The jury was still out Thursday on whether Daniel Penny should be held criminally liable for fatally choking Jordan Neely on a subway car in Manhattan in May 2023.
The seven women and five men deliberating since Tuesday afternoon the Manhattan district attorney’s lightning-rod case against the 26-year-old former Marine asked to go home shortly before 5 p.m.
Penny, of Suffolk County, L.I., has pleaded not guilty to manslaughter and criminally negligent homicide, charges that carry a maximum prison sentence of up to 15 years, and 4 years, respectively — and no minimum.
His lawyers have argued he justifiably took Neely down on the train after the homeless man boarded and began screaming and acting hostile toward passengers — and saying he didn’t care about dying or going to jail.
Prosecutors say Penny’s actions were appropriate when he tried to protect passengers, but became criminal when he continued choking Neely for nearly six minutes after everyone had gotten off the train.
Neely, 30, grew up in Manhattan and New Jersey. He was experiencing untreated mental illness and drug addiction in the years prior to his death. When he was well, he danced in Michael Jackson street performances and in the subway system.
After returning to court Thursday, jurors asked to watch bystander footage of the chokehold again. Around noon, they requested the definitions of recklessness and negligence.
“Please read it more than once. Two times. Could the jury have the definitions in writing?” jurors wrote.
Justice Maxwell Wiley repeated from his charge that, under New York law, a person acts recklessly concerning a death when they risk someone’s life and consciously disregard the risk in a way a reasonable person would not.
To find Penny guilty of criminal negligence, the offense “must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong,” the judge said.
Panelists, who heard from more than 40 witnesses, on Wednesday asked to rewatch footage of the incident aboard the subway stalled at the Broadway-Lafayette St. subway station, the aftermath captured by police officers’ body-worn cameras and Penny’s sit-down with detectives at the 5th Precinct stationhouse.
They also asked for a readback of portions of the city medical examiner’s cross-examination with one of Penny’s lawyers, when he tried to poke holes in her autopsy determinations that Neely died as a result of Penny choking him. Penny’s lawyers have also challenged the medical examiner’s findings that Neely died as a result of the chokehold, proposing it was psychosis or other aspects of his health.
Jurors are expected to resume their deliberations Friday.