Penny, 24, has already been charged with manslaughter in the death of Neely, 30. Prosecutors are now trying to secure an indictment.
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Penny, a Marine veteran, was filmed holding Neely in a chokehold on an F train.
Daniel Penny arraigned on manslaughter charge
Witnesses said Neely had been threatening riders before Penny attempted to subdue him.
A medical examiner ruled Neely's death a homicide.
Penny's lawyers have said that he is prepared to testify before the grand jury, but no decision has been made. It is unusual for criminal defendants to testify to a grand jury, but his lawyers are considering whether Penny explaining his actions would avoid an indictment.
A grand jury will have to consider whether Neely posed a threat to the safety of other passengers and if Penny used excessive force.
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Friends and family of Neely said he needed psychiatric help.
Questions raised about Jordan Neely's mental health care
Neely was homeless and well known to MTA workers and police. He was arrested more than 40 times for assault, attempted child abduction and indecent exposure.
He was also a street performer and known to local straphangers as a Michael Jackson impersonation.
Protests erupted after Neely's death.
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He was laid to rest on May 19. Revered Al Sharpton delivered his eulogy, in which he included remarks condemning vigilantism.
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