BREAKING UPDATE: Manslaughter charge against Daniel Penny dismissed, jury to consider lesser charge Monday

Update: The second-degree manslaughter charge against Marine veteran Daniel Penny has been dismissed after jurors in the case remained deadlocked on a decision.

After a second note declaring that the jury cannot come to a unanimous decision on the second-degree manslaughter count, Assistant District Attorney Dafna Yoran told Judge Maxwell Wiley that the prosecution would like to drop the count. 

Penny’s lawyer Thomas Kenniff told the judge, "This has never been done before. It would encourage prosecutors to over-charge in the grand jury, with the option of withdrawing if hung, under coercion," per Inner City Press.

The judge granted the prosecution’s request, dismissing the manslaughter charge and telling jurors to return on Monday to consider the lesser criminally negligent homicide count that still remains.

Update: Just hours after returning a note stating that they couldn't come to a unanimous verdict, the jurors in the Daniel Penny case have once again returned a note to the judge stating that they cannot come to a decision on count one, second-degree manslaughter.

Following the Friday morning note, the judge told the jurors to continue deliberating to try to come to a consensus. Judge Maxwell Wiley said in the courtroom Friday afternoon, "I think either I declare a mistrial, or give them a second Allen charge, maybe tell them to come back Monday. But I don't know what I would say," per Inner City Press. The court then went on a break.

On Friday, the jurors sent a note to the judge overseeing the trial of Daniel Penny, stating that they are unable to come to a unanimous decision on the first count, the second-degree manslaughter count.

Fox News reported that the judge said in the courtroom he may need to instruct the jury on an Allen charge, meaning the judge telling the jury to try to reach a consensus after additional talking, but if they still can’t reach a decision a mistrial would have to be declared. 

In the courtroom Friday following the note, the defense asked for the judge to declare a mistrial. The judge declined, giving the Allen charge.

The judge told the jurors when they were brought in late Friday morning, "You 12 were selected to serve, both side expressed confidence in your fairness. There's no reason to think a future jury would be more intelligent or hard-working. I am asking you to resume deliberations. Be flexible and willing to change position," per Inner City Press.

If Penny is cleared of the manslaughter charge by the jury, which began deliberations on Tuesday, then the jury can consider the lesser criminally negligent homicide count, CBS News reported.

During their nearly 20 hours of deliberations so far, the jurors have requested to watch the cell phone and police bodycam footage of the May 2023 incident in which Penny placed Jordan Neely into a chokehold on a subway train car. The jurors also wanted to hear a readback of the defense’s cross-examination of Dr. Cynthia Harris, the New York City Medical Examiner who performed Neely’s autopsy and ruled his cause of death to be compression of the neck.

Jurors additionally asked for parts of the judge’s instructions to be re-read, as well as the legal definitions of "recklessness" and "negligence."

After returning to deliberations Friday, the jurors sent a note requesting to hear clarification as to the term "reasonableness," to which the judge instructed them that "Reasonableness is up to you to decide. What would a reasonable person do in this situation? He must have honestly believed Jordan Neely was going to use physical force against him or someone else."

In May 2023, Neely boarded the train and witnesses said that he began making violent threats toward passengers. Penny and his defense team have argued that Penny was trying to protect fellow train passengers when he placed Neely in a chokehold to restrain him, with other passengers assisting.

This is a breaking story. Please refresh the page for updates.