A judge agreed to dismiss the manslaughter charge in the trial of Daniel Penny, the former Marine accused of killing Subway actor Jordan Neely with a chokehold in May 2023, after jurors sent notices twice that they could not come to a unanimous verdict. This means involuntary manslaughter remains on the table.

The development came as deliberations stretched into the fourth day on Friday. The jury was not allowed to consider the second count, involuntary manslaughter, until it reached a unanimous decision on the manslaughter count. The judge sided with prosecutors and dismissed the main charge Friday despite objections from the defense.

The jury was then sent home for the day,

Penny had pleaded not guilty to both charges.

Earlier this week, jurors asked to review police and bystander videos at the heart of the case. On the second day of deliberations, the anonymous jury also asked to hear part of testimony from a city medical examiner. The request included her testimony about issuing a death certificate without obtaining toxicology test results for Neely.

Penny has pleaded not guilty to manslaughter and involuntary manslaughter.

Prosecutors say he recklessly squeezed Neely’s neck too hard and for too long. Penny’s defense contends he acted justifiably to protect subway riders from Neely, whose erratic behavior and threatening words frightened riders.

Jurors took a second look at bystander video, which captured much of the restraint. body camera videos from responding officers; and police video of Penny’s subsequent interview at the police station with detectives.

A key aspect of Penny’s defense is challenging the city medical examiner’s finding that the chokehold killed Neely.

In part of testimony the jury heard again Wednesday, city medical examiner Dr. Cynthia Harris, Neely’s autopsy, the bystander video and the results of the investigation would have given her all the information she needed.

“No toxicology result you can imagine would change my mind,” she said, even if they showed “enough fentanyl to kill an elephant.”

Fentanyl is a powerful opioid that caused an estimated 75,000 overdose deaths in the U.S. last year. When Neely died, it was eventually discovered that he had another drug – synthetic marijuana, often known by its street name K2 – in his system. Harris testified that K2 overdose deaths are very rare, especially in people with normal hearts, as was the case with Neely.

A pathologist hired by the defense testified that Neely died from a mix of schizophrenia, K2 use, a genetic disorder and his fight with Penny.

Witnesses said Neely boarded a train in Manhattan on May 1, 2023, began moving erratically, screaming about his hunger and thirst and proclaiming that 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 “just put him in a chokehold” and “took him out” to make sure he didn’t hurt anyone.

The case has sparked 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. Penny is white while Neely was black.

A few protesters have routinely gathered outside the courthouse to denounce Penny as he comes and goes. A few Penny supporters also showed up, sometimes holding a flag.