The jury deliberating Daniel Penny’s case continued to struggle Friday to reach a verdict on the former Marine’s involuntary manslaughter charge.

Earlier Friday, the New York jury handed Judge Maxwell Wiley a note noting that it had deadlocked after nearly 20 hours of deliberations on whether Penny, 26, was guilty of killing Jordan Neely, 30, a homeless man , having killed with a chokehold on a New York City subway train in 2023.

Wiley directed the jury to continue deliberations and rejected a request from Penny’s defense attorneys to declare a mistrial.

“It is not the time for a mistrial,” Wiley told attorneys without the jury present, CNN reported, adding that a new trial on the lesser charge may be necessary if a deal on the main charge is not reached.

The verdict must be unanimous. If the jury cannot all agree – the jury is empty – the judge must declare the trial invalid. At this point, the case will not be dismissed but may be retried with a new jury. The prosecution will decide whether to proceed based on factors such as the severity of the issues in the original trial and the chances of a clear outcome in a new trial.

Andrew C. McCarthy, a former assistant U.S. attorney for the Southern District of New York, predicted that the jury would be unable to reach a decision. In an article for the National Review, he indicated that the decision to re-sentence Penny would rest with Manhattan District Attorney Alvin Bragg.

McCarthy said trying Penny again would likely appeal to the progressive base that helped get Bragg elected in New York. But Penny’s trial sparked backlash as some see him as a person who defended others on the train and is now being unfairly accused. So if Bragg has his sights set on statewide office, it might be more advantageous for him to drop the case if there is a mistrial due to a hung jury.

In 1996, the first trial of Erik and Lyle Menendez for the murder of their parents ended with a hung jury, leading to a retrial in which they were ultimately convicted.

Bill Cosby’s first sexual assault trial in 2004 ended in a mistrial as the jury was unable to reach a verdict. In 2017, he was given a new trial and found guilty of sexually assaulting Andrea Constand.

Penny is charged with second-degree manslaughter and involuntary manslaughter in connection with Neely’s death. The jury can consider the involuntary manslaughter charge only if it finds, as directed by the judge, that Penny is not guilty of manslaughter.

After four days and 20 hours of deliberations, the jury remained deadlocked. Penny pleaded not guilty to manslaughter and involuntary manslaughter.

If convicted, Penny could face up to 15 years for manslaughter or up to four years for involuntary manslaughter, but the judge may choose not to impose a prison sentence.

Neely’s father, Andre Zachary, filed a civil lawsuit against Penny for negligence and personal injury, which Penny’s legal team criticized as “unfortunate” while awaiting a verdict.

Penny’s defense claims Neely behaved erratically on the F train on May 1, 2023, shouting threats at passengers. The confrontation lasted several minutes and was partially captured on video, sparking widespread public debate.

His defense argued that Penny acted to protect fellow passengers, citing his Marine Corps training and Neely’s perceived threat. They dispute the city medical examiner’s conclusion that the chokehold was responsible for Neely’s death. They say it was due to a combination of synthetic marijuana use (“K2”), schizophrenia, a genetic disorder and his physical altercation with Penny, a defense pathologist testified.

Prosecutors allege that Penny used excessive force, pointing out that Neely did not physically assault anyone and that the sustained chokehold led to his death.

This is a developing story. More information will be added as it becomes available.

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