According to local reports, two European witnesses to the altercation that killed Jordan Neely and Daniel Penny, a New York City Marine infantry veteran who is charged with manslaughter, have returned home and refused to cooperate with prosecutors from Manhattan District Attorney Alvin Bragg's office.
Penny, 25, was seen on cellphone video strangling Neely, 30, in May 2023 while other passengers helped restrain him and is scheduled to go on trial next month.
Neely, who was homeless, had a history of threatening and erratic behavior towards subway passengers and had a history of mental illness and violence, including assaulting a 67-year-old woman in 2021. He lost consciousness and later died.
Foreign witnesses spoke with investigators via conference call but refused to cooperate or submit video of the incident. New York Post The report cited a transcript of a closed-door meeting between the judge and lawyers for both sides.
US Marine Corps veteran Daniel Penny pleads innocent to murder charge in strangulation death of Jordan Neely
Daniel Penny will depart Manhattan Criminal Court on January 17, 2024. Penny is charged with the 2023 death of Jordan Neely on the New York City Subway. (John M. Mantell for Fox News Digital)
Penny's lawyers declined to comment on Thursday's hearing but said in the record that the European couple's testimony would be “highly advantageous to the defense.”
A representative for Bragg's office did not immediately respond to a request for comment.
“They have so far refused to share the video that they took,” the judge told the lawyers. “They have refused to share it with the district attorney or anyone else, and so far they have refused to return to testify.”
Daniel Penny: Marine Corps veteran accused in fatal subway chokehold reveals why he intervened
A screenshot from a bystander video showing Jordan Neely being choked on the New York City subway. (Luces de Nueva York/Juan Alberto Vázquez via Storyful)
It was unclear Thursday what was shown in the European couple's video.
Prosecutors announced in June 2023 that they had already obtained five eyewitness videos of the incident, as well as security camera video that they planned to introduce as evidence.
“Unfortunately for Penny's defense team, there is very little they can do to compel foreign nationals to give evidence or testify in court,” said Neama Rahamani, a former federal prosecutor based in Los Angeles. “While international treaties like the Hague Convention allow for international subpoenas, in practice no judge can compel a European witness to comply with a U.S. subpoena.”
Still, self-defense cases are often difficult to prosecute and often result in acquittals, he said.
“Penny's defense team will have to rely on witnesses who actually presented evidence to law enforcement and prosecutors, who live in the state and who could be compelled by a judge to testify even if they don't want to,” he added.
Witness to Jordan Neely's strangulation murder calls Daniel Penny a 'hero'
Jordan Neely, left, and his aunt, Carolyn Neely, are shown in this undated photo provided by the New York law firm of Mills & Edwards on May 12, 2023. (via The Associated Press, courtesy of Mills & Edwards LLP)
Critics of Governor Bragg's decision to prosecute Penny believe the move is political and that the military veteran acted in self-defense and to protect other passengers.
“if [Neely] “If I had carried out my threat, I would have killed somebody,” Penny told Fox News Digital in June 2023.
Click here to get the FOX News app
Another witness expressed similar concerns.
“I don't care if I have to kill the F, I'll kill him,” Neely allegedly yelled. “I don't care if I go to jail, I don't care if I take a bullet.”
Penny, who voluntarily spoke to police 11 days before Blagg's office filed the charges, faces up to 19 years in prison if convicted. His next court hearing is scheduled for October 3.
