Daniel Penny’s defense centers on disputing Jordan Neely’s cause of death on NYC subway

(CNN) — The defense has rested its case in the trial of Daniel Penny, the former Marine who held Jordan Neely in a fatal chokehold on the New York City subway last year, after four days of witness testimony.

Neely’s cause of death became the focal point of the defense’s case in Penny’s manslaughter trial, with a forensic pathologist challenging the prosecution’s argument that Neely died from the former Marine’s chokehold.

The homeless New Yorker died in May 2023 after an encounter with 26-year-old Penny on the New York City subway. The case has polarized city residents, while raising the broader question of when it’s appropriate for a citizen to kill another citizen.

Penny placed 30-year-old Neely in a chokehold after he began shouting at train passengers that he was hungry and thirsty and didn’t care whether he died. Penny, who is White, forced Neely, who is Black, to the train floor and restrained him in what prosecutors say became a deadly chokehold. A medical examiner ruled Neely’s death a homicide.

Prosecutors are not trying to prove that Penny intentionally tried to kill Neely. Instead, they allege he went “way too far” by holding Neely’s neck for about six minutes, violating “law and human decency.”

Penny told NYPD detectives he put a man in a chokehold to try to restrain him until police arrived and did not mean to hurt or kill him, according to a video played in court.

During the first days of defense proceedings, Penny’s attorneys brought character witnesses to the stand who testified to his reputation. In the following days, the defense turned toward Neely’s medical history and pointedly disputed the medical examiner’s determination of the cause of death.

Following closing arguments on December 2, a jury of 12 Manhattanites will decide Penny’s fate. He faces one count each of second-degree manslaughter and criminally negligent homicide.

Defense first focused on Penny’s character

Penny’s attorneys introduced six character witnesses during the first two days of their presentation, including family members and men he served with in the US Marines.

Penny served four years in the Marines. He was a green belt in the Marine Corps martial arts program, learning several blood chokes designed to cut off blood flow to the brain and render someone unconscious, his martial arts instructor Joseph Caballer had testified for the prosecution.

A childhood friend said Penny was known for being “kind, too kind.” A man who served with him in the same battalion said he had a reputation for being “above reproach,” and that as Marines they were “taught to value life.”

The defense then turned to Neely and his mental health history. A medical expert for the defense, forensic psychiatrist Dr. Alexander Sasha Bardey, testified Neely was likely experiencing schizophrenic psychosis when he boarded the subway car last year. Bardey did not meet or examine Neely.

A 50-page extraction of Neely’s medical history, going back six years, showed the homeless man’s multiple interactions with the city’s health system throughout more than a dozen hospitalizations.

In some instances, Neely requested medicine for his psychosis. In others, he described being hungry and cold. Medical professionals also reported Neely, sometimes disheveled and unclean, reported hearing voices and had delusions of grandeur. He also reported being afraid that people wanted to attack him because they were jealous of him.

The records showed that during some hospital stays, Neely described sadness due to a lack of support and family. Hospital staff wrote in their reports that Neely said he was depressed about being homeless. His hospitalizations were sometimes due to his abuse of K2, the records showed.

Expert witness challenges medical examiner on autopsy

In a marked counter to the official medical examiner’s ruling, a forensic pathologist for the defense testified Penny’s chokehold did not cause Neely’s death.

“This is not a chokehold death,” Dr. Satish Chundru told the jury.

Neely’s death was not consistent with a chokehold because he never lost consciousness before dying, he testified, saying instead Neely died of a combination of factors including his sickle cell trait, schizophrenia, the struggle and restraint by Penny and K2 intoxication.

Dr. Cynthia Harris, a New York City medical examiner who performed Neely’s autopsy, sat in the gallery as Chundru frequently knocked her methods and conclusions that she testified to last week. Harris testified for the prosecution that she had no doubt Neely died from neck compression.

While toxicology found the presence of K2 in Neely’s system, Harris testified she did not think the stimulant drug contributed to his death. A death related to the synthetic cannabinoid is typically linked to a cardiac event Neely did not experience in his final moments, Harris testified.

She acknowledged she made the determination before toxicology results were in, but said she did not feel it was necessary to wait – it would not have changed her mind if he had “enough fentanyl in his system to put down an elephant,” Harris said.

In a lengthy cross-examination, the prosecution spent hours aiming to discredit Chundru’s conclusion that Neely’s sickling crisis was largely to blame for his death.

Chundru said Neely was likely in a sickling crisis before Penny put him in a chokehold. He testified the city medical examiner missed signs of previous sickling in Neely’s spleen revealed in the autopsy he said further supports his finding.

Assistant District Attorney Dafna Yoran challenged Chundru saying someone in a sickling crisis would likely appear lethargic and short of breath, unlike Neely’s loud and aggressive behavior testified to by subway witnesses.

The jury heard that a medical examiner ruled Neely’s death a homicide, but siding with the defense, Judge Maxwell Wiley instructed the jury that homicide as it is defined by a medical examiner “is not a conclusion that a crime was committed – you make that conclusion or it is made in a courtroom.”

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