Judge Maxwell Wiley has dismissed the charge of manslaughter in the second degree against Daniel Penny, after the jury twice told the judge today that they are deadlocked in their deliberations. The case had been in the jury’s hands for nearly twenty hours since they were asked to review the evidence and testimony to reach a verdict on Tuesday afternoon. They will resume deliberating at 9:45 on Monday morning to consider the lesser charge of criminally negligent homicide.
Daniel Penny, a 24-year-old Marine veteran from Long Island, choked Jordan Neely to death on a New York City subway on May 1st of last year. Neely, who was homeless, boarded the train and began screaming that he was hungry and needed a job. Neely’s behavior was erratic and desperate, at one point throwing his jacket violently on the floor, also saying that he was not afraid of going to jail and was ready to die. Some witnesses stated they were afraid of him, and that he was lunging in front of random passengers, some of whom moved away out of fear. Penny eventually intervened by placing Neely in a chokehold, which he held for several minutes as onlookers warned him that Neely was losing consciousness and would die if he did not let go. NYPD boarded the train at the next stop, and Neely was pronounced dead in hospital after the FDNY transported him. The NYPD brought Penny in for questioning and initially released him without charges. Penny would eventually turn himself in two weeks later.
During deliberations today, the jurors sent a note to Judge Maxwell Wiley at around 11 o’clock saying that they were “unable to come to a unanimous vote” regarding the manslaughter charge. They were then instructed by the judge to keep deliberating; he acknowledged that they had been at it a long time, but that “given the factual complexity of the case, I don’t think it’s too long.” While the jury was gone to continue discussing the case, they asked for a legal definition of the term “reasonable person,” which the judge told them may be a subjective standard. “Ultimately, what a reasonable person is,” Wiley said, “is up to you to decide.”
The jury then returned a few hours later with another note again stating that they were deadlocked. This time the judge urged them to be “flexible.” According to CNN, one of the jurors shook his head when judge Wiley delivered the instructions for the second time. It was after this second interaction with the jury that the prosecutors, in an attempt to salvage their case, asked the judge to dismiss the manslaughter charge so that the jury could move on to the second charge of criminally negligent homicide. Juries are not allowed to consider lesser charges until a verdict is reached on greater charges. The manslaughter charge that Daniel Penny faced could have carried a sentence of 15 years, while the maximum sentence for criminally negligent homicide is 4 years, and could be as light as probation.
The defense protested, telling the judge that such a move would signal a compromise verdict – meaning that jurors would be voting against their true views in order to avoid a deadlock – and moved for a mistrial. Wiley granted the request from the prosecution and dropped the manslaughter charge, meaning that Daniel Penny is clear of it in this trial or any future retrial, should the second charge result in a mistrial.
Speaking on the steps of the courthouse, activists expressed outrage at the charge being dropped. “If you look at the facts of this case, then you understand that Daniel Penny is guilty,” said Walter “Hawk” Newsome, co-founder of Black Lives Matter for Greater New York. “But today, white supremacy got a victory.”
