NEW YORK – Jurors in Manhattan weigh the fate of Navy veteran Daniel Penny and return to court Monday, but only to consider the lesser charge against him after a judge controversially dismissed and avoided the more serious charge a mistrial.
Judge Maxwell Wiley on Friday agreed to the prosecution’s request to dismiss the most serious charge, second-degree murder, after jurors twice told the court they were deadlocked on the issue.
They had previously been instructed to consider the lesser charge of negligent homicide only if they found Penny not guilty of manslaughter for any reason other than lack of justification.
“Manslaughter in the second degree is dismissed,” Wiley told jurors before sending them home Friday. “What that means is that you are now free to consider count two. I have no idea whether that makes any difference.’
DANIEL PENNY Manslaughter charges dismissed as jury recess for weekend
Daniel Penny arrives at Manhattan Criminal Court in New York City on Thursday, December 5, 2024. The jury is entering their third day of deliberations in Penny’s trial over the 2023 death of Jordan Neely on a Manhattan F train. (Adam Gray for Fox News Digital)
They will return on Monday to consider only the lower costs.
The defense had opposed the last-minute charge swap, arguing it violated state law and could set a precedent in which prosecutors overcharge from the start, knowing they can immediately reduce charges later if their case does not hold up.
“The risk here of an injunction or a compromised verdict…New York is clear that compromised verdicts are discouraged,” Penny’s attorneys told the judge. “It would force them to produce what we would produce, as far as the lesser amount of criminal negligence.”
Although the judge agreed that the defense had stated the law correctly, he said he would “take a chance” and dismiss the case top load.
DANIEL PENNY TRIAL: KEY EVIDENCE JURORS ASKED TO SEE AGAIN DURING DELIBERATIONS
Screenshot from bystander video of Jordan Neely being held in a chokehold on the New York City subway. (New York Lights/Juan Alberto Vazquez via Storyful)
“We are cautiously optimistic that the only remaining charge will be dismissed by the jury on Monday,” one of Penny’s attorneys, Steven Raiser, told Fox News on Friday. “That would finally put this nightmare behind us and allow us to focus on the civil lawsuit filed two days ago alleging the same allegations contained in the criminal complaint.”
Penny, 26, was studying architecture at City Tech in Brooklyn on May 1, 2023, when he was taking the F train to a gym after class and Jordan Neely, a 30-year-old homeless man with schizophrenia and high on drugs, stormed onto the train and began shouting threats at the passengers.
“Now the judge is telling the jury, ‘Forget the law, forget what I told you,’” the Fox News legal analyst told Fox & Friends Monday morning. “His ruling also violates New York procedural law, which prohibits dismissal at this late stage during deliberations unless both parties agree. The defense disagreed.”
DANIEL PENNY TRIAL: JURYERS ASKED TO REVIEW IMPORTANT EVIDENCE DURING DECISIONS
Many witnesses said they were shocked during the ordeal and relieved when Penny put an end to the rampage by placing Neely in a headlock and wrestling him to the ground, where he and other passengers held him for several minutes.
Penny remained at the scene and spoke with responding officers. He also agreed to speak with NYPD detectives at the 5th Precinct building.
“He was talking gibberish… but these guys are pushing people in front of trains and stuff,” he told investigators. There were more than twenty subway pushes in the year before Penny’s meeting with Neely.
Jordan Neely is pictured before going to see the Michael Jackson film “This is It” outside the Regal Cinemas on 8th Ave in 2009. and 42nd St. in Times Square, New York. (Andrew Savulich/New York Daily News/Tribune News Service via Getty Images)
Just three days earlier, a subway passenger on a J train had been stabbed with an ice pick reports from that time. It was about a month after a PBS reporter arrived sucker punched on train No. 4. A week before, there was a push and the victim hit the side of a moving R train and survived.
Jurors spent most of last week deliberating and were unable to reach a unanimous decision on the top charge.
“Judge Wiley should have declared a mistrial,” Andrew McCarthy, former chief U.S. administrator for the Southern District of New York, wrote in an Fox News op-ed Sunday. “Continuing at this point is an attempt to force the jury to convict. I further believe that this would violate New York criminal law.”
Penny’s defense fundraiser on GiveSendGo has generated more than $3 million in donations from supporters across the country, and small-dollar contributions continue to pour in Monday, on the fifth day of jury deliberations and after Neely’s father announced a civil lawsuit against the Navy vet.
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Penny faces up to four years in prison on the lesser charge.
Fox News’ CB Cotton contributed to this report.
