Manslaughter charge dismissed in Daniel Penny trial, jury to consider negligent homicide charge
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(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.
(DENVER, Co.) — Law enforcement agencies in the Denver, Colorado, metropolitan area are investigating a rise in burglaries targeting Asian homes, businesses and places of worship across the community.
There have been around 100 reported burglaries of Asian homes across the state this year, according to Denver ABC affiliate KMGH-TV.
The sheriff’s office in Douglas County — which is south of Denver — told ABC News that there have been around 14 burglaries targeting homes of Asian business owners since the beginning of the year. Seven of these have happened since September, it noted.
In an interview that aired on Tuesday, Douglas County Sheriff Darren Weekly told ABC News Live’s Diane Macedo that there is a “multi-jurisdictional investigation” into a “sophisticated” operation, where the burglars are using “WiFi jammers to subvert alarm systems” and even conducting their own surveillance by setting up cameras near the homes of their victims to ensure that they are away when the burglars strike.
“Many times, these criminals will enter from the back, dressed as utility workers, are wearing vests,” Weekly said. “They’re very methodical. They plan these burglaries early, and they’ve made off with over $2.5 million that we’re aware of.”
The Douglas County Sheriff’s office first warned the community of these burglaries in an Oct. 31 statement and so far, no arrests have been made, a spokesperson confirmed to ABC News.
Asked why Asian business owners appear to be targeted, Weekly said that some are known to keep “large amounts” of cash in their homes, as opposed to depositing the money in a bank.
Lisa Nguyen, the owner of a plaza of Asian-owned businesses, told ABC News that one of the businesses in her plaza was burglarized.
“They are destroying small businesses,” Nguyen said in Tuesday’s interview. “The amount of money that they took is detrimental to, you know, them being able to operate.”
She’s also president-elect of the Denver Metro Association of Realtors, and said that the home of one of her real estate clients was burglarized twice since September.
According to Nguyen, who shared surveillance video of both burglaries with the ABC News, $17,000 worth of merchandise was stolen from a convenience store in her plaza.
She said a burglary of that scale puts families in a position where “multiple months of rent have been stolen” and “could cause businesses to completely shut down.”
Weekly urged the community to notify law enforcement if they see anything suspicious and advised residents to keep their homes locked, install lights on their property and to implement multiple security measures to safeguard their homes, as well as to communicate with their neighbors.
“It’s really critical if somebody sees something, call law enforcement so we can get out there,” Weekly said.
Weekly held a town hall on Monday night, along with Arapahoe County Sheriff Tyler Brown, the Organized Crime Unit and 18th Judicial District Attorney’s Office, to address the issue and share safety information with the community.
The Douglas County Sheriff’s office also partnered with the Colorado Asian Chamber of Commerce to distribute safety tips and urge anyone who has experienced a burglary or seen anything suspicious to come forward.
Nguyen said that she hopes an arrest will be made soon.
“I think my message is just that somebody literally has to know something out there,” she said. “And you know, that’s all it’s going to take is for somebody to come forward.”
(NEW YORK) — Jussie Smollett’s attorney said the actor was “harmed substantially” after he was found guilty of lying about a 2019 hate crime in an interview with “GMA3” following the overturning of his conviction.
The Illinois Supreme Court threw out the former “Empire” actor’s conviction in a decision on Thursday after concluding that the state’s prosecution was unfair due to an agreement that initially dropped the charges.
Smollett was first indicted on 16 felony counts of disorderly conduct for filing a false police report, though Cook County State’s Attorney Kim Foxx agreed to drop the charges if he paid $10,000 and did community service. A special prosecutor later charged him again, leading to his trial and conviction.
In its decision on Thursday, the court found that the state could not bring a second prosecution against Smollett after the initial charges were dismissed, and that reneging on the agreement “would be arbitrary, unreasonable, fundamentally unfair, and a violation of the defendant’s due process rights.”
Tina Glandian, Smollett’s attorney, told “GMA3” on Friday that they have been fighting the second prosecution from the start as “completely illegal.”
“It violates numerous constitutional provisions,” she said. “We’ve raised this numerous, numerous times before, various courts. And finally yesterday, the Supreme Court of Illinois agreed with us and said the second prosecution was barred because there was an agreement in place and the state is bound to honor its word.”
