The word ‘homicide’ ratcheted up tensions between the defense and the prosecution in the trial of Daniel Penny, the Marine veteran charged with causing the death of a Michael Jackson impersonator, Jordan Neely, on a New York subway car last year. 

The defense had brought a medical expert to the witness stand, a forensic pathologist named Satish Chundru, who is based in Texas, and who, as the Sun reported, testified that he believed Neely did not die from lack of oxygen,as a New York City medical examiner had ruled, after Mr. Penny held him in a chokehold.

On Friday, prosecutors continued their fierce cross-examination of the expert and elicited the word ‘homicide’ from his testimony, when they brought up another case the expert had been involved with, causing an uproar by the defense team. 

The issue first came up, when a New York City medical examiner, Dr. Cynthia Harris, who had ruled Neely’s death a homicide, used the word in her testimony. The defense sprung up and objected.

When a medical examiner rules the death of a person a homicide it means, the person died by the hands of another person, as opposed to by disease or by suicide, or in natural diseaster or in an accident, like falling from a rooftop or drowning in the ocean. The pathologist’s use of the word homicide, however, does not mean a criminal offense was involved in the death. That is for the jury to decide. A homicide can be caused by murder, manslaughter, assault, accidentally or in self-defense. Whether or not the other person is actually guilty of criminally causing the homicide is to be determined by the jury after hearing evidence during a trial. 

However, the word homicide in the popular vernacular is a synonym for murder, and hearing the word ‘homicide’ during testimony can stir confusion, Mr. Penny’s defense argued that jurors, who may not be familiar with the distinction between homicide and murder, could upon hearing the word homicide conclude that a crime had been committed. It was agreed by both parties to keep the poisonous word out of the courtroom.             

But on Friday, the word came up again, this time in the testimony of the expert witness the defense had called, which made the matter even worse. Especially because the testimony may have harmed the credibility of the defense’s argument.    

Mr. Penny, 26, is charged with second-degree manslaughter and negligent homicide in the death of Neely. Combined, these charges carry a maximum of 19 years in prison. He has pleaded not guilty. The defense argues that not only did he not intend to kill Neely, but that his chokehold alone did not cause the death.    

On May 1, 2023, Neely, a 30-year old street performer, who was homeless at the time and had a long history of drug use and mental illness, boarded a subway in lower Manhattan. As soon as he entered the subway car, he began shouting at passengers that he was thirsty, hungry, ready to go to prison and ready to die. Though he did not physically attack anyone, and did not carry a weapon, the tone of his voice, according to witnesses, was extremely menacing and frightening. So much so that one witness testified that she feared for her life. 

Mr. Penny, who is from Long Island, but was living in the East Village and studying architecture and engineering at New York City College of Technology, was on his way to the gym. He perceived Neely’s erratic behavior as extremely dangerous, and attempted, as he told police officers later, to protect his fellow subway riders and himself, when he grabbed Neely from behind, put him in a chokehold, brought him to ground and held him on the floor of the subway car for about six minutes. Two other men helped Mr. Penny restrain Neely. 

A video, recorded by a freelance journalist, who was also on the train, shows how Mr. Penny holds Neely in the chokehold, how he uses his legs to secure him, and how Neely’s body eventually goes limp. When officers arrived at the scene, Neely was unresponsive but for a slight pulse. He was pronounced dead at the hospital about an hour later. 

The prosecution alleges that the chokehold cut off Neely’s airways and that he died due to the lack of oxygen. The defense attorneys argue that it is not clear, and impossible to determine, how much pressure Mr. Penny applied on Neely’s neck in the course of the struggle, and that their client’s chokehold did not cause the death.  

After dedicating more than a hundred hours to review the evidence, Dr. Chundru testified that he believed Neely died from the “combined effects” of sickle cell crisis, schizophrenia, the struggle and restraint and the synthetic marijuana, found in his system in the toxicology report. He argued Mr. Penny had struggled with Mr. Neely, but did not choke him to death.

