The Free Press
Updated 5:50 p.m. on 12/6.
Late Friday morning, on the fourth day of jury deliberations in the Daniel Penny trial, Judge Maxwell Wiley announced that the jury had delivered him a note. “We, the jury, are unable to come to a unanimous vote on count one—manslaughter in the second degree,” it read.
Penny, of course, is the former Marine currently facing a manslaughter charge for his role in the death of Jordan Neely, a black homeless man on a subway 18 months ago. Count one is the more serious of the two charges he faces, and could bring a sentence of up to 15 years in prison if he is found guilty. (The other charge is criminally negligent homicide.)
The jurors had begun their deliberations on December 3, and had spent nearly 20 hours in the jury room when they told the judge they couldn’t come to a unanimous decision.
“I think I have to give them an Allen charge at this point,” Judge Wiley mused, referencing a legal term to instruct the jury to return to their deliberations and try harder to reach a verdict.
The defense, led by attorney Thomas Kenniff, who, like Penny, is a Long Island native, told the judge that a mistrial was called for—meaning Penny would be freed, but the prosecution would have the option of retrying him.
The jury has had plenty of time to hash over “what is in many ways a factually uncomplicated case, an event that transpired over minutes on video,” Kenniff said.
The prosecution wanted the jurors to keep trying—and, ultimately, that’s what the judge decided to do. Wiley told the 12 jurors and four alternates that “it’s not uncommon for juries to have difficulties” in reaching a verdict. He paused, telling them if they couldn’t do that—then they would be replaced with a new jury. “I’m not asking any of you to violate your conscience,” he said. “But I am asking you to deliberate and resume deliberating.”
“I hope that helps,” he added with a sympathetic nod, before putting his glasses aside to watch the jury filter out. “Good luck.”
An hour had passed since the jury of seven women and five men had sent their note to the judge. Now they filed back into the jury room, with some looking defeated with their heads hung low. Their day was far from over.
The afternoon didn’t get any better for the prosecution—or the jurors. After three additional hours of deliberation, the jurors once again sent a note to Judge Wiley. He visibly slumped as he read it: “We cannot come to a unanimous decision on count one: manslaughter in the second degree.”
That meant that the charge that carried a 15-year sentence was off the table. However, the second count, criminally negligent homicide, which has a maximum penalty of four years, is still very much on the table. The jurors had been told by Judge Wiley that they would not have to consider it if they convicted Penny on the more serious first count. So they had not spent any time on it. Count two also has a lower bar for conviction: A person can be found guilty of it when a death results from acting negligent. In this case, it means that, according to the prosecution, Penny failed to perceive the risk he posed to Jordan Neely—even though a “reasonable person” would have.
Once again, the defense demanded a mistrial. Wanting to avoid exactly that scenario, the prosecution told the judge it would drop the manslaughter charge, and continue on with the criminal negligence charge. Its thinking is clear: despite the deadlock on count one, the exhausted jurors may decide that since criminally negligent homicide is a lesser charge, they might as well find Penny guilty and be done with it. Or maybe some of the jurors will agree that Penny acted recklessly, though his actions didn’t justify the original manslaughter charge.
Maud Maron, the former public defender who recently announced that she plans to run against District Attorney Alvin Bragg, who brought the charges against Penny, told The Free Press, “It’s clear they weren’t going to get a conviction on the manslaughter count but they wanted some sort of conviction anyway—and that’s wrong.” She added, “It’s wrong to say that a young man who has no criminal record, who has honorably served his country, and who was clearly trying to protect people, should pay the price of a criminal conviction or jail time.”
Although Judge Wiley was at first hesitant to grant the prosecution’s wish, around 4:00 p.m. he made the decision that the trial would continue with count two deliberations on Monday morning.
“Keep in mind what I told you about working together,” he said to the jurors as they departed for what will undoubtedly be a difficult weekend for all of them.
Olivia Reingold is a reporter for The Free Press. Follow her on X @Olivia_Reingold and watch her video report, co-produced with Tanya Lukyanova and Jana Kozlowski, “What Really Happened Between Daniel Penny and Jordan Neely.”
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