Many of the subway-riding witnesses to Jordan Neely's death, especially female ones, have testified at trial that his aggressive behavior scared them beyond the usual outbursts one might see from a mentally disturbed person on New York City's rail system as he shouted death threats and lunged at people before Daniel Penny put him in a choke hold.
But prosecutors are painting Penny as a vigilante who went too far while hinting at racial undertones that the defense says show an unfair bias against their client, who has not been accused of a hate crime or of intentionally killing anyone.
Although numerous women on the train testified that Neely's raving scared and worried them, and that they believed Penny's intervention was helpful, the defense took issue with testimony from a man who didn't witness the start of the altercation but repeatedly called Penny a "murderer" and "abuser" from the witness stand.
"The women passengers have been good witnesses for the defense," said Neama Rahmani, a former federal prosecutor. "They testified that Neely threatened to kill, and they were terrified for themselves and their children. They were also grateful and relieved Penny intervened to protect them."
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Judge Maxwell Wiley denied defense attorney Thomas Kenniff's motion to declare a mistrial on Thursday despite his concerns of "bias" from the witness and the prosecutors in Manhattan District Attorney Alvin Bragg's Office.
Kenniff described Neely as an "unhinged nutjob" and is arguing that Penny's actions were justified defense of himself and other passengers on the car. Wiley rejected the mistrial but told Kenniff, "I see what you're getting at."
Wiley has a reputation for being fair to all sides, according to Louis Gelormino, a Staten Island-based defense attorney who told Fox News Digital he's tried homicide cases in front of the judge.
"He's very fair," he said. "He gives a lot of thought to his decisions. I don’t think he leans liberal or conservative, either way."
However, he said, Penny's defense is right to be concerned about the prosecution's apparent attempt to smear their client with racial undertones, given that he hasn't been accused of a hate crime.
"It seems like the prosecutors are trying to paint him as a racist," he said. "That’s the biggest argument from the defense … combined with Grima's testimony. It's right at the line."
The defense argued that Penny is not getting a fair trial and raised a number of objections, saying the prosecution was trying to paint Penny as a "White vigilante" and improperly allowed witness Johnny Grima, a homeless man with a conviction for bashing someone with a bat, to call the defendant a "murderer" from the witness stand when he has not been accused of murder.
On Friday, Wiley denied a subsequent motion from Kenniff to have Grima's testimony stricken from the record. He said he could include a special instruction to jurors about witness testimony instead.
"That's the point of the defense: This isn't a hate crime," Gelormino said. "This isn't a racial issue. Nobody's declared it a racial issue."
At least not officially, but Kenniff pointed out in court that Manhattan Assistant District Attorney Danfa Yoran, in opening statements, hinted at a racial undertone by alleging that Penny "didn't recognize Mr. Neely's humanity." Another prosecutor allowed a witness to repeatedly refer to Penny as "the White man."
Prosecutors argue that Penny went too far when he put a belligerent, shouting Neely in a choke hold on a Manhattan subway car after he started screaming death threats.
Witness Lauri Sitro testified Friday that in 30 years of subway riding, she's seen a lot of unstable people, but this "felt different."
"I was scared for my son," she testified under cross-examination. "It's not like you can take a 5-year-old and run to the next train. I felt very relieved when Daniel Penny had stopped him from moving around sporadically."
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Not only that, but during the "headlock," she didn't see Neely struggling to breath at all, she testified.
"He was struggling a little bit, but what I did notice is it didn’t seem like his breathing was under distress," she said.
She did not hear him gag, choke or say he couldn’t breathe.
"It looked like he was just trying to hold him down," she said. "That’s why when I read in the paper the next day I was shocked to learn what had happened."
She said it did not look like Penny was trying to "choke the life out of him."
"I did not feel safe when he was moving around erratically," Sitro said. "I've taken the subway for over 30 years, and I've seen a lot. I've seen a lot of unstable people, and this felt different to me. It made me put a barrier between me and my son."
Sitro was not the only woman who told the court that Neely scared them when he barged onto the train, shouting threats and violently throwing his jacket. Several did, including Ivette Rosario, a teen straphanger who said she just wanted to "get away," and Arethia Gittings, who said she "was scared s---less" and remained at the scene to speak with responding officers.
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Gittings testified that it did not look like Neely was going to give up as Penny and the other men held him down, that she was especially terrified by the encounter after enduring prior attacks on other subway cars and that it didn't look like Penny was applying pressure to Neely's neck but rather trying to hold him still as officers were on the way.
"I came back to thank Mr. Penny for what he had done in that worst scenario," she testified.
Another female passenger to testify was Caedryn Schrunk, a Nike brand manager who said Neely boarded the train and immediately filled the car with the stench of "soiled sweatpants."
"I was scared that I was going to die in that moment," she told the court.
Witnesses – and video of the incident – also reveal other passengers, including a Black man, assisted Penny in holding Neely down during the outburst. It was remarkable that so many witnesses for the prosecution had a similar feeling, Gelormino told Fox News Digital.
"I think it's interesting that they put on quite a few witnesses who said they were in fear for their lives," Gelormino said. "So does Penny have a duty to release this guy, knowing he's a danger to everybody around him and himself? I don't know."
Those witnesses have been a boost to Penny's defense, according to Rahmani, the former federal prosecutor, so much so that Grima's "biased" testimony may not outweigh them.
"Judge Wiley probably realizes that Penny is likely to be acquitted based on the testimony so far, in which case the mistrial motion will be moot," he told Fox News Digital. "Even in the unlikely event that Penny is convicted, the Appellate Division won’t find prejudice with the race evidence that has come in so far."
Penny is facing charges of manslaughter and criminally negligent homicide. If convicted on both counts, he could spend up to 19 years in prison.
The legal threshold for manslaughter is recklessness or "doing something so absurd, so out of the ordinary, that nobody else would do it," Gelormino explained. Negligence is easier to prove, that Penny failed to act the way a "reasonable person would in that situation."
"You've got to get to Penny's frame of mind at that point, not anybody else. It's his frame of mind," Gelormino said."What was he thinking at that point? Was he thinking that this guy was still a danger at the time and would have continued to behave and threaten other people when he continued to hold him that way? Was it reasonable for him to think that, given the circumstances, given the fact that he said, 'I don't care if I'm going to jail, I don't care. I'm going to kill myself. I don't care if I die,' would a reasonable person be in fear at that time? Or would a reasonable person have let him go?"
