The New York City jury tasked with determining whether Marine veteran Daniel Penny committed manslaughter when he put homeless man Jordan Neely in a chokehold have zeroed in on testimony about his death.
The jury of seven women and five men sent a note to Judge Maxwell Wiley around 3pm on Wednesday asking to rehear part of the city Medical Examiner’s testimony about issuing a death certificate without getting toxicology results for the 30-year-old victim.
Dr. Cynthia Harris had testified that bystander video of Penny’s six-minute encounter with Neely onboard the F train in Manhattan, as well as investigative findings gave her all the information she needed to declare that Neely died of compression to the neck, NBC 4 reports.
‘No toxicological result imaginable was going to change my opinion,’ Harris said, even if it showed ‘enough fentanyl to put down an elephant.’
She also claimed at one point that she did not know whether she observed Penny exerting ‘sufficiently consistent pressure’ on Neely’s neck in the video to kill him, according to Gothamist.
The jury also asked Wednesday to review the six-minute clip a Mexican journalist took of the chokehold, as well as body camera footage from when New York Police Department officers arrived on the scene as EMS workers tried to revive Neely, and footage of Neely’s interrogation at the police station in the aftermath.
Defense attorneys had argued that Neely did not die just from the chokehold, but from a combination of schizophrenia, use of synthetic marijuana, a genetic condition and his struggle with Penny onboard the subway.
They noted that first responders opted to use Narcan to reverse the effects of opioids before they administered CPR, and in his closing arguments, defense attorney Steven Raiser pointed out no expert witness during the trial could prove key elements beyond reasonable doubt.
The jury tasked with determining whether Marine veteran Daniel Penny (pictured) committed manslaughter when he put homeless man Jordan Neely in a chokehold have zeroed in on testimony about his death
The jury of seven women and five men asked a judge to rehear pat of the city Medical Examiner’s testimony about issuing a death certificate without getting toxicology results for the 30-year-old victim
The defense attorneys have argued that Penny was only trying to protect others in the subway car in May 2023 when he subdued Neely to the point of death by placing him in a chokehold for six minutes.
Witnesses had said Neely boarded the uptown train on May 1, 2023 and started moving erratically, yelling about his hunger and thirst and proclaiming that he was ready to die, go to jail – or as Penny and some other straphangers recounted – kill.
In his closing statements, Raiser described the commuters onboard the subway that day as being ‘frozen in fear,’ and claimed there was an obvious reason that there was no footage of Neely’s outburst – because they were too afraid to move.
He then quoted experts and witnesses who testified during the trial, and reminded the jurors that Neely was described as having ‘severely psychotic cases.’
But Assistant District Attorney Dafna Yoran warned the jury on Tuesday that their verdict should not rely upon whether they themselves would be grateful for Penny’s intervention, or weigh testimony from his loved ones that he is a ‘good man.’
‘What is so tragic about this case, is that even though the defendant started out doing the right thing… a man died,’ she said.
‘He was given all the signs he needed to stop. He ignored them. He must be held accountable for that.’
She continued: ‘You’re not here to decide whether you’d want to ride alone on the train with Jordan Neely.
‘That is not what this case is about. The only thing you need to determine here is whether or not the evidence here proves the defendant killed Jordan Neely.’
Penny is pictured holding Jordan Neely in a chokehold on a NYC subway train on May 1 2023
Neely was a Michael Jackson impersonator who was known and recognized in Times Square (pictured in 2009)
Yafna also noted that Penny is a Marine Corps veteran, arguing that he should have had a clearer understanding of the risks of his actions given his military experience.
She implored the jury to find Penny guilty of manslaughter – a charge which carries a maximum term of 15 years behind bars, describing in great detail how Neely ‘clawed at his own neck with his nails’ as he fought against the chokehold in those crucial first few minutes, before ultimately urinating on himself and losing consciousness.
But the jury must now decide whether to charge Penny with manslaughter or criminally negligent homicide charges.
To convict, prosecutors say that Penny’s use of lethal force must be considered unjustifiable and that he acted recklessly when he subdued Neely.
If they decide Penny’s actions did not amount to manslaughter, the jury will then consider the lesser charge of criminally negligent homicide.
Both charges are felonies. Neither carries mandatory prison time, but both carry the possibility of it – up to 15 years for manslaughter, or four for criminally negligent homicide.
The jury also asked to review body camera footage from when New York Police Department officers arrived on the scene as EMS workers tried to revive Neely
Deliberations are expected to continue Thursday, as protesters continue to gather outside the Manhattan courthouse to decry Penny and declare their support for a manslaughter charge.
But some of the protesters have become aggressive, defense attorney Thomas Kenniff said on Wednesday, describing how one man followed Penny to a car that was waiting for him after the trial one day and started banging on the doors.
The same man, he said, was ‘repeatedly berating Mr. Penny with violent and homophobic slurs’ when he arrived at court on Wednesday.
Kenniff noted that the man had been in the courtroom audience and asked Wiley to bar the man from future proceedings.
Wiley – who said he saw the confrontation from his office window – declined, noting that the public has a right to access court proceedings.
He said that court officers occasionally ‘limited people’s access’ because of their conduct inside the courtroom, but he was not inclined to eject anyone over their outside behavior.
At that point, Penny’s lawyers expressed their concern that the jury may hear the protesters, but Wiley noted that he told the jurors to ignore anything they may hear from outside.
‘At this point, I think that we will assume that they’re following their instructions,’ the judge said.
