Jury in Daniel Penny manslaughter trial unable to reach unanimous verdict

The Daniel Penny jury has announced it cannot reach a unanimous verdict on the most significant charge he is facing. 

The courtroom beckoned the 26-year-old Marine veteran and his legal team to return shortly after 11 a.m. on Friday. The intense deliberations revolved around the death of mentally ill homeless man Jordan Neely on a Manhattan subway in May 2023, now entering a fourth day.

Justice Maxwell Wiley made it known that he had received a note from the 12 jurors, indicating that they had not been able to reach a unanimous verdict on count one, which is second-degree manslaughter.

The jurors were informed that they cannot proceed to consider the lesser charge of negligent homicide until the possibility of an acquittal on the manslaughter charge is explored.

Penny faces 15 years if convicted of the most serious count.  

They’re now seeking instructions from the judge about how they should proceed, and both the state and Penny’s defense team have left the court to discuss the bombshell.

Justice Wiley told Penny’s legal team and the state: ‘They can’t move onto count two unless they find him not guilty of count one. I think I have to first ask them to at least try to come up with a verdict on count one.

‘I have to decide what happens if a unanimous decision isn’t possible.’

The prosecution protested against any consideration of a hung jury, asking the judge to allow the jurors to move on without reaching a verdict on the most serious charge. 

‘It would be a crazy result to have a hung jury just because they’re not allowed to move on to the second count,’ Assistant District Attorney Yoran argued. 

Assistant District Attorney Dafna Yoran said it would be ‘crazy’ for this to result in a hung jury given ‘there is an alternative’ that they’re not yet able to consider.

The jury instructions clearly state negligent homicide only becomes a viable charge if he’s first found not guilty of manslaughter.

For manslaughter, the state needed to prove that Penny acted recklessly. In this case, this would require Penny to have been aware of the substantial risk to Neely’s life as a result of his actions, and chosen to disregard that risk. 

Meanwhile to convict Penny of negligent homicide, the state had the lesser burden of proving Penny did not necessarily perceive the risk, but his conduct was still ‘blameworthy’ and a ‘gross deviation’ of what a reasonable person would have done.

It has become increasingly clear during deliberations that jurors have been stuck on the three criteria to convict on the manslaughter charge.

The first criteria is that the state must have proven during the trial that Penny was responsible for Jordan Neely’s death. 

On Wednesday afternoon, jurors asked to re-hear testimony from the medical examiner, honing in specifically on a section of cross examination in which she revealed she would have still ruled his death a ‘chokehold death’ even if a toxicology report found he had enough fentanyl in his system to ‘put down an elephant.’ 

Ultimately, synthetic drug K2 was found in his system in the toxicology report, which came back after she had issued an official death certificate. 

Then, jurors asked to see video footage from the incident again. The state had argued the footage proved Penny held Neely in a chokehold for an excessive period of time, but his defense insisted the vision illustrated that he did not apply consistent pressure to the neck. 

Prosecutors are determined to land a conviction on either of the charges, so much so that reps from the Manhattan District Attorney’s office have been contacting journalists reporting on case to try to influence coverage of the proceedings. 

The 26-year-old Marine veteran is accused of manslaughter and negligent homicide following the May 2023 death of 30-year-old Michael Jackson impersonator Jordan Neely.

Neely was behaving erratically on the subway and threatening passengers when Penny put him in a chokehold which prosecutors say went ‘too far’ and ultimately killed Neely, who was homeless and mentally ill.

Under a barrage of public criticism for bringing charges, the prosecutors in Alvin Bragg’s office have been on a mission to remind the jury that Penny may not get any prison time at all, even if he is found guilty. 

That’s down to the fact there is no minimum sentence for two of the charges he is facing.  

The DA’s office has been contacting news outlets, including Daily Mail, requesting for that fact to be pushed to the forefront of coverage. 

Penny’s lawyers say it’s the latest desperate attempt to get the jury to convict him, on the notion that they will be more inclined to do so if they know he won’t rot in prison for years. 

‘The District Attorney’s efforts to have the jury speculate as to a potential sentence are both improper and misleading.’ 

‘While it is technically true that these charges do not carry a mandatory minimum, that is the case with most felonies in New York. 

‘It is equally true that the maximum sentence is 15 years in state prison.’ 

Lawyer Danielle Iredale said the DA’s message effectively tells jurors that they don’t have to be concerned about Penny’s fate if convicted, because he may not ever serve a day in jail regardless.

 ‘Defense lawyers are barred from mentioning potential sentences at trial — the reasoning being that it would be an attempt to seek sympathy from jurors who then may reach a verdict based on something other than the facts, in other words, ‘He may be guilty, but 10 years is too much time,’ she said.

‘There is a hypocrisy to the DA’s messaging. In attempting to publish the fact that there is no statutory mandatory minimum sentence, they are essentially saying, ”It’s OK to convict, he may not go to the jail!”