In Subway Chokehold Killing, Grand Jury Votes to Indict Daniel Penny

A grand jury on Wednesday voted to indict a Marine veteran who was arrested last month after killing a homeless man on a subway car in a case that created a political firestorm in New York City and beyond, according to a person with knowledge of the matter.

The case against the veteran, Daniel Penny, was brought by the Manhattan district attorney’s office, which had charged Mr. Penny with manslaughter in the death of the homeless man, Jordan Neely, but needed the grand jury’s approval to proceed with the case.

A spokeswoman for the district attorney’s office declined to comment on the development, which was first reported by The Daily News, as did the law firm representing Mr. Penny, Raiser & Kenniff. The district attorney’s office initially charged Mr. Penny with manslaughter in the second degree. It was not immediately clear whether the grand jury voted to indict him on any other charge.

Mr. Penny and Mr. Neely encountered each other on an F train on May 1. Witnesses told the police that Mr. Neely, who had a history of mental illness, had been shouting at passengers and using threatening language, but there was no indication that he had physically attacked anyone. Mr. Penny, apparently seeking to restrain Mr. Neely, placed him in a chokehold, killing him. The city medical examiner’s office ruled his death a homicide two days later. (That ruling determines that Mr. Penny killed Mr. Neely but is not a finding of criminal culpability.)

A video of the encounter set off protests and prosecutors began to investigate. Mr. Penny was arrested and arraigned on May 12, but the law required that the district attorney, Alvin L. Bragg, persuade a grand jury that there was reasonable cause to believe Mr. Penny had committed a crime before proceeding with the case.

The grand jury process heavily favors prosecutors and, for many defendants, a vote to indict is expected. But former prosecutors had said that Mr. Penny’s chances of escaping an indictment might be better than most, given the circumstances on the subway car.

Mr. Penny had been expected to testify before the grand jury, but it is unclear whether he did so. In a video interview shared with multiple outlets, he said that Mr. Neely had been threatening to kill, and saying that he himself was ready to die. Mr. Penny said that he had not meant to kill Mr. Neely and was instead trying to restrain him.

If Mr. Penny pleads not guilty at his State Supreme Court arraignment, it would set up Mr. Bragg’s office for a high-profile trial. At a trial, Mr. Penny’s lawyers would likely argue that his actions were justified and that he had a reasonable belief that Mr. Neely was on the verge of using deadly force. Prosecutors would have to prove to a jury that Mr. Penny caused Mr. Neely’s death and used the chokehold knowing that it could kill.

The racial dynamics of the case — Mr. Penny is white and Mr. Neely was Black — drew intense attention, as did concerns about subway crime and the treatment of the mentally ill in New York. In the days after Mr. Neely was killed, left-leaning Democrats in New York pointed to the absence of a quick arrest as evidence of a racist justice system, and said the case exemplified the city’s challenges in dealing with its most vulnerable citizens.

But conservatives defended Mr. Penny, saying that he heroically defended his fellow passengers. After Republican politicians spoke out on his behalf, a legal fund his lawyers established on his behalf raised close to $3 million.

Mr. Bragg had already become a target for Republicans, in part because of his criminal case against former President Donald J. Trump, and the case against Mr. Penny will likely subject him to more criticism from the right.

William K. Rashbaum contributed reporting.