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As lawyers for Daniel Penny, a former Marine accused of choking a homeless man to death in a New York subway car, vetted jurors Friday, a woman sat at a courtroom table, leaning toward the people being questioned and scribbling in a notebook.
The woman, Jo-Ellan Dimitrius, a jury consultant for the defendant, has been in Manhattan criminal court every day as scores of prospective jurors arrive for selection in a case that has divided New Yorkers from the moment the video of Mr. Penny holding the homeless man, Jordan Neely, on the subway floor ricocheted around the internet in May 2023.
However, Mr. Penny, who faces charges of manslaughter and criminally negligent homicide, is far from her most high-profile client.
Ms. Dimitrius, whose clients have spanned the spectrum from celebrities to corporations to the president of Brazil, worked with lawyers for Kyle Rittenhouse, who in 2021 was acquitted of killing two people and wounding another at a Black Lives Matter rally in Wisconsin. In 1994, O.J. Simpson’s team hired her to help select a favorable jury. Before that, she worked with defense lawyers in three cases that arose from the beating of Rodney G. King by Los Angeles police officers in 1991, an episode that set off rioting.
The presence of Ms. Dimitrius highlights the charged atmosphere surrounding Mr. Penny’s trial, and the intense scrutiny trained on those who will decide it, a group that a judge ruled this week would remain anonymous to the public.
Mr. Penny has said that he restrained Mr. Neely, who had a history of mental illness, after he boarded an F train and threatened riders. While some New Yorkers saw Mr. Penny’s efforts that May 1 afternoon as acts of aggression that needed to be swiftly prosecuted, others saw them as the embodiment of transit riders’ fears and frustrations.
The trial, which began on Monday, may last through Thanksgiving. The first step is the winnowing of hundreds of prospective jurors down to the group of 12 that will serve. Every day, the prosecution and the defense team will ask the potential jurors questions, slowly and carefully making their selections. The final jury will then hear testimony and view evidence before retreating to a room closed off from the heated rhetoric that has surrounded the case from the start.
In the weeks after the killing, Mr. Penny was embraced by right-wing politicians and groups. A fund-raising campaign on GiveSendGo, a self-described Christian crowdfunding site, has raised over $3 million for his legal defense as of Saturday.
Mr. Penny also received support from Representative Matt Gaetz, a firebrand Florida Republican, and Gov. Ron DeSantis of Florida, who likened Mr. Penny to the Bible’s good Samaritan. The case became a staple feature of Fox News.
In the trial’s first week, protesters have been drawn to its downtown courthouse, as have members of the National Action Network, a group founded by the Rev. Al Sharpton.
“We’re here to stand up for justice for Mr. Neely as he can’t do it for himself,” Alvin Ponder, vice president of the network’s New York chapter, said on Wednesday.
“I hope Mr. Penny is convicted by a jury of his peers, who are being selected right now,” he said, adding: “His conviction and a good sentence — that’s about all we can do.”
Ms. Dimitrius has a lot of experience with helping defendants in similarly charged cases find jurors who can look past controversy.
Jury consultants help their clients assess prospective jurors, determining if they are likely to be receptive and sympathetic to their side’s arguments. A spokesman for the Manhattan district attorney’s office said that it had not hired such a consultant.
Lawyers and prospective jurors have been kept apart from reporters. On Friday, Randy Peukert, a spokesman for Ms. Dimitrius’s Arizona-based firm, Dimitrius & Associates, confirmed that she was helping Mr. Penny’s team, but did not answer any further questions.
Thomas A. Kenniff, Mr. Penny’s lawyer, said Saturday that jury consultants had become increasingly common in major litigation.
“Ms. Dimitirus’s reputation in the field is second to none,” he said. “So in a situation like this, we want to put the best team together to give our client the best defense.”
