Subway chokehold trial: Jurors fail to reach verdict after 3 days of deliberations in Daniel Penny's case

Deliberations stretched into a third day without a verdict in the second-degree manslaughter case against Long Island native Daniel Penny for the chokehold death of Jordan Neely, a homeless man killed on a city subway last year.

A Manhattan jury pored over video footage and contemplated complex legal theory but failed to reach a consensus on whether Penny acted to protect himself and others on the F train on May 1, 2023, when Neely, who suffered from schizophrenia, burst through the door and announced he was ready to go to jail for the rest of his life.

Penny is on trial for second-degree manslaughter and criminally negligent homicide. He faces a maximum of 15 years in prison, but as a first-time offender, he could receive no time behind bars.

The panel of five men and seven women have written seven notes asking for testimony and evidence since Supreme Court Justice Maxwell Wiley handed the case over to them Tuesday afternoon.

On Thursday morning, court transcribers continued to read back testimony the jury had asked for on Wednesday from city medical examiner Dr. Cynthia Harris, who determined that Neely’s death was a homicide by chokehold.

Harris had testified that she reached her conclusion by performing her autopsy of Neely’s body and a close examination of a cellphone video shot by a bystander of the struggle between the two men.

Harris told the jury during cross-examination that she did not wait for the toxicology tests to return before coming to her decision and that her conclusion would have been the same even if she later discovered he had enough fentanyl in his system to "put down an elephant."

Harris also told the court during testimony that determining the cause of death was more art than science. She also said she couldn’t be certain there was "sufficiently consistent pressure" on Neely’s neck to kill him.

The jury also asked the judge to once again read the legal definitions of recklessness and criminal negligence.

New York law defines recklessness when someone "engages in conduct which creates or contributes to a substantial and unjustifiable risk that another person’s death will occur." That person has to be aware of the risk and disregards it consciously. Finally, that person’s conduct has to constitute a "gross deviation from the standard of conduct that a reasonable person would observe in the situation."

The judge instructed the jury that a person has committed criminally negligent homicide when a "person engages in blameworthy conduct so serious that it creates or contributes to a substantial and unjustifiable risk that another person's death will occur." The person has to be unaware that the behavior could cause a person’s death when any reasonable person would be able to recognize the behavior is dangerous.

The trial began with jury selection on Oct. 21 and could stretch into next week if the panel fails to meet a consensus.

The jury will return Friday to continue deliberations.