Daniel Penny decided he wasn’t going to ignore an erratic vagrant who was threatening him and other people riding on an F line train.

Penny, a well-built architecture student and former US Marine who was 24 at the time, grabbed Jordan Neely from behind and brought him to the floor.

As a black passenger helped subdue the struggling Neely by holding his arms, Penny restrained him in a chokehold with his arms wrapped around his neck. Waiting for police, he maintained his grip for six minutes – a fatal decision, said prosecutors. Thirty-year-old Neely was pronounced dead upon his arrival at hospital.

Yesterday, 19 months after the fatal encounter, Penny – who’d been facing up to 15 years in prison – sensationally walked free. He was acquitted unanimously by a jury on a charge of criminally negligent homicide. A more serious offence of manslaughter had been dismissed on Friday because jurors couldn’t agree on a verdict.

The Penny trial fiercely polarised Americans – and yesterday there were scenes of scuffles outside the Manhattan court as crowds protested the non-guilty verdict. For many, what mattered was that Neely was black while Penny is white, a distinction that helped ensure the case rapidly became a cause celebre.

A video – shot by a fellow passenger – captured several minutes of the chokehold and its aftermath. It went viral, ratcheting up tensions. ‘You gonna catch a murder charge,’ a passenger can be heard telling Penny. ‘You gotta let him go.’ Neely can be seen eventually going limp.

Prosecutors never directly accused Penny of acting out of racial animus (although they hinted it at his trial). But he faced allegations from many others, which he vehemently denied, that he was a white supremacist.

Left-wing politicians called it a ‘lynching’ carried out by a dangerous vigilante while lawyers for Neely’s family argued that, being a trained soldier, Penny knew how to restrain someone without killing them and so should be charged with murder. 

Even some who didn’t rush to condemn Penny as a racist berated him instead for failing to show sufficient ’empathy’ to the homeless (the majority of whom in New York are black).

Hundreds of mourners, including senior Democrats and civil rights leaders, attended Neely’s funeral, where the Reverend Al Sharpton told them: ‘Jordan was not annoying someone on the train. Jordan was screaming for help.’

He went on: ‘When they choked Jordan, they put their arms around all of us.’ He didn’t say who he meant by ‘they’.

Neely’s family conceded he’d had his ‘demons’ but said he never physically attacked anyone. Protesters, outraged that Penny wasn’t instantly arrested, even jumped on to subway tracks to express their disgust.

New York’s Democrat governor, Kathy Hochul, weighed in, claiming that it was ‘very clear’ Neely wasn’t going to hurt anyone. Yet countless others rallied behind Penny, with an online legal appeal to pay for his defence attracting more than $2million in donations in just two days. Some supporters, such as Florida‘s Republican governor Ron DeSantis, dubbed Penny a ‘Good Samaritan’.

Overnight, Penny became a hero for those who saw his case as the embodiment of all that’s gone wrong with a ‘progressive’ justice system which allows criminals to keep going free, and forces law-abiding citizens to take their safety into their own hands.

According to their critics, Left-wing prosecutors allowed too many dangerous criminals – including the mentally ill – to walk free in a bid to keep prison numbers down and avoid discriminating against impoverished ethnic minorities by imposing cash bail.

And it is the mentally ill who have been left to fend for themselves on the streets and subways following America’s decision from the 1970s to only institutionalise the most desperate cases.

The tragic result of all this, say Penny’s sympathisers, is that a public-spirited citizen felt compelled to tackle one of the deranged vagrants who have made the New York subway their stomping ground. 

Some of Penny’s critics compared his behaviour to the Minneapolis police officer, Derek Chauvin, who in May 2020 fatally knelt on the neck of George Floyd, sparking the Black Lives Matter protests.

Neely, who had a long history of paranoid schizophrenia and drug abuse, had more than 40 prior arrests including for a string of vicious assaults on elderly people. In 2015, he was arrested for attempting to kidnap a seven-year-old girl who he was seen dragging down a street.

The trial heard that Neely was such a notorious troublemaker that he was on an unofficial Top 50 list compiled by New York officials of the city’s most severely mentally ill people.

One of Penny’s lawyers described Neely as an ‘unhinged nut job’. Family members said his mental health problems had started 15 years earlier when his mother was strangled by her boyfriend and her body dumped inside a suitcase.

Penny’s month-long trial heard witnesses describing how on May 1, 2023, Neely boarded a train and started shouting, throwing his jacket on the floor and striding through the carriage.

Neely, who sometimes tried to earn tips as a Michael Jackson impersonator doing the Moonwalk down carriages, screamed that he was hungry, that he wanted to return to jail and that he did not care if he lived or died as he was ready to ‘kill a motherf*****’, Manhattan Criminal Court heard.

Although lawyers for Penny, who never took the stand, insisted he had restrained Neely because he was concerned the homeless man might hurt other passengers, a few said they’d been more alarmed by Penny’s chokehold. All but two of the 11 witnesses who testified said they’d never had a more terrifying experience on the subway.

Prosecutors never questioned Penny’s motive in initially tackling Neely, with Dafna Yoran, an assistant district attorney, calling it ‘even laudable’.

However, the crux of their case was that Penny was ‘reckless’ and ‘went way too far’, keeping Neely in a chokehold for too long. They told jurors that, as a former Marine, Penny had been trained to use such holds and should have known he risked killing Neely – and that he refused to let go even when others warned him.

A forensic psychiatrist told the court Neely was hospitalised more than a dozen times for psychotic episodes and abusing synthetic cannabis. Neely had hallucinated that he had conversations with the late gangster rapper Tupac Shakur and thought he heard the Devil’s voice, the court heard.

However, in her closing statement yesterday, assistant district attorney Yoran insisted that ‘no one had to die’ as ‘so much less than deadly physical force would have done the job of protecting the passengers from Mr Neely’.

Critics accused Yoran and fellow prosecutors of repeatedly playing the race card – referring to Penny in court as ‘the white man’ and claiming that the accused ‘didn’t recognise that Jordan Neely was a person… he saw him as a person that needed to be eliminated’.

Yoran warned jurors their verdict should not be swayed by whether they themselves would be grateful for Penny’s intervention. ‘You’re not here to decide whether you’d want to ride alone on the train with Jordan Neely,’ she said. ‘That is not what this case is about.’

It appears the jurors were among the many Americans who disagreed with her.