Manhattan DA's Office video screengrab
CV NEWS FEED // In the controversial trial of a Marine veteran who restrained an erratic homeless man in the New York City subway system, the judge this week dismissed the manslaughter charge. Daniel Penny now faces only a charge of criminally negligent homicide.
Judge Maxwell Wiley made the move when jurors on Friday informed him they were unable to reach a unanimous verdict on the manslaughter charge after days of deliberating.
The jury will return to court on Monday to deliberate the remaining charge, which carries a maximum sentence of four years in prison.
Penny, a former Marine sergeant, was facing charges of second-degree manslaughter and negligent homicide following the death of Jordan Neely, 30. The case will decide whether or not Penny acted recklessly and ultimately caused the unintentional death of Neely.
According to Fox News, Penny was on the subway when an intoxicated and erratic Neely barged into the car that Penny was in and threatened to kill the passengers. Penny grabbed Neely and placed him in a chokehold in an attempt to subdue him during a psychotic episode.
As CatholicVote previously reported:
Penny intervened and put Neely in a chokehold. With the help of another passenger, Penny dragged Neely to the floor and maintained the chokehold for several minutes. Neely lost consciousness while in the chokehold, and later passed away at the hospital. The city’s medical examiner later declared the incident “death by compression of the neck” (strangling).
When police arrived on the scene, Neely had a pulse but was not breathing.
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During deliberation at around 11 A.M. on Friday, the hung jury reported to Wiley: “We the jury request instructions from Judge Wiley. At this time, we are unable to come to a unanimous vote on court 1 – manslaughter in the second degree.”
The jury had reportedly asked for clarification on the definition of the word “justification,” and asked to reevaluate the testimony of forensic pathologist Dr. Cynthia Harris.
Fox News noted, “They asked to hear all testimony until and including the part where she admits she told the grand jury she didn’t know if she observed ‘consistently sufficient pressure.’”
Wiley instructed the jury to continue deliberating by an “Allen charge,” or “dynamite charge,” which encourages jurors to continue deliberating until a unanimous decision is reached.
Twenty-two states in the U.S. have rejected the use of “Allen charges” directed towards juries as they are thought to be a method of coercion or peer pressure used to impact minority opinions in a hung jury.
Penny’s defense attorney, Thomas Kenniff, countered Wiley’s directive to the jury via Allen Charge:
The jury has been deliberating for roughly 20 hours over four days in what is, in many ways, a factually uncomplicated case as far as this is an event that transpired over minutes on video. We are concerned that the giving of the Allen charge under these circumstances will be coercive.
Wiley responded by stating that the facts were not “uncomplicated” and that the time the jury was taking was reasonable.
Wiley also said it was not yet time to declare the case a mistrial.
“I think it is correct, it’s not time to declare a mistrial. But, on the other hand, it’s not time to assume that they’ve just sent this note out because it’s gotten difficult for them,” stated Wiley.
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Following the motion to dismiss the first count, Wiley dismissed the charge and released the jury for the weekend.
