Medical examiner says subway madman had drugs in system in Marine vet's chokehold trial

Dr. Cynthia Harris of the City Medical Examiner's Office said she had ruled Neely's cause of death to have been asphyxia from compression to his neck. The toxicology report showed he also had drugs in his system, although she said she could identify them broadly as "a synthetic cannabinoid," but not in specific terms or at what dose.

"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."

There was no damage to bones in his chin, neck or midline structures, she said. She found scrapes and bruises on his face, neck, torso and arms, petechiae (small red spots caused by bleeding) in his eyes and damage to his spleen from sickle cell trait.

Prosecutors played video of the chokehold again and Dr. Harris commented as she went through it.

At one point, she said he was conversing, showing that he had "air moving through his vocal chords." She described Neely straining to breathe and making hand gestures, which she said were a signal for help. 

Assistant District Attorney Dafna Yoran asked about witnesses testifying that Neely hadn't gagged or gasped or said that he couldn't breathe.

"Sometimes people make noises when they can't breathe, and sometimes they don't," she replied.

She also said that she believes that Neely died around two minutes, nine seconds into the video, after his face turned purple and he began "twitching" in death throes.

"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.

Penny, 26, is on trial for the May 1, 2023, death of Neely, a 30-year-old homeless man with a lengthy criminal record and history of mental illness who stormed onto the train and started making death threats, according to witnesses.

As he screamed about going to prison for life, raised his fists and lunged at people, Penny grabbed him in a headlock and wrestled him to the ground. Other riders helped hold him down as they waited for police to arrive. Neely died.

Dr. Harris' testimony began Thursday, after Joseph Caballer, the Marine martial arts instructor who had taught Penny about chokeholds, told the jury that the point of the maneuver is to take control of a threat until they are unconscious.

"If you only compress the vein, but you have not applied enough force to compress the artery, there are a few things you see when that happens," she said. "You become congested or purple in color. The veins become distended, because they're full of blood. If the pressure continues, then the capillaries develop pools of blood or petechiae."

She had the ADA stop the video and said that she sees that the veins in Neely's face are distended and his face appears purple, much darker than the skin on his arms.

Under cross examination from Penny defense attorney, Steven Raiser, Dr. Harris said acknowledged that a colleague found the petechiae to be small and "not conclusive." She agreed that it would be fair to say that the small petechiae isn't a direct sign that death was caused by a chokehold.

The initial finding on May 2, 2023, was that the cause of death was "pending further study." Then she made a decision after seeing the chokehold video, she said.

"I based my decision on the autopsy findings coupled with the video," she said. "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."

Although Neely still had a pulse after Penny let go, Dr. Harris said that wasn't unusual.

"This is an asphyxial death," she said. "In an asphyxia death, the brain dies first. It's deprived of oxygen. Other tissues and organs in the body are not as sensitive as the brain. They too will die, but the brain dies first."

Dr. Harris returned Friday morning to pick up where she left off when court adjourned the day before.

On Tuesday, a man who appeared on video helping Penny hold Neely down testified. 

Eric Gonzales told the court that at one point he said Penny hadn't held Neely tightly enough, that he had felt a pulse when they both finally let go, that he had been granted immunity from prosecution in exchange for testifying - and that he had initially lied to investigators. 

Penny faces up to 15 years in prison if convicted of the more serious charge of manslaughter.

He also faces a count of criminally negligent homicide.