Daniel Penny Jury Says Unable To Reach Verdict On Manslaughter Charge
The jury in the Daniel Penny trial has been deliberating for three days, and it just informed the Judge that it is unable to reach a verdict on the most serious charge, manslaughter in the second degree.
The jury in the Daniel Penny trial has been deliberating for three days, and it just informed the Judge that it is unable to reach a verdict on the most serious charge, manslaughter in the second degree:
The Manhattan jury deliberating Daniel Penny’s case in the chokehold death of Jordan Neely on a New York City subway last year is deadlocked on the manslaughter charge, according to a note the panel sent to the court Friday.
The 12-person jury sent the note marking its impasse after 16 hours of deliberating since they got the case Tuesday afternoon. The judge and the parties are conferring over how to respond.
Penny, 26, faces one count of manslaughter in the second degree and one count of criminally negligent homicide in Neely’s death.
It is likely the Judge will send them back for further deliberations. We will update this post as more information becomes available and further court proceedings take place.
UPDATES
*UPDATE 3:20PM* The jury came back with a second note, reiterating they’re deadlocked on the first charge.
There is a new note from the Penny jury saying that they are still deadlocked on the first and most serious charge. The court will now have to decided whether it will allow the jury to consider count two and criminal negligence…
— Jonathan Turley (@JonathanTurley) December 6, 2024
…Bragg could seek to drop the first charge and leave only the second charge for the jury. That would materially alter the case, but fits his compromise verdict strategy. Keep in mind that the lesser offense can still come with a four-year sentence.
— Jonathan Turley (@JonathanTurley) December 6, 2024
Fox News adds details:
Around 11 a.m., the jurors sent a note to the court stating, “We the jury request instructions from Judge [Maxwell] Wiley. At this time, we are unable to come to a unanimous vote on court 1 – manslaughter in the second degree.”
The charge requires prosecutors to prove that Penny acted with recklessness when he grabbed Jordan Neely in a chokehold. Neely had barged onto the train while high on drugs, threatening to kill passengers during a psychotic episode, according to trial testimony.
“In this case, I think that they can’t move on to count 2 unless they find the defendant not guilty of count 1,” Wiley told attorneys for both sides, despite protests from the prosecution. “I have to at least try to ask the jury to find a verdict on count 1.”
Count two is a lesser charge of criminally negligent homicide, which carries a maximum punishment of four years in prison.
He then brought up new instructions and gave the attorneys time to review.
An ALLEN CHARGE has been given per News Nation:
The judge in the trial of Daniel Penny, who is charged in the death of Jordan Neely after placing him in a chokehold for several minutes on a New York City subway, implored jurors to reach a verdict Friday.
Judge Maxwell Wiley gave jurors the Allen charge on Friday, which are instructions reminding the jurors of how much time and money has gone into the case and how imperative it is that they reach a decision.
This is the verdict sheet that the jurors in the Daniel Penny case are considering. pic.twitter.com/DLAeEpewQG
— Jerry Dunleavy IV 🇺🇸 (@JerryDunleavy) December 6, 2024
Daniel Penny MOMENTS ago…
Big note earlier from jury:
“At this time we are unable to come to a unanimous vote on Count One: manslaughter in the second degree."
Jury RECEIVED an Allen charge from Manhattan Supreme Court Judge Maxwell Wiley
Deliberations RUSUME… pic.twitter.com/lUFqow36It
— Kyle Schnitzer (@Kyle_Schnitzer) December 6, 2024
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Comments
Good to know there was at least one sane person on the jury.
Sane person for the most serious charge. We have no way of knowing if that sanity is going to extend to the other charge, criminally negligent homicide. While not as serious as the primary charge, it’s still a felony with a potential sentence of several years.
Remember Berie Getz?
What if some of these juros ride the subway?
But certainly not all of them. Since that might cause “bias” in their decision.
/leftist attorney
Or one BLM who wants a guilty no matter what
Deadlock on the headlock!
Pure insanity that he isn’t already acquitted. The process is its own punishment and we have a bunch of ideological idiots on juries these days.
IANAL. But, it seems like the best outcome he can hope for now is a hung jury on the lesser included charges as well. If there’s at least 1-juror holding out for guilty on the most serious crime – 2nd degree manslaughter (IIRC) – then it’s unlikely that juror (or jurors) would find him not guilty on the charge that is based on pure negligence. This is a travesty, albeit an unsurprising one. I thought hung jury was always going to be the best outcome he could hope for, unfortunately. Perhaps if it’s just one or two idiots holding out, Bragg won’t refile.
