NEW YORK (AP) — The judge overseeing the trial of a man accused of using a deadly chokehold on an unruly subway passenger dismissed the top charge in the case Friday at the request of prosecutors, allowing jurors to consider a lesser count after they said they were deadlocked on whether Daniel Penny was guilty of manslaughter.
The decision from Judge Maxwell Wiley will allow jurors to deliberate a charge of criminally negligent homicide, which would carry a lighter punishment.
Wiley urged jurors to consider the lesser count, “but not today. Go home and think about something else.”
The judge’s decision came hours after Manhattan jurors sent him a note saying they were unable to agree on a manslaughter verdict. Jurors had previously been instructed that they needed to reach a verdict on the top charge before they could consider the criminally negligent homicide charge.
The jurors have been deliberating since Tuesday on whether to convict Penny in the death of Jordan Neely. Penny, a former U.S. Marine, placed Neely in a chokehold for about six minutes on a New York City subway in May 2023 after Neely got on the car yelling and asking people for money.
Manslaughter requires proving a defendant recklessly caused another person’s death, and carries up to 15 years. Criminally negligent homicide, which carries punishments ranging from probation to up to four years in prison, involves engaging in serious “blameworthy conduct” while not perceiving such a risk.
Wiley had earlier pressed the jurors to continue, commending them for being “very conscientious in your deliberations,” and noting that it’s not uncommon to have difficulties in reaching a verdict.
Penny’s lawyers have said he was protecting himself and other subway passengers from a volatile, mentally ill man who was making alarming remarks and gestures. Prosecutors said Penny reacted far too forcefully to someone he perceived as a peril, not a person.
Penny is facing a second count of criminally negligent homicide, but the jurors were instructed that they must reach a verdict on the manslaughter charge before they can move on to that.
Manslaughter requires proving a defendant recklessly caused another person’s death, and carries up to 15 years. Criminally negligent homicide, which carries punishments ranging from probation to up to four years in prison, involves engaging in serious “blameworthy conduct” while not perceiving such a risk.
While the jurors were out of the courtroom, Wiley acknowledged that he may have to consider whether they can simply move on to the criminal negligence if they remained deadlocked on the manslaughter charge. Prosecutors suggested they could be open to this.
Shortly before taking a lunch break, the jury also requested clarification on how they determine whether a person reasonably believes physical force to be necessary.
“We’d like to better understand the term ‘reasonable person,’” their note read in part.
Wiley told the jury it was for them to decide what a reasonable person would do in the situation — whether a person would have reasonably believed Neely was about to use physical force against Penny or someone else.
During the monthlong trial, the anonymous jury heard from witnesses, police, pathologists, a Marine Corps instructor who trained Penny in chokehold techniques, as well as Penny’s relatives, friends and fellow Marines. Penny chose not to testify.
The jury has made several other requests to the judge since entering deliberations Tuesday.
They asked to review the police and bystander video at the center of the trial. They requested a readout of a city medical examiner’s testimony. They also asked the judge to re-read the criminal definitions of recklessness and negligence in open court and be provided with written copies of the statutes.
Neely, 30, was a sometime subway performer with a tragic life story: His mother was killed and stuffed in a suitcase when he was a teenager. His adult life spiraled into homelessness, psychiatric hospitalizations, drug abuse and criminal convictions, including for assaulting people at subway stations.
Penny, 26, went on to study architecture. He is white. Neely was Black.
The case became a flashpoint in the nation’s debate over racial injustice and crime, as well as the city’s ongoing struggle to deal with homelessness and mental health crises in a transit system used by millions of New Yorkers every day.
