In their first statement of the day, jurors in Daniel Penny’s involuntary manslaughter and involuntary manslaughter trial reported that it was “not possible to reach a unanimous vote” on whether Penny found manslaughter second in the death of Jordan Neely, a homeless man committed. in the New York subway.

“We, the jury, ask Judge Wiley for instructions. At this time, we are unable to reach a unanimous vote on court one,” the note reads.

Judge Maxwell Wiley gave the jury an Allen charge, which refers to juror instructions to a vacated jury that encourage them to continue deliberating despite the deadlock. It gives the lawyers time to think about the next steps.

Penny’s attorney, Thomas Kenniff, unsuccessfully sought a mistrial, arguing that the Allen charge was “coercive.”

Wiley disagreed, saying it was “too early” to declare a mistrial without encouraging the jury to continue its deliberations.

Since the jury received the case on Tuesday, they have deliberated for more than 20 hours.

Penny, a 25-year-old former Marine, held Neely, a 30-year-old homeless man, in a chokehold for six minutes after Neely boarded a subway car erratically, according to police. Witnesses described Neely screaming and moving erratically, with Penny’s lawyers describing Neely as “insanely threatening” as Penny put Neely in a chokehold.

The city’s medical examiner concluded that Neely was killed by Penny’s chokehold.

Penny pleaded not guilty to charges of manslaughter and involuntary manslaughter.

The verdict form asks the jury to decide on the first count – second-degree manslaughter – before potentially moving on to the second count, involuntary manslaughter. Only if Penny is found innocent on the first count can involuntary manslaughter be considered on the second count.

The second-degree manslaughter charge only requires prosecutors to conclude that Penny acted recklessly and not intentionally.

“It would be a crazy result if the jury were to stop moving forward just because they can’t proceed to the second count?” said prosecutor Dafna Yoran.

Yoran also told Wiley that a new trial “would ultimately occur if the case is dismissed.”

Wiley left unanswered the question of whether the jury could move on to the second count if it could not reach a verdict on the first count. He said he thought it was possible for the jury to move on to the second count, but would have to find the legal authority to do so.

“I think ultimately we have to answer the question of whether they can move to the second count,” he said.

Twenty minutes after the judge encouraged them to continue deliberating despite their deadlock, the jury sent back another message asking for more information about the term “reasonable person” in their instructions.

“Ultimately, you have to decide what a reasonable person is,” Wiley told the jury in response to her note, referring them to a two-part test in the jury instructions.

To convict Penny of manslaughter, the jury must be satisfied that Penny acted recklessly and grossly deviated from the conduct of a reasonable person because she was aware of the danger his conduct posed.

“Given the circumstances and what the defendant knew at the time, would a reasonable person have had the same honest belief as the defendant?” Wiley asked, referring to the second part of the test.

Before the jury entered, Wiley noted how the “reasonableness standard” was introduced in People vs. Goetz – another high-profile New York trial after Bernhard Goetz shot and killed four teenagers on a New York subway in 1984 after they allegedly tried to rob him. A New York jury convicted Goetz of one count of carrying an unlicensed firearm but acquitted him of the more serious charges, and the trial sparked a national debate about race and crime that was reflected in the Penny case forty years later.