Couple who filmed marine Daniel Penny putting Jordan Neely in chokehold are refusing to testify at murder trial

A couple who filmed ex-Marine Daniel Penny putting Jordan Neely in a chokehold which ultimately led to his death in May 2023, are refusing to come to New York to testify at Penny's trial. 

The pair 'apparently took a video of the incident, and since that time have declined to testify in the Grand Jury, having gone back to their home in Europe someplace,' a judge said during a pre-trial conference for the lawyers involved. 

'They have so far refused to share the video that they took,' the judge explained, reports the New York Post.

'They refused to share it with the DA, or with anyone else, and they are so far refusing to come back to testify.' 

It's not clear who the couple are or why they have so far refused to cooperate with authorities, but Penny's lawyers believe the footage could be 'incredibly favorable' to the former Marine should it be admissible as evidence.

So far the couple, who are believed to reside somewhere in Europe, have rebuffed attempts by prosecutors who have attempted to get them to turn over the footage, Manhattan Supreme Court Justice Maxwell Wiley said.

The Manhattan District Attorney's office are still in contact with the tourists and have held a number of video meetings with them, but they are yet to give the go ahead without explaining why they won't hand over the footage or make a return trip to the city to testify.

Penny, 25, is facing charges of second-degree manslaughter and criminally negligent homicide following a confrontation on the a subway train in May 2023 that left Neely dead.

Neely was restrained by Penny after he allegedly threatened people in the train car.

Penny placed him in a chokehold on the F train at the Broadway-Lafayette Street and Bleecker Street station.

He was 24 at the time of the incident and was filmed restraining Neely, holding him on the floor until he was unconscious.

Neely was pronounced dead at the scene and the medical examiner later ruled the death a homicide, saying his neck injuries proved the chokehold was what caused it.

Penny, a former infantry squad leader said he did not mean to kill Neely but that he felt like he needed to step in to protect fellow passengers from Neely who was throwing garbage and threatening to 'kill a motherf*****' and be jailed.

Penny broke his silence to say that Neely's death had nothing to do with race, claiming he did what he believed was right and would behave the same way if he were put in the same situation again.

He has pleaded not guilty. His defense attorneys previously tried to get the case dismissed, claiming he 'stepped in to save lives' but this was rejected in January.

Neely, who was homeless, was a former Michael Jackson impersonator and had been battling mental illness in the years leading up to his death.

Jury selection in Penny's trial is set to start in late October.

His attorney, Thomas Kenniff, said if the couple refuse to testify it could pose a 'very serious issue.'

Kenniff explained how testimony from the couple in their account of what happened and what they witnessed would be 'probative' and also 'incredibly favorable to the defense, or at least certain parts of it.'

The tourists' account of the episode could 'maybe more probative than any testimony of the issues that are going to be at issue in this trial,' the lawyer added.

Attorneys at the pre-trial conference were also asked by the judge if they would be open to having the couple testify from Europe remotely.

'I certainly don't have — we certainly don't have the means of making that happen. Whether the People do or not, I guess, is a question of international law, and the Hague, and so forth,' Kenniff said.

Court records details how prosecutors do have other video in their possession that shows Neely's death.

Jury selection will start around October 21 with the trial proper expected to last several weeks. 

If convicted, Penny could face up to 19 years in prison.

Neely had an extensive rap sheet for crimes on the subway, including vicious assaults of other passengers.

In 2021, he attacked an elderly woman as she left the Bowery station in the East Village. She suffered a broken nose, a fractured orbital bone, and 'bruising, swelling and substantial pain to the back of her head' in the November 12 attack, according to a criminal complaint.

He admitted felony assault on February 9 in exchange for a 15-month alternative-to-incarceration program, according to the Manhattan District Attorney's Office.

He was supposed to stay in a treatment facility and stay sober.

Between January 2020 and August 2021, he was arrested for public lewdness after pulling down his pants and exposing himself to a woman, misdemeanor assault for hitting a woman in the face, and criminal contempt for violating a restraining order.

All three cases were dismissed as part of a deal.

In June 2019, Neely assaulted 68-year-old Filemon Castillo Baltazar on the platform of the W. 4th St. Station in Greenwich Village, court records show.

'Out of nowhere, he punched me in the face,' the victim told the New York Daily News. He said he saw Neely before the attack rummaging in trash cans for food.

One month earlier, Neely punched a man in the face, breaking his nose on the platform of Broadway-Lafayette – the same subway station where he died.

For both 2019 cases, he pleaded guilty to misdemeanor assault and was sentenced to six months in jail.

Neely's family said he 'experienced a mental health episode' and that no rider asked what was wrong before Penny and two others restrained him.

A woman on the subway that day has described how she was reading a book when she heard Neely begin to yell.

'He said, 'I don't care if I have to kill an f, I will. I'll go to jail, I'll take a bullet.' I'm looking at where we are in the tube, in the sardine can, and I'm like, 'OK, we're in between stations. There's nowhere we can go.'

She told Fox News that Penny was just acting in 'self-defense, and I believe in my heart that he saved a lot of people that day that could have gotten hurt.

'Nobody wants to kill anybody,' she claimed. Mr. Penny didn't want to kill that man. It took three men to hold Mr. Neely down. He was struggling.'

The woman, who described herself as a 'woman of color', also said race has nothing to do with what happened on the train. 

'This isn't about race. This is about people of all colors who were very, very afraid and a man who stepped in to help them. 

'Race is being used to divide us.' 

She said New York - a city where she has lived for 50 years - was starting to look like a 'Third World Country'.

'I miss the city under the law and order of Giuliani. When it comes to exposing people or subjecting them to violent behavior, the people who are in power and supposed to protect us are not.'