Ms. Dimitrius is a graduate of Scripps College and Claremont Graduate School, where she studied sociology, psychology and criminology, according to her website. She helped pick her first jury in 1984. Since then, she has consulted in over 1,000 trials and helped choose more than 600 juries. She has worked for Luiz Inácio Lula da Silva, Brazil’s leftist president, and consulted for George Floyd’s legal team in a civil suit against the City of Minneapolis, her website says.
In preparing for Mr. Simpson’s sensational trial in 1994 on charges that he had killed his ex-wife and her friend, Ms. Dimitrius told The Associated Press that it would be impossible to seat jurors without opinions or biases. The challenge, she said, was to make sure those prejudices were more favorable to her client.
“This case is being tried in the press, and a lot of people in the community have formed opinions,” she said. “My job is to help ascertain what kind of biases are there.”
The charged climate around the Penny case has already spilled into the courtroom, where the lawyers, judge and prospective jurors are confronting the possibility of internet-enabled harassment.
One potential juror was excused when she had a panic attack and couldn’t enter the courtroom, the judge overseeing the case, Maxwell T. Wiley, said Thursday.
The day before, another prospective juror told the judge that she was hesitant about serving because she was “nervous.” Justice Wiley asked her to return for another day of selection, at which point he would see how she was feeling.
Dafna Yoran, an assistant district attorney in Manhattan, asked this week that the jury be anonymous. She made her request, she said, “based on prior threats that have been received on this case by all sides.”
Justice Wiley granted her request, ordering that the jurors’ identities be kept secret and that they be identified by number, as they were in former President Donald J. Trump’s criminal trial in New York earlier this year.
“There’s a lot of not just opinions but very, very strong opinions,” Justice Wiley said in court. “There’s been people who have not been afraid to make threats.”
Last year, after grand jurors’ names were listed on an indictment accusing Mr. Trump and 18 others of conspiring to overturn Georgia’s 2020 election results, the Fulton County Sheriff’s Office said that it was investigating online threats against the jurors.
This year, Arthur F. Engoron, a judge presiding over a civil fraud trial of Mr. Trump in Manhattan, had a hoax bomb threat called at his house. The episode occurred just a day after the former president attacked Justice Engoron online. In July, a man in Las Vegas was charged with threatening to kill federal officials, judges and state employees across several states, including the district attorney and the judge involved in Mr. Trump’s criminal trial in Manhattan.
In New York State, juries are prohibited from operating in full anonymity; defendants and prosecutors are allowed to know jurors’ names even when they are kept from the public. Usually, judges allow jurors to remain anonymous in this way if a defendant has been shown to be a danger to the jury or judicial system and in high-profile cases.
The first fully anonymous jury in the United States was impaneled in a 1977 federal trial against the head of an illegal narcotics operation in Harlem, according to a report from the Reporters Committee for Freedom of the Press.
A judge who grants an anonymous jury risks having defense lawyers argue to higher courts that it unfairly prejudiced jurors.
In July, a New York State appeals court overturned a 2023 conviction in a Saratoga County case in which a man was charged with assaulting his former girlfriend and her father. The decision by the judge overseeing the case, James A. Murphy III, to impanel the jury anonymously “was in error,” the appeals court judges wrote.
In April, the appeals court decided that another case in which Justice Murphy had impaneled an anonymous jury should also be reversed, The Times Union reported.
Across the country, anonymous juries are rare, even in cases that involve politicians and corruption, said Chad Lackey, a director at DOAR, a New York City trial-consulting firm. Such cases typically involve a “focal point of outrage,” he said.
“Once you get into the territory that threats are being made, it’s not the potential, it becomes necessary to deal with,” Mr. Lackey said.
Judges have to weigh anonymity against due process, the guarantee of an open trial and how anonymity may prompt jurors to draw unfair conclusions about a defendant’s danger, said Rebecca Roiphe, a professor at New York Law School and a former Manhattan prosecutor.
“It’s something that they should use sparingly, only when it’s absolutely necessary to preserve the integrity of the proceedings or the safety of the jurors,” she said.
Susan C. Beachy contributed research.
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