Defense calls first witnesses in trial of man accused in chokehold death on NYC subway

After having called more than 30 witnesses, the prosecution in the manslaughter trial of Daniel Penny , who is charged in the chokehold death of Jordan Neely, rested its case Monday.

Penny, a former Marine, is also charged with criminally negligent homicide in the May 1, 2023, killing of Neely, who struggled with mental illness and homelessness. Neely had screamed threats, including about wanting to go back to jail for life, and talked about being hungry and thirsty when he boarded an uptown F train that day. Some witnesses testified that they were afraid of him. Penny put him in a chokehold that lasted about six minutes, prosecutors have said and evidence presented at trial has shown.

Penny's attorneys have said he acted to protect himself and other subway riders from "a seething, psychotic" Neely. Prosecutors argue that Penny acted recklessly by releasing Neely only after he was already unconscious and had gone limp and that he failed to see his humanity.

The case put a spotlight on issues of race relations and public safety within the city's subway system. Penny, 26, is white. Neely, who was 30 when he died, was Black. Many, including elected Republican officials, have labeled Penny a hero and helped raise more than $3 million for his legal fund. But others have compared his actions to those of a vigilante.

Monday began with testimony from Dr. Cynthia Harris, the medical examiner who performed the autopsy on Neely and ruled that he died from compression to his neck as a result of the chokehold . She took the stand Thursday afternoon and testified all day Friday and most of the day Monday.

During hours of cross-examination, Steven Raiser, one of Penny's attorneys, sought to cast doubt on her finding, asking her whether it was possible Penny could have died from other causes, such as the synthetic cannabinoids that were in his system. She told jurors that of the 10,000 overdose deaths her office had reviewed in the last four years, only seven were caused by the drug Neely had consumed. And unlike Neely, she said, all seven of those people had abnormal hearts.

Raiser also questioned her credentials, whether she and the city's medical examiner's office had been influenced by outside forces and whether she had provided evidence that Penny applied pressure for a length of time sufficient to cause Neely's death.

Again and again, Harris answered that she believed the chokehold was the most probable cause of Neely's death. Raiser also told her that she could not definitively say how much pressure Penny was applying to Neely's neck based solely on the bystander video she reviewed, which helped the case gain national attention. Harris testified Friday that she based her ruling on her autopsy findings, coupled with the video and the investigative information about it.

In response to a question from prosecutors under redirect, Harris testified that it was "highly improbable" that Neely could have died from another cause, including synthetic cannabinoids.

"There's a saying at our office, at OCME, that when something very improbable is being proposed, and it's that — what's being proposed is so improbable — that it stands shoulder to shoulder with impossibility," Harris said.

Penny's older sister, Jacqueline Penny, was the first defense witness. She described their suburban upbringing in West Islip on Long Island, a community she said is very safe, beachy and neighborly. She said that they came from a close-knit family and that after their parents separated, when her brother was in high school, their grandparents were a source of support. She said that though she now lives in Miami, she and Penny remain close and that she was only a little surprised he enlisted in the Marines after he finished high school.

"He was always patriotic," she said, adding that other men in their family had served in the military, "so it wasn't completely surprising."

She was followed by Alexandra Fay, a childhood friend of Penny's who said they grew up on the same block. She said their friendship has endured into adulthood, and, like his sister, she testified that she knew him to be honest and a person with integrity.

Over the last four weeks, jurors also heard from responding officers , the man who recorded the video that helped the case gain national attention and other subway passengers.

The trial is expected to last through Thanksgiving.