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Brian Lehrer: Brian Lehrer on WNYC. Well, usually around this time on Wednesdays, we have our lead Eric Adams reporter Elizabeth Kim join us with clips from an analysis of and to take your phone calls about Mayor Adams Tuesday news conference. Liz is off today, and instead, we're going to focus on another important thing coming out of Lower Manhattan. It's the Daniel Penny trial. WNYC and Gothamist reporter Samantha Max, who covers public safety in our newsroom, has spent the last few weeks at the criminal trial of Daniel Penny, who is, as most of you know, the 26-year-old former Marine involved in the chokehold death of Jordan Neely on a subway train.

The incident sparked protests across the city and stirred up a lot of feelings for New Yorkers on both sides. Samantha joins me now to recap what's actually been going on during this trial. Hi, Samantha. Welcome back to the show.

Samantha Max: Hi, Brian.

Brian Lehrer: I'll start off with a quote from you in one of your articles that alludes to why New Yorkers are so divided over this widely seen chokehold that took place on an F train last spring. You write, "The case touches on some of the most personal and politically charged issues facing New Yorkers, subway safety, homelessness, mental illness and race," to name a few. Do you think as a reporter that you've seen those things come into the courtroom? Because theoretically none of that is supposed to enter a criminal trial, only the facts and the law.

Samantha Max: I would say all of these things have really been front and center throughout the trial. The subway has honestly felt like a starring character in this trial. Homelessness, mental illness, race, less so, but definitely homelessness and mental illness have come up a lot as each side has described what was going on. Just to remind listeners of what happened here, it was May 2023, an uptown F train traveling from the Lower East Side to SoHo. Just as the doors are closing, Jordan Neely sticks his hand through the door and squeezes his way in.

What we've heard from witnesses is that he started yelling, within seconds, Daniel Penny puts him in a chokehold and continues to hold him for about six minutes, and Jordan Neely was pronounced dead shortly after. The way that homelessness and mental illness come into this case is that Jordan Neely, we now know, he had severe schizophrenia. He was homeless. People might also remember that he was a Michael Jackson impersonator who used to dance on the subways. On this day, he found himself in a very different situation on public transit.

Brian Lehrer: The testimony is all done now. The defense rested, of course, defense goes second. They decided not to put Penny on the stand. A video of his interrogation after the incident was released to the public. Here's 30 seconds of him saying what happened from his point of view.

Daniel Penny: I forget what stop it was at, but some guy came in, he's like-- whipped his jacket off, and he's like, "I'm going to kill everybody. I can go to prison forever. I don't care. I can do this." At that point, I looked at the person next to me like, "Hey, just hang on to this phone for me." I had my headphones in and took it off and just grabbed him from behind because he came in just to-- because he was acting like a lunatic, like a crazy person. He was rolling around the floor. At that point, the train stopped. I was like, "Someone call the cops." He's still rolling around, still going crazy.

Brian Lehrer: He talks about him rolling around on the floor and acting crazy. There's nothing in that clip to say that he assaulted anyone. One of your stories about the trial is headlined, "Witnesses in New York City Subway Chokehold trial are sharply divided over Daniel Penny's actions." Were they sharply divided over Jordan Neely's actions?

Samantha Max: I would say, to an extent. I mean, I think that the testimony that we heard, because we heard from various different people who were on the train that day, and I think their testimony really highlighted an experience that as New Yorkers, we probably all feel as we're on the subway and things come up, everyone reacts a little bit differently. I think the general consensus was that this was an outburst and that it went beyond a typical encounter on the subway. We all see things that happen from time to time on the subway, but that we were hearing from people who regularly ride the subway, some who have been riding the subway for decades, who said this went beyond the typical scope of something they had seen.

I think the differences were in whether people felt uncomfortable, felt afraid, felt terrified, the degree of how afraid people felt. No one said that Jordan Neely directly touched anyone. No one knew if he was armed. We now know that the only thing that was in his pocket was a muffin. There were some people who said that they were concerned that perhaps he had a gun or a knife. This is, of course, happening not too long after there had been a mass shooting on the subway, just a year earlier. That was still definitely fresh in the minds of some of the people who were on the subway that day. That was the spectrum that we were hearing.

Brian Lehrer: In the clip that we played of Daniel Penny, he described Neely, "Whipped his jacket off, and he's like, I'm going to kill everybody. I'm going to go to prison forever. I don't care." Did that get corroborated by witnesses that Jordan Neely said, "I'm going to kill everybody?"