The autopsy found Neely’s spleen, a small organ that stores and filters blood, was sickling, meaning the red blood cells were shaped like sickles and thus unable to deliver oxygen and nutrients to the cells. Histology slides, which look at the microscopic structure of tissues and cells, showed that Neely experienced what is called a sickling crisis when he died. Like many people of color in the United States, and around the world, Neely carried the sickle trait, a blood disorder that is mostly benign unless it erupts in a crisis and causes the blood cells to sickle.     

Dr. Chundru found that an increase in Neely’s circulation, increase in his heart rate, and increase in his blood pressure caused the sickling, which eventually led to his death. But he repeated that “multiple factors” played in role in this “exertion”: a schizophrenic episode, which he believed Neely was suffering, the intake of the synthetic cannabinoid K2, also known as spice, and the physical struggle with Mr. Penny. 

On Friday, however, an assistant district attorney, Dofna Yoran, who is prosecuting the case on behalf of Manhattan district attorney Alvin Bragg, asked Dr. Chundru about another case he had been hired to review. This was the case of Sergeant James Brown, who died in the El Paso County jail while serving a DWI sentence in 2012. Dr. Chundru had ruled Brown’s death a “homicide.”  

“Is it true that in that case,” Ms. Yoran asked the expert, “the Medical Examiner ruled it a natural death due to sickle cell trait, due to exertion?” 

“Yes.” Dr. Chudrun replied. 

Officials with the El Paso County Sheriff’s Office said Brown became agitated because he wasn’t going to be released when he expected. Surrounded by detention officers, he said he couldn’t breathe in a video. He was taken to the jail clinic and later to the hospital where he died. Sheriff’s office officials said he died of an undisclosed, pre-existing condition.

“But Sergeant Brown had been restrained. They had pinned him down, and as such that it impeded his ability to breathe; right?” Ms. Yoran asked, adding that when Dr. Chudrun testified during the trial, he “concluded that Sergeant Brown’s cause of death was asphyxiation caused by the officers who pinned him down, thereby triggering a sickling event; isn’t that correct?” 

Dr. Chundru, who was looking through an article, in which the case was cited, which had been handed to him by the prosecutor, did not find the word asphyxiation (strangulation) in the text. 

“Are we reading the same article? You said asphyxiation. The word asphyxiation is not in this,” he replied. 

“You said homicide,” the prosecutor said, and catching herself, quickly added, “I just didn’t want to use the word homicide.” 

“In that case, the medical examiner,” she clarified, “said that this was a natural death caused because he (the sergeant) went into a sickling crisis based on extreme exertion, that’s what the medical examiner said… That’s the same thing that you said here.” 

The expert, who appeared nervous and exhausted after hours of testifying, answered, “No… I have always said… that Brown’s combat behavior could have precipitated the sickling crisis. The eventual physical restraint by law enforcement made the situation worse.” Reading from the article, he cited, “Chundru concluded Brown’s manner of death was homicide.” But then he added, “That’s the same thing that I would say in this case.” 

Ms. Yoran fired back and asked, if he was testifying that Neely did in fact die from a the physical interaction with Mr. Penny, explicitly the chokehold? 

The expert, now treading in muddy waters, tried to explain his analysis. 

“So the reason I did the combined effects, one of those is restraint and struggle… what that means is that Mr. Penny was involved in that restraint and struggle. So by what we do as forensic pathologists, if someone is involved or participated in someone’s death, you have to call that a homicide. Then you have to decide whether that restraint was correct or not, that’s up to the jurors to decide, but you have to include that… And so, yes, the restraint played a role in the sickling crisis, in Mr. Neely…” 

The defense objected vehemently. After the lunch break, the presiding judge, Maxwell Wiley, siding with the defense, instructed the jury that homicide as it is defined by a medical examiner “is not a conclusion that a crime was committed – you make that conclusion or it is made in a courtroom.” But the judge did not strike the entire testimony, and the damage may have been done. 

Even if the sickling crisis was the cause of death, there is no disagreement about trigger having been the physical struggle, in which Mr. Penny was involved. 

But the jury has heard so much medical testimony over the last days that it is unclear how much they were able to take in. One juror, as the judge noted, had her eyes closed “intermittently” on Friday. 

Both parties, defense and prosecution, have rested, meaning they will not bring any more witnesses nor enter any further evidence. On Monday, the defense plans to file a motion to dismiss the case.