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The prosecutors trying to imprison former Marine Daniel Penny are reportedly trying to prevent key, potentially incriminating testimony from being heard by the jury.

Penny is, as originally reported last year, a former Marine who was accused of killing a violent black homeless man, Jordan Neely, during a tragic altercation on a New York City subway.

After Neely began threatening other passengers, Penny put him in what turned out to be a fatal chokehold. Penny was subsequently charged with second-degree manslaughter and criminally negligent homicide, though many critics, including bystanders who’d been present that day, have argued he’d done nothing wrong.

Fast-forward to Wednesday, when the New York Post revealed that prosecutors with the Manhattan District Attorney’s Office are now trying to prevent Neely’s “psychiatric history and chronic abuse of the drug K2” from being disclosed during Penny’s trial.

“Defense attorneys for the ex-Marine — who faces manslaughter charges for allegedly choking Neely to death on a Manhattan train car in May 2023 — want forensic psychiatrist Dr. Alexander Bardey to testify about Neely’s abuse of the synthetic cannabinoid at next month’s trial,” according to the Post.

“They also want to introduce Neely’s voluminous psychiatric records, which include 6,000 pages’ worth of material that detail the homeless man’s family history, surgeries, prior ‘bad acts’ and more, according to court documents,” the Post noted.

Yet according to prosecutors, allowing this factual evidence into the trial would amount to smearing Neely.

“Their suggested introduction is a transparent attempt by the defense to smear the victim’s character so that the jury will devalue his life,” Assistant District Attorney Dafna Yoran wrote in a court filing.

Dr. Bardey’s testimony would be “clearly impermissible,” Yoran added because it’s evidently not related to his death.

“The only thing relevant to the justification defense is the victim’s behavior at the time of the incident,” Yoran wrote. “Numerous witnesses will testify regarding Mr. Neely’s aggressive behavior on the date of the incident. The jury does not need and cannot be permitted to hear Dr. Bardey’s opine as to why Mr. Neely was aggressive.”

In a response filed on Tuesday, Penny’s attorney, Thomas Kenniff, reportedly wrote that he has no intention of “smearing” Neely.

“Instead … it is the Government’s motives that should be examined, as they seek to impede the jury’s truth-seeking function by suggesting that jurors be barred from considering facts relevant to issues material to this case,” he wrote.

He further argued that Bardey’s testimony would “demonstrate that Mr. Neely was likely under the influence of K2 and experiencing a psychotic episode when he boarded the Queens-bound F train on May of last year, the manifestations of which made his appearance and affect more pronounced and hence more threatening to Mr. Penny and his fellow riders.”

This info, he added, would “inform the jurors’ understanding as to the plausibility of the witness accounts and the degree of hostility that Mr. Neely exhibited.”

Plus, Neely’s toxicology reports have confirmed that he did have K2 in his system when he died, Kenniff continued.

“Mr. Neely’s actions at the time of this incident, when viewed through the lens of his treatment history, suggest that he was off his medications, abusing K2, and experiencing a psychotic episode,” he wrote. “Concepts like proportionality, de-escalation and, of course, reasonableness, are woven into the very fabric of this case.”

“It is impossible for the jury to fairly weigh the evidence, and to afford Mr. Penny the fair trial he is constitutionally guaranteed unless permitted a full understanding of the aggression, irrationality, and terror that Mr. Neely was manifesting,” he added.

All this comes days after Manhattan Supreme Court Justice Maxwell Wiley revealed that two witnesses who’d recorded the altercation, both Europeans who’ve since returned home, have refused to turn their footage over to prosecutors or testify in Penny’s trial.

The couple “apparently took a video of the incident, and since that time have declined to testify in the Grand Jury, and have gone back to their home, which apparently is in Europe someplace,” the judge said during a lawyers-only conference, as reported by the New York Post.

“They have so far refused to share the video that they took. They refused to share it with the DA, or with anyone else, and they are so far refusing to come back to testify,” the judge added.

According to the judge, the two bystanders have, to their credit, at least conducted a couple of video meetings with the Manhattan District Attorney’s office. The problem is they’ve refused to cooperate beyond that.

Kenniff meanwhile said that the couple’s video footage and testimony could be the key to winning their case, adding that it could be “maybe more probative than any testimony of the issues that are going to be at issue in this trial.”

Vivek Saxena
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