The Manhattan judge overseeing the case of a man accused in the choking death of a disturbed subway passenger last year dismissed the most serious charge against him on Friday afternoon, leaving jurors to consider a lesser charge when they return to court next week.
The jurors on Friday deadlocked over whether the man, Daniel Penny, was guilty of manslaughter, leaving unresolved a case that has come to exemplify New York’s post-pandemic struggles. They will now consider whether he should be convicted of criminally negligent homicide, a charge that carries a lesser prison sentence.
After nearly three days of deliberations, the jurors sent two notes — one on Friday morning and a second that afternoon — to the judge, Maxwell T. Wiley, saying that they could not come to a unanimous decision about whether Mr. Penny was guilty of manslaughter in the second degree.
After the jurors sent the first note, Justice Wiley responded by reading them a so-called Allen charge, official instructions for the jurors to resume their deliberations, with the goal of reaching an agreement through the reconsideration of differing opinions.
“It’s not uncommon for juries to believe they will never be able to reach a unanimous decision,” he said, adding: “I’ll ask you to continue deliberations on that count.”
Following Justice Wiley’s instructions, the panel of seven women and five men returned to their sequestered room to discuss further. However, after about three hours, they sent another note, saying: “After further deliberations, we cannot come to a unanimous decision on count one, manslaughter in the second degree.”
Mr. Penny’s lawyers argued that the deadlock meant that the trial should be ruled a mistrial, while prosecutors with the Manhattan district attorney’s office asked that the manslaughter charge be dismissed so that the jury could deliberate on the lesser charge.
On Friday afternoon, at around 4 p.m., Justice Wiley granted the prosecution’s motion to dismiss the manslaughter charge against the defense’s objections.
The jurors will now move on to deliberating the charge of criminally negligent homicide on Monday, the judge said. He told the jurors to “keep in mind what I told you earlier today about working together” and that when it came to the facts of the case, there was “no one smarter than you at this point.”
Prosecutors said Mr. Penny fatally choked the subway passenger, Jordan Neely, a 30-year-old former Michael Jackson impersonator who struggled with his mental health, when he held Mr. Neely in a chokehold for about six minutes on the floor of an F train on May 1, 2023.
Mr. Neely had boarded the train that day and begun yelling at passengers, according to witnesses. As he strode through the subway car, he shouted about being hungry, saying that he wanted to return to jail and that he did not care if he lived or died, they said. Mr. Penny then approached Mr. Neely from behind and put him in a chokehold, taking him to the floor.
Prosecutors said that Mr. Penny’s actions were not accidental and that he had failed to recognize Mr. Neely’s humanity, squeezing his neck ever tighter as he struggled to break free. They argued that Mr. Penny’s chokehold had killed Mr. Neely, pointing to the testimony of a New York City medical examiner, who ruled that Mr. Neely’s death was caused by “compression of the neck.”
Mr. Penny’s lawyers argued that their client’s actions had not been the direct cause of Mr. Neely’s death, instead suggesting that it was a toxic combination of Mr. Neely’s synthetic marijuana use, sickle cell trait and mental illness that had killed him.
In instructions the jurors were given before they began deliberations, they were told that they had to first consider the charge of manslaughter and come to an agreement. If they believed that Mr. Penny, a 26-year-old former Marine, was guilty, they would not need to consider the lesser charge.
It was unclear, however, if jurors would be able to consider the second charge if they failed to reach an agreement on the first, and they had asked for instructions on Friday about what to do.
Upon receiving the jury’s first note on Friday, Mr. Penny’s lawyer, Thomas A. Kenniff, argued that it would be “coercive” to ask the jurors to continue to deliberate.
“The defense position at this time is we are moving for mistrial,” Mr. Kenniff said. “The jury has been deliberating for roughly 20 hours, over four days, on what is in many ways a factually uncomplicated case.”
When the jurors came back and said they still could not come to an agreement, Mr. Kenniff doubled down.
Dafna Yoran, an assistant district attorney, pushed back, calling it “crazy” to have a hung jury simply because jurors aren’t able to consider a second count. After the second note, Ms. Yoran said it was “bizarre” that the jurors were unable to reach an agreement on the first count.
It is unclear how many jurors have voted against the manslaughter charge.
After receiving the second notice, Justice Wiley said that it appeared that the jury could not agree on whether Mr. Penny’s actions were justified because he had acted in reasonable self-defense or in the defense of others.
“Jury deliberations are not intended to be easy,” Justice Wiley told the jurors before sending them back out of the courtroom earlier in the day. “They’re difficult in every single case no matter how strong the evidence.”
Anna Cominsky, director of the Criminal Defense Clinic at New York Law School, said it was not surprising that the jurors had difficulty reaching a unanimous decision. Not only has the case been “divisive” from the very beginning, she said, but the charges Mr. Penny faced were complicated.
“Unlike an intentional crime, where the jury is going to look at it and say, ‘This person intended to do this or didn’t,’ with this standard, it’s harder because neither side is saying there was an intention for a death to occur,” Ms. Cominsky said. “However, a death did occur and the question is: Should Penny have changed his action?”
The jurors have sent roughly 10 notes to Justice Wiley over the course of the trial asking for readings of the relevant law, to see video and to have testimony read to them.
On Wednesday, for example, jurors asked to hear earlier testimony from Dr. Cynthia Harris, a medical examiner, in which they remembered her saying, “I don’t need all the facts.” She never actually said that, according to court transcripts, but the jurors’ question provided a small window into the elements of the case they were focusing on and had possibly come to an impasse over.
Soon after the jurors were sent back to continue deliberating on Friday, they sent Justice Wiley another note, this one asking for “further clarification in the determination of whether a person reasonably believes physical force to be necessary.”
As the jurors exited the courtroom for the second time on Friday, Mr. Penny, seated at the defense table, nodded at several of them while they stared straight ahead.
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