Opening statements start friday in the trial of Daniel Penny, accused of the death of Jordan Neely, a homeless man who was acting erratically in a New York City subway car, applying a fatal chokehold on May 1, 2023.

the trial It is expected to last between four and six weeks.according to Judge Max Wiley.

Penny, a former Marine, has pleaded not guilty to charges of second-degree murder and criminally negligent homicide in Neely’s death. Wiley denied Penny’s attempt to dismiss her involuntary manslaughter case in January.

The jury of seven women and five men, four of whom are people of color, will be asked to do something prosecutors acknowledge is difficult: convict someone of an unintentional crime.

To convict, prosecutors must show that Penny’s use of deadly force was unjustifiable and that Penny acted recklessly and knowingly ignored the substantial risk of strangling Neely for so long. Prosecutors do not have to prove that Penny intended to kill Neely, something defense attorneys have said Neely had no intention of doing.

The case has fueled political narratives about urban crime and captivated a city where the subway is indispensable.

What happened that day?

While there is no doubt that Penny’s actions led to Neely’s death, witness accounts differ regarding the events that led Penny to apply the fatal chokehold, according to multiple sources.

Many witnesses reported that Neely, 30, who was homeless at the time of his death and was known for performing as a Michael Jackson impersonator, had expressed that he was homeless, hungry and thirsty, according to prosecutors. Most witnesses also said that Neely indicated he was willing to go to jail or prison.

Some Witnesses also reported that Neely threatened to hurt people on the train, while others did not report hearing those threats, according to law enforcement sources.

Additionally, some witnesses told police that Neely was yelling and harassing passengers on the train. However, others have said that while Neely had displayed erratic behavior, he had not been threatening anyone in particular and had not become violent, according to law enforcement sources who spoke to ABC News after the incident.

According to court documents, some passengers on the train that day said they did not feel threatened. One said they weren’t “really worried about what was going on,” while another called it “just like another typical day in New York. That’s what I’m used to seeing. I wasn’t really looking at it if I was going.” “Being threatened or something like that, but it was a little different because, you know, you don’t really hear anyone say something like that.”

Other passengers, however, described being afraid, according to court documents. One said they’ve “encountered a lot of things, but nothing that’s scared me that much,” while another said Neely was making “half-lunge movements” and getting within “half a foot of people.”

Neely had a documented history of mental health issues and arrests, including alleged cases of disorderly conduct, fare evasion and assault, according to law enforcement sources.

Less than 30 seconds after Penny allegedly strangled Neely, the train arrived at the Broadway-Lafayette station, according to court records.

“Passengers who had been frightened by being trapped on the train were now able to exit the train. The defendant continued to hold Mr. Neely by the neck,” prosecutor Joshua Steinglass said in a court filing objecting to Penny’s request for dismissal.

According to prosecutors, footage of the interaction, which began about two minutes after the incident began, captures Penny holding Neely in a chokehold for about four minutes and 57 seconds on a relatively empty train, with a pair of passengers nearby. .

Prosecutors said that about three minutes and 10 seconds into the video, Neely ceases all intentional movement.

“After that moment, Mr. Neely’s movements are best described as ‘twitching and the type of agonal movement seen around death,'” prosecutors said.

The case is expected to include testimony from passengers who were aboard the subway at the time, as well as a roughly six-minute video of the strangulation.

Jury will see evidence that Neely had no weapon

Before opening statements, the judge ruled that the jury will see evidence showing Neely was unarmed.

Penny’s defense had sought to exclude evidence or testimony about the lack of a gun recovered from a search of Neely’s body, but in a written opinion issued Thursday, the judge said such evidence and testimony are relevant to the case.

“The fact that Mr. Neely was unarmed provides additional relevant information to assist the jury, that is, it clarifies what might have been perceived by someone in the defendant’s position,” the judge wrote. “The possibility that a person in the defendant’s situation could have been reasonable in mistakenly believing that Mr. Neely was armed is appropriate for the jury to consider and is within their capabilities.”

The defense was concerned that including evidence that Neely was unarmed could increase sympathy for the victim, but the judge said it would help the jury decide whether Penny’s actions were justified.

Penny’s attorneys and Neely’s family speak before trial

Prosecutors from the Manhattan district attorney’s office are expected to admit that Neely may have seemed frightening to some subway riders, but will argue that Penny continued to choke her well past the point where Neely stopped moving and posed some kind of threat. .

Penny’s lawyers have said they were “saddened by the loss of human life” but that Penny saw “a genuine threat and took action to protect the lives of others”, arguing that Neely was “incredibly threatening” to passengers on board. of the subway train. .

While Penny’s defense will argue that she had no intention of killing Neely, prosecutor Steinglass has noted that the second-degree manslaughter charge only requires prosecutors to show that Penny acted recklessly, not intentionally.

“We are confident that a jury, mindful of Danny’s actions in putting aside his own safety to protect the lives of his fellow cyclists, will render a fair verdict,” Penny’s attorneys, Steven Raiser and Thomas Kenniff, said earlier in the day. this year, after Penny’s request to dismiss the charge was denied.

“This case is simple. Someone got on a train and was screaming and someone else strangled him to death,” Neely family attorney Donte Mills said in a previous statement to ABC News. “Those two things do not and never will balance. There is no justification.”

“Jordan had the right to occupy his own space. He was allowed to be on that train and even scream. He didn’t touch anyone. He was not a visitor on that train, not in New York, not in this country.” Mills added.