Daniel Penny jury returns after judge's controversial dismissal of deadlocked top charge

NEW YORK – The Manhattan jurors weighing the fate of Marine veteran Daniel Penny return to court Monday, but only to consider the lesser charge against him after a judge controversially tossed the more serious charge and avoided a mistrial.

Judge Maxwell Wiley on Friday agreed to the prosecution's request to dismiss the most serious charge, second degree manslaughter, after jurors twice told the court they had deadlocked on the issue. 

They had previously been instructed to deliberate the lesser charge of criminally negligent homicide only if they found Penny not guilty of manslaughter for some reason other than a lack of justification.

"Manslaughter in the second degree is dismissed," Wiley told the jurors before sending them home Friday. "What that means is you are now free to consider count two. Whether that makes any difference, I have no idea."

DANIEL PENNY MANSLAUGHTER CHARGE DISMISSED AS JURY BREAKS 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 for the 2023 death of Jordan Neely on a Manhattan F train. (Adam Gray for Fox News Digital)

They returned Monday to consider only the lesser charge, and Wiley issued a clarification to start the day.

"The court concluded it would be lawful to direct the jury to go on to count two because the DA withdrew count 1," he said. "The court thought, under the law, that withdrawal was dismissal."

However, he said, there's no clear "black-letter law" on the issue.

The defense had opposed the last-minute charge swap, arguing it presented a violation of state laws and could encourage a precedent where prosecutors overcharge from the start, knowing they can downgrade charges later on the fly if their case doesn't stand up.

"The risk here of a coercive verdict or a compromised verdict…New York is clear that compromised verdicts are discouraged," Penny's lawyers told the judge. "It would force them into what we would submit would be manufactured, as to the lesser count of criminal negligence."

They moved for a mistrial Monday morning, but Wiley denied the request.

DANIEL PENNY TRIAL: KEY EVIDENCE JURORS ASKED TO SEE AGAIN DURING DELIBERATIONS

Screenshot from bystander video showing Jordan Neely being held in a chokehold on the New York City subway. (Luces de Nueva York/Juan Alberto Vazquez via Storyful)

Wiley addressed the jury before sending them back to the deliberation room.

"I want to make clear the court has no role at all in your deliberations," he told them "It's not the court's business to talk about what directions your deliberations are taking.. Certainly not the court’s role to influence your deliberations. That’s improper…By instructing you to go ahead to count 2, the court is not directing you toward any verdict."

He said that by directing the jury to consider the lesser charge, the court was not urging a verdict in any direction.

"Just as with count 1, you should make every effort consistent with your conscience and the law as much as possible," Wiley said. "No juror should surrender his or her honest view of the verdict just because you want to make an end to deliberations."

Penny, 26, was an architecture student at City Tech in Brooklyn on May 1, 2023, when he was taking an F train to a gym after class and Jordan Neely, a 30-year-old homeless man with schizophrenia and high on drugs, barged onto the train and started shouting threats at passengers.

Jordan Neely is pictured before going to see the Michael Jackson movie, "This is It," outside the Regal Cinemas on 8th Ave. and 42nd St. in Times Square, New York, in 2009.  (Andrew Savulich/New York Daily News/Tribune News Service via Getty Images)

After jurors resumed their deliberations Monday, the defense asked to enter into the court record the loud noise of protesters that could be heard inside the courthouse.

Before the day began, protesters both for and against Penny's freedom clashed outside. The anti-Penny faction, through a megaphone, continued making noise after court began for the day, easily heard through open windows in the courthouse, the judge acknowledged.

Penny's attorney Thomas Kenniff said some of the statements, like "if we dont get no justice, they dont get no peace," could be construed as threats to the jury.

"There were no threats to the jury," Assistant Manhattan District Attorney Dafna Yoran claimed. She also alleged, "There are numerous threats going on from the other side in this trial, constantly." 

It was not immediately clear what she was referring to.

The judge said he would allow the jury to continue deliberating but he would call both sides back to the bench if there were any more interruptions.

Prosecutor Dafna Yoran departs Daniel Penny’s trial at the Manhattan Supreme Criminal Court building in New York City on Monday, December 2, 2024. Both sides began their closing arguments in Penny’s trial for the 2023 subway death of Jordan Neely.  (Julia Bonavita/Fox News Digital)

Legal experts have criticized the judge's move in allowing only the lesser charge to be considered.

"Now the judge is telling the jury, 'forget about the law, forget about what I told you,'" Fox News legal analyst told "Fox & Friends" Monday morning. "His ruling also violates the New York procedural law that forbids dismissal at this late stage during deliberations unless both sides agree. The defense didn't agree."

DANIEL PENNY TRIAL: JURORS ASKED TO SEE KEY EVIDENCE AGAIN DURING DELIBERATIONS

Many witnesses testified they were horrified during the ordeal and relieved when Penny put an end to the outburst 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 20 subway shoves in the year before Penny's encounter with Neely.

Just three days earlier, a subway rider had been stabbed with an ice pick on a J train, according to reports from the time. It was about a month after a PBS reporter got sucker punched on a No. 4 train. There was a shove a week before that, and the victim hit the side of a moving R train and survived.

Jordan Newley’s father, Andre Zachary  arrives at Manhattan Supreme Court Thursday, December 5, 2024. Zachary's son, Jordan Neely died in 2023 after being put in a chokehold by Daniel Penny on a NYC subway.  (Rashid Umar Abbasi for Fox News Digital)

Jurors spent most of last week deliberating and failed to come to a unanimous decision on the top charge.

"Judge Wiley should have declared a mistrial," Andrew McCarthy, a former Chief Assistant U.S. Attorney for the Southern District of New York, wrote in a Fox News op-ed Sunday. "To continue at this point is to seek to browbeat the jury into a conviction. I further believe it would violate New York criminal-procedure law."

Penny's defense fundraiser on GiveSendGo has garnered more than $3 million in donations from supporters around the country, and small dollar contributions continue to arrive Monday, on the fifth day of jury deliberations and after Neely's father announced a civil lawsuit against the Marine vet.

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Penny faces a maximum of four years in prison on the lesser charge.

"We are cautiously optimistic that the one remaining count will be dismissed by the jury on Monday," one of Penny's defense attorneys, Steven Raiser, told Fox News Friday. "That would finally put this nightmare behind Danny and allow us to focus on the civil lawsuit, filed two days ago, for the same allegations contained in the criminal indictment."

Fox News' CB Cotton contributed to this report.