Daniel Penny jury reviews video of subway chokehold, medical examiner testimony

Jurors weighing the manslaughter case against Daniel Penny for the May 2023 subway chokehold incident that ended in Jordan Neely’s death, in their deliberations Wednesday, asked to review videos of the encounter, plus the contentious cross-examination of the city medical examiner who ruled on Neely’s cause of death.
The panel asked to watch bystander footage of Penny restraining Neely on the floor of an uptown F train, police-worn body camera footage captured in the aftermath at the Broadway-Lafayette subway station, and Penny’s videoed statements to officers at the Fifth Precinct stationhouse.
Later in the day, they asked for a readback of medical examiner Dr. Cynthia Harris’ cross-examination by defense attorney Steven Raiser.
Specifically, they asked to hear Harris’ testimony about her issuing a death certificate — before drug testing had been performed on Neely — determining Neely died by homicide caused by compression of the neck.
In the excerpts read by two court reporters, Harris said that “no toxicological result imaginable” would have changed her conclusion, based on law enforcement findings and footage of the incident. She said that had the tests shown Neely consumed “enough fentanyl to put down an elephant,” she would still believe he died as a result of the chokehold.
The toxicology reports showed Neely had synthetic marijuana in his system. Harris testified that, in order to reach an alternate determination, she would have needed to disregard the video of Neely displaying signs of “terminal brain injury” after falling unconscious during the chokehold, damage to the inner structures of his neck, blood spots in his eyes typically caused by strangulation and other symptoms.
Penny’s defense at trial presented a dueling medical expert they hired to reinvestigate Neely’s cause of death, who blamed an array of other factors — including Neely’s schizophrenia, his use of synthetic marijuana and his sickle cell trait.
The incident occurred on a Monday afternoon while Penny, 26, a former Marine from Suffolk County, L.I., was commuting to the gym. Neely, who was homeless and experiencing untreated mental illness, got on the train at Second Ave. and started screaming about wanting to die or go to jail, according to multiple accounts from some of the 40 witnesses who testified at trial.
Penny took Neely down from behind in a chokehold. Less than a minute later, the train reached the next stop, where the car’s passengers all disembarked. Prosecutors say Penny’s actions, at that point, became criminal as he continued to subdue Neely in the empty car for nearly six minutes until the homeless man stopped breathing.
Penny has pleaded not guilty to manslaughter and criminally negligent homicide.
The jury of seven women and five men went home at 5 p.m. without reaching a verdict. Their deliberations are expected to continue Thursday.