Jurors in Daniel Penny trial tell judge they’re deadlocked on manslaughter charge for second time in subway chokehold case

Jurors at Daniel Penny’s trial in the caught-on-camera subway chokehold death of Jordan Neely said they were still struggling to reach a verdict on the top charge of manslaughter Friday — even after a Manhattan judge told them too go back and keep trying.

The 12-person panel first said at around 11 a.m. that they could not come to a decision on the charge, and sent a second note to the court with a similar message about three hours later.

“Resume your deliberations with an open mind,” Manhattan Supreme Court Justice Maxwell Wiley told jurors after they sent the first note saying they were having trouble reaching a consensus on whether to convict Penny, 26, of “recklessly” causing Neely’s death by placing him in a six-minute chokehold in May 2023.

“I’m not asking any of you to violate your conscience,” Wiley said, reading what’s known as an “Allen” charge, an often-used judge’s instruction that urges jurors to reach a unanimous verdict.

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“Be flexible. Be willing to change your position,” the judge added.

It was not immediately clear Friday whether the jury, if it fails to reach a verdict on manslaughter, will consider the lesser count of criminally negligent homicide.

Assistant District Attorney Dafna Yoran urged the judge to let the jury consider the lower charge if it can’t come to an agreement on the manslaughter rap, while Penny’s attorneys pushed for a mistrial.

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“It would be a crazy result to have a hung jury just because they can’t move on to the second count,” Yoran told the judge.

After being sent back into the jury room to keep deliberating, the panel sent another note minutes later asking the judge to clarify the term “reasonable person” — as they decide whether Penny, 26, was justified in placing Neely, 30, in the chokehold.

To acquit him on justification grounds, the jury will have to decide that if the Marine veteran used deadly physical force, it was necessary for him to do so to defend himself and others on the subway — and whether a “reasonable person” in Penny’s shoes would have acted the same way.

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“Ultimately what a reasonable person is is up to you to decide,” the judge said.

“Hope that helps,” he added, before sending them back to the jury room to deliberate.

Jurors have been deliberating since early Tuesday afternoon.

Penny’s lawyers have said the Marine veteran and aspiring architect was justified in protecting passengers from a man who witnesses said yelled, “Someone’s going to die today!” and who said he was ready to go to jail after boarding the uptown F train.

But prosecutors have stressed that no witness testified that Neely threatened anyone specifically, touched anyone, or brandished a weapon. Police later found only a muffin in his pocket.

Penny’s attorneys have also argued that there’s no proof beyond a reasonable doubt that the chokehold is what caused his death.

The jury is weighing whether to convict Penny of second-degree manslaughter for “recklessly” causing Neely’s death by keeping him in the chokehold despite knowing that he might die after nearly all of the frightened passengers had left the train car at the Broadway-Lafayette station.

They could also convict him of the lesser charge of criminally negligent homicide if they find that Penny failed to identify the risk that his chokehold could kill the troubled homeless man, but that he should have known that Neely could have died.

The panel could clear Penny entirely if it finds that the prosecutors have not proven beyond a reasonable doubt that his actions were not justified.

Penny faces up to 15 years in prison if convicted on the manslaughter charge, or up to four years behind bars if convicted on the less serious count.