NEW YORK– Opening statements began Friday in the trial of Daniel Penny, charged in the death of Jordan Neely, a homeless man who was acting erratically on a New York City subway train, by putting him in a fatal chokehold on May 1, 2023 .

The sounds of a sidewalk protest over Neely’s death were audible in the 13th floor courtroom before opening statements. Protesters were heard calling Penny the “subway strangler.”

Judge Max Wiley said he would ask jurors to ignore “the noise outside the courthouse.”

Penny, dressed in a slate blue suit, confidently entered the courtroom and took a seat at the defense table.

The former Marine has pleaded not guilty to charges of second-degree manslaughter and criminally negligent homicide in Neely’s death. Wiley denied Penny’s request to dismiss her manslaughter case in January.

The jury of seven women and five men, including four people of color, will be asked to do something that prosecutors acknowledge is difficult: convict someone of an unintentional crime.

To convict, prosecutors must prove that Penny’s use of deadly force was unjustifiable and that Penny acted recklessly and knowingly ignored the substantial risk of putting Neely in a chokehold for so long. Prosecutors do not have to prove that Penny intended to kill Neely, which defense attorneys have said Neely did not intend to do.

The trial is expected to last between four and six weeks, according to Wiley.

The case has fueled political narratives about urban crime and captivated a city in which the subway is indispensable.

What happened that day

While there is no doubt that Penny’s actions led to Neely’s death, witness accounts differ regarding the events that led Penny to apply the fatal chokehold, according to various sources.

Multiple witnesses reported that Neely, 30, who was homeless at the time of his death and known for posing as a Michael Jackson impersonator, said he was homeless, hungry and thirsty, according to prosecutors. Most witnesses also recounted that Neely indicated his willingness to go to jail or prison.

Some witnesses also reported that Neely threatened to harm those on the train, while others did not report hearing the threats, according to police sources.

Additionally, some witnesses told police that Neely was yelling and harassing train passengers. However, others said that while Neely exhibited erratic behavior, he did not threaten anyone in particular and did not become violent, according to law enforcement sources who spoke to ABC News after the incident.

According to documents filed with prosecutors, some passengers on the train that day said they did not feel threatened. One said he wasn’t “really worried about what was happening,” while another called it “just another typical day in New York. That’s what I’m used to seeing it. I didn’t really watch it if I went there.” being threatened or anything like that, but it was a little different because, you know, you don’t really hear anyone say anything like that.”

Other passengers, however, described being afraid, according to court filings. One said they “encountered a lot of things, but nothing that scared me that much,” while another said Neely was making “half-lunge movements” and approaching ” half a foot of people”.

Neely had a documented history of mental health issues and arrests, including alleged cases of disorderly conduct, tax evasion and assault, according to law enforcement sources.

Less than 30 seconds after Penny allegedly strangled Neely, the train arrived at the Broadway-Lafayette station, according to court records.

“Passengers who had been afraid because they were stuck on the train were now free to get off the train. The defendant continued to hold Mr. Neely around the neck,” prosecutor Joshua Steinglass said in a court filing. opposing Penny’s dismissal request.

According to prosecutors, footage of the interaction, which began about two minutes after the incident began, shows Penny holding Neely in a chokehold for about four minutes and 57 seconds on a relatively empty train, with a few passengers nearby. proximity.

Prosecutors said that about three minutes and 10 seconds into the video, Neely stopped any intentional movement.

“After this point, Mr. Neely’s movements are best described as ‘twitching and the kind of agonal movement one sees around death,'” prosecutors said.

The case is expected to feature testimony from passengers who were on the subway at the time, as well as about six minutes of video of the strangulation.

Jury to hear eyewitness statements

Before Friday’s opening statements, Wiley granted a defense request to allow some of the statements made by eyewitnesses of the chokehold to police and captured on body-worn cameras.

A witness, Ms. Rosario, was filmed on a body-worn camera 15 minutes after the incident on the F train.

“I can see most of that statement as an enthusiastic statement,” Wiley said.

The judge refused to allow part of her statement in which a police officer is heard asking her if she thought Neely was on drugs.

A Mr. Latimer was captured a minute later and Wiley said his statement was “well within the immediacy of the event” and could be admitted.

“This person shows emotion and enthusiasm when describing what happened. It’s narrative,” Wiley said.

Most of the passengers who were on the train and witnessed the event are expected to testify at trial.

Jury to see evidence Neely didn’t have a gun

The judge also previously ruled that the jury would see evidence showing Neely was unarmed.

Penny’s defense had sought to exclude evidence or testimony about the absence of a weapon recovered during a search of Neely’s body, but in a written opinion released Thursday, Wiley said such evidence and testimony was relevant to the case.

“The fact that Mr. Neely was unarmed provides additional relevant information to assist the jury, namely, it clarifies what might have been perceived by someone in the defendant’s position,” Wiley wrote. “The possibility that a person in the defendant’s position could reasonably have mistakenly believed that Mr. Neely had been armed is appropriate for the jury’s consideration and well within the scope of their abilities.”

The defense worried that including evidence that Neely was unarmed might increase sympathy for the victim, but Wiley said it would help the jury decide whether Penny’s actions were justified.

Penny’s lawyers and Neely’s family speak out ahead of trial

Members of Neely’s family sat with spectators for opening statements Friday.

“I loved Jordan. And I want justice for Jordan Neely. I want it today. I want justice for everyone and I want justice for Jordan Neely,” his uncle, Christopher Neely, said before entering in court.

Prosecutors from the Manhattan District Attorney’s Office are expected to concede that Neely may have appeared frightening to some subway riders, but they will argue that Penny continued to strangle her well beyond the point where Neely stopped moving and constituted a threat.

Penny’s lawyers said they were “saddened by the loss of life” but that Penny saw “a real threat and took action to protect the lives of others”, arguing that Neely was “incredibly threatening” towards passengers on board the metro. .

While Penny’s defense will argue that he had no intention of killing Neely, prosecutor Steinglass noted that the second-degree manslaughter charge only requires prosecutors to prove that Penny acted recklessly and not intentional.

“We are confident that a jury, mindful of Danny’s actions in putting aside his own safety to protect the lives of his comrades, will return a just verdict,” Penny’s attorneys, Steven Raiser and Thomas Kenniff, said in a statement. earlier this year, after Penny’s conviction. the motion to dismiss the charge was denied.

“This case is simple. Someone got on a train and was screaming, so someone else choked him to death,” Neely family attorney Donte Mills said in a statement before ABC News. “These two things do not and will never balance. There is no justification.”

“Jordan had the right to occupy his own space. He was allowed to be on that train and even to scream. He didn’t touch anyone. He was not a visitor on that train, in New York or in this country “, he added. Mills added.