The jury in the trial of former Marine Daniel Penny began its deliberations on Dec. 3.
The 12 men and women must now decide whether Penny’s actions were justified when he put Jordan Neely, a mentally ill homeless man, into a headlock on May 1, 2023, and wrestled him to the ground, or whether those actions crossed the line into manslaughter and criminally negligent homicide, as prosecutors allege.
The trial has captivated the attention of much of the nation and the world, and protesters sympathizing with Neely have assembled outside the courthouse at 100 Centre Street almost every morning while it has been underway.
Opinions about the case have been polarized from the beginning. Some accuse Penny of an excess of zeal and careless overuse of physical force, while others believe that Penny acted to protect innocent people on an uptown F train from a crazed, menacing individual, and that his actions were entirely understandable given the failure of the police and mental health service providers to do their job and keep the public safe.
The defense and prosecution have been in agreement that Neely, who a postmortem examination found to have synthetic cannabinoids in his system, provoked the confrontation on that day in May 2023. They concur that his words and actions were menacing and gave passengers on the train reasonable and immediate fear for their safety.
They have disagreed about the appropriateness of deadly force.
Prosecutor Dafna Yoran has repeatedly pointed out that Neely had no weapons anywhere on his person, and spent a lot of time explaining to the jury when deadly force can and cannot be justified under New York law.
The defense has highlighted Neely’s history of mental illness and drug use, his explicit threats, and the terror that multiple witnesses say Neely caused them to feel.
Central to the defense’s case are the arguments of forensic pathologist Satish Chundru, who testified that Penny had not choked Neely to death and told jurors under oath that Neely died of complications from a sickle cell condition.
Under direct examination from defense lawyer Steve Raiser, Chundru attributed Neely’s death to the convergence of a number of factors, including the powerful drugs in his system, his schizophrenia, and, crucially, a sickle cell trait that the stress of the chokehold exacerbated but did not cause.
At a time of unusual stress, red blood cells in the body of someone with a sickle cell condition metamorphose from their usual round shape to what Chundru described as a “crescent moon or banana shape,” in which they stick to blood vessel walls rather than carrying oxygen to tissue cells.
Chundru argued that during the chokehold—which would not by itself have been lethal—Neely suffered a sickle cell crisis, and died as a consequence of it.
Before the seating of the jury on Tuesday morning, defense lawyer Thomas Kenniff told Judge Maxwell Wiley that Yoran had acted as an “unsworn witness” when she presumed to tell jurors what they were seeing happen in cell phone footage of the May 2023 incident played on screens in the courtroom on past days of the trial. Lawyers are not witnesses, and Yoran’s conduct was improper and prejudicial to the jury, Kenniff said.
Yoran denied this characterization, and the judge was unsympathetic to Kenniff’s arguments.
Yoran strove to discredit Chundru, saying he wasn’t qualified to discuss the case and accused him of enriching himself by coming to a biased conclusion.
“Dr. Chundru would not have made the over $90,000 he made in this one case, if he had agreed with the evidence that Mr. Neely died from a chokehold,” Yoran alleged.
Chundru’s assessment of Neely’s death conflicted with the views of experts at the New York City Office of Chief Medical Examiner, and in particular with Dr. Cynthia Harris, who said last month under oath how she believed Penny’s chokehold resulted in an asphyxial death.
She also accused Penny of having departed from the training he received in the Marines, which, she argued, clearly set forth how to apply more than one type of nonlethal choke.
Yoran argued what Penny did to Neely involved improper compression of the neck was neither a correctly applied blood choke, nor a correctly applied air choke.
“A properly executed blood choke would only hit the veins and arteries on both sides of the neck. A properly executed air choke would hit only the trachea,” Yoran said.
With the aid of cell phone footage of the incident, Yoran told the jury that the center of Neely’s neck was not in the crook of Penny’s elbow, as it would have been in a properly applied choke.
Yoran argued that the alleged prolonged misapplication of force for about six minutes culminated in asphyxial death.
At the end of her remarks, Yoran acknowledged that this case was a difficult one for jurors to have to decide, because Penny had initially tried to do the right thing, and it is not easy to convict someone for a killing that the person had not intended.
She also maintained that the prosecution had shown beyond a reasonable doubt that Penny “recklessly and needlessly” took Neely’s life.
