NEW YORK (AP) — Jurors in Daniel Penny's fatal subway choking trial told a judge Friday morning that they cannot reach a unanimous verdict on the main manslaughter charge.
Judge Maxwell Wiley is considering whether to give them a so-called Allen charge – an instruction urging them to do everything possible to reach a verdict.
Penny, a Marine veteran, is charged with manslaughter and negligent homicide in the death of Jordan Neely, who put Penny in a chokehold for about six minutes on a New York City subway on May 1, 2023.
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Negligent homicide carries penalties ranging from probation to up to four years in prison. The manslaughter charge, a more serious crime, can carry up to 15 years.
Murder due to criminal negligence involves the commission of serious “culpable conduct” while such a risk is not recognized. However, in manslaughter, it must be proven that a suspect recklessly caused the death of someone else.
Wiley said the jurors' instructions were clear: They must reach a verdict in count 1 before they can move on to count 2.
Prosecutor Dafna Yoran noted that “it would be an insane outcome to have a hung jury” just because they cannot get to the second indictment.
The jury has made several requests to the judge since deliberations began on Tuesday.
They asked for the police and bystander video that was central to the trial. They asked for a city medical examiner's testimony to be read during the month-long trial. They also asked the judge to reread the criminal definitions of recklessness and negligence in open court and receive written copies of the statutes.
During the month-long trial, the anonymous jury heard from witnesses, police, pathologists, a Marine Corps instructor who trained Penny in chokehold techniques, as well as Penny's family members, friends and fellow Marines. Penny chose not to testify.
Penny's lawyers have said he was protecting himself and other subway passengers from a volatile, mentally ill man who made alarming comments and gestures.
Prosecutors said Penny reacted far too forcefully to someone he viewed as a danger, not a person.
Neely, 30, was once a subway performer with a tragic life story: His mother was murdered and stuffed in a suitcase when he was a teenager. His adult life led to homelessness, psychiatric hospitalizations, substance abuse and criminal convictions, including for assaulting people in subway stations.
Penny, 26, went on to study architecture. He is white. Neely was black.
The case became a flashpoint in the national debate over racial injustice and crime, as well as the city's ongoing struggle to address homelessness and mental health crises on a public transportation system used by millions of New Yorkers every day.
There were sometimes dueling demonstrations outside the courthouse, and high-profile Republican politicians portrayed Penny as a hero while prominent Democrats attended Neely's funeral.
