A deadly chokehold that reignited a national conversation about public safety a year and a half ago is about to collide with a presidential election in its final stretch, possibly giving former President Donald Trump and the Republicans a boost in what is expected to be one of the closest elections in modern U.S. politics.
On May 1, 2023, Jordan Neely, a 30-year-old homeless man, died after being placed in a chokehold by Daniel Penny, a 24-year-old former Marine from Long Island, on a subway car in New York City. On October 21, jury selection will begin in the high-profile manslaughter and and criminally negligent homicide trial against Penny.
Representing the defense is Thomas Kenniff, the Republican lawyer who ran unsuccessfully to unseat Alvin Bragg, the Manhattan district attorney who's prosecuting Penny and who is best known for being the first D.A. to indict and successfully prosecute a former president, when he secured a conviction on 34 felony counts against Trump in his hush-money trial earlier this year.
"I'm certainly not trying to make it a referendum on the district attorney's policies," Kenniff told Newsweek in an interview as he wrapped up trial prep. "What I will say is that whatever guided their decision to prosecute... it was ill-advised in this particular case."
Although Kenniff is avoiding making his client's case political, it may be near impossible as the trial coincides with the final leg of the 2024 election. The case has been heavily covered by the New York tabloid media and has been seized on by conservatives around the country as emblematic of a post-pandemic sense of disorder that has descended on American cities.
While Penny will stand trial in the same courthouse that hosted Trump this spring, the former president and Vice President Kamala Harris will both be in the throes of their closing pitch to voters. The decision to prosecute Penny this close to the election has the potential to remind undecided voters about issues of crime, analysts and trial watchers who spoke to Newsweek said.
Even though rates of violent crime have come down since peaking during the pandemic, crime remains a salient issue in this year's election. It is the fourth most important issue for voters, according to a Gallup poll conducted between September 16 to 28. The survey found the number one issue to be the economy, followed by immigration and national security.
Since becoming the Democratic nominee, Harris has improved with voters on the issue of public safety.
In August, Americans were split on which candidate has a better approach to crime, according to a Reuters/Ipsos poll that found Harris behind Trump by five points the month before. Then in September, Harris overtook Trump. A Redfield & Wilton Strategies survey conducted last month found that 43 percent of respondents trusted Harris more on crime, compared to just 40 percent who said the same of Trump.
Penny's case has been widely embraced by pundits and influencers on the right, who have hailed the former Marine as a hero who shouldn't be prosecuted for responding to circumstances that they say have are a direct result of "soft on crime" Democratic policies.
No one may know how Penny's trial will shape voters perception of crime rates, or of who should be the next president. But if history is any indicator, Bragg's prosecutorial ambitions could give Trump an unintended advantage two weeks before Election Day.
Bragg announced the unprecedented indictment against Trump in April 2023, charging the former president with 34 felony counts of falsifying business records in a hush money case that accused the Republican of influencing the 2016 election by paying for adult film star Stormy Daniels' silence.
On May 31, Bragg secured a massive legal victory after a Manhattan jury found Trump guilty of all counts, delivering the first ever conviction of a former president.
But even though Bragg won in court, the indictment and trial helped solidify Trump as the party's standard-bearer once again, as Republican voters rallied to his defense, seeing the Bragg case as an example of prosecutorial overreach and politically motivated. The GOP largely defended Trump even in the wake of the conviction, with his former primary opponents, including his most formidable challenger Florida Governor Ron DeSantis, flocking to his side to blast the guilty verdict as "the political agenda of some kangaroo court."
A month and a half after the conviction, Trump would formally be nominated as the party's 2024 presidential nominee.
"The timing of the Penny trial is good for Trump," Neama Rahmani, a former federal prosecutor and President of West Coast Trial Lawyers, told Newsweek. "It highlights the issues he normally does well on, such as crime and public safety."
Newsweek reached out to Bragg via email for comment.
"Even many liberals and moderates are fed up with the problems of homelessness, mental health, and violence on public transportation," Rahmani said. "And of course, there are racial undertones because Penny is white and the victim, Neely, is Black."
A poll conducted by the Citizens Budget Commission last year found that about half, 49 percent, of New Yorkers feel at least somewhat safe riding the subway during the day. Only 22 percent of New Yorkers felt the same about riding at night. The 2023 figures are dramatic decline from 201, when 82 percent felt safe riding the subway during the day and 46 percent felt safe riding the subway at night.
