Jury declares Daniel Penny innocent in negligence trial related to Jordan Neely’s death

NEW YORK — Daniel Penny has been found not guilty of criminally negligent homicide for the death of Jordan Neely by the jury on Monday.

The jury deliberated for more than 24 hours across five days before reaching the verdict.

The jury in the Penny trial is still discussing if he should be found guilty of criminally negligent homicide for using a chokehold on Neely in a subway car last year. Last week, the jury couldn’t reach a decision on the more serious charge of manslaughter.

After the prosecutors’ request on Friday, Judge Maxwell Wiley dismissed the second-degree manslaughter charge, which could lead to a 15-year sentence. Instead, he told the jury to focus on the lesser charge of criminally negligent homicide, which has a maximum sentence of four years. Penny pleaded not guilty to both charges.

“You can now consider count two. Whether that changes anything, I don’t know,” Wiley mentioned to the jury before they were excused for the weekend.

Prosecutors allege that Penny killed Neely, a 30-year-old homeless man who had previously been a Michael Jackson impersonator, when he placed him in a six-minute-long chokehold on a subway car in May 2023, holding Neely for at least 51 seconds after his body went limp. Assistant district attorney Dafna Yoran argued Penny knew his actions could kill Neely but continued to hold him in a chokehold for “way too long” and “didn’t recognize his humanity.”

The city’s medical examiner concluded Penny’s chokehold killed Neely. The defense argued Neely died from a genetic condition and the synthetic marijuana found in his system.

Defense attorney Steven Raiser told jurors that Penny “acted to save” subway passengers from a “violent and desperate” Neely, who was acting erratically and “scared the living daylights out of everybody.” Raiser argued that Neely was fighting back, and Penny continued to hold on because he feared he would break free, though he didn’t intend to kill Neely.

Wiley denied a new motion for a mistrial made Monday morning by Penny’s defense lawyers, who argued that the dismissal of the manslaughter charge would influence the jury’s verdict.

“There is no way to cure the legal error that we believe very strongly happened on Friday, and we are renewing our motion for a mistrial on the remaining count two,” said Thomas Kenniff, who said the dismissal could result in a “coercive verdict.”

Wiley disagreed, promptly denying the motion like he did on Friday when the defense unsuccessfully argued twice for a mistrial.

To prevent the possibility of influencing the jury, Wiley proposed issuing a new instruction to the jury explicitly stating that the court is “not directing you to any particular verdict.”

Wiley also offered to give the jury an instruction to ignore chants from protesters outside the courthouse – including “Justice for Jordan Neely,” “Daniel Penny subway stranger” and “If we don’t get no justice, they don’t get no peace” – which the defense team declined because it might bring more attention to the chants.

For now, the chants have quieted down, and they are no longer audible in court. If they resume, Judge Wiley said he would consider delivering an instruction or moving the jury to another deliberation room.

Last week, the jury spent more than 23 hours across four days deliberating whether Penny, a 26-year-old former Marine and architecture student, committed second degree manslaughter before repeatedly signaling that they could not reach a unanimous verdict.

Wiley ultimately granted prosecutors’ request to dismiss the first count while Penny’s defense attorneys unsuccessfully pushed for a mistrial, arguing that continued deliberations could lead to a “coercive or a compromised verdict” by “elbowing” jurors to convict on the lesser charge.

Manslaughter would have required proving that Penny acted recklessly and grossly deviated from how a reasonable person would behave, while proving criminally negligent homicide requires the jury to be convinced that Penny engaged in “blameworthy conduct” that he did not consider would lead to the risk of death.

Outside court, protesters and counter protesters have assembled, with “say his name” chants slightly audible in the 13th floor courtroom. As Penny entered the courthouse this morning, he was met with competing chants of “murderer” and “not guilty.”