A Manhattan judge on Friday ordered a deadlocked jury to return next week to consider an involuntary manslaughter charge against 26-year-old former Marine Daniel Penny, who killed a homeless man aboard a New York City subway car last year Stranglehold had killed.

Penny was charged with second-degree manslaughter and involuntary manslaughter in the May 2023 death of 30-year-old Jordan Neely.

On its fourth day of deliberations, the jury – made up of seven women and five men – told Judge Maxwell Wiley that they could not reach a unanimous decision on the second-degree manslaughter charge.

Wiley told the jury that they had to try to reach a unanimous verdict on the manslaughter charge. After three more hours of deliberations, the court sent a notice to the judge that it was still unable to do so.

Prosecutors then told Wiley they would be willing to dismiss the involuntary manslaughter charge so the jury could consider involuntary manslaughter. The defense requested a mistrial. Wiley granted the prosecutor’s request.

The jury had been instructed by Wiley not to consider the second, lesser charge of involuntary manslaughter until they had reached a unanimous decision on the first.

Earlier this week, jurors sent numerous notes to the judge asking them to view the police and bystander videos at the heart of the case, as well as the testimony of Dr. Cynthia Harris, the medical examiner who performed Neely’s autopsy.

How the incident unfolded

Penny, an architecture student, was on his way to the gym when he met Neely on an uptown F train in Manhattan on the afternoon of May 1, 2023.

Witnesses say Neely behaved erratically after getting on the train before Penny put him in a chokehold. Some witnesses told police that Neely yelled at other passengers, threw his jacket on the floor, complained about being hungry and thirsty and threatened to hurt people on the train. Others did not report hearing these threats.

Video taken by a fellow passenger shows Penny on the ground holding Neely in a chokehold while two other men stand above them. Penny then lets go of Neely, who lies motionless on the floor of the train.

When police arrived, Neely was unresponsive and first responders were unable to revive him. He was then taken to a local hospital where he was pronounced dead.

Footage of the chokehold was shared widely online and sparked protests across the city.

Penny later told police that he “just put Neely in a chokehold” and “took her out” to make sure he didn’t hurt anyone.

What has happened so far during the process?

Prosecutors from the Manhattan District Attorney’s Office argued that Penny’s chokehold – which lasted about six minutes – became reckless when he held on for too long, beyond the point where Neely posed some sort of threat to fellow passengers.

Penny’s lawyers argued that he “saw a real threat and took action to protect the lives of others” and that he restrained Neely using a “variation of a non-lethal choke hold” that he adopted from the martial arts training he received learned as a marine. In doing so, they suggested that Neely’s death could have been caused by something else.

But Harris, the medical examiner, testified that there was “no reasonable explanation” for Neely’s death other than Penny’s chokehold.

Harris had ruled the cause of death was compression of the neck or asphyxia.

Jurors were shown a video of an interview Penny gave to police in which he demonstrated how he held Neely in a chokehold.

“He turned his back to me and I grabbed him and took him to the ground and he’s still squirming around and freaking out,” Penny can be heard saying in the video.

The defense also argued that Neely had already been arrested at the time of his death and had a history of mental illness and drug use.