Testimony in the trial of Daniel Penny, the Marine veteran charged with manslaughter in the death of a homeless Michael Jackson impersonator he subdued with a fatal chokehold, have put thee spotlight on how police officers first responded to a vagrant in medical distress in New York City.  

Three police officers, who first arrived at the scene, testified for the prosecution on Friday. When Sergeant Carl Johnson was questioned about the first aid methods his officers used on the unconscious subway performer, Jordan Neely, he told the prosecutor that he did not want his officers to perform mouth-to-mouth resuscitation on Neely because he did not want them “to get AIDS.”  

Assistant District Attorney Dafna Yoran, who is prosecuting the case on behalf of the Manhattan district attorney, Alvin Bragg, showed the jury video footage from the body camera, worn by Sergeant Johnson. The seven women and five men watched how Mr. Johnson rushed into the subway car, where Neely was lying on the floor, unconscious and motionless, surrounded by officers. 

A New York Police Department officer, Teodoro Tejada, who testified before Mr. Johnson, told the jury that he felt a “faint pulse” when he first checked Neely. He tried chest compressions and sternum rubs. But the pulse stopped. 

According to witnesses, minutes before the police arrived on the scene, Mr. Penny, a 26-year-old man from Long Island, had put Neely in a chokehold, which he held, the prosecution alleges, for about six minutes.    

Neely had boarded a Northbound F train at the Second Avenue stop at downtown Manhattan, and immediately, witnesses have said, began acting erratically, throwing his jacket on the ground, yelling, he was hungry, thirsty, and “ready to die.” 

Mr. Penny stood up and grabbed Neely from behind. How the two young men, Neely was 30 at the time of his death, ended up on the floor has not been discussed at trial yet. Yet once on the ground, Mr. Penny held Neely in a chokehold from behind. Mr. Penny even wrapped his legs around Neely’s legs, which were moving as he tried to free himself. Two other passengers helped restrain him, video footage, recorded during the incident, showed. The video of the chokehold went viral.  

The subway train had already pulled into the next station, Broadway-Lafayette, the doors had already opened, passengers had left the train car, and Mr. Penny still continued to keep Neely in a chokehold.

Neely was pronounced dead at the hospital, and a medical examiner ruled his death a homicide by “compression of neck” two days later. Mr. Penny is charged with second-degree manslaughter and negligent homicide. He has pleaded not guilty.    

After the officers arrived, Mr. Penny stayed in the subway car. While the other passengers had been told to exit the train, video footage shows, the officers told Mr. Penny to stay. He was taken to the precinct, as a witness, the officer testified, and released on the same day. 

He told officers he did not mean to kill Neely, but was trying to protect himself and other subway passengers from what he deemed to be a threatening aggressor. 

His defense attorney, Thomas Kenniff, said in his opening statement that his client had acted as a good Samaritan. “You either bury your head and you pray, as you’ll hear some of the terrified passengers on the train that day did, or you stand up and protect thy neighbor,” Mr. Kenniff told the jury on Friday. 

Mr. Kenniff further suggested that Neely’s death may have been caused by “cardiac arrest” triggered by the drugs that were found in his toxicology reports, or by sickle cell anemia, a serious genetic blood disease. It is not not clear yet, how high the drug dose in his body was, nor what the drugs were, nor if Neely actually suffered from sickle cell anemia or merely carried the genetic trait. 

Ms. Yoran did not say Mr. Penny meant to kill Neely. She says he acted “recklessly” when he continued to hold the chokehold after the train had pulled into the next station and passengers had exited the subway car. 

On Friday, after both sides had finished their opening remarks, the prosecution began to lay out their case. Ms. Yoran called three officers to tell the jury what happened when they first got to the scene. 

Mr. Johnson took the stand. When Ms. Yoran asked him if he performed mouth to mouth resuscitation, Mr. Johnson replied no, that Neely appeared to have used drugs, “and he was very dirty.” 

Neely wore light clothes, it was May and warm outside. Neely wore a white T-Shirt, faded blue colored sweatpants. He wore sneakers. He did not look dirty in the body camera footage, but he was lying on the floor of a subway. It became known later that at the time of his death, Neely had been homeless for some time.

Mr. Johnson also testified that he did not want his officer “to get AIDS,” or “other diseases.”   

The answer came somewhat of a shock, as it has been known for decades now that AIDS is not transmitted through saliva, but through blood, semen or breast milk. It is, however, possible that an openly bleeding mouth sore could transmit the virus. Hepatitis C, however, can be transmitted through saliva. 

“The American Heart Association stopped recommending mouth-to-mouth resuscitation for bystanders in 2008 to prevent transmitted diseases like hepatitis B,” a New York State certified EMT-B, who has been working in New York City for the last six years told the Sun on Sunday.      

“We don’t use mouth to mouth on the field, we use bag-valve-mask (BVM), also known as an Ambu bag,” the EMT wrote in an email. 

None of the officers, as seen on the body camera footage and according to Friday’s testimony, gave Neely an Ambu bag, a manual resuscitator used to provide respiratory support to the lungs. 

Mr. Johnson told the defense, when Mr. Kenniff asked him if the officers used any such rescue masks, “There is a certain line where you have to protect your officers.” He explained that he wouldn’t want his officers to get sick, that there is a chance an unconscious person could wake up and then “puke” on the officers giving the first aid treatment.   

According to a third police officer, who testified, Dennis Kang, they did not have the rescue masks on them. The EMT told the Sun that “in some cases the NYPD doesn’t carry the Ambu bag with them. Only specific units are required to carry them.” 

“If available the mask is recommendable, but CPR compressions are crucial on a person that is suspected and or in cardiac arrest.” He added.  

The body camera footage shows the police officers desperately trying to revive Neely with constant chest compressions. Testimonies by the officers also exposed that they gave Neely a dose of Narcan, a medication used to reverse opioid overdoses.    

“If Narcan was given,” the EMT wrote the Sun, “they probably suspected he was under the influence of an opioid. It’s very unlikely that the Narcan was the cause of death. If he was not under the influence of an opioid the Narcan will not harm the person, it just won’t have any effect.” 

The EMTs who arrived on the scene have not testified yet, neither has the medical examiner, nor other passengers who were in the car and witnessed Neely’s erratic behavior and Mr. Penny’s chokehold.    

Reverend Ronald McHenry, the New York coordinator for National Action Network, the civil rights organizations founded by Reverend Al Sharpton in 1991, has been attending the trial to support Neely’s family. In a statement sent to the Sun on Friday, he wrote, 

“The testimonies and videos documenting this tragedy speak volumes. They highlight the painful reality of how our society addresses mental illness and homelessness—an issue that extends far beyond our city, reflecting a nationwide neglect of the most vulnerable among us,” he said. “Justice should not be dictated by race, status, or circumstance. Every life holds equal value, and every act of violence must be met with accountability. Let this be the moment we refuse to tolerate injustice, the moment we unite to demand change, and the moment we commit to ensuring that no one else suffers as Jordan Neely did.” 

Testimony will continue on Monday. The trial enters its third week and is expected to last until early or mid December.