The European couple who filmed Jordan Neely's subway strangulation could be “incredibly helpful” in the defense of former Marine Daniel Penny on his upcoming trial– but the mysterious pair of lovers have refused to testify, their lawyers say.
Manhattan Supreme Court Judge Maxwell Wylie revealed Monday that two European witnesses had rejected prosecutors’ request to hand over the footage and return to the city for Penny’s trial next month, a transcript obtained by The Post shows.
“The couple apparently videotaped the incident, and have since refused to testify before the grand jury, and have gone back to their home, which is apparently somewhere in Europe,” the judge said during a conference call with attorneys.
“They have refused to share the video they made so far,” the judge said. “They refused to share it with the DA or anybody else, and they are refusing to come back to testify so far.”
The tourists have had a few video meetings with the Manhattan District Attorney's Office, but have not yet agreed to full cooperation, the judge said.
No explanation has been given as to why the spouses are refusing to hand over the footage or testify in the controversial case. It is unclear where in Europe they are from.
Penny, who was not in court Monday, is charged with second-degree murder and criminally negligent homicide for the encounter caught on camera that left Neely dead on the floor of an F train subway car in May 2023.
The former infantry squad leader has repeatedly said he never meant to kill Neely, a homeless former Michael Jackson impersonator who had been battling mental illness for years Due to which he died.
But Penny felt he had to step in to protect his fellow bullies from Neely, who according to witnesses was throwing trash and yelling that he was ready to “kill a motherfucker” and go to jail, according to his lawyers.
Penny's attorney, Thomas Kenniff, said the European couple's testimony could be crucial to Penny's defense — and if the case isn't resolved soon, it could become a “very serious issue” before jury selection begins in late October.
Using a term to describe valuable evidence, Kenniff said the couple’s testimony would not only be “packed with evidence” but also “incredibly favorable to the defense, or at least parts of it.”
The lawyer said the tourists' account of the incident “may be more convincing than any testimony on the issues that may be raised in this case.”
The judge asked the lawyers if they would be willing to have the couple testify from Europe – but Penny's lawyers are hopeful the couple will come to testify in person.
“I certainly don't have the means to do that. Whether people do that or not, I guess that's a question of international law and the Hague and so on,” Kenniff said, referring to the International Court of Justice in the Netherlands.
It's unclear what the couple's video will show or how it will benefit Penny.
Court records show prosecutors also have other videos related to Neely's death.
When asked about the European couple, Penny's lawyer declined to comment.
According to the judge, jury selection in the case will begin around Oct. 21, and the trial is expected to last several weeks until the court's Christmas recess on Dec. 20.
If Penny is found guilty in this case, she could face up to 19 years in prison.
He is due to appear in court again on Oct. 3.