The case began after the openly gay actor told police he was attacked by two men while walking on a street near his Chicago apartment early on Jan. 29, 2019. The attackers allegedly shouted racist and homophobic slurs before hitting him, pouring “an unknown chemical substance” on him and wrapping a rope around his neck.
Chicago police said Smollett’s story of being the victim of an attack began to unravel when investigators tracked down two men, brothers Abimbola and Olabinjo Osundairo, who they said were seen in a security video near where Smollett claimed he was assaulted and around the same time it supposedly occurred. The Osundairo brothers told police the actor paid them $3,500 to help him orchestrate and stage the crime.
A jury convicted Smollett in December 2021 on five of six felony counts of disorderly conduct stemming from filing a false police report and lying to police, who spent more than $130,000 investigating his allegations.
Dan Webb, who was appointed by a Cook County judge to continue looking into the case after the Cook County State’s Attorney’s Office initially dropped all charges against the actor, said he was “disappointed” in the court’s decision and noted that the ruling “has nothing to do with Mr. Smollett’s innocence.”
“The Illinois Supreme Court did not find any error with the overwhelming evidence presented at trial that Mr. Smollett orchestrated a fake hate crime and reported it to the Chicago Police Department as a real hate crime, or the jury’s unanimous verdict that Mr. Smollett was guilty of five counts of felony disorderly conduct,” he said in a statement.
Glandian said Smollett continues to maintain his innocence and has “vehemently denied” any participation in a hoax.
“We do believe he didn’t get a fair trial, that the jury didn’t hear all the evidence that should have [been] heard, that things were improperly excluded, that the jury panel was not properly put together,” she said. “The Supreme Court yesterday didn’t get to that issue. They said legally this was invalid. It violated his due process and they, based on that, threw out the conviction. But we still maintain that he didn’t receive a fair trial.”
In the wake of the case, she said Smollett has been releasing music and “continued to do what he does best.”
“I think hopefully, obviously this can only help matters because he was harmed substantially after everything that happened, and of course, the convictions and the sentence that was imposed,” she said.
Webb said that despite the Illinois Supreme Court’s decision, the city of Chicago is still able to pursue its pending civil lawsuit against Smollett in order to recoup the investigation costs.
Glandian said she hopes the city “does the right thing” and dismisses that case.
“He’s incurred substantial legal fees. He spent six days in jail, all of which now has been said by the highest court in Illinois was completely unconstitutional,” Glandian said. “So for the city now to further proceed, we’ll see what they do. But hopefully they dismiss that case immediately.”
(NEW ORLEANS) — An Army veteran who was “hell-bent” on killing as many people as possible drove a rented pickup truck around a parked police car serving as a barricade and plowed through a crowd of New Year’s revelers on Bourbon Street in New Orleans, leaving at least 15 dead and injuring dozens of others early Wednesday, city and federal officials said.
After mowing down numerous people over a three-block stretch on the famed thoroughfare while firing shots into the crowd, the suspect — identified by sources as Shamsud-Din Jabbar, 42 — allegedly got out of the truck wielding an assault rifle and opened fire on police officers, law enforcement officials briefed on the incident told ABC News. Officers returned fire, killing Jabbar, a U.S.-born citizen from Texas, sources said. At least two police officers were injured, one by gunfire and the other when the officer was pinned by the truck, authorities said.
Althea Duncan, assistant special agent in charge of FBI New Orleans field office, said investigators do not believe Jabbar acted alone.
“We do not believe that Jabbar was solely responsible,” Duncan said during a news conference Wednesday afternoon. “We are aggressively running down every lead, including those of his known associates. That’s why we need the public’s help. We are asking if anybody had any interaction with Shamsud-Din Jabbar in the last 72 hours that you contact us.”
Addressing what he called “this heinous act” in a brief appearance before reporters Sunday night at the Camp David presidential retreat in Maryland, President Biden said that the FBI told him that “mere hours before the attack, [Jabbar] posted videos on social media indicating that he’s inspired by ISIS, expressing a desire to kill.”
Biden also said “law enforcement and the intelligence community” were investigating whether there was “any possible connection” between the New Orleans attack and the explosion of a Tesla Cybertruck Sunday outside of the Trump Las Vegas hotel.
“Thus far, there’s nothing to report on that score,” Biden said.
Biden also said that the suspect was “an American citizen, born in Texas. He served in the United States Army on active duty for many years. He also served in the Army Reserve, until a few years ago.”
