Daniel Penny’s defense attorney made his closing argument Monday, arguing that Penny Jordan did not kill Neely when he held Neely in a chokehold for about six minutes on an uptown F train in May 2023.

Attorney Steven Raiser told jurors that prosecutors had not proven that Penny squeezed so hard that Neely became unconscious or killed him.

“They failed to prove their case, period,” he said.

Penny, 26, has been on trial since late October on charges that he killed Neely, 30, who was homeless, suffered from schizophrenia and had K2 in his body when he died, according to court records. Penny, who served in the Marine Corps for four years, has pleaded not guilty to manslaughter and involuntary manslaughter. Penny could face up to 15 years in prison if convicted of the highest charge.

Eyewitnesses say that after Neely got on the train and began screaming that he was hungry, thirsty and ready to die or go to prison, Penny put his arm around Neely’s neck and pulled him to the ground. According to evidence presented in court, Penny tied Neely up for several minutes after the train stopped at the next station and also for nearly a minute after Neely stopped.

Another passenger on the train that day recorded several minutes of the encounter, and the video went viral, sparking polarized reactions from viewers. Some — including several conservative celebrities — viewed Penny as a hero and donated more than $3 million to a legal defense fund on a Christian crowdsourcing website. Others denounced Penny as a vigilante and flooded subway tracks to protest his actions.

On Monday, Raiser said other factors may have caused Neely’s death, including a genetic trait and medications in his body. He said the coroner’s office blamed Penny for Neely’s death without reviewing all the evidence to satisfy protesters.

“I grant you there was a rush to make a judgment,” he said.

Raiser began his closing statement by asking the jury to imagine being on the train with Penny and Neely that day. He showed images of an uptown F train accompanied by sound effects and described Neely as “screaming threats” while passengers “frozen in fear.”

“Daniel Penny was the one who protected her,” he said. “Why? Because he had something the others didn’t have. Something unique to him.”

Raiser said Penny chose acting because of his military training. But he said Penny tried to keep Neely in place – not kill him – because he had a “softer side.” He also accused prosecutors of “scapegoating a man” who “acted when others could not.”

“He put his life at risk,” Raiser said. “He did this for complete strangers.”

“I am all too aware of what the consequences could be”

Prosecutors began their closing arguments Monday afternoon after the defense suffered a long delay due to technical difficulties in its presentation that morning. Manhattan District Attorney Alvin Bragg watched from the second row of the packed courtroom. Neely’s father, Andre Zachery, was also in the gallery.

Assistant District Attorney Dafna Yoran argued that Penny was “absolutely not” justified in using deadly physical force against Neely and that he should have known he was endangering Neely’s life. She said Penny learned in the Marines that chokeholds can be deadly and also told the jury about other methods from his training that he could have used to restrain Neely without holding him by the neck.

“The defendant was all too aware of the possible consequences,” she said. “He was trained in it. And yet he continued with the predictable and tragic consequences.”

Yoran said Penny could not reasonably believe Neely posed a deadly threat because he was unarmed. Although some witnesses testified in court that they feared Neely might have had a gun, the prosecutor said Penny did not appear to be worried about a gun in his statements to police. She said it wouldn’t have made sense for Penny to use the chokehold he did if he thought Neely had a gun, because it left Neely’s hands free.

The chokehold, Yoran said, was originally intended to protect subway riders from Neely. But when the train doors opened and passengers escaped onto the platform, the intent was to hold him until police arrived, she said, adding that Neely no longer posed an immediate threat.

“Our society decided a long time ago that it was better to let someone escape than to kill them,” she told jurors.

Yoran also argued that Penny recklessly ignored warning signs that Neely might die. She said several people told Penny to stop choking Neely, but he wouldn’t let go. She said Penny felt the need to protect others on the subway, but “just didn’t realize that Jordan Neely was also a person who needed to be protected.”

Yoran played excerpts from Penny’s statement to investigators at the police station in which he called Neely a “crackhead” and said, “These guys push people in front of trains.” She said Penny lied about letting Neely go to appear less guilty works.

She also said Penny never asked investigators if Neely was OK, even though he saw Neely lying limp on the floor while first responders checked his pulse, pumped his chest and gave him multiple doses of overdose-reversal drugs.

“Imagine if you didn’t even care enough to ask that,” Yoran said. “The defendant, as kind and compassionate as he may be, appears to have a real blind spot for Mr. Neely.”

Yoran is expected to complete her closing statement on Tuesday morning. She said in court that she would remind the jury of evidence that showed Penny was directly responsible for Neely’s death.