Subway chokehold trial: No verdict after second day of jury deliberations in Daniel Penny case

A Manhattan jury completed its second day of deliberations without a verdict in the fatal chokehold case against West Islip native Daniel Penny for the death of a homeless man, Jordan Neely, on a subway train last year.

Penny, a Marine Corps veteran trained in nonlethal restraints, stands charged with second-degree manslaughter and criminally negligent homicide after placing Neely in a chokehold while trying to subdue him as Neely had an outburst on the F train between the Second Avenue and Broadway-Lafayette stations, according to prosecutors.

Manhattan prosecutor Dafna Yoran called Penny’s initial actions "laudable," but said "as the chokehold progressed, the defendant knew that Jordan Neely was in great distress and he needlessly continued."

The panel of seven women and five men must determine whether Penny acted in self-defense and in the defense of others on the train in the May 1, 2023 encounter, or if he committed second-degree manslaughter by recklessly restraining Neely, knowing the chokehold could be fatal from his military training but applying it nonetheless.

If they determine he is guilty of the manslaughter charge, the jury has been instructed not to further deliberate on the criminally negligent homicide charge.

During jury selection, the 12 Manhattanites said they rode the subway regularly or semi-regularly and all but a couple said they see outbursts on the subway frequently, if not daily.

On Tuesday, the first afternoon of deliberations, the jury asked Supreme Court Justice Maxwell Wiley to again read his instruction on self-defense and on how to interpret the statutes on second-degree manslaughter and criminally negligent homicide.

On Wednesday, the panel asked to look at the video of Penny’s interview with investigators in the 5th Precinct station house and at a cellphone recording of the two men struggling on the train.

Toward the end of the day, the jurors requested a lengthy readback of testimony from the city medical examiner, Cynthia Harris. She had testified at trial that she had formed her conclusion that Neely died of asphyxiation from a chokehold before the toxicology test was returned.

Specifically, the jury asked for testimony during cross-examination in which Harris said   she "would not have changed her mind even if the test showed fentanyl."

The panel also asked to hear testimony again from the medical examiner in which she "admits that she told the grand jury that she didn’t know if she observed consistently sufficient pressure."

In addition to the deliberations, protesters against Penny turned confrontational Wednesday morning when one demonstrator attacked his car, shouting "violent homophobic slurs," according to defense lawyer Thomas Kenniff.

"I saw that myself," said Wiley, who witnessed it from the window of his robing room. "They were pounding on the hood of the car."

The case has drawn significant attention and scrutiny given the public nature of the incident and its racial undertones. Some have championed Penny, who is white, for his actions while others have called for his conviction in the death of an unarmed, homeless Black man who had been hospitalized multiple times for mental health issues.

Throughout the trial testimony, sounds of protesters in front of the courthouse could be heard infrom the 13th-floor courtroom as Penny arrived each day.

Deliberations will continue Thursday.