European couple who filmed Daniel Penny on subway during ‘chokehold’ death of violent homeless man Jordan Nelly refuses to testify, hand over video evidence

In a transcript obtained by the New York Post, Manhattan Supreme Court Justice Maxwell Wiley on Monday revealed that two European eyewitnesses have declined bids to get them to return to the city for Penny’s October trial and hand over the footage to prosecutors.

During the lawyers-only conference, Wiley said the husband and wife "apparently took a video of the incident, and since that time have declined to testify in the Grand Jury, and have gone back to their home, which apparently is in Europe someplace." He added, "They have so far refused to share the video that they took. They refused to share it with the DA, or with anyone else, and they are so far refusing to come back to testify."

The judge said that the couple has conducted a few video meetings with the Manhattan District Attorney’s office but have not agreed to fully cooperate yet. It is unclear where the couple is from in Europe, and no explanation was provided as to why they are refusing.

Penny has been charged with second-degree manslaughter and criminally negligent homicide for the May 2023 incident, in which Penny allegedly placed Neely in a chokehold after the man was exhibiting erratic and aggressive behavior towards passengers, witnesses said. Neely died as a result, with a New York medical examiner ruling the cause of death as "compression of the neck," classifying it as a homicide.

Thomas Kenniff, Penny’s attorney, said the couple’s testimony could be a key piece of information in Penny’s defense, and their refusal could pose a "very serious issue" ahead of jury selection in October. He said the evidence would be not only "probative," but also "incredibly favorable to the defense, or at least certain parts of it."

The couple’s testimony of the incident could be “maybe more probative than any testimony of the issues that are going to be at issue in this trial," he said.

The judge asked attorneys were asked whether they would be open to the couple testifying remotely, but Penny’s attorneys say they are hopeful they can get the couple to come testify in person.

“I certainly don’t have — we certainly don’t have the means of making that happen. Whether the People do or not, I guess, is a question of international law, and the Hague, and so forth,” Kenniff said, referencing the International Court of Justice in the Netherlands.