Update (3:30 p.m. ET): The manslaughter charge is dismissed against Penny, but the criminally negligent homicide charge remains.
The jury was still deadlocked after spending all day deliberating again, per the judge's instructions.
The prosecution moved to dismiss the singular manslaughter count, hoping jurors could comprise on the criminally negligent homicide charge. The defense objected, arguing that this could be considered "coercive" toward them finding a verdict. The judge also expressed concerns over whether the law supports such a move in a case like this.
Moreover, it could set a precedent encouraging prosecutorial offices to over-charge defendants, the defense added.
Following back-and-forth between parties, the judge eventually granted the prosecution's dismissal motion and sent the jurors home for the weekend, despite the defense's objections. Then, they'll reconvene Monday morning and deliberate once more, this time only on the negligence charge.
"You are now free to discuss Count 2," the jury told jurors. "You'll render a verdict on that one."
This is "precisely what Bragg was hoping for in setting up a possible compromise verdict," says Turley.
Update (12:30 p.m. ET): Jurors are instructed to continue deliberating under an Allen charge, after the defense asked for a mistrial, saying such would be "coercive." The judge disagreed, saying "It's not time for a mistrial," and sent the jury back to deliberations.
Afterward, another note came in. Jurors are seeking clarification in determining whether a person reasonably believes physical force is necessary: "We'd like to better understand the term 'reasonable person.' Can the judge elaborate?"
"Ultimately, what a reasonable person is is up to you to decide," the judge told jurors. He suggested a two-part test: Did Penny actually believe Neely would use deadly force? Would a reasonable person in Penny's position have the same beliefs?
***Original story***
Jurors are deadlocked in Daniel Penny's trial over the death of Jordan Neely.
Following days of deliberation since they started debating the case Tuesday afternoon, the jury told the judge presiding over the proceedings that they're struggling to come to an agreement on a verdict concerning the top charge of second-degree manslaughter.
As they were mulling over the former U.S. Marine's fate, the 12-person panel sent a note Friday morning saying they could not reach a consensus on whether or not to convict Penny of "recklessly" causing Neely's death.
"We the jury request instructions from Judge [Maxwell] Wiley. At this time, we are unable to come to a unanimous vote on Count 1 – manslaughter in the second degree," read the note, sent around 11 a.m.
If the jury is unable to reach a decision, Manhattan Supreme Court Justice Maxwell Wiley reportedly would be required to hand them what's known as an "Allen charge," i.e. instructions urging jurors to agree on a unanimous verdict.
The name is derived from an 1896 Supreme Court decision in Allen v. United States.
It's considered controversial, and critics warn that such instructions could push jurors to switch up under peer pressure.
"In this case, I think that they can't move on to Count 2 unless they find the defendant not guilty of Count 1," Wiley told both sides despite protests from the prosecution. "I have to at least try to ask the jury to find a verdict on Count 1."
The latest development on the fact-finding body being deadlocked heightens speculations that the trial will result in a hung jury, meaning a retrial.
Penny faces up to 15 years in prison for the manslaughter charge, if convicted. He is additionally charged with criminally negligent homicide, a less serious offense that carries a maximum sentence of four years behind bars.
Legal analyst Jonathan Turley noted that the question now is whether the judge will instruct the jury to consider the second charge of criminal negligence. Wiley did express doubt over whether, in the absence of a unanimous verdict on the manslaughter charge, he could tell them to move on to the criminally negligent charge.
Even if the jury rejected the top charge, the prosecution was hoping they'd compromise on the lower one. That could still be the case, depending on what the court instructs.
"Many of us cannot see how this case could have produced a conviction with the layers of reasonable doubt in the evidence," Turley tweeted. "The absence of clear causation makes a conviction difficult to justify in such a case."
Penny's defense attorneys have argued that there's no proof beyond a reasonable doubt that the chokehold Penny placed on Neely is what caused his death.
