The medical examiner who ruled Jordan Neely’s death was a homicide caused by Daniel Penny’s chokehold insisted Friday she’d stand by the ruling — even if it somehow turned out the homeless man had enough drugs in his body “to put down an elephant.”
Video of the fatal subway encounter so convincingly revealed Neely had died from the maneuver, that “no toxicology result could have changed my opinion,” Dr. Cynthia Harris, who performed his autopsy, told jurors at Penny’s lightning-rod Manhattan manslaughter trial.
Footage of the fatal encounter shows the former Marine keeping Neely in the hold for more than six minutes — including 51 seconds after his body went limp — and makes clear that the homeless man did not suffer a drug overdose, Harris testified.
Harris’ testimony came during cross-examination by Penny’s defense attorneys, who questioned her about initially saying on Neely’s death certificate that his cause of death was “inconclusive.”
The doctor said she decided that Neely’s death was caused by “asphyxia,” consistent with being choked, after reviewing a journalist’s video of Neely “dying” while Penny’s arm is wrapped around his neck.
“After watching it, I had no further questions about how he was dead,” she testified.
Harris said that she reached her conclusion before receiving Neely’s toxicology report.
The report ultimately showed that Neely, who jurors have heard had a history of abusing the synthetic marijuana drug K2, had the drug in his system when he died.
But Harris said that she would have found the chokehold caused Neely’s death even if it turned out he had “enough fentanyl in his system to put down an elephant.”
Video of the chokehold — which Harris said showed Neely’s face turning “purple” as Penny compressed the veins in his neck — shows that “there are no alternative reasonable explanations” for how he died, she testified.
Harris also pinpointed for jurors the exact moment when Neely passed out on the subway car’s floor, with Penny still grasping him in the chokehold.
She pointed out what she called Neely’s last “purposeful movement” — a final struggle to escape the chokehold — before his body stopped moving on its own.
At that point, he’d been in the grasp for more than five minutes, and Penny continued to hold onto his neck for 51 seconds after, according to video evidence.
As jurors watched journalist Juan Alberto Vasquez’s footage, Harris also picked out a moment, seconds later, where Neely’s toes slowly release tension and turn upward.
Those were some of the last, involuntary movements of a dying man, she testified.
“Watch the feet,” she told the jury.
“That, to me, looks like the twitchings that you see around death.”
The doctor then described another moment seconds after Penny let Neely go, in which Neely appears to arch his back while lying on the floor of the uptown F train at the Broadway-Lafayette station.
“That’s not breathing,” she testified, under questioning by prosecutors.
“That’s not voluntary. That’s the sign of a brain dying.”
Harris also explained why arriving police officers at first detected a faint pulse on Neely, before the pulse vanished soon after.
Neely was effectively “brain dead” at the time, and someone’s brain “dies” before their heart gives out, she testified.
“That makes perfect sense,” she told jurors. “It doesn’t surprise me at all that he has a pulse.
“The brain dies first, the brain is the most sensitive organ in the body to oxygen,” she continued.
“Deprived of oxygen for a long period of time, the brain will die.”
“He had a functioning heart in a dying body,” Harris said.
Harris’ testimony could be a key factor in jurors’ decision over whether to convict Penny, 26, of “recklessly” killing Neely, 30, after Neely menaced and threatened train passengers before the May 1, 2023 confrontation.
Jurors on Friday also saw images of Neely’s corpse, which Harris testified showed bruising and crushed blood vessels – known as “hemorrhages” – in his neck, caused by a “considerable amount of constrictive, squeezing force.”
“It’s my medical opinion that there are no alternative reasonable explanations for Mr Neely’s death,” she told jurors.
Penny’s attorneys have argued that his actions were justified to restrain Neely, whose “unhinged” and “belligerent” rant was so frightening, according to one witness, that she moved her stroller in front of her 5-year-old to protect him.
Penny, a Marine veteran who had been living in the Lower East Side and studying architecture at Brooklyn’s City Tech college at the time of the episode, told detectives on the night of Neely’s death that he stepped in to protect women and children he believed were at risk.
“I wasn’t trying to kill the guy. I was just trying to de-escalate the situation,” Penny said during the videotaped interrogation shown to the jurors.
Prosecutors have lauded Penny’s initial intent to restrain Neely, but say the crime occurred when Penny “went too far” in keeping Neely in the hold after nearly all of the passengers had left the train car, and after the homeless man passed out.
Penny is charged with second-degree manslaughter and criminally negligent homicide.
He faces up to 15 years in prison if convicted on the top charge, but prosecutors have not said how stiff of a sentence they would seek if Penny is convicted.
The trial resumes Monday.
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