A judge on Dec. 6 directed the jury in the Daniel Penny trial to continue deliberating after jurors said they were unable to reach a unanimous verdict on the top charge of manslaughter.
Penny was charged with manslaughter in the second degree and criminally negligent homicide in last year’s subway choking death of Jordan Neely.
“At this time, we are unable to come to a unanimous vote on Count One, manslaughter in the second degree,” the jurors said in a note to the judge. The jurors had been deliberating since Tuesday.
In response, Judge Maxwell Wiley directed the jurors to keep deliberating in an attempt to reach a unanimous decision in what is known as an Allen charge.
The defense had objected to the issuing of an Allen charge and asked the judge to order a mistrial, saying, “We are concerned that the giving of an Allen charge under these circumstances would be coercive.”
The judge said that after further deliberation, the jury still might not arrive at a unanimous verdict, in which case there will be another trial with a different jury.
The courtroom at 100 Centre Street in lower Manhattan has been alternately crowded and near-deserted in these final days of the trial, as the jury has briefly returned to review evidence again and the judge has held brief conversations, some of them contentious, with the lawyers.
Penny’s trial on that charge and the second count has been going on since the first week of November. The jury finally began its deliberations on Tuesday afternoon, following summations from the defense and prosecution at the start of the week.
Since beginning its deliberations, the jury has made a number of requests, including for the replay of footage from the scene of the May 1, 2023, incident in which Jordan Neely died, for a chance to review portions of the trial transcript, and for clarification of the judge’s instructions regarding self-defense and the use of deadly force.
One of the requests, for a readback of part of the cross-examination of medical examiner Dr. Cynthia Harris, prompted the judge on Dec. 5 to seat the jury and have two people read from the transcript aloud in the courtroom. The cross-examination addressed the medical and factual basis on which Harris made her determination that Neely died an asphyxial death, and whether she had given due consideration to other possible factors.
While anticipation of a verdict in the controversial case has run high, Neely’s father has retained legal counsel to pursue civil action against Penny. On Thursday, the father’s lawyer filed a lawsuit against Penny before the Supreme Court of New York.
The complaint in that lawsuit states that the plaintiff is pursuing action through the highest court in the state because lower courts would not be able to grant the full damages that the lawsuit seeks.