Samantha Max: This was also a really tricky thing because no one could agree on exactly what was said. I mean, obviously, this was like a heat-of-the-moment situation. We also know now that this all went down within 30 seconds or less. Everyone agreed that it was something along the lines of he was hungry and he was thirsty, he was willing to die or go to jail. Some people said he was willing to go to jail for life. Penny has said, or his attorneys have said, that he heard Neely yell, "I will kill," while walking toward a woman with her young child.

That mother testified on the stand. She said she never heard Neely say, "I will kill." We really don't know exactly what was said. I will note that also during Penny's interview with detectives, as they were probing him further about what Neely wanted, he said that he thought he remembered Neely asking for Sprite or ginger ale. No one else mentioned that. There was definitely some disagreement about whether Neely was just expressing that he wanted these things or whether he was saying, "If you don't give it to me, I'm going to do something."

Brian Lehrer: Did the lawyers try to establish from either side what the law allows in terms of-- let's say, people did feel threatened. One of your stories is called "Witnesses in New York City Subway Chokehold Case Say Jordan Neely's Outburst Terrified Them." Let's stipulate, people were terrified, but not that Jordan Neely touched anybody. At what point does the law allow somebody to tackle the guy, never mind put him in a chokehold, but physically intervene at all? Did the lawyers go back and forth on this?

Samantha Max: This is something that I think we can definitely expect to hear about in closing statements next week and also in the instructions that the judge is going to give to the jury as they make their deliberations. I was actually just in court on Monday as the two sides were meeting with the judge to talk through what language in those instructions will be, because it's tricky how you interpret the law. What we do know is that Penny's defense attorneys are going to be arguing basically like a self-defense argument. I mean, they're trying to argue that he didn't cause the death at all, but they are going to try to tell jurors that even if he did cause the death, as prosecutors say, that he was justified.

There are a lot of nuances in the law about when you can use physical force, when you can use deadly physical force. Something that Penny's attorneys were asking the judge in court is, if there is threat of a robbery, can you then use self-defense? We're going to have to wait to find out until next week exactly how the jury is going to be instructed on that.

Brian Lehrer: Let me go back to your article. "Witnesses in New York City subway chokehold trial are sharply divided over Daniel Penny's actions." What's the range of what you heard from witnesses about what Penny did?

Samantha Max: That was a real range because we heard from some people who actually thanked Penny after the fact who said they felt relieved when he put Neely in a chokehold. Some even agreed to talk to police at the precinct that day after he asked them to. Then we heard from several people who were on the train after it pulled into the station at Broadway-Lafayette who were trying to tell Penny to let go unsuccessfully. One of those people--

Brian Lehrer: That's an important moment, right?

Samantha Max: Yes. This, and it's actually captured on the video that went viral, some of this. One man named Larry Goodson, he was actually on the phone with his fiance who served in the military. She is learning secondhand what's going on. She allegedly is telling this man who was on the train, "This is not good. He needs to let go." You can actually hear in the video, he's urging Penny, "Let go of him. If he defecates, that means that he's dying. You need to let him go." Not those exact words, but something along those lines. He testified after all of his pleading, Penny would not respond. He just kept holding on.

We also heard from Johnny Grima. He's a person who I actually connected with in the days after this happened. He is formally homeless himself. He's an advocate who just that afternoon was meeting with unhoused people and was on his way home when he stumbled onto this situation. He had been in a different car on the train, and then when it pulled into the station, he saw the chokehold. He's trying to intervene. He says he was actually trying to pour some water onto Jordan Neely's face to try to wake him up.

He said he felt intimidated by Penny, that he really just did not like how this situation was being handled, but that Penny, again, was not listening to him, so he ended up leaving. That is a decision that he said he still has to live with to this day, and that is really difficult for him to live with.

Brian Lehrer: I'm going to take two callers. People aren't calling in with questions so much as with their opinions about the case. I'm just going to take two callers who will indicate the divergent public opinions that are out there. Just as you were indicating you heard from witnesses to the incident on the train. Desiree in Park Slope, you're on WNYC. Hi, Desiree.

Desiree: Hi, Brian. Happy Thanksgiving.

Brian Lehrer: And to you.

