A judge agreed to dismiss the manslaughter charge in the trial of Daniel Penny, the former Marine accused of killing subway performer Jordan Neely with a chokehold in May 2023, after jurors twice sent notes saying they could not come to a unanimous verdict. That still leaves criminally negligent homicide on the table.
The development came as deliberations stretched into a fourth day Friday. The jury was not permitted to consider the second count, criminally negligent homicide, until it reached a unanimous decision on the manslaughter count. The judge sided with prosecutors in dismissing the top count Friday, over the objections of the defense.
The jury was then sent home for the day,
Penny had pleaded not guilty to both charges.
Earlier in the week, jurors asked to review police and bystander video at the heart of the case. On the second day of deliberations, the anonymous jury also asked to rehear part of a city medical examiner’s testimony. The request included her testimony about issuing a death certificate without getting toxicology test results for Neely.
Penny has pleaded not guilty to manslaughter and criminally negligent homicide.
Prosecutors say he recklessly squeezed Neely’s neck too hard and for too long. Penny's defense maintains he was justified in acting to protect fellow subway riders from Neely, whose erratic behavior and ominous words were frightening passengers.
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Jurors sought a second look at a bystander’s video that captured much of the restraint; responding officers’ body camera videos; and police video of Penny’s subsequent station house interview with detectives.
A major aspect of Penny's defense entails contesting the city medical examiner's office's determination that the chokehold killed Neely.
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In part of the testimony jurors reheard Wednesday, city medical examiner Dr. Cynthia Harris said Neely’s autopsy, the bystander’s video and investigative findings gave her all the information she needed.
“No toxicological result imaginable was going to change my opinion,” she said, even if they showed “enough fentanyl to put down an elephant.”
Fentanyl is a powerful opioid that caused an estimated 75,000 overdose deaths in the U.S. last year. Neely was ultimately found to have a different drug — synthetic marijuana, often known by the street name K2 — in his system when he died. Harris testified that deaths from K2 overdoses are very rare, particularly in people with normal hearts, as Neely had.
A pathologist hired by the defense testified that Neely died from a mix of schizophrenia, K2 use, a genetic condition and his struggle with Penny.
Witnesses said Neely boarded a train in Manhattan on May 1, 2023, started moving erratically, yelling about his hunger and thirst, and proclaiming that he was ready to die, go to jail or — as Penny and some other passengers recalled — kill.
Penny came up behind Neely, grabbed his neck and head, and took him to the floor. The veteran later told police he “just put him in a chokehold” and “put him out” to ensure he wouldn’t hurt anyone.
The case has stirred 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 decry Penny as he comes and goes. Some Penny supporters also have appeared, sometimes holding a flag.