To clarify, the alternative charge is just that, alternative, and not a lesser-included charge…. I think. In any event, if they can’t find him not guilty on the primary charge, it seems impossible they can find him not guilty on the alternative charge. But, they could conceivably find him guilty on that alternative charge. What an absolute travesty. Get out of NY.
I’m not sure of that. I think they are separate charges.
They are. It was a two-count indictment. The 1st count was 2nd-degree manslaughter. The 2nd-count, was criminally negligent homicide. If they would have found him guilty on the 1st count, then they wouldn’t have proceeded to the 2nd-count. The 2nd-count is essentially a back-up conviction plan for Bragg. Some jurisdictions these are called alternative charges and in other, ‘lesser-included’ charges. I’m not sure how they’re described in NY crimlaw.
Choose Your Own Adventure Charges. What a sick mockery of justice.
You can be charged twice for the same crime? Isn’t that double jeopardy? If he is found innocent of the more serious crime how could he be guilty of the lesser charge. I would think they should have to bring a separate trial not have a basket of outcomes like that. I’ll point out I know nothing of the criminal justice system having never been involved with it outside of a fishing without a license which cost me $52.
I’m of the belief that there should never be alternate or lesser charges. The prosecution should only be permitted to take their best swing at the charge it believes can be successfully prosecuted. Alternate and lesser charges are nothing by psychological ploys meant to encourage jurors to find guilt in some charge, usually a lesser one, even when justice might be better served with a “not guilty” verdict. Used for this purpose, such charges encourage over-charging for offenses the prosecution knows or suspects it can’t prove. This is unfair and unjust.
Dave,
Agreed. No second bite at the apple on the same facts should be possible. The State should be required to make its charging decision based upon the highest charge that the facts will support and that a reasonable jury would convict. Bring that charge and let the jury decide to convict or not and if not everyone gotta live with the defendant walking out free.
No, it isn’t. He’s only being put in jeopardy once.
Very easily. I don’t even understand your question. How could it not be possible for someone to be guilty only of criminally negligent homicide but not of manslaughter? The crime of criminally negligent homicide exists for a reason. Very often someone is charged only with that and not with anything more serious such as manslaughter. So a jury could easily find that what he did doesn’t amount to manslaughter, but it does amount to criminally negligent homicide.
Or they do the opposite. A juror faced with a bad guy who has done something seriously wrong and belongs in prison, but who is not convinced by the evidence for the greater charge might be tempted to convict anyway. By including an alternative lesser charge the juror feels free to acquit on the greater charge.
I don’t know if the word of Mayor Adams holds any weight with Bragg, but Adams has been speaking out this week that Penny should not have been put on trial
So Eric decided to try and be centrist for a day?
It’s clear that Adams is feeling the cumulative effects of all those involuntary red suppositories.
Isn’t this about the time that jurors start being targeted with coercion to reach an anti-racist verdict?
No, it’s time for the feds to arrest all of the lawyers in the prosecutor’s office and take Penny to safety.
I’d be ok with it being local NYers, instead of feds.
Not positive of NY law, but where I live a not-guilty has to be unanimous too so it could also be that there is one hold out to convict.
OR possibly there is one or two hold outs not to convict ? We just don’t know.
Where I live the 5th Amendment says a person can’t be “subject for the same offence to be twice put in jeopardy.” It says nothing about a “not guilty” verdict. A person not convicted is innocent by law (which is why we presume innocence before a trial). We’re also supposed to have a criminal justice system in which the burden of proof rests on the government, not the defendant. The only thing necessary to find the a defendant “not guilty” is the failure of the government to meet its burden of proof. The requirement for a “not guilty” verdict for a jury finding of innocence unconstitutionally places a burden of proof on the defense, when the defense’s only job is to prevent the government from convincing the jury of the defendant’s guilt.
FYI, the constitution of Rhode Island once had “having been found innocent” language in its “double jeopardy” prohibition. When RI adopted a new constitution, that language was replaced by “having once been placed in jeopardy” language. The two versions do not mean the same things. If they did, there would have been no reason to change the language.
Should a mistrial be ruled here, this is the perfect case for raising this issue. I’ve been saying this for decades and only recently did I hear an attorney (Robert Barnes) say the same thing.
This was already decided in 1824, in US v Perez
As a former DA, if the facts are as reported in the news, I’m astounded that there are charges at all.
Obviously you’re not a retarded communist
The prosecutor in the case clearly was most offended by Penny’s race, given her constant characterization of Penny as the ‘white man’. Shouldn’t this kind of behavior both be stopped by a real judge as well as be grounds for a mistrial? Replacing ‘the white man’ with ‘the black man’ as defendant would generate gigabytes of outrage in the flying monkey media.
That ‘Update’ – they can’t move onto the 2nd charge w/o a guilty verdict on the 1st charge – is a welcomed development. Hope that’s correct.
