Jurors in the case of Daniel Penny, the man who is on trial after doing exactly what he was trained to do in the military — protect people — and taking out a threat to people on the subway in Manhattan, has come back from the fourth day of deliberations, informing the court that they could not come to an agreement on the main charge: manslaughter. It’s amazing to me that this is even a discussion. Jordan Neely, a mentally ill homeless man, posed a clear threat to the passengers on the subway car. Penny jumped into action and placed Neely in a chokehold and he eventually succumbed to the submission hold.
According to Fox News:
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 then went on to say to attorneys for both sides, despite protests being issued by 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. Wiley said he would give the jurors “Allen charge” instructions after giving the attorneys time to review.
Allen charges refer to jury instructions given to a hung jury urging them to agree on a verdict. They have a controversial history, with critics warning they can push jurors to change their views under peer pressure. They get their name from an 1896 Supreme Court decision in Allen v. United States. Penny’s defense asked for a mistrial to be declared, but the judge said he would give jurors more time and read them the Allen charge instructions.
He then informed the members of the jury that the vote has to be unanimous, and if they cannot come to such an agreement on the top charge, a new trial will be set with a brand new jury.
“You’ve been a very good jury, and there’s no reason to think that any other jury in a future trial will be any more intelligent or fair than you are,” he remarked. He then told members of the jury not to go against their consciences, but to take a closer look at the facts again with a “fresh slate.”
“Given the factual complexity of the case, I don’t think it’s been too long,” he remarked.
He sent them back to the jury room just after noon to pick up deliberations, and 30 minutes later they asked the judge to clarify the definition of a
“reasonable” person as they continue to weigh whether Penny’s actions were reasonable and justified or criminally reckless.
“A deadlocked jury on the top charge is not a victory for the defendant in a case that should never have been brought to begin with,” stated Paul Mauro, a former inspector with the NYPD. “Daniel Penny is a young man spending thousands on attorneys, he faces a civil case, and a district attorney’s office that has chosen ideology over law enforcement may well retry him if we get a mistrial. His liberty remains at risk. This is not justice.”
"*" indicates required fields
To provide some context, Neely, who was 30-years-old, suffered from schizophrenia and told a person in the subway car that someone was going to “die today” and stated he did not care about being sent to prison for life. Penny then grabbed him from behind, applied the chokehold, and brought the outburst to an end. The “victim” had an active warrant at the time of his death.
It’s also been revealed that Neely was high on K2, which is a synthetic form of marijuana that acts as a stimulant. He also had a rap sheet which included the assault of a 67-year-old woman at a different subway station. So this man clearly had a lot of issues and had a past of violent acts. Again, I’d say what Penny did was heroic. He defused a situation before any innocent people were hurt. Neely’s actions are his own. How could Penny have known the guy was high on drugs and a schizophrenic? He saw a threat and did what needed to be done.
Penny remained at the scene and spoke with responding officers. He also agreed to speak with NYPD detectives at the Fifth Precinct building. “He was talking gibberish … but these guys are pushing people in front of trains and stuff,” he told investigators. There were more than 20 subway shoves in the year before Penny’s encounter with Neely.
Just three days earlier, a straphanger had been stabbed with an ice pick on a J train, according to reports from the time. It was about a month after a PBS reporter got sucker punched on a No. 4 train. There was a shove a week before that, and the victim hit the side of a moving R train and survived.
If Penny were to be convicted of the crimes he’s been charged with, he could end up spending 15 years in prison.