The FBI is studying the videos President Biden referenced in his remarks, which the suspect appears to have recorded while driving from Texas to Louisiana, law enforcement sources confirmed to ABC News.
The videos are dark so the suspect isn’t seen but he can be heard talking about his divorce and a desire to kill members of his family before ultimately deciding to carry out the attack on Bourbon Street, according to the law enforcement sources.
The suspect is also heard talking about ISIS, the sources said.
A spokesperson for the consulting firm Deloitte confirmed to ABC News that Jabbar worked for the company in a “staff-level role” since 2021.
“We are shocked to learn of reports today that the individual identified as a suspect had any association with our firm,” the statement said. “Like everyone, we are outraged by this shameful and senseless act of violence and are doing all we can to assist authorities in their investigation.”
A separate source at Deloitte confirmed to ABC News that Jabbar was still employed by the consulting firm as of Sunday morning and had the job title of “senior solution specialist.”
The FBI offices in New Orleans and Houston released statements late Wednesday announcing searches related to the New Orleans attack.
“FBI special agents and our law enforcement partners are currently conducting a number of court authorized search warrants in New Orleans and other states,” the FBI’s New Orleans field office said in a statement, adding that they planned to hand over the New Orleans crime scene to local authorities by Thursday morning.
Meanwhile the FBI in Houston posted on X that they and the Harris County Sheriff’s Office were “continuing a court-authorized search of a location near the intersection of Hugh Road and Crescent Peak Drive.”
“At this time, no arrests have been made, and FBI personnel will be at the scene for several more hours,” the post continued.
New Orleans police have reviewed surveillance video that appears to show several people planting potential explosive devices in advance of the vehicle attack, which led them to believe he was not “solely responsible,” sources said. Investigators are urgently working to identify the individuals who were seen on camera and take them into custody.
Duncan said Jabbar was an Army veteran. In addition to the assault rifle, Jabbar was allegedly armed with a handgun, sources told ABC News.
Authorities are also working to determine whether there may be a link between the New Orleans attack and a Tesla Cybertruck explosion on Wednesday outside the Trump Las Vegas hotel in Nevada, which is being investigated as a possible act of terror, an official said.
Multiple law enforcement sources told ABC News that the Cybertruck that exploded in Las Vegas was rented on Turo — the same app sources said was used to rent the pickup truck used in the deadly attack in New Orleans.
Sheriff Kevin McMahill told reporters that investigators are trying to determine whether there is a connection to the New Orleans attack.
“We are heartbroken by the violence perpetrated in New Orleans and Las Vegas, and our prayers are with the victims and families,” a Turo spokesperson said in a statement in response to an ABC News request for comment. “We are actively partnering with law enforcement authorities as they investigate both incidents.”
“We do not believe that either renter involved in the Las Vegas and New Orleans attacks had a criminal background that would have identified them as a security threat,” the statement continued. “We remain committed to maintaining the highest standards in risk management, thanks to our world-class trust and safety technologies and teams that include experienced former law enforcement professionals.”
New Orleans Coroner Dr. Dwight McKenna released a statement late Wednesday afternoon that said “As of now, 15 people are deceased.”
“It will take several days to perform all autopsies. Once we complete the autopsies and talk with the next of kin, we will release the identifications of the victims,” McKenna’s statement continued.
Rep. Troy Carter, D-Louisiana, told ABC News earlier Wednesday afternoon that the number of people killed in the incident had risen from 10 to 15. He said another 25 people were hospitalized with injuries.
On Wednesday afternoon, the FBI in Houston and the Harris County, Texas, Sheriff’s Office, posted a message on social media that they are “currently conducting law enforcement activity near the intersection of Hugh Road and Crescent Peak Drive in north Houston.”
“We have secured a perimeter in that area and are asking people to avoid the area,” the notice said. “FBI Houston personnel and specialized teams will be on-site for several hours. This activity is related to this morning’s New Orleans attack, but due to the ongoing nature of the investigation, no further information can be provided.
Security bollards not working at the time
New Orleans Police Superintendent Anne Kirkpatrick said during Wednesday’s news conference that security bollards were not working at the time because they were in the process of being replaced for the upcoming Super Bowl. She confirmed that the suspect drove on the sidewalk to get around a police car blocking the intersection.
“We did indeed have a plan but the terrorist defeated it,” Kirkpatrick said.
