Now, the lightning-rod case against Penny — who argues he acted to protect the other passengers from Neely, who one witness said was ranting in an “insanely threatening” way — is finally going to trial, with jury selection kicking off on Monday.
The jurors who will be tasked with deciding Penny’s fate at his manslaughter trial will essentially walk in the former Marine’s shoes before deciding whether to convict him, former prosecutors told The Post.
The panel of 12 Manhattanites will zoom in on the final moments of Neely’s life in painstaking detail – and be asked to imagine what they would do if they were in Penny’s situation, the legal observers said.
Here’s what you need to know ahead of the highly-anticipated trial:
The former infantry squad leader has repeatedly said he didn’t mean to kill Neely, a homeless former Michael Jackson impersonator who had battled mental illness in the years leading up to his death.
But prosecutors in the Manhattan District Attorney’s office don’t need to prove that Penny had the “intent” to kill in order to convict him on the charges he faces.
Instead, jurors will be asked if they believe beyond a reasonable doubt that Penny “recklessly” caused Neely’s death. If they unanimously agree on this, they can convict Penny of second-degree manslaughter.
Penny also faces another charge with a lower burden of proof: criminally negligent homicide.
To convict him of that, the jury will need to agree that Penny disregarded what the law calls a “substantial and unjustifiable risk of death” when he restrained Neely for several minutes.
Manhattan District Attorney Alvin Bragg’s office has argued that Penny knew during the encounter that he might kill Neely, even if that was not his intention.
They’ve cited testimony from a Marine trainer, who told the grand jury that Marines are taught that chokeholds — which are meant to be a “non-lethal” restraint — can sometimes be fatal.
Prosecutors will also bring up evidence that Penny kept Neely in his chokehold for six minutes, continuing to restrain him even after the homeless man was no longer making purposeful movements.
“The notion that death is not a foreseeable consequence of squeezing someone’s neck for six minutes is beyond the pale,” the DA’s office wrote in a November 2023 court filing.
Prosecutors will also bring up evidence that Penny kept Neely in his chokehold for six minutes, continuing to restrain him even after the homeless man was no longer making purposeful movements.
Defense lawyer Julie Rendelman said prosecutors will likely play the video of Neely’s death in slow-motion, and argue that Penny continued choking him for long after a reasonable person could have considered him dangerous.
“I think they really need to break down the scene, literally, second-by -second,” said Rendelman, who spent 20 years as a prosecutor.
Prosecutors will likely focus on how the unarmed Neely — despite going on a “horrifying” rant on the subway car — was not “actively assaulting anybody” when Penny restrained him, said defense attorney and former Brooklyn prosecutor Jason Goldman.
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