Prosecutors seek to limit psychiatric history of man killed on subway

Testimony about the psychiatric history of a man who died in a chokehold aboard a New York City subway is only meant to "smear" the victim and should be precluded from upcoming trial of a former Marine charged with manslaughter in the case, the Manhattan district attorney's office said in a new court filing.

Daniel Penny is scheduled to stand trial next month after he put Jordan Neely in a fatal chokehold in May 2023 aboard an F train in what his attorneys say was an effort to "protect the lives of his fellow passengers." Penny's attorneys are seeking to call a forensic psychiatrist who they said would "opine regarding the extent of Neely's K2 abuse" and why that may have caused him to allegedly become "insanely threatening" to subway passengers.

Prosecutors asked the judge to exclude the testimony of the psychiatrist, Dr. Alexander Bardey, and limit what the defense can show from Neely's psychiatric records.

"The psychiatrist's testimony and the unredacted psychiatric records are inadmissible and their suggested introduction is a transparent attempt by the defense to smear the victim's character so that the jury will devalue his life," assistant district attorney Dafna Yoran said in a motion to preclude Bardey's testimony from trial.

"Numerous witnesses will testify regarding Mr. Neely's aggressive behavior on the date of the incident," Yoran said. "The jury does not need and cannot be permitted to hear Dr. Bardey's opine as to why Mr. Neely was aggressive."

The defense has said Neely's psychiatric history includes non-compliance with medication and chronic K2 abuse and argued that is relevant for the jury to hear.

"Neely's history of volatile behavior while in treatment, and the steps taken to subdue/restrain him, are documented in these records, and speak to why our client had to use the force necessary to restrain him on the date of incident," said defense attorney Thomas Kennif, who has argued Penny was justified in seeking to subdue Neely.

Penny has pleaded not guilty to manslaughter and negligent homicide charges. He is scheduled to begin trial Oct. 21, re-submitting the highly charged case into the public consciousness less than a month before the election.