"People in New York City are understandably very distressed by the increase in crime, the perception of lawlessness on the subways and other aspects of our lives in this environment," Kenniff said.
"My client was seeking to the aid of other subway riders that were confronted with someone who had a incredibly violent history and a history of paranoid schizophrenic psychosis that was not being treated by [the city's mental health system]."
Neely lived with mental illness and bounced around New York City's shelter system, becoming known to riders for his Michael Jackson impersonations. An NYPD spokesperson previously told Newsweek that Neely's rap sheet included 42 prior arrests, dating between 2013 and 2021. Many of his arrests were for alleged violations of local law and involved lower-level offenses such as having an open container of alcohol in public.
"That's a reality, that's a concern, whether this trial is occurring around the time of the national election or not," Kenniff said.
Rahmani, the former prosecutor, also pointed out that the racial undertones of the case have added to the media attention. While the right has defended Penny, many on the left has labeled him a "vigilante" whose actions were racially motivated. Progressives have also expressed outrage that Bragg didn't charge Penny immediately, instead waiting 12 days after the killing first made headlines.
"Jordan Neely's murder is the direct result of efforts to dehumanize and demonize New Yorkers who are experiencing homelessness, living with mental illness or just existing in the world as Black and poor," Sara Newman, director of organizing at the Open Hearts Initiative, said in the aftermath of Neely's death.
In his first interview since being charged, Penny told the New York Post that the racism allegations against him were "a little bit comical" because among other things, he had been "planning a road trip through Africa" before the incident.
Rahmani said Bragg had no option but to prosecute the case given the circumstances, which include a bystander-shot video that shows Penny keeping Neely in the chokehold for more than six minutes.
But, Rahmani added, with a former marine and sympathetic defendant, it's "very possible that [Penny] is acquitted outright by an even liberal New York jury."
"It's important to remember that prosecutors can sometimes be driven as much by the pursuit of headlines as the pursuit of justice," James Haggerty, a crisis communication and litigation PR expert, told Newsweek.
"The successful Trump prosecution is Bragg's signature accomplishment as Manhattan D.A.," Haggerty said. "He needs another win."
Haggerty said that while the Penny trial could give Trump a boost nationally, "it also shores up a core left-wing constituency Bragg needs no matter what lies ahead in his career."
Bragg's name has been floated as a Democratic mayoral candidate now that the city's mayor, Eric Adams, is dealing with his own legal morass. He is also up for reelection next year.
"That doesn't necessarily mean this prosecution is unjust, by the way—legal analysts seem split on that point. It just means that presidential politics is likely the furthest thing from Bragg's mind at the moment," Haggerty said.
The Penny trial is not the first time Bragg has come under scrutiny in the process of prosecuting a high-profile case, which comes with the territory as the top prosecutor in Manhattan.
His decision to indict Trump on a years-old, relatively low-level offense using a complicated legal theory had also been controversial, not just because it was unprecedented, but because his predecessor, Cyrus Vance, chose not to charge Trump when he led the office.
Vance, also a Democrat, opened up the investigation into Trump back in 2018 but did not prosecute the case before he retired in early 2022. Former prosecutor Mark Pomerantz, who oversaw that investigation, published a tell-all book in February 2023 that revealed Vance had authorized him to seek Trump's indictment, but that those plans were put on hold after friction with Bragg.
Pomerantz said the case stalling ultimately led him to leave the DA's office. Trump would go onto cite Pomerantz's book as proof that Bragg had a "weak case" against him.
"It's never a comforting thing to go against the full and unlimited resources of a government prosecution, whether that be local, state or federal. That's a situation that no one would ever want to find themselves in," Kenniff said.
"Recognizing that, however, I will say my client—because of who he is, because of his lived experience—he is doing as well as anyone reasonably could be expected to do under the circumstances."
"The legal team—myself, Mr. [Steven] Raiser—as well as Danny, are feeling very confident, because we are so certain that the facts of the evidence are on our side," he added.
And while surrogates like Vivek Ramaswamy have publicly donated to Penny's defense fund, Trump himself has been conspicuously quiet on the case, having only mentioned it once last year.
In an interview with the now-defunct news outlet The Messenger, he said: "I haven't seen the tape. But I think he [Penny] was in danger. And it sounded like the other people in the car were in danger."
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