Daniel Penny's lawyers seek mistrial as threatening chants heard outside jury deliberation room—judge refuses

Chanting from protesters opposed to Daniel Penny was heard in the jury deliberation room in New York City on Monday morning, prompting Penny's attorneys to ask for a mistrial. Judge Wiley refused.

As reported by Inner City Press, who is in the courtroom, Penny and his attorneys entered the courtroom around 10:30 am to express their concerns that the jury could be influenced by "threats" heard chanted by protesters outside the courthouse. "Does the defense want to go on the record?" Wiley asked Penny's attorneys.

"When we retired to the anteroom there are audible chants," Penny's attorney Thomas Kenniff said. "I would like these videos from my cellphone to be made part of the record."

Kenniff expressed that what he captured were chants of "Daniel Penny, subway strangler," and "If we don't get no justice, they don't get no peace," which he interpreted as threats against jurors, who have been deliberating in the case since last week.

There was a press conference outside the courtroom on Friday, he said, which exhibited the same behavior and chants from those present. 

Assistant District Attorney Dafna Yoran chimed in to say "I've only heard 'Justice for Jordan Neely,' not threats. The man with bullpen is gone now. There are numerous threats from the other side during this trial. If you view the press conference, look at the threats about if Mr. Penny is found guilty."

Wiley noted that "the anti-Penny chanting went on longer today than usual, into jury deliberations" and he allowed the video to be submitted to the record on a flash drive. But this was not enough for Wiley to declare a mistrial. 

"I deny the motion for mistrial," Wiley said. "If they ask, I could try to find a jury room where they couldn't hear it, but I'm not sure I could find one. I could bring them out now and ask."

Yoran suggested that the issue was "moot," since it had stopped, but Inner City Press noted from the courtroom that the chanting had resumed. Kenniff suggested that Yoran may have some sway with the protesters, but Wiley dismissed that concern.

In another post, Inner City Press said that the protesters on Monday were decidedly "anti-Penny. Or, pro Neely."

The jury deliberations on Monday had stretched on since Friday when the jury was deadlocked on the first count of manslaughter and told to move on to the second count, criminally negligent homicide. The ADA had dismissed the manslaughter charge in the hope of getting a conviction on the second charge. If the jury convicts on criminally negligent homicide, the DA could seek to retry the case to obtain a conviction for the first charge. The jury began deliberating the case on Tuesday.

Penny is accused of taking the life of Jordan Neely on an uptown F train in the spring of 2023 after Neely, per witness testimony, was threatening and terrorizing passengers and Penny attempted to restrain him to protect those passengers from harm.