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A couple who reportedly have potentially exonerating video footage of ex-Marine Daniel Penny is refusing to help him.

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 Monday, when 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.

Penny’s attorney, Thomas 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.”

The Post notes that Penny’s attorneys were asked by Judge Wiley whether they’d be open to the couple testifying remotely, but the attorneys said they’d prefer in-person testimony.

“I certainly don’t have — we certainly don’t have the means of making that happen,” Kenniff said. “Whether the People do or not, I guess, is a question of international law, and the Hague, and so forth.”

Without the couple’s testimony and footage, the courts will have to rely on the testimony of other witnesses, as well as Penny’s own statement.

In an official statement released after Neely’s death last year, Penny’s lawyers highlighted the homeless vagrant’s “documented history of violent and erratic behavior, the apparent result of ongoing and untreated mental illness.”

“When Mr. Neely began aggressively threatening Daniel Penny and the other passengers, Daniel, with the help of others, acted to protect themselves, until help arrived. Daniel never intended to harm Mr. Neely and could not have foreseen his untimely death,” the statement continued.

The statement concluded with the attorneys calling for elected officials to do more for the mentally ill.

“For too long, those suffering from mental illness have been treated with indifference. We hope that out of this awful tragedy will come a new commitment by our elected officials to address the mental health crisis on our streets and subways,” they wrote.

According to various reports, the chokehold by Penny was prompted by Neely yelling at passengers, making threats, and acting erratically. Indeed, according to the Post, a bevy of 911 calls were made right before Penny put Neely in a chokehold.

“A total of five emergency calls were made over a four-minute span just before 2:30 p.m. Monday as a Marine — now identified as 24-year-old Daniel Penny — held Neely in a chokehold on the floor of the northbound F train in Lower Manhattan,” the Post notes.

The first call, made around 2:26 pm, was from someone who reported that a physical fight was occurring on the train and that someone was threatening riders.

The second call, reportedly made seconds later, claimed a passenger aboard the train was armed with a knife or gun.

“Two more calls then came in a minute apart, at 2:29 and 2:30, for reports of an assault in progress and threats, respectively,” according to the Post.

The train operator reportedly also called for help:

Vivek Saxena
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