The Daniel Penny jury has announced it cannot reach a unanimous verdict on the main charge he faces.
The jury told the judge today that they cannot agree on whether Penny is guilty of second-degree manslaughter.
They have yet to reveal where they stand on the second charge: criminally negligent homicide.
Penny faces 15 years in prison if convicted of the most serious charge.
The judge previously ruled that they cannot proceed with the second charge of negligent homicide before acquitting Penny of manslaughter.
For manslaughter, the state had to prove that Penny acted recklessly. In this case, this would require that Penny was aware of the significant risk to Neely’s life posed by his actions, and had chosen to ignore that risk.
To convict Penny of negligent homicide, the state had a lesser burden of proof Penny didn’t necessarily recognize the risk, but his behavior was still “culpable” and a “gross departure” from what a reasonable person would have done.
The Public Prosecution Service wants to protest the decision and ask the judge to let the jurors proceed without reaching a verdict on the most serious charge.
“It would be a crazy outcome if the jury were hung just because they are not allowed to proceed to the second count,” Assistant District Attorney Yoran argued.
Daniel Penny arrives in court Friday
Prosecutors are determined to secure a conviction on one of the charges, so much so that representatives from the Manhattan district attorney’s office have contacted journalists reporting on the case to try to increase news coverage of the proceedings to influence.
The 26-year-old Marine veteran is charged with manslaughter and negligent homicide in the May 2023 death of 30-year-old Michael Jackson impersonator Jordan Neely.
Neely was behaving erratically on the subway and threatening passengers when Penny put him in a chokehold that prosecutors said went “too far” and ultimately killed Neely, who was homeless and mentally ill.
If convicted, he faces up to 15 years in prison.
Under a barrage of public criticism for filing charges, prosecutors in Alvin Bragg’s office have been on a mission to remind the jury that Penny may receive no jail time at all even if he is found guilty.
That’s because there is no minimum sentence for two of the charges he faces.
The district attorney’s office has contacted news media, including the Daily Mail, asking them to highlight this fact.
Penny’s lawyers say this is a last-ditch effort to get the jury to convict him, because they believe they will be more inclined to do so if they know he won’t languish in prison for years.
The May 2023 incident caused an uproar in America – BLM says it was the racist murder of a mentally ill black man by an overzealous white military believer
Penny put Neely in a chokehold on the subway floor while others assisted on May 1, 2023
“The district attorney’s attempts to cause the jury to speculate on a possible sentence are both inappropriate and misleading.”
“While it is technically true that these charges do not have a mandatory minimum, most crimes in New York do.
“It is equally true that the maximum penalty is fifteen years in state prison.”
Defense attorney Danielle Iredale said the prosecutor’s message is essentially telling jurors not to worry about Penny’s fate if convicted because he will never spend a day in jail anyway.
‘Lawyers are not allowed to mention possible punishments at trial – the reasoning is that it would be an attempt to seek sympathy from jurors who could then reach a verdict based on something other than the facts, in other words: ‘He is possible guilty. but ten years is too much time,” she said.
‘There is a hypocrisy in the messages from the public prosecutor. In an attempt to publicize the fact that there is no statutory minimum sentence, they are essentially saying, “It’s okay to convict, he can’t go to jail!”
Jurors are still deliberating Friday morning. They have returned several notes to the courtroom asking for clarification on key details of the trial.
Significantly, they asked the judge to repeat his instructions regarding the “justification defense.”
As he handed down jury instructions Tuesday afternoon, Judge Wiley made a concerted effort to explain in detail how justification works in a case like this.
District Attorney Alvin Bragg’s office had contacted the media and told them to include in their stories that Penny’s charges did not carry a minimum sentence, Kenniff claimed in court.
Assistant District Attorney Dafna Yoran reiterated the possibility that Penny may not face jail time if found guilty. The district attorney’s office asked reporters to update their stories during the trial to reflect that fact