In an unusual and controversial decision, the judge presiding over the trial of Daniel Penny, the Marine veteran who is accused of killing a homeless Michael Jackson impersonator on a New York subway last year, dismissed the most serious charge, second-degree manslaughter, on Friday after the jury twice said it was deadlocked. The defense did not condone this legal maneuver. The jury, which could not agree on whether Mr. Penny was guilty of the manslaughter charge, will return on Monday to consider the second, lesser charge, criminally negligent homicide. 

“This is essentially elbowing the jury,” defense attorney Thomas Kenniff told the judge, who said he agreed with the defense’s argument but went ahead to dismiss the count anyway, as had been requested by the prosecution. 

“It’s an odd combination of factors,” the famed criminal defense and civil rights attorney Ron Kuby told the Sun on Friday afternoon. “The law is fairly clear. Procedurally we don’t want juries compromising if it can be avoided. That’s why when you have a top charge and lesser included offenses, you have to consider the top charge before going to the lesser offenses. Because you don’t want the jury to go through the lesser charges and work out some sort of compromise verdict. You want a verdict based on the evidence and the charged crime.” Mr. Kuby added that “It is extremely unusual that the defense lawyer fights to keep the most serious charge, and the prosecutor fights to dismiss the most serious charge that they brought. That’s an unusual procedural posture.”

After the jury was deadlocked, as the Sun reported, on Friday morning and had been directed by the judge to deliberate further, a new note arrived in the courtroom at 3:03 pm. 

“We, the jury, would like to inform Judge Wiley,” the note read, “that after further deliberations we cannot come to a unanimous decision on count one – manslaughter in the second degree.” The presiding judge, Maxwell Wiley, paused. Then he told the attorneys, “We might ask to dismiss the top count.” 

He explained that after looking at the case law, he found that contrary to his “gut feeling,” New York State criminal procedural law does not “want to put a stamp of approval on a compromise verdict.”   

An assistant district attorney, Dafna Yoran, who is prosecuting the case on behalf of the Manhattan district attorney, Alvin Bragg, told the court that she found it, “just bizarre that they keep hanging on this count.” She was referring to the manslaughter charge.

“It’s not bizarre.” Judge Wiley said. “They’re following my instructions.” 

He had clearly instructed the jury that before considering the lesser charge, negligent homicide, which carries a maximum of four years in prison, they had to decide on the higher charge, second degree manslaughter, which carries a maximum sentence of 15 years.   

Ms. Yoran, who had previously signaled her agreement to the idea of dismissing the manslaughter charge, briefly left the courtroom to discuss the matter with her team. 

When she returned, Ms. Yoran said, “The people move to dismiss the top count.”  

“We oppose that,” Mr. Kenniff said, speaking for the defense, adding that he was not aware of any cases where this had been permitted. It would set a dangerous example, “from a policy standpoint,” he said, to dismiss the top charge, because it could encourage prosecutors in the future to “overcharge” defendants, knowing these charges would just be dismissed. 

But Mr. Kuby told the Sun over the phone, “There is no check of the prosecution overcharging cases. The prosecution regularly overcharges in order to force a plea, or an acquittal on a top charge but a conviction on a lower one. Alvin Bragg could have charged Penny with what is known as depraved indifference murder. He chose not to.” 

The judge assured the defense that by removing the top count, it would be “off the table.” He said, “Once it’s gone, it’s gone.”  

Though the judge seemed hesitant and agreed with most of the legal arguments the defense brought forward, he still said, “I’ll take a chance and grant the application… I grant the people’s motion to withdraw and dismiss.” 

After the judge told the jury that he had dismissed the first count, he told the jurors they were now free to “consider count two,” which is the criminally negligent homicide charge. 

“Whether that makes any difference or not, I have no idea,” the judge added. He had told the attorneys earlier, while the jury was in their deliberation room, that he believed, “given the tenor of latest note,” that the disagreement among jurors appeared to be on the matter of justification; it “seems justification is the issue.” 

The defense raised justification, also known as self-defense, or defense of others, arguing that Mr. Penny placed Neely in a chokehold on the subway car because he feared Neely was going to attack him or other passengers. The prosecution called Mr. Penny’s actions “laudable” in its opening statement, but argued that keeping Neely in the chokehold for about six minutes was “way too long.”    

Last year, the Manhattan district attorney, Alvin Bragg, charged Mr. Penny with second-degree manslaughter and criminally negligent homicide in the death of Neely. Mr. Penny, a 26-year-old man from West Islip on Long Island, served in the Marine Corps for four years as an infantry squad leader and was honorably discharged in 2021, according to his LinkedIn. At the time of the tragic incident, Mr. Penny was living in the East Village, at Lower Manhattan, and studying architecture and engineering at City Tech in Brooklyn. 

