Jurors will be asked ‘What would you do?’

Jordan Neely dies in crowded Manhattan subway car felt nervous With New Yorkers in May 2023, when bystander video of Daniel Penny putting a troubled homeless man in a fatal chokehold went viral.

Now, the lightning-rod case against Penny – who argues she acted to protect other passengers from Neely, who a witness said was abusive. “Extremely Threatening” Method – The trial is finally going to happen, jury selection starts on Monday.

Former prosecutors told The Post that the jurors tasked with deciding Penny’s fate in her murder trial will essentially walk in the former Marine’s shoes before deciding whether to convict him.

Legal observers said the panel of 12 Manhattanites will look at the final moments of Neely’s life in detail — and ask them to imagine what they would have done if they had been in Penny’s situation.

Here’s what you need to know ahead of the highly anticipated test:

What does the Manhattan DA’s office have to prove?

The former infantry squad leader has repeatedly said that he did not intend to kill Neely, a homeless former Michael Jackson impersonator. who had been struggling with mental illness for years Due to which he died.

But prosecutors in the Manhattan District Attorney’s office do not have to prove that Penny had “intent” to commit murder to plead guilty on those charges.

Instead, jurors will be asked whether 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 murder.

Penny also faces another charge with a lower burden of proof: manslaughter by criminal negligence.

To convict him, the jury would have to agree that Penny disregarded what the law calls a “substantial and unreasonable risk of death” when he restrained Neely for several minutes.

What will prosecutors argue?

Office of Manhattan District Attorney Alvin Bragg Penny has argued During the encounter he knew he could kill Neely, even if he did not intend to.

He cited testimony from a Marine instructor who told the grand jury that Marines are taught that chokeholds – considered “non-fatal” restraints – can sometimes be fatal.

Prosecutors will also present evidence that Penny restrained Neely for six minutes, continuing to restrain him even after the homeless man was no longer making purposeful movements.

“The notion that choking someone for six minutes cannot reasonably be expected to result in death is absurd,” the DA’s office wrote in a November 2023 court filing.

Defense attorney Julie Rendelman said prosecutors would likely play the video of Neely’s death in slow motion, and argue that Penny continued to strangle her for a longer period of time than a reasonable person would have considered dangerous.

“I think they really, really need to break down the scene, second-by-second,” said Rendelman, who spent 20 years as a prosecutor.

Defense attorney and former Brooklyn prosecutor Jason Goldman said prosecutors would likely focus on how the unarmed Neely — despite the “terrible” rant on the subway car — was “not actively attacking anyone” when Penny had stopped him.

But Rendelman said prosecutors would be making a mistake if they argued that Neely was “no threat to anyone” before Penny arrived.

“You may lose some of those jurors who have been on the train multiple times, who have been threatened by different individuals on multiple occasions,” he said. “They really have to approach it in a way that recognizes him, but also recognizes that he’s gone too far.”

What argument will the defense make?

Penny’s attorneys, Thomas Kenniff and Steven Ryser, have argued that Penny was justified in strangulating because of what they called Neely’s dangerous behavior toward straphangers – which included babbles that “somebody’s going to die today” and that he was “recusant.” “Ready to go.” ,

“Penny’s defense team will put jurors in that train car and challenge them on what the safest response would be in the face of Neely’s chaos,” Goldman said.

The defense will also likely try to poke holes in the city medical examiner’s ruling that Penny’s strangulation caused Neely’s death.

Advocate Argued in the October 2023 proposal The medical examiner who testified before the grand jury never provided any specific evidence that Neely died from asphyxiation caused by strangulation.

If the judge allows, they could bring a case of Neely’s long-term abuse of the drug K2. Penny’s lawyers say Neely’s toxicology report confirmed he had K2 in his system when he died. But the report did not say how much was present.

Bids from Penny’s lawyers to dismiss the case on these grounds have so far been rejected.

But jurors could acquit him at trial if they find they have reasonable suspicion that Penny’s strangulation caused Neely’s death.

Who will testify?

According to court documents, several straphangers who witnessed the fatal encounter, police officers who arrived at the scene and the detective who interviewed Penny that night are set to take the stand.

Jurors will also hear from the city medical examiner’s office and possibly psychological experts who may try to understand Penny’s state of mind during the episode.

A big question looming over the trial is whether Penny herself will testify. He will have a chance to take a decision after the prosecution settles its case.

“I think maybe he needs to testify,” Rendelman told The Post.

“This is one of those cases where it’s likely that the jury will want to hear from Penny, because part of that justification will be about what she felt at the time the events were occurring,” she said.

“What was going through his mind every step of the way?”

How much time will Penny have to spend behind bars?

If the jury convicts Penny of homicide rape, she could face up to 15 years in prison, and if she is convicted of the lesser charge of criminally negligent homicide, she could face up to four years in prison.

The DA’s office has not indicated how severe a sentence it will seek against Penny, who had no criminal record before his arrest.

The final decision on Penny’s fate if convicted will fall to Manhattan Supreme Court Judge Maxwell Wiley, who is presiding over the case.

What could complicate matters?

The Manhattanites included on the jury will likely have had their own scary experiences at some point on the subway, Goldman said, so selecting the panel was especially important.

“Jury selection is always a big part of any case, but especially for this case, multiply it by 10,” he told The Post.

“There will certainly be big emotions involved around all four corners of this case, and outside the legal parameters,” he said.

Last summer, Goldman represented Jordan Williams, 20, who stabbed a man in the subway When the man punched his girlfriend And attacked Williams himself. Williams’ case was dropped after a Brooklyn grand jury declined to indict him on murder charges.

Unlike the Williams case, there is no evidence that Neely laid hands on all the passengers on the train before Penny’s arrival.

Rendelman said of the prosecution, “I think the key is to deal with the self-defense aspect because I think, in some ways, they have an uphill battle.”

“At the end of the day, one of their arguments is going to be, even if you initially believe that – Daniel Penny’s argument that self-defense is true, there was a time when self-defense was no longer safety.”

“To me that will be one of the important things for the jury to understand so they don’t lose them.”