NEW YORK CITY—A judge on Dec. 6 dismissed the manslaughter charge against Daniel Penny after a jury could not reach a unanimous verdict on the count.
The jury must now continue deliberations on the second count of criminally negligent homicide. The jury had been deliberating since Tuesday on Penny’s trial over last year’s subway death of Jordan Neely.
Earlier on Friday, the jury informed Judge Maxwell Wiley that it was unable to reach a unanimous decision on the top charge of manslaughter in the second degree.
In response, he directed the jurors to keep deliberating in an attempt to reach a unanimous decision in what is known as an Allen charge.
After a few hours, the jury still remained deadlocked on the first charge, causing the judge to dismiss the manslaughter count against Penny.
The jury must now deliberate on the count of criminally negligent homicide.
The courtroom at 100 Centre Street in lower Manhattan has been alternately crowded and near-deserted in these final days of the trial, as the jury has briefly returned to review evidence again and the judge has held brief conversations, some of them contentious, with the lawyers.
Penny’s trial on that charge and the second count has been going on since the first week of November. The jury finally began its deliberations on Tuesday afternoon, following summations from the defense and prosecution at the start of the week.
Since beginning its deliberations, the jury has made a number of requests, including for the replay of footage from the scene of the May 1, 2023, incident in which Jordan Neely died, for a chance to review portions of the trial transcript, and for clarification of the judge’s instructions regarding self-defense and the use of deadly force.
One of the requests, for a readback of part of the cross-examination of medical examiner Dr. Cynthia Harris, prompted the judge on Dec. 5 to seat the jury and have two people read from the transcript aloud in the courtroom. The cross-examination addressed the medical and factual basis on which Harris made her determination that Neely died an asphyxial death, and whether she had given due consideration to other possible factors.
The complaint in that lawsuit states that the plaintiff is pursuing action through the highest court in the state because lower courts would not be able to grant the full damages that the lawsuit seeks.
Since the start of the trial, the jury has heard a large number of witnesses testify on matters such as the actions that sparked the incident, what exactly happened during the struggle between Penny and Neely, the point at which Neely lost consciousness, the definition of self-defense and the justifications for deadly force under New York law, and Neely’s drug use, mental illness, and health problems.
The defense and prosecution presented different views on the nature of the chokehold that Penny applied to Neely. Prosecutor Dafna Yoran tried hard to prove to jurors that the hold fit neither of the textbook examples taught to Penny in the Marines—the blood choke and the air choke—and that by keeping Neely in the hold for about six minutes, Penny departed from his training, with lethal consequences.
The defense has attempted to build a case that Neely’s continued struggles necessitated keeping a restraint in place and that his acute sickle cell trait mushroomed into a sickle cell crisis under the stress of the hold, which would not have been fatal to an ordinary person.
Penny’s counsel emphasized to the jury that any reasonable doubt about the prosecution’s theory of Neely’s death constitutes legal grounds for an acquittal and that Neely’s sickle cell trait and history of drug use and schizophrenia all point away from Penny being culpable. His lawyers, and former Marine colleagues who took the stand during the trial, depicted him as a man of exemplary character who follows rules and gets on well with others.
During his summation, defense lawyer Steve Raiser said that prosecutors were trying to make a scapegoat of Penny and “paper over” glaring holes in their version of events.
