(NewsNation) — The judge in the high-profile trial of Daniel Penny has dismissed the first count, manslaughter, against the ex-Marine on Friday afternoon.
After the jurors said they were deadlocked, the judge accepted the motion to dismiss the first count against Penny before sending the jury home. They are scheduled to return Monday morning to deliberate on the second count.
“What I’m gonna do is this, manslaughter in second degree is dismissed, you are now free to consider count 2. Whether that makes any difference, I have no idea, but I direct you to focus deliberations on count 2. Render a verdict on that one,” he said.
“Count 1 is no longer for your consideration, you may deliberate on count 2, but not today. Think about something else for a while. Be back Monday at 9:45.”
The jury was sent back for further deliberation earlier today after failing to come to a unanimous decision. The central issue facing the seven women and five men was whether Penny was justified in placing Neely in the chokehold after witnesses said Neely was threatening passengers on the train.
Penny has pleaded not guilty to charges of manslaughter and criminally negligent homicide.
The jury has sent nine different notes to the judge requesting key pieces of evidence since it began deliberations on Tuesday.
Among the evidence the jury has requested are transcripts from testimony from some of the 40 witnesses who testified during the seven-week trial and cell phone video of Penny placing Neely in the chokehold for nearly six minutes. On Wednesday night, the jury requested a specific part of the testimony of the medical examiner in which she discussed issuing a death certificate without toxicology results.
The jury has also requested video of New York City police body cam footage along with video of Penny’s interviews with New York City police investigators. The judge has provided those videos to a laptop that the jury is using to view evidence during its deliberations.
On Thursday, the jury sent a note to the judge requesting definitions of “recklessness” and “negligence” and asked that the judge read each more than once. They also asked to have the definitions in writing, which goes to the issue of better understanding Penny’s justifications for his actions.
Under the definition of “recklessness”, a person acts recklessly concerning a death when that person engages in conduct which creates or contributes to a substantial and unjustifiable risk that another person’s death will occur, and when he or she is aware of and consciously disregards that risk, and when that risk is of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
Then, the jury on Friday told the judge they are unable to come to a unanimous vote on the manslaughter count, and wanted to see if one was necessary before they could consider the second charge of criminally negligent homicide. The judge decided that the jurors had to try to reach a decision on manslaughter before considering the second count.
Part of the testimony the jury re-heard Wednesday came from New York City medical examiner Dr. Cynthia Harris, who testified that the autopsy report and video shot by bystanders and investigative reports provided her all the information she needed to reach the conclusion she did in determining the cause of Neely’s death.
“No toxicological result imaginable was going to change my opinion,” Harris said, even if they showed “enough fentanyl to put down an elephant.”
Toxicology results later showed the presence of the drug K2 – a synthetic marijuana – in Neely’s system. A pathologist who testified for the defense said that Neely died from a combination of factors rather than from the chokehold as the prosecution maintains.
