NEW YORK -- Defense attorneys sought on Tuesday to dismiss the politically charged criminal case against Daniel Penny, the Marine veteran who choked to death a man, Jordan Neely, in a New York City subway car.
The defense quoted grand jury testimony from one passenger who described Neely as "insanely threatening" and a another who believed he "was going to die" as Neely approached.
"I have been riding the subway for many years. I have encountered many things, but nothing that put fear into me like that," said a woman described as a retiree who rode the subway daily during her 30-year career.
According to the lawyers, one person described the ride "as 'absolutely traumatizing' beyond anything he had ever experienced in six years riding the subway."
His attorneys have said Penny, who has pleaded not guilty to manslaughter and negligent homicide charges, was defending himself and others when he put Neely into the chokehold that caused his death.
Video of the encounter shows Penny maintaining his hold on Neely even after Neely stops moving.
"Several eyewitnesses confirmed that they did not see Mr. Penny appear to squeeze Jordan Neely's neck and never heard Mr. Neely gasping, gagging or saying that he could not breathe," defense attorneys Steve Raiser and Thomas Kenniff wrote.
The defense lawyers also argued the Manhattan district attorney's office failed to definitively show it was Penny who killed Neely.
"In this case, M.E. Harris failed to offer any evidence or opinion that the victim died from asphyxiation due to the chokehold. She merely testified that asphyxiation could happen by a chokehold and that she believed that Mr. Neely died from a chokehold," the defense motion said.
The filing indicates that Penny's lawyers are prepared to call at least four witnesses who can testify they feared for their lives.
Prosecutors will respond in a court filing.