OK, reading some twitter comments from practicing NY defense lawyers, it’s as I feared. While the jury may or may not have already deliberated on the 2nd count of the indictment (the criminally negligent homicide), they’ll eventually have to irrespective if this 1st count is dismissed (the state will move to dismiss that charge if the jury comes back again and tells the judge they can’t reach a verdict on count 1).
TL;dr. Penny’s still in serious jeopardy of being convicted on the lesser felony.
Is the world a marginally better place as a result of this death? I say yes, I am very tired of hearing about good Samaritans being unjustly persecuted.
Penny deserves a citizen citation for bravery.
For better or worse, Marine training left us afraid of little. The subway system’s security had apparently already been taken over by the National Guard. Penny, by law, had the right to defend himself as well as others. Video interviews of women passengers in particular confirm that something heroic was absolutely necessary. You’re right; God bless him for stepping up. Most would’ve cowered in sheer terror. Something is very, very wrong headed about this prosecution.
Someone explain to me why what Penny did was not self-defense and/or defense of others? Moreover, if Penny’s defense counsel did not bring that up in trial, why not?
I’ve been wondering since the trial began why Penny didn’t assert an affirmative defense (self-defense, in this case). Unfortunately, the legal commentary you see on TV almost never gets into this kind of granularity. Maybe there were solid tactical reasons why they didn’t. But, if there were, no one is really talking about them.
Thanks.
Can you speculate as to why his lawyer didn’t do that? Was his lawyer that sure of either a hung jury or innocent charge?
The only thing that really comes to mind is in few states – usually the states where there’s little embrace of self-defense – self-defense can’t be used as an affirmative defense. Maybe NY is one of the states where that’s the case. NY law, criminal law in particular, is really peculiar. I haven’t really read any critical commentary about his legal team. They seem to be regraded as very competent criminal defense lawyers.
I think it’s because self defense is an affirmative defense that admits the underlying conduct—essentially he would be admitting to using deadly force, but argue that it was justifiable to use such force.
So here, they probably don’t want to concede that Penny used deadly force.
It’s hard to argue that he did not use deadly force when death resulted and no one else was involved.
I wouldn’t be surprised to hear New York considers self-defense an affirmative defense. As you mentioned, that involves the defendant admitting to homicide, but then pleading extenuating circumstances to exonerate himself. Here in Arizona, we had some blue legislators slip that into our state laws a couple decades ago. It shifted the burden of proof from the government to the defendant. Instead of the government having to prove the defendant was guilty, the defendant had to prove he was innocent. Our local gun-rights group considered that blatantly unfair, and forced the legislature to rescind it. Now the government has to prove a homicide was NOT self-defense, which is the way it should be.
I did some research. In NY, self-defense is NOT an allowable affirmative defense. Instead, self-defense is argued as a ‘justification’ defense when employed. Penny apparently did that, at least to the degree he could in that state. Moral of the story is: Stay out of New York.
I did not know about NY law not recognizing self-defense as an affirmative defense. Truly a loony state. Thank you very much for your research.
I think the crux here is the same as in the Floyd case: that the hero held the loonie in a restrictive position longer than absolutely necessary, resulting in an unnecessary death.
Maybe I wasn’t clear.
I’m not saying *I* think he did this, I’m presuming it’s part of the prosecution argument.
Only in Manhattan could this happen. Just watching the Trump trials there tells me that NYC has nothing in common with the rest of the US. This should have never been brought to trial, and when it was, there should have been immediate acquittal. I’ve seen blacks with signs demanding “Justice” for Neely! Justice for Neely would have been Riker’s Island years ago. His father is suing Penny just like the odious Trayvon Martin’s mom did in FL. Both totally ignored the problem but wanted to cash in on the results.
Not a Lawyer, but if the first responders found a pulse and made a conscious decision to not attempt to revive, for whatever reason, culpability for the death shifted away Mr. Penny at that point.
The pulse means that he was alive when they arrived and Mr. Neely’s death resulted from their decision to not treat him. Mr. Penny was relieved of criminal responsibility at that point. At least from a “reasonable doubt” perspective.
This non-lawyer’s opinion.
Likewise, not a lawyer. But–if he was alive when the paramedics showed up–sounds like reasonable doubt to me. Given his other problems.
There is no doubt that Penny’s actions were the proximate cause of death, whether Neely died on the floor or in a hospital later. Unlike St Floyd, who ingested a probably lethal dose of drugs and would have died regardless of Derek Chauvin’s actions.
The only legal question is whether Penny’s actions were justified or criminal.