Duncan said improvised explosives devices (IEDs) and other weapons were found inside the pickup truck. She said two additional IEDs were discovered in the French Quarter and rendered safe.
The IEDs found in and around the scene on Bourbon Street were apparently determined to be viable and investigators were looking for more in the city’s French Quarter, multiple law enforcement sources tell ABC News. The FBI said two devices were found and rendered safe. Crude pipe bombs stuffed with coils and nails were found at the scene along with a grenade, sources said.
In a YouTube video posted in 2020, the suspected attacker said he was born and raised in Beaumont, Texas, and spent a decade working in the U.S. military before becoming a realtor in the Houston area. His years in the military, he said in the video that has since been removed from YouTube, were spent working as a human resources and IT specialist.
It appears that the truck the suspect rented was spotted in Texas on Tuesday, but it was not clear if the suspect was in the vehicle at the time, according to a source citing preliminary law enforcement information. An ISIS flag was attached to the vehicle’s rear hitch, Duncan said, adding that the FBI is trying to assess the suspect’s connection to the terror groups.
The Sugar Bowl between the University of Georgia and Notre Dame has been postponed from Wednesday night to Thursday, Sugar Bowl CEO Jeff Hundley announced at Wednesday’s news conference. The game was set to kickoff Wednesday night at the Caesars Superdome in New Orleans, where police remain focused on securing the French Quarter after the vehicle ramming attack.
Jason Williams, the district attorney of Orleans Parrish, which includes New Orleans, told ABC News that investigators are conducting a grid search to determine if other explosive devices were planted.
New Orleans police and agents from the Bureau of Alcohol, Tobaco, Firearms and Explosives have cordoned a home believed to be an AirBnB in the St. Roch neighborhood about 2 miles from downtown. It was not immediately clear if the suspect is associated with the AirBnB rental.
Investigated as terror attack
New Orleans Mayor LaToya Cantrell described the horrific incident a “terrorist attack” and the FBI said it was being investigated as an act of terror. The bloodshed comes on the heels of a deadly vehicle ramming attack in Germany. Fears of such attacks were a growing concern among law enforcement as well as attacks by lone actors at winter holiday events.
Police Superintendent Kirkpatrick said the driver had attempted to kill as many people as possible. The truck used in the attack appeared to be a F-150 Lightning, an electric vehicle.
“He was hell-bent on creating the carnage that he did,” Kirkpatrick said at a news conference early Wednesday.
The New Orleans Police Department said the attack occurred despite the force being “staffed 100%” for New Year’s Eve and the Sugar Bowl, a college football game played annually on New Year’s Day. An additional 300 officers were on duty from partner agencies, the police department said.
President Joe Biden has been briefed on the attack and has been in touch with Cantrell to offer support, according to the White House.
“I will continue to receive updates throughout the day, and I will have more to say as we have further information to share,” Biden said in a statement. “In the meantime, my heart goes out to the victims and their families who were simply trying to celebrate the holiday. There is no justification for violence of any kind, and we will not tolerate any attack on any of our nation’s communities.”
President-elect Donald Trump posted a statement on his Truth Social platform, saying, “Our hearts are with all of the innocent victims and their loved ones, including the brave officers of the New Orleans Police Department. The Trump Administration will fully support the City of New Orleans as they investigate and recover from this act of pure evil!”
Local authorities asked the FBI for assistance early on Wednesday, a senior federal law enforcement source told ABC News. A command center was being set up, the source said. The FBI was set to lead the investigation.
‘Horrific act of violence’
“A horrific act of violence took place on Bourbon Street earlier this morning,” Gov. Jeff Landry said, adding that his family was praying for the victims and first responders.
Witness Dan McFee said he had just walked out of his hotel to get an Uber and was standing on Canal Street near Bourbon Street, when he heard squealing tires and turned to see the white pickup truck turning onto Bourbon Street and heading right toward him and a female friend.
“It made a right-hand turn onto Bourbon and it was heading directly towards me and a female friend I had with me, and [I] basically wrapped my arms around her and threw ourselves to the right of the vehicle,” McFee told ABC News. “I don’t remember exactly if it hit me or some debris, but we were flown into the air and came down on the sidewalk. The vehicle did hit a gentleman that I was standing beside. While we were down on the ground, it appeared that he was breathing and then the woman behind him didn’t appear to be breathing and the vehicle continued down the road.”
