Manslaughter charge dismissed in Daniel Penny chokehold case; jury considers lesser charge

NEW YORK ? A judge in Daniel Penny's case on Friday dismissed a charge of second-degree manslaughter in the death of Jordan Neely, leaving the jury to consider a lesser charge of criminally negligent homicide. Prosecutors asked the judge to dismiss the first more serious count after jurors remained deadlocked Friday afternoon.

Neely, an unarmed homeless man, died after former Marine Penny placed him in a chokehold on a crowded subway car last year. Neely had been screaming at passengers.

A jury began deliberations this week after hearing more than a month's worth of witness testimonies and evidence presented by lawyers. They sent a note to the judge Friday morning saying they could not reach a unanimous verdict on the charge of manslaughter, defense attorney Steve Raiser told USA TODAY. The judge responded with instructions to keep deliberating, Raiser said.

Court was adjourned late Friday afternoon and the jury will continue deliberating Monday, Raiser said.

Video of Neely's death gained national attention and sparked days of protest in New York after police questioned Penny and initially released him from custody after the killing on May 1, 2023. Neely, a Michael Jackson tribute artist, was well-known in and around Times Square, where he danced dressed up like the pop icon.

Penny told responding officers that Neely, 30, "came on the train threatening people. I put him out" to keep him from harming fellow subway riders, according to court documents.

During the trial, which began with jury selection Oct. 21, Penny, 26, was accused of recklessly disregarding the risk his chokehold would lead to Neely's death that day on the train car floor.

Penny's charge of second-degree manslaughter would have carried a prison sentence of up to 15 years, and the conviction of criminally negligent homicide could carry a sentence of up to four years, the Manhattan District Attorney's Office said. But there is no minimum prison sentence, and if he's found guilty, the judge could decide on a sentence that involves no prison time, the Manhattan District Attorney's Office said.

Daniel Penny trial: What both sides argued

Prosecutor Dafna Yoran argued Penny should have known Neely's life was at risk as the approximately 6-minute-long chokehold starved the 30-year-old Black man of oxygen. Yoran also argued Penny was unnecessarily reckless when he continued to hold Neely's neck long after Neely stopped posing a threat to passengers.

Penny's defense argued Neely was acting "psychotic" and threatened to kill people in the subway car. Penny stepped in to protect all the people onboard, several of whom Neely lunged at before Penny placed him in the chokehold, defense attorney Thomas Kenniff said. Passengers had no way of knowing Neely did not have a weapon on him, Kenniff said, and several passengers feared for their life.

The defense team also argued Penny's chokehold alone could not have caused Neely's death, and that Neely's blood suffered an extreme sickle cell crisis on the train floor, blocking the flow of oxygen. However, a medical examiner testified Neely's death was caused by "compression of the neck," and not other health issues.

Who was Jordan Neely? A 'young man in real crisis,' advocates say

The prosecution argued Penny did not hesitate before placing Neely in a chokehold and failed to try to defuse the situation another way. Another bystander who came to Penny's aid offered to hold Neely's arms down so Penny could let go of Neely's neck, but instead Penny kept tight hold even after Neely's body went limp, Yoran told jurors.

"He used far too much force for far too long," Yoran said.

Throughout the trial, about a dozen protesters gathered outside the Manhattan Criminal Court most mornings, demanding justice for Neely and his family. The demonstrators' chants could be heard from the street below inside the 13th floor courtroom, and on the first day of the trial, Judge Max Wiley instructed the jury to ignore the noise and focus on the evidence presented by lawyers.

Mental health, drug use front and center in trial

Neely experienced mental health problems throughout his life, according to court records, and was homeless off and on since he was a teenager, when his mother was brutally murdered by her boyfriend in the family's home in New Jersey.

On May 1, 2023, Neely entered the F subway train in Lower Manhattan and immediately began yelling, saying he was ready to go to jail for life, court records show. Kenniff also pointed to evidence that Neely suffered from schizophrenia and was high on K2, a synthetic cannabinoid, at the time of the incident.

Jurors' personal experiences with violent crime, mental illness and drug use in the nation's largest city ? particularly on the subway ? likely play a major role in their deliberations, said David Barnard, a lawyer and director of jury selection at Magna Legal Services who has studied the case.

During jury selection, prospective jurors were asked about their experiences riding the transit system. Some who were selected said they ride the subway regularly and saw outbursts like that of Neely, said Barnard, who was not involved in the case.

"Some people can see outbursts and say this is typical, run-of-the-mill New York City," said Barnard, who lives in Brooklyn. At the same time, many New Yorkers may feel the massive subway system is unsafe and out-of-control, Barnard said.

This article originally appeared on USA TODAY: Daniel Penny verdict: One charge dismissed, jury still deliberating