NEW YORK – A judge dismissed the second-degree manslaughter charge in the Daniel Penny trial after the jury said twice Friday that they were unable to reach a unanimous vote on it.
The dismissal of the charge clears the way for the jury to decide on the lesser charge of criminally negligent homicide, which carries up to four years in prison.
If convicted of manslaughter, Penny could have faced up to 15 years in prison. With the dismissal of that charge, that is no longer on the table.
Friday morning, the jury first informed the judge they were unable to reach unanimity on the manslaughter charge. The judge ordered them to keep deliberating. At around 3 p.m., the jury came back with a second note, saying they were still unable to reach a unanimous decision.
The defense moved for a mistrial, but the judge granted the prosecution’s request to dismiss the charge, clearing the way for the jury to decide on criminally negligent homicide.
The jury was then sent home for the day, to return on Monday.
Penny initially charged with manslaughter, criminally negligent homicide
Penny, 26, is charged in the chokehold death of Jordan Neely aboard a subway last year. The Marine veteran pleaded not guilty to manslaughter and criminally negligent homicide charges.
The judge instructed the jury at the beginning of deliberations that they must agree on the manslaughter charge before they can even consider the second charge of criminally negligent homicide. The jury has been told all along that if they were to find Penny guilty of second-degree manslaughter, they would not have to issue a decision on the lesser count.
Deliberations cross 20 hours
The jury has deliberated for roughly 20 hours since beginning their talks on Tuesday.
The jury has sent several notes, requesting to watch cell phone and police bodycam footage of the incident, as well as Penny’s interview at the police station. They also wanted to hear readback of the defense’s cross examination of New York City Medical Examiner Dr. Cynthia Harris, who performed Neely’s autopsy, and ruled his cause of death compression of the neck.
Jurors also asked for part of the judge’s instructions, as well as the legal definitions of “recklessness” and “negligence,” to be re-read to them. They also have asked the judge for clarification on the term “reasonable person.”
Prosecutors have argued that while Penny’s intentions were good in restraining Neely, he had him in a chokehold for too long. Penny’s defense has argued he wasn’t using pressure during the hold, just holding Neely down. A defense witness also disagreed with the Medical Examiner’s cause of death determination, arguing Neely died due to a combination of factors including drugs and sickle cell crisis.
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