Judge denies Marine vet Daniel Penny’s motion for mistrial in subway chokehold case despite ‘bias’ red flag

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Judge Jeanine Pirro shares why witness testimony is a critical piece of the ‘puzzle’ around Daniel Penny case

‘The Five’ co-host Judge Jeanine Pirro and Fox News contributor Paul Mauro discuss Marine veteran Daniel Penny’s New York subway chokehold trial on ‘America Reports.’

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NEW YORK – Lawyers for Marine veteran Daniel Penny, who is on trial for the death of a man they called an “unhinged nutjob” in court, asked the judge to declare a mistrial Thursday over testimony from a “biased” witness and an apparent anti-White narrative from Manhattan District Attorney Alvin Bragg’s prosecutors.

The defense argued that Penny is not getting a fair trial, and raised a number of objections, saying that the prosecution was trying to paint Penny as a “White vigilante” and improperly allowed witness Johnny Grima, a homeless man with a conviction for bashing someone with a bat, to call the defendant a “murderer” from the witness stand when he has not been accused of murder.

Penny, 26, was an architecture student who was attending a New York City college after proudly serving his country in the Marine Corps, defense attorney Thomas Kenniff said.

Neely, 30, was an “unhinged nutjob” with a documented history of making trouble, he said, including the alleged assault of a 67-year-old woman on another subway car. 

DANIEL PENNY TRIAL: SUBWAY MADMAN RAISED FISTS BEFORE MARINE VET’S DEADLY CHOKEHOLD, WITNESS TESTIFIES

Daniel Penny arrives for opening arguments in his trial at Manhattan Supreme Court in New York City on Nov. 1, 2024. Penny, a Marine veteran, is charged with second-degree manslaughter and criminally negligent homicide in the 2023 death of Jordan Neely on a New York City subway train. (Adam Gray for Fox News Digital)

That remark prompted observers in the gallery to start to speak up, and court officers told them to “quiet down.”

Judge Maxwell Wiley denied the request but told Kenniff, “I see what you’re getting at.”

Grima, an unemployed 40-year-old from the Bronx who spends time working with the homeless and spent 13 months behind bars, testified that he had poured water on the head of an unconscious Neely when Penny told him to stop.

Then he claimed that Penny was “flinging Neely’s limbs around carelessly” when he repositioned him on the floor after Grima suggested he might choke if left on his back. He did not witness the start of the altercation.

“It’s something like when you have an abuser abusing someone, and they’re not trying to let anyone near the abused,” he claimed. 

TEEN WITNESS TO JORDAN NEELY CHOKEHOLD TESTIFIES SHE WAS ‘SCARED’ BY HIS SHOUTING, WANTED TO ‘GET AWAY’

Screenshot from bystander video showing Jordan Neely being held in a chokehold on the New York City subway.  (Luces de Nueva York/Juan Alberto Vazquez via Storyful)

Penny’s defense team took issue with how objections were handled during Grima’s testimony.

Wiley said he believes that Grima’s “bias” was clear to the jury but that he still had relevant testimony to give.

Prosecutors argue that Penny went too far when he put a belligerent, shouting Neely in a chokehold on a Manhattan subway car after he started screaming death threats. The defense maintains that his actions were justified.

A still image from NYPD bodycam video shows responding officers examining Jordan Neely, who is on the ground after Daniel Penny placed him in a chokehold. Penny is on trial facing charges of manslaughter and criminally negligent homicide. (NYPD)

“He’s not charged with murder, so you just need a reckless or negligent standard here,” said Paul Mauro, a retired NYPD inspector who has been following the case. “To say that he was reckless when [Neely] was screaming, ‘I’m gonna kill somebody’ . . . and he’s still breathing when the cops show up – that’s not reckless. I’m sorry, and that’s not negligent.”

DANIEL PENNY TRIAL: MEET THE JURORS WHO WILL DECIDE MARINE VETERAN’S FATE IN SUBWAY CHOKEHOLD CASE

Protestors hold placards calling for the abolition of the police outside Manhattan Supreme Court Monday, Oct. 21, 2024, in Manhattan, New York. The protestors were there as the trial of Daniel Penny for the choking death of Jordan Neely began. (Barry Williams for Fox News Digital)

Neely was known to police as an emotionally disturbed person and yet remained free to harass the public, he said.

“A clue to this whole thing is the cops let him go, because of the clues at the scene,” Mauro said. “They did not have probable clause.”

Police questioned Penny and let him go. He was indicted days later by Bragg’s office and turned himself in.

This undated photo, provided by Mills and Edwards, LLP, in New York, Friday, May 12, 2023, shows Jordan Neely, left, with Carolyn Neely, an aunt. (Courtesy Mills & Edwards, LLP via AP)

Penny faces up to 19 years in prison if convicted. Friday marks 12 days into an expected six-week trial.

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Bragg’s office did not immediately respond to a request for comment.