The Manhattan district attorney's office stated in a new court filing that testimony regarding the psychiatric history of a man who died in a chokehold aboard a New York City subway is only intended to "smear" the victim.

Because of that fact, the attorney said that the testimony should be excluded from the upcoming trial of a former Marine who is charged with manslaughter in connection with the case, according to Fox News.

The trial of Daniel Penny is due to take place the next month. In May of 2023, he put Jordan Neely in a chokehold that ultimately proved to be fatal. According to his attorneys, he did this in an effort to "protect the lives of his fellow passengers."

In order to "opine regarding the extent of Neely's K2 abuse" and reason why it may have caused him to allegedly become "insanely threatening" to subway riders, Penny's attorneys are attempting to make contact with a forensic psychiatrist. They have stated that they are seeking this opinion.

An Agreement

Both the prosecution and the defense have requested that the judge exclude the testimony of the psychiatrist, Dr. Alexander Bardey, and restrict the amount of evidence that can be presented 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 Argument

The defense has argued that the jury should be aware of Neely's psychiatric history.

The history in question includes chronic K2 abuse and non-compliance with medication, and that this information is pertinent for them 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.

Additionally, he has argued that Penny was within her rights to act in an attempt to subdue Neely.

The Plea

Despite being charged with manslaughter and negligent homicide, Penny has entered a plea of not guilty. On October 21, he is slated to begin his trial, which will bring the highly politicized case back into the public attention less than a month before the election.

In June 2023, prosecutors released a statement stating that they had obtained five videos of the encounter and surveillance footage that they intended to use as evidence.

"Unfortunately for Penny’s defense team, there is little they can do to compel a foreign national to turn over evidence or testify in court," said Neama Rahmani, a former federal prosecutor based in Los Angeles. "There are international treaties like the Hague Convention that allow for international service, but, practically speaking, no judge can force the European witnesses to comply with an American subpoena."