The jury for the trial of Daniel Penny, the Marine veteran, who put a Michael Jackson impersonator in a fatal chokehold on a New York subway last year, was seated on Wednesday at Manhattan criminal court, despite contentious arguments between prosecutors and defense, during which the defense was accused of being racist.       

“The defense has been striking people based on their race,” Assistant District Attorney Dafna Yoran told the presiding judge, Maxwell Wiley on Wednesday morning at Manhattan criminal court. 

Defense attorney Thomas Kenniff called the accusation “outrageous” and founded on “unsteady grounds.” The prosecutor insisted, the defense had used eight out of their nine strikes to dismiss people of color, “five Blacks, two Hispanics, and one Asian.” 

Ms. Yoran then filed an oral motion known as a Batson challenge, alleging the defense had used their peremptory strikes to exclude potential jurors based on their race and gender. The name “Batson” comes from the 1986 landmark case Batson v. Kentucky, which ruled that any type of challenges during jury selection, based on race, ethnicity, sex, or religion are unconstitutional. 

The case is racially charged. The defendant, Mr. Penny, is a 26-year-old white man and the victim, Jordan Neely, was a 30-year-old Black man.  

“I believe that Jordan was killed because Jordan was a Black man. I do not think that Daniel Penny would have killed a white man,” Hawk Newsome, the co-founder of Black Lives Matter Greater New York, told reporters outside the courthouse on Wednesday. 

“And what does he do?” Mr. Newsome added, referring to Mr. Penny, “he brings in a specialist, who helped with the Rodney King trial… who worked for Kyle Rittenhouse, for God’s sake, Laci Peterson… she defends the deplorables.”  

Defense attorneys, Mr. Kenniff and his partner Steven Raiser hired the jury consultant Jo-Ellan Dimitrius, who, as the Sun reported, helped select the juries in the trials of OJ Simpson and Kyle Rittenhouse. 

Christopher Neely, the victim’s uncle, agreed. He told the Sun on Wednesday, referring to Hawk Newsome, who is black, “If Hawk was to choke Daniel Penny, it would be totally different. The best advice his lawyer would give him, no matter if it’s a paid lawyer or a legal aid lawyer, is to plead guilty… And the best advice that Danny Penny’s lawyer could do, or his father could do, is to just plead guilty. Don’t put the family through this trial knowing what you did was not right in its totality.” 

Mr. Penny has pleaded not guilty and insists on his innocence. He told police officers after the incident that he did not mean to kill Neely, instead he was trying to protect himself and his fellow subway passengers from an unpredictable aggressor. 

Neely, who was well-known in the subway system as a skilled Michael Jackson impersonator, had a history of drug abuse, homelessness, a criminal record of 42 arrests, and reportedly suffered from mental illnesses (though that has not been proven nor argued in court yet). He boarded an F train at the Manhattan 2nd Avenue stop on May 1, 2023, and according to witnesses, acted erratically and aggressively, throwing his jacket on the ground, yelling that he was “fed up” and that he didn’t “mind going to jail and getting life in prison.” Neely also said, “I’m ready to die.” 

Mr. Penny, who enlisted in the Marine Corps when he was teenager, spending four years there before being honorably discharged, allegedly stood up, grabbed Neely from behind, and placed him in a chokehold on the floor of the subway car. He wrapped his legs around Neely’s legs and held him in a chokehold for six minutes, prosecutors alleged. Two other passengers helped pin Neely down. He was pronounced dead at the hospital hours later and his death was ruled a homicide.

New York police officers took Mr. Penny to the precinct for questioning, where he told the officers he was trying to protect himself and his fellow subway passengers from what a witness describes as an “insanely threatening” aggressor. He was released the same day.

A Spanish freelance journalist recorded the incident on his phone. The video went viral and sparked an uproar among racial justice advocates demanding retribution for Neely’s death and, therefore, Mr. Penny’s arrest. Protesters jumped onto the train tracks and blocked incoming trains at the Broadway-Lafayette subway station, underneath downtown Manhattan, where Neely had died. 

