The medical examiner who deemed Jordan Neely's death was a homicide caused by Daniel Penny placing him in a chokehold made a stunning admission on the witness stand Friday: she didn't wait for the toxicology report; the viral video alone of Penny subduing Neely on the New York City subway was what convinced her that Penny killed Neely.
"No toxicological result imaginable was going to change my opinion," the prosecution's last witness, Dr. Cynthia Harris of the New York City Medical Examiner's Office, testified during Penny's trial, per NBC News reporters present in the courtroom.
So, the forensic pathologist based the autopsy report, in part, off of the footage itself of the fatal encounter, which Harris said she saw was clear-cut evidence ruling out that Neely had died of a drug overdose.
"After watching it, I had no further questions as to why he was dead," Harris said.
Penny's defense attorneys questioned Harris about her initially writing "inconclusive" for the cause of death on Neely's death certificate. One day after Neely's death, the finding on May 2, 2023, said "pending further study." The doctor said she eventually decided on asphyxiation, consistent with compression of the neck, upon reviewing the video in question depicting Neely "dying."
Hence, Harris reached her conclusion before she ever received Neely's toxicology report.
The toxicology report ultimately revealed that Neely, who had a history of abusing the drug K2, which made him paranoid and prone to violent outbursts, had synthetic substances in his system at the time that he died. "Two to 100 times more potent to standard, natural occurring cannabinoids," K2 is classified as a stimulant similar to the potency of cocaine, Harris remarked.
"We found in the blood a synthetic cannabinoid, a relatively new drug in the scheme of drugs," she said. "They're synthetic and more potent than marijuana. In a class of drugs, they fall under the category of stimulants. They rev the body up, fall into the same class of drugs as, say, cocaine."
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Either way, Harris said that she would have found that the chokehold caused Neely's death even if he had enough drugs in his body to "put down an elephant."
"I based my decision on the autopsy findings coupled with the video," she said, according to Fox News. "I didn't wait for toxicology, because no toxicological report would change my opinion. He could have come back with enough fentanyl to kill an elephant and walked onto the train and got put in a chokehold, and that's how he died."
According to case notes introduced into evidence, at first, Neely's death was suspected to be due to cardiac arrest, and he had "no visible trauma." Harris acknowledged that the drugs in Neely's body "would not help the heart" during such a struggle.
Nonetheless, the clip of the chokehold, showing Neely's face turning "purple" as Penny held him, proves "there are no alternative reasonable explanations" for how he died, Harris insisted, standing by her ruling. Harris said she presented her findings to other medical examiners, including the city's chief, Dr. Jason Graham, as part of a routine conference, and everyone apparently agreed unanimously with her assessment.
Over the course of four hours split between Thursday and Friday, Harris pointed to the exact moment when Neely passed out on the train's floor and highlighted his final "purposeful movement," a last attempt to escape Penny's hold on him before his body halted moving on its own.
"I believe that at this point he has lost consciousness, and what we will see in the form of these twitchings represents brain injury," she said around the video's two-minute-and-nine-second mark.
She also pinpointed an instance several seconds later when Neely's tense toes unfurled — an involuntary movement of a dying man, she said.
"Watch the feet," Harris instructed the jury. "That, to me, looks like the twitchings that you see around death."
She then flagged another moment that happened after Penny released Neely, in which Neely appeared to arch his back.
"That's not breathing," Harris said. "That's not voluntary. That's the sign of a brain dying."
She additionally noted pools of liquid that formed on Neely's pants, which she said were likely urine excreted during the death process.
First responders detected a faint pulse on Neely, who was pronounced dead at a hospital hours later. "I feel a pulse," one officer said on police-worn bodycam footage, as a second cop confirmed the finding. Despite the on-scene reporting, that does not contract her medical opinion, Harris countered.
The human brain "dies" before the heart stops, she said, and Neely was practically "brain dead" by this point from lack of oxygen, cut off by pressure applied to the neck.
"That makes perfect sense," she told jurors. "It doesn't surprise me at all that he has a pulse," she said, explaining, "The brain dies first" since "the brain is the most sensitive organ in the body to oxygen," so "deprived of oxygen for a long period of time, the brain will die.”
"He had a functioning heart in a dying body," Harris maintained. A pulse can last for about 10 minutes in such situations, she added.
However, when Penny's defense counsel pressed Harris on specifics, she couldn't determine his time of death.
"I can't tell you when exactly he died, philosophically, but the video is of a man dying," Harris said.
"This is an asphyxial death," she reiterated.
Harris also never waited for genetic testing on his heart as well as the results of other tests. Neely notably had a sickle cell condition, and Harris found damage to his spleen on account of the sickle cell trait. Harris said it's normally benign, an asymptomatic affliction, but his red blood cells were sickled because of "low oxygen" in her opinion.
Jurors were shown images of Neely's corpse, which Harris said showed bruising and crushed blood vessels ("hemorrhages") in his neck caused by a "considerable amount of constrictive, squeezing force."
"It's my medical opinion that there are no alternative reasonable explanations for Mr Neely's death," Harris told the jury.
Under cross-examination, Harris acknowledged that a colleague found the petechiae (small spots caused by bleeding) to be tiny and "not conclusive." She agreed that it would be fair to say that the petechiae isn't directly indicative that it was a chokehold-induced death.
Penny is charged with second-degree manslaughter and criminally negligent homicide. Harris tried to refer to the manner of death as a homicide, but the defense objected and the judge struck her statements from the record.
While conceding that Penny's intent may be "laudable," prosecutors are arguing that Penny acted "unnecessarily reckless." The crime occurred when Penny "went too far" with the six-minute hold restraining Neely, allegedly resulting in his death, prosecutors claim.
The trial resumes Monday morning with Harris returning to testify for a third day. After she's done, the prosecution is expected to rest, and the defense will call on its own witnesses.
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