We are all waiting some kind of verdict in the Daniel Penny case. However, after three days of deliberation, the best result we may get at this point is a hung jury.

And as of the writing of this post, the jury has indeed notified the judge that they are deadlocked on the first charge – and want instructions from the judge.

The defense has asked for a mistrial, which the judge denied. The judge has ordered the jury to keep deliberating.

Judge Maxwell Wiley gave the instruction over objections from Penny’s defense attorneys who moved for a mistrial over the deadlocked panel of 12 Manhattanites.

“It’s not time for a mistrial,” Wiley told the attorneys outside the presence of the jury.

The jury sent the note marking its impasse after 16 hours of deliberating since they got the case Tuesday afternoon.

One male juror shook his head looking down as Wiley instructed the jury to “be flexible” as they move forward in deliberations.

Penny, 26, a former Marine, faces one count of manslaughter in the second degree and one count of criminally negligent homicide in Neely’s death.

Penny cannot be convicted of both charges, according to the judge’s instructions to the jury. Jurors can only consider the criminally negligent homicide charge if they find Penny not guilty of second-degree manslaughter.

The defense in the Daniel Penny trial just requested a mistrial. The prosecution disagreed, saying the judge should issue an Allen charge to prod the jury into a decision.

The judge has sided with the prosecution, saying he will issue "a full Allen charge." Reporting for @TheFP

— Olivia Reingold (@Olivia_Reingold) December 6, 2024

An “Allen charge” is ordering the jury to reach a unanimous verdict, which can have the effect of pressuring jurors into agreeing to go along with something just so they can quit deliberating and go home. This can definitely be interpreted as the judge and prosecution exerting pressure to get the verdict they want from the jury at this point. I don’t know if I should be pleased that there is at least one juror who is refusing to go along with the prosecution’s narrative, or horrified that there is at least one juror that IS going along with that narrative.

And as Professor Jonathan Turley points out, the jury may not be able to consider the bigger alternative charge of negligent homicide if they can’t reach a decision on the manslaughter charge.

…Many of us cannot see how this case could have produced a conviction with the layers of reasonable doubt in the evidence. The absence of clear causation makes a conviction difficult to justify in such a case. Indeed, it makes it difficult to see why the case was brought.

— Jonathan Turley (@JonathanTurley) December 6, 2024

If the jury returns deadlocked after the Allen charge, then the judge would be forced to declare a mistrial – which may end up being the best outcome possible at this point for Daniel Penny. As time has passed, the circumstances of the case have made it even more clear that this should never have been brought to trial. The trial should have been over the second the medical examiner, Dr. Cynthia Harris, admitted that she had watched the video of the altercation and made her determination of death AFTER seeing that.

The initial finding on May 2, 2023, was that the cause of death was “pending further study.” Then she made a decision after seeing the chokehold video, she said.

“I based my decision on the autopsy findings coupled with the video,” she said. “I didn’t wait for toxicology, because no toxicological report would change my opinion. He could have come back with enough fentanyl to kill an elephant and walked onto the train and got put in a chokehold, and that’s how he died.”

Between that testimony, and the fact that Jordan Neely still had a pulse when police officers arrived on the scene, this should have been an acquittal. As the jury deliberations have dragged on, it became obvious that there was dissention in the room, and Daniel Penny is forced to wait to discover his fate.

But in the meantime, one person is moving forward – to sue Daniel Penny in civil court for Jordan Neely’s death. And that person would be Neely’s biological father, Andre Zachery.

The suit, filed in New York Supreme Court on Wednesday, accuses the Long Island Marine veteran of negligent contact, assault and battery that caused injuries and Neely’s death last year.

Neely’s father, Andre Zachary, “demands judgment awarding damages in a sum which exceeds the jurisdictional limits of all lower Courts which would otherwise have jurisdiction,” according to the lawsuit.

The spelling of the last name is “Zachery” in the filing papers, for the record. Why sue in civil court? Money. The standards are lower, so the odds that Zachery could extort money from Daniel Penny via a jury are much higher.

Lara Yeretsian, a California defense attorney, said Neely’s father may get more from a lawsuit than the criminal case.

“The family may have a better shot in civil court,” she told Fox News Digital. “We’re not dealing with reasonable doubt anymore.”

The standard of guilt in a civil case is much lower than a criminal case. Prosecutors have to convince jurors of criminal charges beyond “reasonable doubt.” In a civil case, the plaintiff’s attorneys must prove their case based on a preponderance of evidence, more likely true than not.

Jordan Neely’s mother was murdered when he was a young teenager by her then-boyfriend, and he ended up in the care of his grandparents and family friends. Where was his “father” then?

Christie (Neely) and Zachery’s relationship was volatile. She was straightforward and ambitious; Zachery, whose main source of income came from working as a super in buildings uptown and in the Bronx, was more passive — “meek, very meek,” Davis recalls. Davis remembers having to go to his apartment and rouse him out of bed to come to rehearsal. According to (great-aunt Mildred) Mahazu, Jordan and Christie lived with her in her Harlem apartment when he was an infant, then Christie and Zachery tried to make a go of it and rented a place together. But by 1995, they were on the outs again. And when Asanté broke through with a Billboard “Hot R&B” single titled “Look What You’ve Done,” a smooth, sexy tune that stayed on the charts for 20 weeks, Mahazu watched with disapproval as Zachery wasted his money and slept around.

