Update: The Judge in the Daniel Penny case has dismissed count 1, Manslaughter, in his trial. The jury returns Monday to deliberate on the remaining charges.

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Original Story:

Jurors in the high-profile trial of Daniel Penny informed the court on Friday that they are deadlocked on the top charge of manslaughter in the second degree. Penny, a 26-year-old Marine veteran and architecture student, is accused of killing Jordan Neely, a mentally ill homeless man, during a chaotic incident on a Manhattan subway.

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After four days of deliberations, the jury sent a note to Judge Maxwell Wiley at around 11 a.m., stating, “We the jury request instructions from Judge Wiley. At this time, we are unable to come to a unanimous vote on count 1 – manslaughter in the second degree.”

The manslaughter charge requires prosecutors to prove that Penny acted recklessly when he subdued Neely in a chokehold. Witnesses testified that Neely, who was high on synthetic marijuana (K2) at the time, barged onto the train and threatened to kill passengers during a psychotic episode.

Judge Wiley told attorneys that the jury must resolve the first charge before moving on to the second, criminally negligent homicide, which carries a maximum sentence of four years in prison. Despite objections from the prosecution, Wiley announced plans to deliver “Allen charge” instructions to the jury—a controversial directive urging hung juries to continue deliberating and reach a verdict.

“You’ve been a very good jury, and there’s no reason to think that any other jury in a future trial will be any more intelligent or fair than you are,” Wiley told jurors. He urged them to reexamine the case with a “fresh slate” while respecting their consciences.

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Penny’s defense attorney, Steven Raiser, expressed hope that the jury’s deliberations on the “reasonable person standard” would favor his client. “If the jury finds the government failed to disprove justification, the charges, including the top count, will be dismissed,” Raiser said.

Former NYPD inspector Paul Mauro criticized the trial, stating, “A deadlocked jury on the top charge is not a victory for the defendant in a case that should never have been brought to begin with. Daniel Penny’s liberty remains at risk.”

Neely, a 30-year-old with schizophrenia, had a lengthy criminal history, including a warrant for his arrest at the time of the incident. Witnesses reported that he had shouted threats like, “Someone is going to die today,” prompting Penny to act. Neely later died from the chokehold. Penny remained at the scene and cooperated with law enforcement.

If convicted of manslaughter, Penny faces a maximum of 15 years in prison. A mistrial could lead to a retrial, extending the legal battle and financial burden for the young Marine veteran.