Daniel Penny's lawyers hold briefing after defense rests cases in subway chokehold trial
Marine vet's defense lawyers, Thomas Kenniff and Steven Raiser, address the media after resting their case in a Manhattan courthouse Friday.
NEW YORK – The defense has rested its case in Daniel Penny's New York City manslaughter trial – after the final witness took the stand and revealed that Jordan Neely had an open bench warrant at the time of his death.
Penny, a 26-year-old Marine veteran and architecture student, grabbed the 30-year-old Neely in the middle of a schizophrenic, drug-fueled outburst on a subway car that witnesses said included death threats and had them fearing for their lives. Although Neely still had a pulse when Penny let go, he later died.
Brian Kemef, who works for the court clerk's office, revealed that a warrant was issued for Neely on Feb. 23, 2023 – just weeks before his death in May of that year. Fox News Digital has previously reported Neely was a repeat offender whose violent history included other subway assaults.
Daniel Penny walks in the hallway of Manhattan Supreme Court on Tuesday, November 19, 2024. Penny, a Marine veteran, is charged with second-degree manslaughter and criminally negligent homicide in the 2023 death of Jordan Neely on a New York City subway train. (Rashid Umar Abbasi for Fox News Digital)
Speaking without the jury present, Judge Maxwell Wiley separately flagged that he'd like to schedule a charging conference for Monday.
Penny did not take the stand, and his lawyers told reporters outside the courthouse that he didn't have to after jurors got to see video of his NYPD interrogation.
Neely, who had health issues including schizophrenia and sickle cell trait and was a chronic abuser of synthetic marijuana, died due to exertion from the struggle and not because he'd been choked out, defense lawyers Thomas Kenniff and Steven Raiser argued.
"The jury did get to hear from our client," Kenniff told reporters outside the courthouse. "And they got to hear from him not only in the immediate aftermath of this incident, but a couple of hours later, before there were lawyers involved on either side. And he had an opportunity to explain himself and explain what he did, why he acted, how he acted, what he perceived. And so much of it is consistent with not only the evidence in the case, but the testimony in the case."
The trial began Friday with a second day of testimony from Dr. Satish Chundru, a Texas forensic pathologist working for Penny's defense.
Contrary to the official autopsy report conducted by Dr. Cynthia Harris of the New York City Medical Examiner's Office, Chundru testified that he does not believe a chokehold caused Neely's death.
Jordan Neely's open bench warrant:
During a grueling cross-examination, Assistant Manhattan District Attorney Dafna Yoran grilled Dr. Chundru on the connection between sickle cell trait and death in other cases, prompting repeated objections from the defense.
At one point, Judge Maxwell Wiley cut her off and said "we’re not doing that." But the questioning continued through more objections before the court went to recess.
Dr. Satish Chundru leaves the courtroom during a recess in Daniel Penny's New York City manslaughter trial at Manhattan Supreme Court in New York City on Thursday, Nov. 21, 2024. (Rashid Umar Abbasi for Fox News Digital)
Before jurors returned, the defense argued that Yoran improperly brought up the term "homicide," a misstep that happened earlier in the trial as well.
Wiley said he did not want to strike the back-and-forth. When the jury returned, he told them that "homicide" means something different to a medical examiner than it does to a lawyer or a jury and asked them not to weigh the witness’ use of that word when weighing facts of the case.
It was the second time that the word "homicide" came up controversially and prompted the defense to raise an objection. Earlier this week, Wiley ordered the first comment stricken, when Dr. Harris mentioned that "all homicide reports" were reviewed by another doctor in the city medical examiner's office.
Not all homicides are criminal, and the defense argued that the prosecution's repeated espousal of the word could confuse the jury.
The defense asked the court to note for the record that they have had several conversations, and the DA’s office agreed that bringing up testimony from forensic pathologists regarding death as a "homicide" would be misleading to the jury.
The first time, it came from Dr. Harris. The second, the defense said Yoran said the word as part of her questioning. She denied it. The judge said he would review the transcript later and issue additional jury instructions if necessary.
Jordan Neely is pictured before going to see the Michael Jackson movie, "This is It," outside the Regal Cinemas on 8th Avenue and 42nd Street in Times Square in New York City in 2009. (Andrew Savulich/New York Daily News/Tribune News Service via Getty Images)
While Penny's team has maintained that his actions were justified, that's not their only line of defense, according to Louis Gelormino, a New York City defense attorney who is closely following the case.
"One of the other defenses is, ‘Well, I didn’t kill him. My actions weren’t the cause of death,'" he told Fox News Digital Friday. "So yes, it doesn’t make a difference if it was justifiable. But if his actions weren’t justifiable, the jury could also say, ‘Hey, [his] actions didn’t kill him. He died because of the other things going on in his body.’ And that’s why that’s relevant."
Chundru, a former Miami-area medical examiner who now runs a private practice in Texas conducting autopsies in a half-dozen counties, has testified that he did not believe an air choke caused Neely's unconsciousness and, therefore, did not cause his death.
Rather, he blamed it on "the combined effects of sickle cell crisis, the schizophrenia, the struggle and restraint, and the synthetic marijuana."
Dr. Cynthia Harris arrives for Daniel Penny’s trial at the Manhattan Criminal Court building in New York City on Friday, Nov. 15, 2024. Penny, a Marine veteran, is charged with second-degree manslaughter and criminally negligent homicide in the 2023 death of Jordan Neely on a New York City subway train. (Adam Gray for Fox News Digital)
Dr. Michael Baden, a former New York City medical examiner and leading forensic pathologist, disagreed with Chundru's testimony.
"Dr. Chundru's testimony may have been very interesting, but it was wrong," he told Fox News Digital. "He described what can happen in sickle cell disease, not what happens in sickle cell trait, which Neely had. Eight percent of Black people in this country have sickle trait, which is a benign medical condition that rarely causes any symptoms, let alone death."
At the autopsy, Harris found significant "sickling" on Neely's organs, she testified, and lawyers on both sides asked for an explanation. She said the condition did not contribute to Neely's death, and she blamed it solely on asphyxiation from the chokehold.
"Sickle trait red blood cells do sickle after death, when the body's oxygen supply disappears and can be seen at autopsy – as with Neely or with anyone with sickle trait dying from any condition," Baden said. "It's a post-mortem artifact like rigor mortis. Further, death from sickle disease takes days of sickling to occur; it can't occur in seconds as happened to Neely."
Screenshot from bystander video showing Jordan Neely being held in a chokehold on the New York City subway. (Luces de Nueva York/Juan Alberto Vazquez via Storyful)
However, he said, even if the chokehold caused Neely's death, it is not up to the medical examiner to decide whether that was criminal.
"The individual circumstances are important as to whether the death could [or] should have been avoided, and whether the death should be prosecuted, which is entirely up to the prosecutor," he said.
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Penny faces up to 15 years in prison if convicted on the top charge of manslaughter. He also faces a charge of criminally negligent homicide.
It was not immediately clear whether he would take the stand in his own defense, although some experts have suggested it is likely that he will because it is a self-defense case.
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