On Wednesday, Mr. Newsome told the Sun that his organization, Black Lives Matter Greater New York, has been active in this case “since day one, from shutting down bridges, from being involved in the subway protest. We’ve been here since day one.”

“Speaking about race,” Mr. Newsome added, “When was the last time you heard about a white guy killing a black guy and walking out of a precinct three hours later?”

Manhattan district attorney Alvin Bragg, whose office is prosecuting the case, didn’t charge Mr. Penny until eleven days after the incident, after the raucous protests had caused significant disruption.  

Mr. Newsome’s sister, Chivona Newsome, who is also a co-founder of Black Lives Matter Greater New York, told the Sun on Wednesday that “we were outraged when we saw the murder of Jordan Neely on tape. We held a series of protests. And the last protest in this case was right here, at this park, in front of 100 Center Street, and we called on DA Alvin Bragg to file charges of manslaughter… and we did have chants in front of this office for five hours, and we vowed to sleep here until charges were filed.”    

Some media outlets reported that Mr. Bragg succumbed to public pressure when he charged Mr. Penny. But Mr. Bragg denied the claim, saying his team needed time to review the video footage and speak to witnesses.  

Mr. Penny faces second-degree manslaughter and negligent homicide charges, which combined carry a maximum sentence of 19 years in prison. The jury will decide if he is indeed guilty or not.  

After Ms. Yoran accused the defense of dismissing potential jurors based on their race, the judge asked the defense to explain their reasons for the excusal requests one by one. 

One prospective juror, the defense had asked to dismiss, a black woman,  had purple hair. “She can have whatever hair she wants, but it’s outside the mainstream appearance,” Mr. Kenniff said. “I believe she gave answers that were inconsistent.” The main concern for the defense was not the hair color, but the fact that she had struggled with homelessness, and would potentially “sympathize with the victim.” He added that “her views on crime on the subways… were not favorable to us.” 

Another juror the defense had struck was a self described “weed connoisseur.” Ms. Yoran suggested that he was eliminated, because he  “smokes marijuana.” Mr. Kenniff argued, his education was on the “lower end of the scale.” 

The defense cited reasons, such as family members, who had struggled with mental health or drug abuse, or that the potential jurors were consuming news from “certain periodicals” with “far left political affiliations,” such as The New York Times or the radio station 1010wins. Mr. Kenniff said that “an individual who follows those types of news sources would be less favorable for us.”  

Ms. Yoran argued that “virtually every juror reads The New York Times,” and repeated again and again that “there were also white jurors” who had given “similar answers.” 

“They really are digging to find reasons why it is they are striking these people of color,” Ms. Yoran said.

Judge Wiley listened to the arguments, and ultimately accepted the defense’s reasons. He resumed the voir dire, the process during which potential jurors are questioned about their backgrounds and experiences to determine if they judge the case fairly and impartially, and by the end of Wednesday, had seated seven women and five men to serve on Mr. Penny’s jury. 

Eight of the twelve jurors appeared to be white, four are people of color. They include a software engineer from the East Village, a health care worker from Washington Heights, a corporate lawyer, who lives in Murray Hill, and a paralegal from the Upper East Side. 

“We are very pleased with the diverse make-up of the jury, consisting of men and women of all different backgrounds, races, and ethnicities.” Mr. Kenniff told the Sun in an email on Wednesday evening. “The prosecutor’s suggestion that the defense considered race in the selection process is both reckless and belied by the diverse makeup of the seated jurors.” 

The district attorney’s office had “no comment beyond what was said in court.”

Mr. Neely and Mr. Newsome were not happy with the jury. Mr. Newsome told the Sun, “everything that we said about race was confirmed today with the Batson challenges, with the fact that these defense attorneys remove people just because they were people of color… This is what happens when a black person is lynched. The defense comes together to make it seem it’s the black person’s fault.”  

Opening statements are scheduled to begin on Friday.