Defense lawyers in NYC subway chokehold case blame sickle cell, echoing George Floyd trial

Attorneys for Daniel Penny have argued at trial that a genetic blood condition, not Penny’s chokehold, may have killed Jordan Neely.

Neely, who died last year after Penny held him in a chokehold for several minutes on an uptown F train, had sickle cell trait, an inherited gene that typically causes no symptoms but in rare cases can make it difficult for blood cells to carry oxygen, under extreme conditions. Neely also had schizophrenia and synthetic cannabinoids in his system, and Penny’s lawyers said those factors, combined with his struggle with Penny on the train, could have caused a deadly sickle cell crisis. In other words, they argued that his own cells starved him of oxygen — not their client’s arm wrapped around his neck.

But prosecutors argued at trial that sickle cell trait shouldn’t be blamed for a death when there’s a clear external trauma, like a chokehold. Numerous medical experts agree with that stance. Prosecutors also argued that the gene, which predominantly affects people of African descent, is sometimes used to cover up the true cause of death in killings of Black people in law enforcement custody. Penny’s fate could hinge on whichever argument convinces the jury, which must decide whether his actions directly caused Neely’s death.

A jury has been deliberating since Tuesday about whether Penny, 26, should be convicted of manslaughter or criminally negligent homicide charges. On May 1, 2023, he held Neely, 30, in a chokehold on the subway for about six minutes, after Neely boarded and started yelling that he was hungry, thirsty and ready to die or go to jail, according to witnesses. Neely was pronounced dead soon after. A video that captured part of the incident went viral and sparked debates about subway safety, homelessness and mental illness. Some also noted that Penny is white, while Neely was Black.

Sickle cell trait — unlike sickle cell disease — usually doesn’t cause any symptoms, according to the Centers for Disease Control and Prevention. A person inherits the trait when one of their parents has a gene that causes sickle cell disease and the other does not, medical experts explained at trial. Experts have found that about 8% of Black American babies are born with sickle cell trait, and that it seldom causes sudden death.

But the CDC says someone with the trait can face complications under severe conditions, like high altitude, dehydration or strenuous exercise. If someone goes into a sickle cell crisis, as medical experts for both the prosecution and defense testified at trial, their blood cells become misshapen, hindering their ability to transport oxygen throughout the body.

The defense’s theory that a sickle cell crisis caused Neely’s death has sparked heated exchanges between attorneys and expert witnesses in the courtroom, which could sow enough doubt among jurors to prevent a conviction. But the leading professional organization for doctors who treat blood disorders, the American Society of Hematology, has warned that deaths attributed to sickle cell crisis “must be viewed with profound skepticism.”

“We have to be careful about whataboutisms,” said Dr. Chancellor Donald, a member of the organization’s executive committee who treats patients with sickle cell disease at Tulane University.

Defense, prosecution disagree about sickle cell trait

Dr. Satish Chundru, a forensic pathologist called as an expert witness for the defense, told jurors that “extensive sickling” — combined with Neely’s schizophrenia, the drugs in his system and his exertion while struggling with Penny — caused Neely's death.

In his testimony, Chundru cited an article published last month that studied arrest-related deaths of Black people — not including shootings — between 2006 and 2021. The paper concluded that sickle cell trait “may be a contributing factor in non-firearm arrest-related deaths.”

Assistant District Attorney Dafna Yoran pointed out during her cross-examination of Chundru that one of the authors of the article was a former police chief, two were current or former members of the scientific advisory board for the Taser company Axon, and several had served as expert witnesses in use-of-force cases. One of the authors answered several questions from Gothamist over email but declined an interview request.

If he were “a completely healthy individual,” defense attorney Steven Raiser asked Chundru. "Would Mr. Neely still have died?”

“He would not have died,” the forensic pathologist replied.

It’s not the first time sickle cell trait has been cited as a cause of death in a controversial case. A 2021 New York Times investigation found dozens of instances in which someone died during an encounter with law enforcement, and their sickle trait was cited as the cause or a central factor — not the actions of police. Defense attorneys for Minneapolis Police Officer Derek Chauvin also noted that George Floyd had sickle cell trait when they argued that Chauvin holding a knee on Floyd’s neck didn’t cause his death.

“The fact that Mr. Floyd had sickle cell trait is significant,” Chauvin’s attorneys wrote in a 2020 motion to dismiss the case. Chauvin was ultimately convicted of murder.

Donald said these types of arguments aren’t rooted in scientific evidence.

Several years ago, he said, the American Society of Hematology assembled a group of forensic pathologists and doctors who treat blood disorders to review research on deaths in people with sickle cell trait. He said the panel’s extensive survey of the medical literature found no data to suggest that people with sickle cell trait can die suddenly without other complications. The organization then issued an official position that “it is medically inaccurate to claim sickle cell crisis as the cause of death based solely on the presence of sickled cells at autopsy.” The organization also said cells can sickle — meaning they become misshapen — after someone dies, and it’s impossible to tell during an autopsy whether they sickled before or after.

Donald cautioned those considering whether to attribute Neely’s death to his sickle cell trait “not to be obtuse.”

“That person probably would have walked off the train if no one touched him,” he said. “To all of a sudden pull it back to, ‘What about a condition that he's had for years and years and years,’ we have to be careful with that.”

At trial, the Manhattan district attorney’s office cited the American Society of Hematology’s position on sickle cell crisis. They also questioned medical experts about a 2016 New England Journal of Medicine study of nearly 50,000 Black U.S. soldiers that found “no significant difference in the risk of death” between those who had sickle cell trait and those who didn’t.

Dr. Cynthia Harris, the medical examiner who performed Neely’s autopsy, testified that sudden death among people with the sickle cell gene “is an exceptionally rare phenomenon.” She said the factors that can trigger a sickle cell crisis, like dehydration, weren’t present for Neely, whose urine was light when he died. She also said that so-called “sudden” deaths from sickle cell trait aren’t actually instantaneous and typically take hours or even a day.

Harris cited other factors that she said suggested Neely died from the chokehold — not from sickle cell trait. She said a video of the chokehold showed that Neely’s face appeared purple and the veins in his face were bulging, which she said were signs that blood wasn’t properly flowing between his head and the rest of his body. She also testified that Neely stopped breathing before his heart stopped beating, which she said suggested that he died from asphyxia, or lack of oxygen.

Harris said there were sickled cells in Neely’s body when she conducted the autopsy and that he could have been in a sickle cell crisis when he died. But she said the sickling wouldn’t have happened if Neely hadn’t been placed in a chokehold.

“That chokehold for that amount of time would have killed anyone,” she said.