A European couple who filmed the chokehold death of Jordan Neely on a New York City subway is refusing to testify, according to reports.

Neely's death unfolded on a New York City subway in May 2023. Daniel Penny, a white Marine veteran, allegedly confronted Neely, a Michael Jackson impersonator who was homeless, as he was shouting at passengers. The former Marine forced Neely onto the ground and put him in a chokehold until he stopped breathing.

Penny is facing charges of second-degree manslaughter and criminally negligent homicide. He's pleaded not guilty.

According to the New York Post, Manhattan Supreme Court Justice Maxwell Wiley said Monday (September 9) that two European witnesses declined to testify during Penny's trial next month and to turn over footage they took of the incident.

The couple “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," Wiley said.

“They have so far refused to share the video that they took,” the judge continued. “They refused to share it with the DA, or with anyone else, and they are so far refusing to come back to testify.”

Penny has maintained that he felt the need to protect passengers from Neely and he didn't intend to kill.

According to Penny's attorney, the European couple's testimony and footage could be “incredibly favorable” to his client's defense. Attorney Thomas Kenniff said the couple refusing to testify could pose a “very serious issue” for Penny's trial.

It's unclear why the couple is declining to participate in the trial or how their video would be beneficial to Penny. Prosecutors have other video showing Neely’s death, according to court records.

Penny could face up to 19 years in prison if convicted. Jury selection for his trial is scheduled to begin on October 21.

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