By Maria Tsvetkova
(Reuters) - A judge on Friday dismissed the most serious charge against Daniel Penny, a former U.S. Marine on trial for the death of Jordan Neely, a homeless man who he was restraining on a New York City subway car, after jurors were unable to agree on it.
After jurors emerged twice during their third day of deliberations to say they were divided on the charge of manslaughter in the second degree, Penny’s attorney said a mistrial should be declared.
Instead, the judge dismissed the charge and said the jury could proceed to considering a lesser count of criminally negligent homicide. The judge then dismissed jurors for the day.
Penny did not show any emotion when the dismissal of the top count was announced. Neely’s father bowed his head and looked at the floor. Both he and Neely’s uncle said they did not want to comment until the trial is over.
The jury will resume its deliberations on Monday.
Penny, 26, has said he never intended to kill Neely, a 30-year-old with a history of mental illness, during their encounter on an uptown train on May 1, 2023.
Penny did not testify during the trial, which began in October.
Prosecutors from the Manhattan District Attorney's Office did not dispute that Neely was loud, angry and threatening as he boarded the train, shouting that he was hungry, thirsty and wanted to be sent back to jail.
But they told jurors that Penny, who grabbed Neely from behind with an arm around Neely's neck and brought him to the floor, used deadly physical force without justification and for far longer than necessary.
Dafna Yoran, an assistant district attorney, said Penny was warned by people around him about risks to Neely's life and intentionally ignored them.
"He didn't recognize that Mr. Neely, too, was a person," she said during her closing argument on Monday. "He didn't care what happened to Mr. Neely."
Penny continued to choke Neely on the floor of the subway car for nearly six minutes after the train pulled into the station and other passengers left, prosecutors said.
Penny's defense lawyers told jurors that Penny, a student on his way to a gym, acted out of alarm that Neely might hurt a woman and a child he was approaching. Neely was unarmed.
Lawyer Steven Raiser said his client held Neely "until he knew that he was no longer a threat," but did not apply pressure on his airway during the last crucial moments.
"What happened on May 1, 2023, was not a chokehold death," Raiser said on Monday. "He was controlling Mr. Neely's body, not choking him."
Penny's lawyer theorized that Neely died from another cause, possibly a drug overdose or a sickle cell crisis. Prosecutor Yoran rejected those scenarios, telling jurors it is extremely rare for sickle cell, a genetic blood disorder, to lead to a fatal crisis, and that it also was unlikely Neely died from a drug overdose at exactly the same moment he was being held in a chokehold.
The killing gained widespread public attention, with some viewing Neely, who was Black, as a victim of a white vigilante. Others, including some Republican politicians, called Penny a hero.