Daniel Penny’s defense team called an expert witness Thursday, who challenged the medical examiner’s determination that Jordan Neely died as a result of the former Marine choking him on a subway car.
Dr. Satish Chundru — a Texas-based forensic pathologist Penny’s legal team hired to reinvestigate Neely’s cause of death — said he disagreed with the opinions of everyone working at the New York City medical examiner’s office, including the office’s chief, that Neely perished as a result of compression of the neck.
Chundru, who has been paid about $90,000 for his work in the Penny case, blamed an array of other factors for Neely’s death, including schizophrenia, his use of synthetic marijuana, and a sickle cell crisis caused by exertion from the struggle and restraint. Penny’s legal fees have been covered by an online fundraiser that has pulled in more than $3 million.
“It’s fair to say you ruled out chokehold as cause of death in this case?” Penny’s defense attorney, Steven Raiser, asked Chundru in Manhattan Supreme Court.
“That’s correct,” Chundru said.
Chundru said a chokehold death plays out in two stages. First, the person is rendered unconscious from consistent and sufficient pressure on their neck. The second phase, he said, sees the aggressor sustain that pressure for an “extended period of time” until they die.
He said one can “call something a chokehold” when both elements are met.
“Unconsciousness always precedes death in a chokehold,” the Texas doctor said.
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Because footage of the incident depicts Neely, 30 at the time of his death, appearing to transition from alive to dead without a period of unconsciousness in between, Chundru said he determined Neely died from other factors.
Chundru further said he did not believe there were enough blood spots on Neely’s eyelids nor appropriate bruising on Neely’s neck to determine the chokehold that immediately preceded his death was the cause of it.
In the audience for Chundru’s testimony was Dr. Cynthia Harris from the medical examiner’s office, who performed the autopsy on Neely the day after the incident. She and her colleagues unanimously agreed the chokehold killed Neely the day after the procedure after footage of it became available.
Before the prosecution rested Monday, Harris said that to reach any other conclusion she would need to ignore footage of Penny choking Neely until Neely passed out and started displaying signs of “terminal brain injury,” a purple hue to his face, congested veins, blood spots on his eyelids, damage to the inner structures of Neely’s neck, and other symptoms.
Harris said Neely showed signs of cell sickling but nothing that would cause him to die. She said only seven overdose cases out of 10,000 reviewed by the medical examiner’s office in four years involved people dying from ingesting the synthetic cannabis Neely had and that those people, unlike Neely, had abnormal hearts.
Juan Alberto Vazquez
Neely, who grew up in Manhattan and New Jersey, dealt with untreated mental illness, drug addiction and homelessness. His relatives say that he was devastated by his mother’s murder when he was 14. He found joy in performing as Michael Jackson for New Yorkers when he was stable.
Penny, 26, of West Islip, L.I., served four years in the Marines and was studying architecture and working as a barback in Brooklyn at the time of the incident.
His loved ones have testified that he grew up in a tight-knit family and town, getting good grades in high school, where he played upright bass with the orchestra and was on the lacrosse team. He has pleaded not guilty to second-degree manslaughter and criminally negligent homicide. It’s still not clear whether he plans to take the stand in his defense.
The two men, close in age and each standing 6 feet and 1 inch tall, were otherwise worlds apart in their life experiences.
Their lives collided on an uptown F train on the afternoon of Monday, May 1, 2023.
Neely boarded the car Penny was riding to the gym at Second Ave. and began loudly screaming that he was hungry, thirsty and ready to go to jail shortly after the doors closed, alarming passengers, multiple eyewitnesses have testified.
Penny quickly sprung into action, taking Neely down from behind. Some 30 seconds later, the train pulled into the next stop, where the two men remained on the floor, with Penny’s arm curled around Neely’s neck and his legs wrapped around his body, according to videos shown at the trial.
Prosecutors say Penny acted appropriately while the train was in motion and criminally after it reached Broadway-Lafayette, with no need to continue subduing Neely for nearly six minutes after passengers had fled to safety.
Jurors have heard from another passenger who aided Penny. He said he told him he had Neely’s arms under control, so it was safe to let go of his neck, but Penny did not let up.
On cross-examination, which was expected to resume Friday, prosecutor Dafna Yoran sought to undermine Chundru’s testimony by pulling up studies that contradicted it as well as excerpts from his mentor’s book and a recent TV special he appeared him that explored similar themes.
Chundru said he consulted on about 30 cases yearly, with around 60% of them for the defense, and had earned around $90,000 from the Penny case.
Yoran asked if it was true he made $5 million in the last year performing hundreds of private autopsies more than the National Association of Medical Examiners recommends to avoid negatively impacting the quality of the procedures, including on holidays and weekends.
Chundru said yes, adding, “I’m sorry my business is doing well.”
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