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Former Marine Daniel Penny’s manslaughter charge was dismissed Friday after a jury failed to reach a verdict in the case.

The jury deadlocked twice on the charge, prompting Judge Maxwell Wiley to dismiss it and Penny’s lawyers to argue that the entire case should therefore be declared a mistrial.

Wiley ultimately agreed with prosecutors, who maintained that the jury should instead go back into deliberations to review Penny’s second charge, criminally negligent homicide.

“Criminally negligent homicide involves engaging in serious ‘blameworthy conduct’ while not perceiving such a risk, and carries punishments ranging from probation to up to four years in prison,” according to the Associated Press.

The problem, critics say, is that this whole scheme — dismissing a greater charge so that a jury can consider a lower charge — is unprecedented in New York State.

“In New York State, it is a well established rule that a jury may not consider a lesser included charge unless it has acquitted on the greater charge,” according to civil liberties attorney Laura Powell.

“Once it was determined that the jury cannot reach a unanimous verdict on the greater charge, a mistrial should have been declared,” she explained in a tweet published late Friday.

Penny’s defense attorneys made the same point in court, leading to Judge Wiley admitting that there might be a legal dilemma.

“Wiley left unanswered the question about whether the jury could move onto the second count if they are unable to reach a verdict on the first count,” according to ABC News. “He said he believed the jury moving to the second count is possible but needs to find the legal authority to do so.”

If the judge believes there is indeed legal authority, the jury will then begin deliberating the criminally negligent homicide charge on Monday.

In a statement, defense attorney Thomas Kenniff celebrated the manslaughter charge being dropped but noted that justice won’t be complete until Penny is completely acquitted and vindicated.

“We are obviously very pleased with the Court’s decision to withdraw the top count of this indictment,” he said. “However, we have always maintained that Danny acted reasonably in restraining Jordan Neely, and justice will not be served until he is acquitted of criminally negligent homicide as well. We are hopeful that will happen when the jury returns on Monday.”

Penny is, as originally reported last year, a former Marine who was accused of killing a violent black homeless man, Jordan Neely, during a tragic altercation on a New York City subway.

After Neely began threatening other passengers, Penny put him in what turned out to be a fatal chokehold. Penny was subsequently charged with second-degree manslaughter and criminally negligent homicide, though many critics, including bystanders who’d been present that day, have argued he’d done nothing wrong.

Included among those who support Penny is New York City’s own mayor, Eric Adams.

“Now, we’re on the subway where we’re hearing someone talking about hurting people, killing people,” he said late last month on a local talk radio show. “You have someone on that subway who was responding, doing what we should have done as a city in a state of having a mental health facility.”

“Those passengers were afraid. I’ve been on the subway system. I know what it is as a police officer to wrestle or fight with someone. It is imperative that we look at the totality of this problem. Based on all the facts that’s laid out, a jury of his peers will make the right decision,” he added.

Vivek Saxena
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