On May 1, 2023, Mr. Penny was on a Northbound F Train, headed for his gym, as he later told police officers, when at the Second Avenue stop, Neely got on the train car. He almost missed the train but, according to witnesses, put his hand through the closing door and managed to get on. Neely, who was 30 years old and homeless at the time, was a street performer known for his Michael Jackson impersonations on subways, and could be seen moonwalking at Times Square. He also had a history of drug abuse, severe mental illness and arrests. Both men, Mr. Penny and Neely were exactly the same height, (6 feet, one inch).         

As Neely entered the car, one witnesses testified, the car was filled with the overwhelming stench of human feces. Neely aggressively tossed his jacket to the ground and then began shouting at subway riders, witnesses testified, yelling that he was hungry, thirsty, ready to die and ready to go to jail. Witnesses described Neely’s behavior as erratic, menacing and extremely frightening. One woman said it was “Satanic”, another woman said she was scared for her life, and a mother from Brooklyn hid her five year old son behind her stroller. 

All the witnesses agreed, however, that Neely did not physically attack anyone. He also turned out not to have been carrying a weapon.  

Mr. Penny, who would later tell detectives that he perceived Neely to be a severe threat, grabbed him from behind, placed him in a chokehold, and brought him to the floor in an attempt, he would say, to protect himself and the other passengers. After the train pulled into the next station, and the doors had opened, Mr. Penny lay on the subway car’s floor in a bizarre embrace with Neely, who was struggling to break free from the chokehold. In the end, Neely was held in the chokehold for about six minutes. 

Prosecutors alleged that Mr. Penny held the chokehold for too long and used excessive force. He acted recklessly, they argued, because having been trained in chokeholds during his service in the Marines Corps, he should have known that chokeholds can be fatal. The defense disagreed, arguing that Mr. Penny did not apply continuous pressure onto Neely’s neck the entire time, and did not intend to kill him, but was trying to restrain him until the police arrived. When first responders got to the scene, Neely was unresponsive. He was pronounced dead at the hospital an hour later.    

Mr. Penny was questioned and released without charges. But several days later, after racial justice advocates had led widespread protests, including blocking subway tracks, calling for justice for Neely and punishment for Mr. Penny, Mr. Bragg filed charges against Mr. Penny in the racially fraught case. Mr. Penny is white while Neely was Black.

The trial, which has lasted seven weeks, including jury selection, heard over forty witnesses, including eyewitnesses, subway riders, police officers, medical personnel and experts. 

The jury will return on Monday to continue deliberations on the second count. The judge wished everyone well. 

“Ok, have a good weekend,” he said. 

Outside of the courthouse, Hawk Newsome, the co-founder of the Black Lives Matter New York chapter, told reporters that “we saw a jury having a problem with a top charge. We saw a judge dismiss the top charge. I wanna take you back to jury selection, when they found a jury specialist.” He was referring to Jo-Ellan Dimitrius, a jury consultant the defense had hired. Ms. Dimitrius has worked for both O.J. Simpson’s defense “dream team” in 1994 and, in 2021, for Kyle Rittenhouse, the white youth acquitted of killing two rioters and wounding a third during 2020’s racial unrest in Kenosha, Wisconsin. .  

“This woman worked O.J’s case, she worked Kyle Rittenhouse’s case, the person who brought an AR-15 to Black Lives Matter rally and killed people. She worked that case. And they paid her, I don’t know how much money, to come in here and pick this jury,” Mr. Newsome said of Ms. Dimitrius. “America is going to America,” said Mr. Newsomme (he would use this phrase multiple times, and is believed to have been meaning to say “American is going to be America”). “There is no way you could put nine white people in a room that would find Daniel Penny guilty.” 

Nine of the 12 jurors on Penny’s jury are white. He was able to afford Ms. Dimitrius, as well as other accoutrements of an aggressive defense, after his supporters raised more than $3 million on his behalf using the faith-based fundraising platform, GiveSendGo, which offers fundraisers for cases GoFundMe won’t support, including racially charges criminal cases such as this one.

The judge’s decision to dismiss the manslaughter charge can be viewed as a great victory for the defense. Should the jury find Mr. Penny guilty on the second charge, this unusual decision gives the attorneys an even better footing to appeal the case.  But by dismissing the manslaughter charge, the judge avoided declaring a mistrial, which was what the defense wanted. After a mistrial, the prosecution has the option of either dropping the case, or trying it all over again.

Mr. Penny had been facing up to 15 years in prison were he convicted of manslaughter. Now he faces no more than four years, which is the maximum sentence for negligent homicide. During closing arguments earlier this week, Ms. Yoran — in what was seen as a bid to secure a conviction from jurors hoping for a compromise — strongly implied to the jurors that she would not seek prison for Mr. Penny if convicted. The defense strongly objected and called for a mistrial, which the judge denied.