When Christie was murdered, it was not immediately clear where Jordan would stay. While Jordan was living in New Jersey, Zachery was not involved in his life. Kasse wanted to take charge of him, but Clara Neely, Christie’s mother, was next of kin. Immediately after Christie’s death, Jordan stayed for a while with (Carol) Kasse (his mother’s friend). “I always promised his mom, ‘I’m going to look after your son, no matter what,’ ” she says. For his privacy, she erected a partition in her living room, where he slept.

He apparently lived with his biological father temporarily after becoming an adult, but the relationship was not a good one.

At 18, Neely went to live in the Bronx with his father, Andre Zachery. “Dre was scratching and surviving,” Davis says, and working for the city as a park attendant. Blizzard recalls Zachery asking his son to share the proceeds from his performances. When Neely refused, they fought, and Zachery would take away his house keys. (Zachery denies that this ever occurred.) Neely seemed depressed and introverted, Davis says, but he was proud, like his mother. “He wasn’t the type of person to constantly leech off somebody,” Davis says. The first recorded instance of Neely registering at a shelter as an adult was in April 2011. It was the Bellevue Men’s Shelter, a massive temporary dorm that formerly incarcerated men say is more violent than prison. He was 19 years old.

That is the last time that Andre Zachery makes an appearance in this highly sympathetic profile of Jordan Neely, who was 30 years old when he died. It is an open question of where his father was this entire time, but now that money could be made, he is looking to cash in off his son’s death. That’s disgusting.

We shouldn’t be surprised that Jordan Neely’s absentee father is suing Daniel Penny. He’s an absentee father, after all, meaning he only cared about himself. Just like he exploits his son’s death because he only cares about scoring a payday. None of this is opinion but reality. https://t.co/gC8SJAGW8A

— Eli Steele (@Hebro_Steele) December 5, 2024

One would hope that this civil suit would be laughed out of the courtroom, but this IS New York. Zachery should then promptly be sued civilly, as representative for Jordan Neely’s estate, on behalf of the woman who Neely most recently had assaulted.

In 2021, Neely socked a 67-year-old woman as she exited the Bowery station in the East Village in Lower Manhattan.

The woman sustained a broken nose, a fractured orbital bone, and “bruising, swelling and substantial pain to the back of her head” in the Nov. 12 attack, according to a criminal complaint.

Neely pleaded guilty to felony assault Feb. 9 in exchange for a 15-month alternative-to-incarceration program, according to the Manhattan District Attorney’s Office. He was supposed to stay in a treatment facility and abstain from drugs.

If he had completed the program, the felony assault would have been reduced to a misdemeanor, but he skipped a compliance court date and left the facility. A warrant was issued for his arrest on Feb. 23. It wasn’t immediately clear how long he spent in jail awaiting the resolution of the assault case.

It is easy to say that the system failed Jordan Neely, but the fact remains that he was a danger to himself and others. Daniel Penny made an effort to protect others from Jordan Neely – something Andre Zachery never bothered to do – and is now paying a price that Neely himself never paid for his random assaults.

Here is hoping – and praying – that the jury remains deadlocked, and that any civil award that Zachery gets is immediately targeted by other lawyers.

UPDATE 4 PM ET
The jury is still deadlocked, and as a result, the manslaughter charge has been dismissed.

The judge sent them back to deliberate more, but they told the court shortly after 3 p.m. that they still could not reach a unanimous decision.

The judge initially ruled that the jury could not deliberate on the second charge unless they found Penny not guilty of manslaughter by some reason other than that the chokehold was justified. However, after jurors said they were deadlocked a second time, Assistant Manhattan District Attorney Dafna Yoran asked to have the top charge dismissed to allow the jury to debate the lesser charge of criminally negligent homicide, which carries a maximum punishment of four years in prison.

The judge agreed and sent the jury home for the day. They will resume deliberations Monday, only on the second charge.

“Manslaughter in the second degree is dismissed,” Wiley told the jurors. “What that means is you are now free to consider count two. Whether that makes any difference, I have no idea.”

Wiley earlier gave the jurors “Allen charge” instructions after giving the attorneys time to review, but they still failed to reach a consensus.

While this is good news, Daniel Penny is still in legal jeopardy. However, the second charge is a problem – for the prosecution.
https://twitter.com/MarinaMedvin/status/1865138198625816590
The entire post reads:

Daniel Penny judge dismissed Count 1, manslaughter, after a hung jury — BUT he is going to allow the jury to consider Count 2, negligent homicide, on Monday.

Look at the instructions. Count 2 consideration was contingent on Count 1 deliberations. The decision to allow consideration of Count 2 removes the defense-protective obstacles from the instruction. If Penny is convicted as a result, the defense will have a field day on appeal.

We shall have to wait and see if the jury can do anything more on Monday.

Featured image via succo on Pixabay, cropped, Pixabay license