Jurors on the Daniel Penny chokehold trial returned to deliberations for a fourth day Friday for just an hour before telling the court they could not come to an agreement on the top charge, manslaughter, as they weigh the fate of a 26-year-old Marine veteran and architecture student accused of killing a mentally ill homeless man who threatened to kill people on a Manhattan subway car.
Around 11 a.m., the jurors sent a note to the court stating, “We the jury request instructions from Judge [Maxwell] Wiley. At this time, we are unable to come to a unanimous vote on court 1 – manslaughter in the second degree.”
The charge requires prosecutors to prove that Penny acted with recklessness when he grabbed Jordan Neely in a chokehold. Neely had barged onto the train while high on drugs, threatening to kill passengers during a psychotic episode, according to trial testimony.
“In this case, I think that they can’t move on to count 2 unless they find the defendant not guilty of count 1,” Wiley told attorneys for both sides, despite protests from the prosecution. “I have to at least try to ask the jury to find a verdict on count 1.”
Count two is a lesser charge of criminally negligent homicide, which carries a maximum punishment of four years in prison.
Wiley said he would give the jurors “Allen charge” instructions after giving the attorneys time to review.