Shaken subway riders, military chokeholds, a death certificate: How prosecutors built their case against Daniel Penny

By Gloria Pazmino, Eric Levenson and Lauren del Valle, CNN

(CNN) — “Someone’s attacking here. F train,” Morielyn Sanchez told the 911 operator.

“He’s trying to attack everybody.”

“They’re holding him down right now,” she said, the panic in the 18-year-old’s voice apparent.

Sanchez’s 911 call was one of several that prosecutors aired during their case against Daniel Penny, the former Marine who put homeless street artist Jordan Neely in a fatal chokehold on a New York City subway in May 2023.

Later, Sanchez took cell phone video of first responders treating Neely, who appeared limp and non-responsive.

“Oh my god, he’s not breathing,” she says, as officers feel for a pulse and rub Neely’s chest in an attempt for him to respond.

Prosecutors rested their case against Penny on Monday after eight days of witness testimony.

They didn’t argue the 26-year-old intentionally tried to kill Neely – but allege he “went way too far” and violated “law and human decency” by holding the 30-year-old Black man’s neck for about six minutes as he struggled until he stopped moving.

The prosecution presented testimony, video and 911 calls from subway riders, responding police officers and martial arts and medical experts over the past two weeks. The medical examiner who performed Neely’s autopsy – the prosecution’s 33rd and final witness – testified Friday she had no doubt Neely died from neck compression.

Penny’s defense attorneys argued he was trying to protect bystanders from Neely. Neely never appeared to be choking or said he couldn’t breathe during the chokehold, the defense argued, and they have sought to challenge the medical examiner’s determination the chokehold caused his death.

The defense now has an opportunity to call its own witnesses.

Penny is facing charges of second-degree manslaughter and criminally negligent homicide in Neely’s death. He faces up to 15 years in prison if convicted of manslaughter and up to four years if convicted of criminally negligent homicide.

The case has polarized New York City residents, many of whom have personal experiences with disorder on the subways, and raised broader questions about mental health, homelessness, racism, and the line between protector and vigilante.

Subway bystanders who witnessed Penny’s chokehold describe the altercation

Caedryn Schrunk said the day Neely entered the subway train was the first time in her life she felt like she was going to die.

She did not recall exactly what Neely yelled but described him saying he didn’t care if he died, if others died, or if he went to jail for life.

Sanchez, the high schooler who called 911, testified she was scared by Neely and was relieved when Penny put him in a chokehold.

The jury also saw video of Penny’s interview with NYPD detectives after Neely’s death.

“I wasn’t trying to injure him,” Penny said in the video. “I’m just trying to keep him from hurting anybody else. He was threatening.”

However, other witnesses for the prosecution described Penny not as a hero but someone actively trying to stop Neely from receiving assistance.

Johnny Grima testified he tried to help Neely, lying limp on the subway floor, by giving him water but was stopped by Penny.

“I tried to pour some water on his forehead and Daniel Penny intercepted me and stopped me,” Grima, who has previously been homeless himself, testified.

“That’s weird, that’s wrong. You’re not a police officer,” Grima said in court.

Another witness who helped hold down Neely in the subway car testified he advised Penny to let go of the hold, but Penny did not do so.

And video shown in court captured an unseen bystander saying Neely was dying, telling Penny, “Let him go” as he continued the chokehold.

“The fact of the case is this, someone got on the train and was screaming, and someone choked that person to death,” said Donte Mills, an attorney for Neely’s family. “Those things will never balance out. And there’s no justification that can make those things balance out.”

Chokehold technique and cause of death come to center focus

Penny served four years in the US Marines. He was a green belt in the Marine Corps martial arts program, learning several blood chokes designed to cut off blood flow to the brain and render someone unconscious, his martial arts instructor Joseph Caballer said.

Last week, he testified the 26-year-old incorrectly used a blood choke technique in the fatal restraint of Neely.

Caballer reviewed videos and photos of Penny restraining Neely in court, determining he improperly used a figure-four variation chokehold. Penny’s arm was in the wrong position on Neely’s neck, and his other hand was in the wrong position on Neely’s head, he testified.

The prosecution also called several paramedics, who testified they made multiple failed attempts to revive Neely, who had no pulse and was not breathing when they arrived.

Dr. Cynthia Harris, the medical examiner who performed Neely’s autopsy, walked the jury through graphic autopsy photos of Neely’s wounds including deep hemorrhaging visible in his neck muscles that she said speaks to what would’ve been a constrictive “pinching” force consistent with Penny’s chokehold.

Harris said it would take a “considerable amount of force” to sustain such hemorrhaging in multiple muscles deep in Neely’s neck.

She filed “compression of neck (chokehold)” as Neely’s official cause of death on his death certificate.

The homeless street artist’s sickle cell trait likely enhanced the asphyxia component of his death, Harris said, but did not cause his death.

Toxicology tests found the presence of a synthetic cannabinoid known as “K2” in Neely’s system, and although Harris acknowledged on cross-examination that she filed his official cause of death without the toxicology test results, she said she does not think the stimulant drug contributed to his death.

Harris remained on the stand throughout Monday, with Penny’s defense team pressing the medical examiner on Neely’s sickle cell disease and whether their client applied pressure to Neely’s neck during the entire altercation, resulting in his death.

Her testimony has been the longest of any witness so far in the trial.

CNN’s Zoe Sottile contributed to this report.

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