Moments later, he said he heard gunshots.
Asked if he saw the driver’s face, McFee said, “All I could remember, and it’s replaying in my head, is seeing the front of the truck coming at us.”
McFee said he and his friend suffered bumps and bruises in the incident.
Asked if he saw the steel barricades up on Bourbon Street at the time of the incident, McFee said, “I don’t believe they were up. I didn’t see any that were up.”
“I was kind of surprised that the vehicle was able to get as far as it did just considering the amount of people that were on Bourbon Street,” McFee said. “They did have those metal gates that they were able to move back and forth. I don’t know if they were down just for the Uber drivers and the Lyft drivers to get through, but I don’t remember seeing them up.”
Witness Jimmy Cothran of New Orleans told ABC News that he and a friend were walking on Bourbon Street when the truck attack began. He said they ducked into a bar and within minutes, four frantic women pushed through security, rushed into the bar and hid under tables.
“When we got on the balcony, what we saw was insanity,” Cothran, a certified emergency medical technician, said. “I mean it was something out of a movie, the graphic nature of it. It was unbelievable. We instantly counted I’d saw 10 bodies, six clearly graphically deceased and the others yelling with no one around. Everyone had just cleared the street completely.”
Cothran said he tried to go out and help the injured but was stopped by security.
Another witness, who requested to be identified only as Paul S., told ABC News he was startled awake by the sound of what he initially thought was fireworks.
“Around 3:15 [a.m.], we heard a ‘pop, pop, pop, pop’ sound followed by a sound that sounded like fireworks going off, like big fireworks all at once,” Paul S. said. “Then it turned out that was the crash.”
He said he looked outside his hotel window and saw a chaotic scene, with bodies strewn on the street below.
“What I saw was, if you can imagine a street with brick and whatnot littered all around the sidewalk, and then there were bodies laid up next to garbage cans and people rushing to give aid,” Paul S. said.
He said he observed a man who had been thrown from his wheelchair lying on the ground next to the truck involved in in the attack writhing in pain.
“There was also a body underneath a scissor lift,” Paul S. said.
Truck rented through app
The Ford F-150 Lightning truck used in the attack was apparently rented through the Turo app — a car sharing company, according to Rodrigo Diaz, the owner of the truck. Diaz told ABC News he rented the truck to an individual through the app and is currently talking to the FBI. He declined further comment.
Diaz wife, Dora Diaz, told ABC News that she and her husband are devastated by the incident.
“My husband rents cars through the Turo app. I can’t tell you anything else. I’m here with my kids, and this is devastating,” Dora Diaz said.
Preliminary information put together by law enforcement indicates the truck apparently involved in the New Orleans attack was observed Tuesday in north Harris County, Texas, a source briefed on the investigation told ABC Houston station KTRK. The truck was seen in Harris County around 10:15 a.m. and again 11:10 a.m., the source said. Just after noon on Tuesday, the truck was spotted in Baytown, Texas, heading east on Interstate 10 in the direction of New Orleans, according to the source.
Law enforcement has not said whether the suspected attacker was in the vehicle when it was spotted in Texas.
Deploying ‘every available resource
Attorney General Merrick Garland confirmed the FBI is investigating the incident as an act of terrorism. He said the the Justice Department’s National Security Division, and the U.S. Attorney’s Office for the Eastern District of Louisiana are working with local law enforcement and “will deploy every available resource to conduct this investigation.”
“The country woke up this morning to news of a terrible tragedy in New Orleans that killed at least 10 people and injured many more,” Garland said in a statement. “My heart is broken for those who began their year by learning people they love were killed in this horrific attack, and my prayers are with the dozens who were injured, including the New Orleans Police Department Officers who risked their lives to save others.”
Leading up to the holidays, federal law enforcement and intelligence had warned police around the country that low-tech vehicle ramming at public events was a key area of concern and that they needed to prepare — and that was before the German Christmas market attack on Dec. 20, in which five people were killed and hundreds were injured.
In a Dec. 9 assessment for the Times Square New Year’s Eve celebration, federal and local agencies wrote: “We remain concerned about the use of vehicle ramming against high-profile outdoor events…Vehicle ramming has become a recurring tactic employed by threat actors in the West, marked by a continued interest by (terrorists, extremists) and lone offenders in targeting crowded pedestrian areas.”
This is a developing story. Please check back for updates.
