Manslaughter Charge Against Daniel Penny Dismissed; Lesser Charge Still Looms

The Manhattan District Attorney’s office, which is prosecuting Daniel Penny, has decided to drop the second-degree manslaughter charge against him, hoping jurors can come to a verdict on the lesser charge.

Jurors on Friday said they were deadlocked on whether Penny “recklessly” caused the death of Jordan Neely on a New York City subway train last May, prompting Judge Maxwell Wiley and Assistant District Attorney Dafna Yoran to discuss the possibility of dropping the manslaughter charge, journalist Matthew Lee reported.

After discussing it with her colleagues, Yoran told the judge that the DA would like to dismiss the manslaughter charge against Penny, which could have landed him up to 15 years in prison. As Lee reported, Penny’s attorneys argued that such a move would be coercing the jury, but the judge – who has been favorable to the prosecution throughout the trial – disagreed.

Penny’s lawyer Kenniff: This would be elbowing the jury, coercing them
Judge Wiley: The DA’s proposal would resolve that.
ADA Wu: Your Honor put it correctly. Removal of the top count, with prejudice, takes that concern away.
Judge Wiley: What do I tell the jury?

— Inner City Press (@innercitypress) December 6, 2024

Judge Wiley then asked Yoran what he should tell the jury, Lee reported, to which she responded that the judge shouldn’t tell them that this is an acquittal on the manslaughter charge, but simply that it has been dismissed.

Penny’s attorney, Thomas Kenniff, shot back that such a tactic had not been used before, and could create a precedent where prosecutors over-charge someone with the option to withdraw the top charges if a jury cannot make a decision.

Judge Wiley: I’ll take a chance and grant the People’s application. I’m going to let them go to return and consider Count 2 on Monday. Bring them in.
Jury entering!
Judge: Manslaughter in the 2d degree is dismissed. You are free to consider Count 2- on Monday

— Inner City Press (@innercitypress) December 6, 2024

After this exchange, the judge again sided with the prosecution, and told the jury they would return on Monday to deliberate on the lesser charge of criminally negligent homicide. If convicted on this charge, Penny faces up to four years in prison.

The prosecution has argued that Penny, a 26-year-old Marine veteran, held Neely in a chokehold for six minutes in May 2023, causing Neely’s death. Penny’s defense, meanwhile, has argued that there is doubt about whether Neely died from the chokehold or if he died due to his medical condition and the drugs in his system at the time of his death.

Jurors have been asking to review crucial evidence in the case, including videos from the incident and Penny’s police interrogation, during which he was not told Neely had died. They have also asked Wiley to reread the definitions of recklessness and negligence, The Daily Wire reported.

Jurors have also asked to be reread portions of New York medical examiner Dr. Cynthia Harris’ cross-examination, where she testified that she made the determination Neely died due to asphyxiation based on video alone – before the toxicology report came back.