Forensic pathologist Dr. Satish Chundru, the defense's medical expert, testified that Penny's chokehold wasn't what killed Neely. Instead, it was "the combined effects of sickle-cell crisis, the schizophrenia, the struggle and restraint, and the synthetic marijuana" that was found in Neely's system. Neely had a history of abusing the drug K2, a powerful stimulant similar to the effects of cocaine. K2, which can trigger psychosis, made Neely paranoid and prone to violent outbursts.
The autopsy records and video evidence didn't show signs typical of documented chokehold deaths, assessed Chundru, who has worked as a medical examiner for county governments in Florida and Texas. Chundru ruled out two medically recognized chokehold, the air choke and the blood choke, because he believed Neely died from other aggravating factors, such as schizophrenia, which carries an "increased risk of sudden cardiac death."
He also testified that he'd seen K2-induced deaths before due to toxicity.
Chundru's conclusions disputed those of Dr. Cynthia Harris, the city's medical examiner who ruled Neely's death a homicide.
The defense said criminal charges were brought against Penny because of "a rush to judgment based on something other than medical science."
"The defense would have you believe that because of the few protesters outside the chief medical examiner of New York would participate in fraud," Manhattan district attorney Alvin Bragg's deputy Dafna Yoran rebutted. "I can go on and on about how absurd and insulting this all is."
Harris admitted on the witness stand she didn't wait for the toxicology report; the viral video alone of the incident was what convinced her that Penny killed Neely. "No toxicological result imaginable was going to change my opinion," Harris, the prosecution's final witness, testified.
She saw the footage of the fatal encounter as clear-cut evidence ruling out that Neely had died of a drug overdose. "After watching it, I had no further questions as to why he was dead," Harris said.
Harris initially wrote "inconclusive" for the cause of death on Neely's death certificate. The doctor said she eventually decided on an asphyxial death, consistent with compression of the neck, upon reviewing the clip in question depicting Neely "dying."
Hence, Harris issued her ruling before she ever received Neely's toxicology report, which ultimately revealed that he was high on synthetic substances. Either way, Harris said that she would have found that the chokehold caused Neely's death even if he had enough drugs in his body to "put down an elephant." Harris firmly stood by her findings, saying Neely could have had "enough fentanyl to kill an elephant" and she'd still deem Neely's death a homicide by asphyxiation.
According to case notes introduced into evidence, at first, Neely's death was suspected to have been the result of cardiac arrest, and he had "no visible trauma." Harris acknowledged that the drugs in Neely's body "would not help the heart" during such a struggle.
As for the first responders detecting a faint pulse on Neely, Harris said he was practically "brain dead" due to lack of oxygen, cut off by pressure applied to the neck. "That makes perfect sense," she told jurors. "It doesn't surprise me at all that he has a pulse," she said, explaining, "The brain dies first" before the heart stops since "the brain is the most sensitive organ in the body to oxygen," so "deprived of oxygen for a long period of time, the brain will die.”
However, when Penny's lawyers pressed Harris on specifics, she couldn't determine his precise time of death. "I can't tell you when exactly he died, philosophically, but the video is of a man dying," Harris said, reiterating, "This is an asphyxial death."
Harris also never waited for genetic testing on his heart. She found damage to Neely's spleen on account of his sickle cell condition. Harris said it's normally benign, an asymptomatic affliction, but his red blood cells were sickled because of "low oxygen" in her opinion.
Harris referred to the manner of death as a "homicide," but the defense objected, saying the repeated espousal of the word count confuse the jury and even be misleading. National Association of Medical Examiners guidance emphasizes that the classification of homicide for the purpose of death certification "neither indicates nor implies criminal intent."
So, the court struck her statements from the record, and jurors had to be instructed that "homicide" has a different definition medically than it does legally — what it means to a medical examiner differs from how a lawyer or jury may interpret it — and asked them not to weigh her usage of that word when deciding the case's outcome.
This is a breaking story and will be updated.