Jurors will return to a lower Manhattan courthouse on Dec. 9 to consider the charge of criminally negligent homicide against Daniel Penny, following the dismissal of the other charge he faced, second-degree manslaughter, on Dec. 6.
Both charges stemmed from a May 1, 2023, incident in which Penny put Jordan Neely into a chokehold after Neely came onto an uptown F train at Manhattan’s Second Avenue station and began shouting and threatening passengers.
Neely did not survive, and Penny’s trial has turned on questions about the causes of his death and whether Penny’s actions were justified.
The case has drawn national and international attention, with some viewing Penny as a hero who put his own life on the line to protect men, women, and children on the subway, and others branding him a vigilante who applied too much force.
Last week, jurors began their deliberations on Dec. 3 and continued through to Dec. 6, making several requests to Judge Maxwell Wiley for a second chance to review key pieces of evidence and testimony first presented to the jury in November.
The length of the deliberations, and the repeated requests to see evidence again, led to speculation that the jury might be having trouble achieving unanimity about Penny’s guilt and that things could even be headed for a mistrial.
Shortly after 11 a.m. on Dec. 6, the judge announced that he had received a note from the jury, stating: “At this time, we are unable to come to a unanimous vote on Count One, manslaughter in the second degree.”
This led to a discussion in which the judge told Penny’s defense counsel and the prosecutors that his official recognition that the jury was deadlocked on the first charge was required before the jury could give up discussing it and move on to the second count.
“I still have to decide that a unanimous agreement is impossible on Count One before they can render a verdict on Count Two,” he said.
The judge then asked the lawyers on both sides how they felt about the situation.
Prosecutor Dafna Yoran was not against continued deliberations, but Penny’s counsel tried to persuade the judge not to issue an Allen order directing the jury to press ahead and continue to try to reach unanimity.
But the judge issued the order anyway and had the jury come back into the courtroom.
Once they were seated, the judge reminded them that it is not supposed to be easy to achieve unanimity in criminal cases, but stressed that he had faith in their ability to reach a decision based on the evidence and the law.
The judge also explicitly directed the jury not to make a decision based on personal feelings of like or dislike for one or other party in the trial.
However, late on the afternoon of Dec. 6, the status of the deliberations had not changed.
The jury still could not come to a unanimous decision on the second-degree manslaughter charge.
The judge agreed to dismiss that charge, leaving the jury to consider the charge of criminally negligent homicide when it resumes deliberations on Dec. 9.
