NEW YORK – Jurors in Daniel Penny’s chokehold trial deliberated for just an hour for a fourth day Friday before telling the court they could not agree on the main charge, manslaughter, as they considered the fate of a 26-year-old man. Year-old Marine veteran and architecture student accused of killing a mentally ill homeless man who had threatened to kill people in a subway car in Manhattan.

At about 11 a.m., the jury sent a note to the court saying, “We, the jury, request instructions from Judge (Maxwell) Wiley. At this time, we are unable to reach a unanimous vote on Count 1 – Second Degree Manslaughter.”

The prosecution wants prosecutors to prove that Penny acted recklessly when he grabbed Jordan Neely in a chokehold. According to court testimony, Neely stormed onto the train while under the influence of drugs and threatened to kill passengers during a psychotic episode.

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Daniel Penny leaves the Manhattan Criminal Courthouse on Thursday, December 5, 2024 in New York City. (Adam Gray for Fox News Digital)

“In this case, I think they cannot move forward with Count 2 unless they find the defendant not guilty on Count 1,” Wiley told lawyers for both sides, despite protests from prosecutors. “I must at least try to ask the jury to reach a verdict on Count 1.”

The second case is a lesser charge of involuntary manslaughter, which carries a maximum penalty of four years in prison.

Wiley said he would give jurors instructions on the “Allen charge” after giving attorneys time to review.

Allen’s charge relates to jury instructions to a vacated jury asking them to agree on a verdict. They have a controversial history and critics warn they could pressure jurors under peer pressure to change their views. They get their name from an 1896 Supreme Court decision in Allen v. United States.

Penny’s defense asked for a mistrial, but the judge said he would give the jury more time and read them the instructions for charging Allen.

He told the jury that their vote must be unanimous and that if they could not reach a unanimous verdict on the main charge, a new trial would have to be scheduled with a new jury.

Jordan Neely is pictured before seeing the Michael Jackson film “This is It” outside the Regal Cinemas at 8th Avenue and 42nd Street in Times Square in New York in 2009. (Andrew Savulich/New York Daily News/Tribune News Service via Getty Images)

“You were a very good jury and there is no reason to believe that another jury will be smarter or fairer than you in a future trial,” he said.

He urged them not to violate their conscience, but to look at the facts again with a “new perspective.”

“Given the factual complexity of the case, I don’t think it was all that long ago,” he said.

He sent them back to the jury room shortly after noon to begin 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 main charge is not a victory for the defendant in a case that should never have been tried in the first place,” said Paul Mauro, a former NYPD inspector. “Daniel Penny is a young man who is spending thousands on lawyers, he is facing a civil case, and a district attorney who has chosen ideology over prosecution could well seek a new trial against him in the event of a mistrial. His freedom remains in danger. This is not justice.”

Screenshot of bystander video showing Jordan Neely being held in a chokehold on the New York subway. (Luces de Nueva York/Juan Alberto Vazquez via Storyful)

Neely was a 30-year-old with schizophrenia who told straphangers that someone was “going to die today” and that he didn’t care about going to prison for life. Penny grabbed him from behind in a chokehold to stop the outburst.

Neely later died. He had an active arrest warrant at the time. He had a high use of K2, a synthetic marijuana drug that acts as a stimulant, and his lengthy criminal record included a 2021 attack on a 67-year-old woman at another subway station.

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Penny remained at the scene and spoke with responding officers. He also agreed to speak with NYPD investigators at the Fifth Precinct building.

“He was talking nonsense … but these guys are pushing people in front of trains and stuff,” he told investigators. In the year before Penny met Neely, there were more than 20 subway scuffles.

Daniel Penny arrives at Manhattan Criminal Court on Thursday, December 5, 2024 in New York City. The jury begins its third day of deliberations in Penny’s trial for the 2023 death of Jordan Neely on a Manhattan F train. (Adam Gray for Fox News Digital)

Just three days earlier, a straphanger on a J train was stabbed with an ice pick Reports from the time. It took about a month for a PBS reporter to arrive Idiot beaten on a No. 4 train. A week earlier there was a collision in which the victim crashed into a moving R train and survived.

In this climate of fear, witnesses said they were afraid of Neely, who shouted death threats at them.

Witness Ivette Rosario, a 19-year-old student, testified that Neely screamed that someone was “going to die that day.”

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Penny faces a maximum sentence of 15 years in prison if convicted of the more serious charge.

Fox News Research contributed to this report.