Desiree: The point that I wanted to make to everyone is that the experience as described by everyone I've listened to talk about it now for a year, is not unusual on New York City subways. I think that anybody who regularly rides the subway every day knows that. I've been riding subways since I was a teenager by myself in the '80s. I've had men follow me, homeless or not, agitated or not, speaking in tongues, preaching, all of the above. It happens every day. If women took the time to do a chokehold on every man whovmade me uncomfortable or got in my face or was being loud in the subway, I would never get to where I was going. He overreacted to a situation. Whether we like it or not, that's the New York City. That's the subway.

Brian Lehrer: Desiree, thank you very much. I think we're going to hear something different from Duke in Jersey City. Duke, you're on WNYC. Hi.

Duke: Hey, Brian, can you hear me?

Brian Lehrer: Yep.

Duke: Okay. Yes, so I don't really have a question. I guess I just wanted to add my two cents to the conversation. Like I was saying to your screener, it's a sad situation. It's unfortunate, but just like your previous caller just said, if you ride the subway regularly, this is a common occurrence. It's hard for me to say this because I was listening to another radio program recently, and I think it was Jordan Neely's uncle who was on the program. I just felt so bad. The reality is there are people underground who are totally out of control.

I know myself. I've seen situations where the person who was acting like Jordan was acting was an individual-- or I've seen this multiple times. Was an individual that I knew I could not grab and stop. In other words, the person was physically strong and aggressive and threatening. At any moment, that person could have pulled out a weapon, or if he didn't pull out a weapon, just his physicality could have killed someone if he started to really get violent. Do you understand?

Brian Lehrer: I do. Just to get this to a conclusion for time purposes, I think you told our screener that you're concerned that Penny is going to get convicted because of politics.

Speaker 5: Yes, just because of politics. Just because he's a young white man and he took this action. I think he did not intentionally grab this boy to kill him. He grabbed him to subdue him until they got to the next station, the doors open, and then hopefully there were police there.

Brian Lehrer: Duke, I'm going to leave it there because we're almost out of time in the segment, but our reporter Samantha Max, who's been in the courtroom for the whole Daniel Penny trial, is with us as we finish up. We heard very conflicting takes on this from two longtime subway riders, and to the point that Duke was just making about not killing him intentionally. Maybe it's just politics that would get him convicted. One of your articles is called, "Maureen, who taught Daniel Penny chokehold, testifies at New York City trial, he didn't follow procedure." What was that testimony?

Samantha Max: Yes. Just I want to go back for a second to note also that Daniel Penny continued to hold onto Jordan Neely for several minutes after the train arrived, after the doors opened, for several seconds after Neely stopped moving. Just to note that context, since the caller mentioned timing. Yes. This military trainer who testified, Daniel Penny, was in the Marines for four years. I have learned that all Marines, they go through training in martial arts, and they have to get to at least a certain level in martial arts. Daniel Penny had actually traveled through multiple levels, and as part of that training, he learned different types of chokehold.

Basically what this military instructor explained was that the type of chokehold that Marines are taught, it's supposed to cut off what's called the carotid arteries. Those are on the sides of your neck, and they help blood to flow. That it's supposed to, within less than 15 seconds, make someone go unconscious, and then you're supposed to immediately let go, and that won't kill the person. If you continue to hold on, it can kill the person.

The trainer said Penny was not using this type of chokehold exactly. If he had been, Neely would have gone unconscious much earlier than he did. He was saying that at different points, Penny was putting his arm in places that didn't quite follow any technique, and at times might have been affecting blood flow on the side of his neck, at times might have been affecting his windpipe, but just did not follow the proper procedure, and that that's why the outcome wasn't what would be expected.

Brian Lehrer: That could figure into the verdict, I gather, I imagine, because, again, to the caller's point, no, Daniel Penny was not trying to kill him, but he's not charged with trying to kill him. Right?

Samantha Max: Right. He is charged with manslaughter and criminally negligent homicide. To convict Daniel Penny, the jury would have to find that he was either reckless or negligent with Neely's life. Basically, the argument that prosecutors has made is he wasn't trying to kill Jordan Neely, but that he just did not take into account enough the risk that putting his arm around someone's neck for as long as he did could have killed him.

Brian Lehrer: Closing arguments and then jury deliberations next week after the Thanksgiving weekend. Our reporter Samantha Max has been in the courtroom for the entire Daniel Penny trial. They are off today, so Samantha was available to come on with us and tell us what she's been hearing and seeing. Thank you so much.

Samantha Max: Thank you.

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