Daniel Penny jurors say they’re stuck on manslaughter charge. Judge orders them to keep deliberating.

NEW YORK – A judge has ordered jurors to keep deliberating in the Daniel Penny trial after they sent a note saying they are unable to reach a unanimous vote on the second-degree manslaughter charge he faces. 

That note prompted the defense to move for a mistrial, as the prosecution asked for the judge to issue what’s called an Allen charge to the jury to keep them deliberating and to reach a decision. 

The judge issued the Allen charge, and the jury returned to deliberations. 

What is a ‘reasonable person’?

Jurors then sent another note: “We the jury request further clarification in the determination of whether a person reasonably believes physical force to be necessary. The two part test mentions reasonable person. We’d like to better understand the term ‘reasonable person.'”

Penny charged with manslaughter, criminally negligent homicide

Penny, 26, is charged in the chokehold death of Jordan Neely aboard a subway last year. The Marine veteran has pleaded not guilty to manslaughter and criminally negligent homicide charges. 

Only if Penny is cleared of the more serious manslaughter charge will the jury consider the lesser criminally negligent homicide charge. The manslaughter charge carries with it up to 15 years in prison if convicted. 

The judge instructed the jury at the beginning of deliberations that they must agree on the manslaughter charge before they can even consider the second charge of criminally negligent homicide. The jury has been told all along that if they were to find Penny guilty of second-degree manslaughter, the would not have to issue a decision on the lesser count. 

Deliberations cross 20 hours

So far, the jury has deliberated for roughly 20 hours since beginning their talks on Tuesday. 

The jury has sent several notes so far, requesting to watch cell phone and police bodycam footage of the incident, as well as Penny’s interview at the police station. They also wanted to hear readback of the defense’s cross examination of New York City Medical Examiner Dr. Cynthia Harris, who performed Neely’s autopsy, and ruled his cause of death compression of the neck. 

Jurors also asked for part of the judge’s instructions, as well as the legal definitions of “recklessness” and “negligence,” to be re-read to them. 

Prosecutors have argued that while Penny’s intentions were good in restraining Neely, he had him in a chokehold for too long. Penny’s defense has argued he wasn’t using pressure during the hold, just holding Neely down. A defense witness also disagreed with the Medical Examiner’s cause of death determination, arguing Neely died due to a combination of factors including drugs and sickle cell crisis.