Perhaps. My wife’s an experienced ER doc in a big city. She was explaining that in addition to being difficult to test for, synthetic cannabinoids (which is what K2 is) are, even now, not very well understood, pharmacologically. How they interact with other drugs/alcohol is unpredictable as is what may be a lethal concentration of the drug. Also, there is, apparently, some literature about the abuse of these kinds of synthetic cannabinoids having an unusually detrimental impact on patients with sickle cell. Maybe the choke-hold was the proximate cause of death. But, maybe it wasn’t.
Would that be the second lessor charge? He was alive when the paramedics showed up so manslaughter wasn’t a thing but he did cause the death through reckless action?
The material distinction between counts 1 and 2 is intent. In count 1, the state must prove that Penny should have reasonably understood that his actions had the potential for a lethal outcome. In count 2, the state only has to prove that Penny’s actions were reckless, but not that he reasonably understood them to be potentially lethal as they have to prove in count 1.
An insane person, making credible threats of death and serious bodily harm, was justifiably restrained and unfortunately died as a result. The fact an insane person was loose in public is the fault of the state. The fact that someone making such serious threats and no police were available to intervene is also the state’s failure. Why is only Penny on trial?
A jury, for better or worse, is a reflection of the community from which it was drawn. The Overton window in Manhattan has not shifted to the right as has the rest of the country.
I am curious as to who gets selected for a jury in Manhattan. That they are all liberal Democrats may be presumed. After that stipulation, I have questions. Have any of the jurors ever ridden the subway? Things look different to someone whose black-car service drops them safely into the care of their building’s doorman, and whose housekeeper does all the shopping. Perhaps this sounds a bit exaggerated but
a. You, by definition, have to be a -resident- of Manhattan to be on a Manhattan jury, is it not so?
b. “White-collar workers make up 93.93% of the working population in Manhattan, while blue-collar employees account for 6.07%.”.
You might have to be those things to be on the jury, but it doesn’t mean you are on the jury if you are those things.
First, it seems everyone tries to get out of jury duty. So those without an excuse (like “I have to work to feed my family, and jury pay won’t cut it”) will be left in the pool. Second, this incident was framed as racism – so I’m guessing they worked very hard to exclude every white, working-class potential juror. Then there’s the modern definition of “bias” where you can get excluded for expressing an opinion that the lawlessness with which you live every day is a bad thing and criminals ought to go to jail.
A lot of juries (for cases like this, anyway) are no longer “of your peers” in the original sense, but are of the racial/sexual/political cohort the most powerful attorneys can concoct.
If the jury were to acquit, how long before the names and addresses of the jurors get leaked to the Antifa/BLM brownshirts? A few hours? A day? A week?
It is shameful they didn’t come back with not guilty after no deliberation. This case was a sham in the first place
I saw someone comment that the minute he saw a juror double-masked he knew that a hung jury was the best that Penny could ever expect. But the judge is full-in on the persecution, too.
Sad. Should have been an acquittal after ten minutes of deliberations. This is how stupid people are in NYC.
Add this Soviet show trial case to the sham prosecutions of George Zimmerman and Kyle Rittenhouse, and, the witch hunt of officer Darren Wilson.
That’s crazy. How is something like this even allowed in the court, let alone delivered by the judge?
How about the jury hearing about the time and money that Daniel Penny has had to devote to this persecution of him by the Manhattan DA’s office?
This is a travesty. This never should have even been allowed to go to trial and the DA’s office should have been reprimanded, at the very least, for trying to bring this. This is a case by the Left against America. It is INSANE.
The whole New York judiciary and enforcement apparati are disgusting weapons aimed at normal citizens. The state is an offense to civilized society. Unreal …
“Judge Maxwell Wiley gave jurors the Allen charge on Friday, which are instructions reminding the jurors of how much time and money has gone into the case and how imperative it is that they reach a decision.”
How is time and money relevant to finding a verdict? If time and money were a concern, don’t bring the charges in the first place.
I was on a jury once. Others wouldn’t find the person guilty for any reason (God will judge them) and I and others wouldn’t find him innocent because he was guilty as H@11. Still others were just swaying in the wind just to find a verdict. Those jurors are the worst.
When jurors don’t want to reach a verdict, the judge has a duty to try to persuade them to reach one. Not by going against their honest opinion, but by discussing it more seriously and being willing to be persuaded. In US v Perez, the 1824 SCOTUS decision that upheld a judge’s right to discharge a jury without a verdict (i.e. call a mistrial) without the defendant’s consent, it said that this should only be a last resort. So reminding the jury that this is important and that they have a legal and moral duty, both to the state and to the defendant, to render a verdict if they can, is appropriate. But the judge must emphasize that no juror is to vote against his true belief or conscience; they should be open to changing their mind, but should only change their vote if their mind has indeed been changed.