Daniel Penny, the 26-year-old Marine veteran turned architecture student on trial for a chokehold that killed 30-year-old Jordan Neely on a subway car last year, will likely testify in his own defense at trial soon, according to a New York City defense lawyer who has handled similar cases.
Staten Island defense attorney Louis Gelormino told Fox News Digital he often hears from jurors after the fact that they wanted to know why a defendant didn't testify, even if the judge instructed them they couldn't hold it against him.
Gelormino is not connected to Penny's case but has been following it closely and handled two trials under the same judge among roughly a hundred he's defended overall.
For that reason, he believes the traditional practice of keeping the defendant off the witness stand is a bad choice in general. But in a case like Penny's, in which his thought process can be crucial to justifying the act, it's not up for debate.
"I think in Penny's case, he has to take the stand," Gelormino said. "Because when you're raising an affirmative defense like justification, it just goes to Penny's mind. And the only person that can say what's going on in Penny's mind at the time of the incident is Penny."
Penny is charged with manslaughter and criminally negligent homicide in Neely's death.
Neely was a homeless drug abuser with schizophrenia and a criminal history that included assaulting a senior citizen woman. He barged into a Manhattan subway car in May 2023 and started screaming threats, according to witnesses.
"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,’" one eyewitness told Fox News Digital last year.
Lawyers for both sides have painted a scene for jurors about what happened on that subway car, he said. The prosecution is trying to convince them Penny went too far, recklessly or negligently causing Neely's death. The defense is trying to convince them his actions were justified and reasonable.
"Justification defense is used in these type of cases, when you're saying, 'Yeah, I did the act that's alleged to have happened … but it's not a crime because I was justified in doing it because of X, Y and Z,'" Gelormino told Fox News Digital.
A series of witnesses called to the stand by the prosecution have already said they were afraid, they thought they were in danger and they were concerned for their children, he noted.
"When Perry takes the stand and says, ‘Well, I thought everybody was in danger,’ ultimately, I would assume, that's where the defense wants to go," Gelormino said.
He had two clients last year suspected in a self-defense chokehold case in which the man who died tried to rob them and had a gun. They were not charged in the Staten Island case, which was overseen by a different prosecutor.
Manhattan District Attorney Alvin Bragg's office, however, brought charges against Penny 11 days after Neely's death in May 2023.
Neely, a homeless man and chronic drug abuser with a documented history of severe mental illness and criminal behavior, has been described as a former Michael Jackson impersonator who was hungry and thirsty. Police found no weapons after his outburst, but they did find a muffin in his pocket.
Penny's trial resumes Thursday.
He faces up to 15 years in prison if convicted on the top charge of manslaughter.
With the defense expected to rest its case before Thanksgiving, it won't take long to know whether he takes the stand.
