(NEW YORK) — Judge Maxwell Wiley has dismissed the top charge of second-degree manslaughter against Daniel Penny in the death of Jordan Neely at the request of prosecutors after considering declaring a mistrial after jurors reported they continue to be deadlocked on the charge.
He said he will encourage the jury to continue deliberating on Monday the lesser charge of whether Penny committed criminally negligent homicide in the death of Neely, a homeless man, on the New York City subway last year.
Defense attorney Thomas Kenniff opposed the move, arguing the move could lead to a “coercive or a compromised verdict.” He again encouraged the judge to declare a mistrial.
This leaves the jury to deliberate the lesser count of criminally negligent homicide.
“Whether that makes any difference or not I have no idea,” Wiley said.
Penny, a 25-year-old former Marine, put Neely, a 30-year-old homeless man, in a six-minute-long chokehold after Neely boarded a subway car acting erratically, according to police. Witnesses described Neely yelling and moving erratically, with Penny’s attorneys calling Neely “insanely threatening” when Penny put Neely in a chokehold.
The city’s medical examiner concluded Penny’s chokehold killed Neely.
He was initially charged with both manslaughter and negligent homicide charges. He pleaded not guilty to both.
The jury sent two notes repeating that they could not come to a unanimous conclusion on the count.
Wiley suggested giving the jury a second Allen charge, and he gave the lawyers more time to think about next steps.
In its first note of the day, the jury in Penny’s manslaughter and negligent homicide trial reported that it is “unable to come to a unanimous vote” on whether Penny committed second-degree manslaughter.
“We the jury request instructions from Judge Wiley. At this time, we are unable to come to a unanimous vote on court one,” the note said.
Wiley gave the jury an Allen charge, which refers to the jury instructions given to a hung jury that encourages them to continue deliberating despite the deadlock. He is giving the lawyers time to consider the next steps.
Penny’s lawyer, Thomas Kenniff, unsuccessfully moved for a mistrial, arguing that the Allen Charge would be “coercive.”
Wiley disagreed, saying that it was “too early” to declare a mistrial before encouraging the jury to continue their deliberations.
The verdict form asks the jury to decide the first count – second-degree manslaughter – before potentially moving to the second count of criminally negligent homicide. Only if it finds Penny not guilty on the first count, can it consider the second count of criminally negligent homicide.
The second-degree manslaughter charge only required prosecutors to have proven Penny acted recklessly, not intentionally.
“It would be a crazy result to have a hung jury just because they can’t move on to the second count?” prosecutor Dafna Yoran said.
Yoran also told Wiley that a new trial would “ultimately [be] the case if they hang the case.”
Wiley left unanswered the question about whether the jury could move onto the second count if they are unable to reach a verdict on the first count. He said he believed the jury moving to the second count is possible but needs to find the legal authority to do so.
“I think ultimately we are going to have to answer the question of whether they can move to count two,” he said.
Twenty minutes after the judge encouraged them to continue deliberating despite their deadlock, the jury sent back another note requesting more information about the term “reasonable person” in their instructions.
“Ultimately, what a reasonable person is up to you to decide,” Wiley told the jury in response to their note, referring them to a two-part test in jury instruction.
“Would a reasonable person have had the same honestly held belief as the defendant given the circumstances and what the defendant knew at that time?” Wiley asked, referring to the second part of the test.
Before the jury entered, Wiley noted how the “reasonableness” standard was established in People v. Goetz – another high-profile New York trial after Bernhard Goetz shot four teenagers on a New York subway in 1984 after they allegedly tried to rob him. A New York jury convicted Goetz for one count of carrying an unlicensed firearm but acquitted on the more severe charges, and the trial sparked a nationwide debate about race and crime that has echoed forty years later in Penny’s case.
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