On the second day of deliberations, the jury in the trial of the Marine veteran, Daniel Penny, requested to review key pieces of evidence, signaling that the defense’s claims of self-defense, or defense of others, may not have convinced the jurors. Meanwhile the defense complained to the judge about a protester who had called out insults at Mr. Penny, demanding to remove him from the courtroom.

The first note from the jury came at 11 am. The presiding judge, Maxwell Wiley, read out loud that the jury was requesting to review three videos: The video, recorded by the freelance journalist Alberto Vazquez during the tragic moment when Mr. Penny held a homeless Michael Jackson impersonator, Jordan Neely, in a chokehold on the floor of a New York subway car last year. A compilation video, made by the prosecution, of the body camera footage from police officers who first responded to the scene, trying in vain to revive an unresponsive Neely. And the video of Mr. Penny being questioned by detectives at the police precinct on the day of the incident. 

After Judge Wiley told the jury how to access the videos on a computer that would be provided for them in the deliberation room, defense attorney Thomas Kenniff raised the issue that a protester had called out “homophobic slurs” at his client, as Mr. Penny and the defense attorneys were exiting the car and entering the courthouse in the morning.  

“Upon entering the building today,” Mr. Kenniff told the judge, “we have had other issues with this individual… and other individuals, who blocked the defense entrance into the courthouse. This individual (today) was repeatedly berating Mr. Penny with violent homophobic slurs… It’s offensive and disturbing.” 

The same protester, the attorney said, had on another day during the trial, followed Mr. Penny and his security to his vehicle, and once the defendant was inside the vehicle, banged on the doors. Mr. Kenniff told the judge that the man had been inside the courtroom, and asked him to bar the man from coming to the trial. 

Judge Wiley told the attorneys that had seen the vehicle-incident from his chambers. “I happened to see that from the robing room.” He said.  

“This is the reason,” the judge explained, “why I have advised the jury to ignore voices from the outside.” The judge was referring to chants from protesters outside of the courthouse. 

The politically divisive and racially charged case has triggered protests since the day of the incident. When Mr. Penny went to the police station, he was released the same day and went home. Once the video surfaced and went viral online, showing Mr. Penny holding Neely in a chokehold for about six minutes, social activists demanded that Mr. Penny be arrested and charged immediately. People jumped onto the train tracks at the station, where Neely had died, chanting “Justice for Neely.”    

Over the course of the four week trial, activists affiliated with the Black Lives Matter movement, along with other activists, have had protesters outside the courthouse, though the numbers of people has decreased significantly from early days.  

“I talked to another judge on this floor,” Judge Wiley told the attorneys, referring to the 13th floor of the Manhattan criminal courthouse, where the trial is being held, “whose courtroom gets the chants as well …. Generally, what I have been noticing, is that the chanting begins in the morning and reaches a high volume pitch when Mr. Penny arrives, and generally once the trial is actually started it’s relatively quiet.” 

The judge has considered moving the jury to another room. “I thought about moving the jury. I am not completely wild about that either.” He said. “I don’t want them to feel unsafe.” 

An assistant district attorney, Dafna Yoran, who is prosecuting the case on behalf of Alvin Bragg said that the chants stop, “when the jury is here.” She insisted that “People have a right to protest.” 

The judge agreed, saying “I don’t wanna start ejecting people on grounds of what they do outside.” 

A reporter WNYW, Michelle Ross, posted a video on social media that shows a co-founder of Black Lives Matter of Greater New York, Hawk Newsome, who has also been attending the court proceedings, speaking to reporters outside of the courthouse, telling them that the man about whom the defense was complaining was a gay rights activist. The defense attorney, Mr. Newsome said, made a statement about a “a queer, gay rights activist” accusing “that person of making a homophobic slur.” Ms. Ross’s video then cuts to the scene Fox 5 News cameras had captured of the protester. Ms. Ross tweeted, “Terrell Harper on a megaphone, telling Mr. Penny as he entered the courthouse, ‘They’re gonna put it in your butt, Daniel.’” This is believed to have been a  reference to Mr. Penny getting raped by fellow inmates, should he be sent to prison.  

The protesters did not enter the courtroom on Wednesday.   

Shortly after 3 pm, the jury sent a second note, asking to hear a part of the testimony given by the city medical examiner, Cynthia Harris, who performed the autopsy on Neely. 

“We the jury,” the note said, “request a reading of Dr. Harris’s cross examination on November 18 until she says ‘I don’t need all facts.’” Yet neither the attorneys nor the court reporters were able to find that specific phrase in the transcript. After another rather lengthy discussion on how best to instruct the jury, the judge decided to simply tell the jurors that “we can’t find that phrase.” 

“I’m just gonna tell them to reformulate the question,” he said, slightly annoyed at the bickering attorneys, who, throughout the trial, have argued over every little detail. 

The next note clarified that the jury requested the testimony, where the medical examiner was cross-examined by the defense about her findings for the cause of death, and what she wrote on the death certificate. 

Dr. Harris had first written “pending further studies.” Then, she ruled  the cause of death was “compression of the neck.” Her boss, the chief medical examiner of New York City, Dr. Jason Graham added “chokehold” in parentheses on the death certificate, according to defense attorney Steven Raiser’s closing argument. 

The defense criticized that both Dr. Harris and Dr. Graham had found “asphyxiation” — when the body does not get enough oxygen — to have caused Neely’s death before they had considered toxicology and other tests results, which had not arrived yet.       

Dr. Harris testified during the trial that she made her “decision without waiting for test results.” She said, “nothing, no toxicology report was going to change my opinion. I based my opinion on the autopsy findings.”    

The report, she added, “could have come back, you know, with enough fentanyl in his (Neely’s) system to put down an elephant” and she still would have ruled that he died from the chokehold. 

Defense attorneys have argued that Neely did not die from “compression of the neck” but from a genetic condition, sickle cell trait that overwhelmingly occurs in Black people. The defense believes Neely experienced what is called a sickle cell crisis, when red blood cells curve into sickle-shaped cells and lump together instead of passing through the veins to deliver oxygen and nutrients. This sickle cell crises, an expert for defense testified, was caused by various factors, including Neely’s drug intake, his severe mental illness (another expert testified he believed Neely may have been experiencing a schizophrenic episode when he entered the subway), and the struggle with Mr. Penny.         

The prosecution disagreed, citing their own medical studies. The jury seemed to be unsure of the issue, further complicated by the testimony the medical examiner gave to the grand jury, according to the defense attorney’s questioning, where, he said, she stated that she wasn’t sure if Mr. Penny had applied enough consistent pressure on Neely’s neck to cause the asphyxiation.

Once the part of the transcript had been marked, the jury was brought back into the courtroom again, and two court reporters began reading back Dr. Harris’s testimony and Mr. Raiser’s questions. 

The jury’s requests send a strong signal that the argument of “justification,” self-defense or the defense of others, which the defense had also raised, was not sufficient to find Mr. Penny not guilty of the second-degree manslaughter and negligent homicide charges. Yet they also signaled that the jury was attempting to review and understand the medically challenging  evidence carefully and justly.   

By the end of the day, there was still more testimony to read. The judge said the readback would continue on Thursday morning.