NEW YORK – The jury in the case against Daniel Penny continued deliberating the case on Wednesday.

In a message from the jury, several pieces of video were requested.

The jury wanted to see police body camera footage, Penny’s interrogation video and bystander video.

The Marine veteran is accused of using a fatal chokehold to overpower a New York City subway driver whose behavior alarmed other passengers.

The anonymous jury is weighing manslaughter and involuntary manslaughter charges in the death of Jordan Neely, a troubled street performer who was homeless. Veteran Penny has pleaded not guilty and maintains his actions were justified.

Given the complexity of the closely watched case, the jury on Tuesday asked within the first 75 minutes of deliberations to repeat Judge Maxwell Wiley’s instructions on justification objections and definitions of the crimes charged. After the re-reading and another 90 minutes of deliberation, the jury headed home without reaching a verdict.

Penny, 26, said he was protecting other subway riders and only wanted to restrain Neely and hold him for police, not to hurt him. Prosecutors say the Marine veteran used far too much force for too long when he grabbed Neely by the neck for about six minutes.

The case has sparked a lively debate about public safety, societal responses to mental illness and homelessness, the line between self-defense and aggression, and the role of race in all of it.

A small number of protesters outraged by the death of Neely, who is black, form a tableau of dissent surrounding the case and routinely wait for Penny, who is white, to appear in court, as does a Penny supporter. Some well-known Democratic politicians paid tribute to Neely at her funeral, while Penny received support from prominent Republicans.

New York City Mayor Eric Adams, a Democrat, called the case this weekend an example of the failure of the mental health system that ultimately led to Neely making threats in a subway car.

“We need to recognize that we have a mental health crisis and we are not doing enough to solve it,” the mayor said in a radio interview with WOR-AM. He added that he did not want to prejudge the jury’s decision.

Neely, 30, sometimes entertained passersby with Michael Jackson impersonations, but also struggled with depression, schizophrenia and drug use after his mother was strangled in his teenage years. Penny was an architecture student and served in the Marines for four years.

Witnesses said Neely boarded a train beneath Manhattan on May 1, 2023, began moving erratically, screaming about his hunger and thirst and proclaiming he was ready to die, go to prison or – like Penny and some other passengers remembered – to kill.

Penny came up behind Neely, grabbed him by the neck and head, and brought him to the ground. The veteran later told police that he “choked” and “suffocated” Neely to make sure he didn’t hurt anyone.

The city’s medical examiner concluded that Neely was killed by having his neck compressed in a chokehold. A pathologist hired by Penny’s defense disputed this finding and attributed the death to a number of other factors.

Penny’s lawyers argued that he used so-called “civilian restraint,” a departure from the chokehold technique he had been taught in the military to control Neely without rendering him unconscious. Prosecutors say Neely was so trained that he knew what he was doing could be fatal.

Wiley told jurors Tuesday that if Penny were convicted of manslaughter, they would not be asked to return a verdict on the lesser charge of involuntary manslaughter. If they decide he is not guilty of manslaughter, they will consider the second charge.

In the case of involuntary manslaughter, it must be proven that a defendant recklessly caused the death of another person. The standard includes, among other things, the conscious disregard of a significant and unreasonable risk that an action will be fatal.

Involuntary manslaughter, on the other hand, is serious “criminal behavior” in which one is unaware of such a risk.

Both charges are felonies. Neither carries a mandatory prison sentence, but both carry the possibility of one – up to 15 years for manslaughter or four years for involuntary manslaughter.

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