Prosecutors are attempting to ban testimony at Daniel Penny’s upcoming trial that might element Jordan Neely’s psychiatric historical past and persistent abuse of the drug K2 — one thing Penny’s attorneys argued “goes to the guts of any justification protection” within the lightning-rod subway chokehold case.
Protection attorneys for the ex-Marine — who faces manslaughter fees for allegedly choking Neely to dying on a Manhattan prepare automobile in Could 2023 — need forensic psychiatrist Dr. Alexander Bardey to testify about Neely’s abuse of the artificial cannabinoid at subsequent month’s trial.
Additionally they wish to introduce Neely’s voluminous psychiatric data, which embrace 6,000 pages’ value of fabric that element the homeless man’s household historical past, surgical procedures, prior “dangerous acts” and extra, in accordance with court docket paperwork.
Prosecutors from the Manhattan District Lawyer’s Workplace mentioned in a latest submitting that the testimony and data would solely serve to batter Neely’s popularity earlier than the jury.
“Their recommended introduction is a clear try by the protection to smear the sufferer’s character in order that the jury will devalue his life,” Assistant District Lawyer Dafna Yoran wrote in regards to the protection’s request.
The physician’s proposed testimony about Neely’s previous unstable conduct and aggressive tendencies is “clearly impermissible” as a result of it’s not associated to the deadly encounter, the prosecutor wrote.
“The one factor related to the justification protection is the sufferer’s conduct on the time of the incident,” Yoran continued.
“Quite a few witnesses will testify concerning Mr. Neely’s aggressive conduct on the date of the incident. The jury doesn’t want and can’t be permitted to listen to Dr. Bardey’s opine as to why Mr. Neely was aggressive.”
In a response dated Tuesday, Penny’s lawyer, Thomas Kenniff, wrote that the protection had no intention of attempting to smear Neely’s popularity in open court docket.
“As a substitute … it’s the Authorities’s motives that must be examined, as they search to impede the jury’s truth-seeking operate by suggesting that jurors be barred from contemplating information related to points materials to this case,” Kenniff wrote within the submitting.
The lawyer additionally argued that the testimony and proof would “exhibit that Mr. Neely was probably below the affect of K2 and experiencing a psychotic episode when he boarded the Queens-bound F prepare on Could of final yr, the manifestations of which made his look and have an effect on extra pronounced and therefore extra threatening to Mr. Penny and his fellow riders.”
That info, he continued, would “inform the jurors’ understanding as to the plausibility of the witness accounts and the diploma of hostility that Mr. Neely exhibited.”
Neely’s toxicology reviews confirmed he had K2 in his system when he died, Kenniff mentioned. However the report didn’t say how a lot was current.
The professional testimony would present that Neely was utilizing the drug proper earlier than his deadly encounter with Penny, and that he was displaying the identical behavioral traits of somebody mired within the throes of a K2 excessive, the lawyer mentioned.
“Mr. Neely’s actions on the time of this incident, when considered by the lens of his remedy historical past, counsel that he was off his drugs, abusing K2, and experiencing a psychotic episode,” the lawyer wrote.
“Ideas like proportionality, de-escalation and, in fact, reasonableness, are woven into the very cloth of this case,” Kenniff continued.
“It’s unimaginable for the jury to pretty weigh the proof, and to afford Mr. Penny the honest trial he’s constitutionally assured, except permitted a full understanding of the aggression, irrationality and terror that Mr. Neely was manifesting.”
Penny, a former infantry squad chief, was indicted on fees of second-degree manslaughter and criminally negligent murder for the caught-on-camera confrontation that left Neely useless on the ground of a Manhattan F prepare.
Penny’s attorneys had tried to get the case dismissed in October, claiming there have been points with the prosecutors’ directions to the grand jury and that town medical expert by no means conclusively established that Penny’s actions killed the homeless man throughout the wrestle.
However Manhattan Supreme Courtroom Justice Maxwell Wiley waved that off, ruling the examiner’s testimony and Neely’s dying certificates have been greater than sufficient to “set up that [the] defendant’s actions brought about the dying of Neely.”
Penny — who’s free on $100,000 bail — faces as much as 19 years behind bars if convicted of killing Neely, who witnesses say launched into an explosive tirade throughout a prepare trip on Could 1, 2023.
A former Michael Jackson impersonator, Neely had a prolonged historical past of psychological sickness and was allegedly threatening different straphangers earlier than Penny stepped behind him and sunk the chokehold that ultimately killed him, in accordance with the medical expert.
Penny has mentioned he didn’t imply to do it.
However he thought he wanted to step in and defend his fellow subway riders from Neely, who witnesses say was tossing trash and screaming that he was prepared to “kill a motherf—er” and go to jail.
A lawyer for Neely’s household mentioned earlier this yr that Neely was driving the prepare unarmed and asking for meals that day.
“He had no gun, he had no knife, he was hungry,” lawyer Lennon Edwards mentioned. “In his desperation, he was emotional. However misery doesn’t imply harmful.”
“So we’re asking you to maintain an open thoughts — and keep in mind the ache that this household is struggling.”
The trial is predicted to start out Oct. 21.
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