new York
CNN
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Manhattan jurors deliberating Daniel Penny’s case in the chokehold death of Jordan Neely on a New York City subway last year said Friday they were deadlocked on the involuntary manslaughter charge, but the judge ordered them to pass continue consultations.

Judge Maxwell Wiley issued the order over the objections of Penny’s defense attorneys, who had requested a mistrial because of the deadlocked group of 12 Manhattanites.

“This is not the time for a mistrial,” Wiley told attorneys outside the presence of the jury.

The jury sent out the note, marking their deadlock after 16 hours of deliberations since receiving the case Tuesday afternoon.

A male juror shook his head and looked down as Wiley instructed the jury to be “flexible” in their deliberations.

Penny, 26, a former Marine, faces one count of second-degree manslaughter and one count of involuntary manslaughter over Neely’s death.

According to the judge’s instructions to the jury, Penny cannot be convicted on both counts. The jury can only consider the involuntary manslaughter charge if they find Penny not guilty of second-degree manslaughter.

The Manhattan district attorney’s office agreed with the judge’s decision to instruct the jury to further consider the involuntary manslaughter charge, while defense attorney Thomas Kenniff argued they were hopelessly deadlocked.

“The jury deliberated for approximately 20 hours over four days on what was in many respects a factually straightforward case, an event that unfolded over minutes on video,” Kenniff said.

If convicted, Penny could face up to 15 years in prison for involuntary manslaughter or up to four years in prison for involuntary manslaughter. Alternatively, the judge could decide not to sentence Penny to prison.

Neely, a 30-year-old street artist who has struggled with homelessness, mental illness and drugs, boarded a New York subway car on May 1, 2023 and began behaving erratically. He threw away his jacket and yelled at passengers that he was hungry and thirsty and didn’t care if he died, witnesses said. Penny, a subway passenger, grabbed Neely from behind in a chokehold, forced him to the train floor and held him there for several minutes. When police arrived and Penny let go of the hold, Neely did not respond.

Several minutes of the chokehold were captured on a bystander video that quickly went viral. This video, as well as Penny’s interview with NYPD investigators in which he explained his actions and autopsy results, were key pieces of evidence in the trial.

“I wasn’t trying to hurt him,” Penny told police. “I’m just trying to stop him from hurting anyone else. He threatened.”

Prosecutors said Penny acted recklessly by keeping Neely in a chokehold for so long, even after Neely stopped moving, while his defense said he acted to protect others from a threat.

The case has polarized New York residents, many of whom have had personal experiences with subway disruptions, and raised far-reaching questions about mental health, race relations and the line between protector and vigilante. Black Lives Matter protesters have added Neely’s name to the list of victims — including right outside the courthouse — while others have praised Penny’s efforts to protect others.

In their closing argument Monday, the defense argued that Penny “was justified in the actions he took to protect the other drivers.”

Neely “was on a collision course with himself” and Penny “acted when others couldn’t,” defense attorney Steven Raiser said during his two-hour closing argument.

The defense has also challenged the medical examiner’s determination that Neely died from the chokehold, claiming the charges were brought because of “a rush to judgment based on something other than medical science.”

Prosecutor Dafna Yoran said in her closing arguments that Penny wanted to protect fellow passengers, but “he simply didn’t realize that Jordan Neely’s life also needed to be saved.”

“We are here today because the defendant used far too much force for far too long and far too recklessly,” she said.

The trial began with jury selection in late October and included testimony, video recordings and 911 calls from subway drivers, responding police officers and martial arts and medical experts.

Prosecutors called more than 30 witnesses to the stand, including a man who helped hold Neely’s arms during the fight and testified that he advised Penny to loosen his grip. “I’m going to grab his hands so you can let go,” Eric Gonzalez said he told Penny.

Additionally, Gonzalez was heard in video footage of the incident saying that Penny did not “squeeze” Neely’s neck in the 51 seconds before he released the chokehold. Gonzalez also testified that he initially lied to investigators about what he saw and did on the subway out of fear that he would be “held” for the murder. He testified that prosecutors had promised not to charge him in the case.

Additionally, the Marine Corps martial arts expert who trained Penny in chokeholds testified that Penny was aware that the holds could be fatal.

Several subway riders testified that they were terrified that Neely would attack and were relieved when Penny put him in a chokehold and held him there.

“Holding him for the moment was a relief, but if he had gotten up, he would have done what he did,” said subway driver Caedryn Schrunk.

The defense’s case focused on highlighting Neely’s threatening behavior, character witnesses from Penny’s time in the U.S. Marines and challenges to the medical cause of Neely’s death.

Penny served as a sergeant in the Marines for four years, from 2017 to 2021, with his most recent deployment to Camp Lejeune in North Carolina, military records show.

The city medical examiner who performed Neely’s autopsy and testified for the prosecution concluded that the cause of death was “neck compression (stranglehold).” She made this decision after conducting an autopsy She testified that she watched the cell phone video on the subway but didn’t wait for the toxicology report.

The defense presented its own medical expert who said Neely died from a combination of factors, including a sickle crisis related to his sickle cell anemia, a schizophrenic episode, fighting and being restrained by Penny, and K2 poisoning.

The jury began deliberating Tuesday afternoon. During the first two days of deliberations, jurors sent several notes to the court asking to review video evidence and repeat portions of juror instructions and statements during the trial.

Separately, Neely’s father filed suit in New York Supreme Court on Wednesday, accusing Penny of assault, battery and causing Neely’s death. Andre Zachery, who is listed as the executor of Neely’s estate, accused Penny of causing the death “through negligence, carelessness and recklessness.” The lawsuit does not specify how much money the family is seeking.

Penny’s defense attorney, Kenniff, did not respond to a request for comment on the lawsuit.

This is a developing story and will be updated.