The New York jury sent a note on Friday notifying the judge that it was unable to reach a unanimous decision on the second-degree manslaughter charge. This is the first of two charges against him, the second being criminally negligent homicide. The jurors were instructed that they had to reach a decision on the first charge before moving on to the second.

The defense sought an immediate declaration of a mistrial, while the prosecution wanted the jurors to go back and deliberate more. Judge Maxwell Wiley sided with the prosecution.

The jurors returned after three more hours and were unable to reach a unanimous verdict. The defense again argued for a mistrial while the prosecution argued that the manslaughter charge be dismissed so the jury could move ahead to deliberate on the second charge. The judge signed the prosecution’s request, which came around 3:30 p.m. Friday, effectively dismissing the manslaughter charge.

The jury will now move on to deliberate on the second, lesser charge beginning Monday.

On May 1, 2023, Jordan Neely, a 30-year-old mentally ill homeless man, entered the Manhattan F train and began yelling at other riders.

“I don’t have food. I don’t have a drink. I’m fed up. I don’t mind going to jail and getting life in prison. I’m ready to die,” a witness reported Neely saying, while another recalled him saying, “Someone is going to die today.”

Neely was arrested 42 times after acts of theft, evading fares, and also assaulting three women. In 2021, he pleaded guilty to assaulting a 67-year-old woman leaving a subway station.

Other witnesses recalled fearing for their lives, saying Neely made “half-lunge movements” toward other passengers.

Penny, a former Marine, put Neely in a chokehold for nearly six minutes, including about 51 seconds after he went limp. Two other riders helped restrain Neely during this period. After he went unconscious, Penny put Neely in a recovery position on his side.

New York City police officers arrived about a half-hour after Neely first entered the subway, finding him unconscious but alive. He was pronounced dead after being transported to a nearby hospital.

Eleven days after the incident, District Attorney Alvin Bragg charged Penny with second-degree manslaughter and negligent homicide. Penny pleaded not guilty, and he was released on a $100,000 bond.

Penny maintained that he was trying to deescalate the situation and never intended to harm Neely.

Speaking with detectives in the immediate aftermath of the incident, he said he acted to protect others, saying, “I wasn’t trying to injure him. … That’s what we are taught in the Marine Corps.”

Prosecutors argued Penny’s response was disproportionate and reckless.

“You cannot kill someone because they are ranting and menacing,” Assistant District Attorney Dafna Yoran told jurors.

The prosecution has consistently sought to portray Penny as overly aggressive and motivated by racial bias. Assistant District Attorney Jillian Shartrand repeatedly referred to Penny during the trial as “the white man.”

Much of the case has revolved around whether the chokehold killed Neely. The medical examiner who performed Neely’s autopsy listed his cause of death as asphyxiation due to the chokehold. Another medical examiner, Dr. Satish Chundru, was hired by Penny’s defense team and argued Neely hadn’t died from the chokehold but rather a combination of factors, including drugs.

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The jury, composed of seven women and five men, has reviewed body camera footage and Penny’s police interrogation, among other evidence presented at the trial. The deliberations have been going on since Tuesday. Their central task is to decide whether Penny was justified in placing Neely into a chokehold.

Neely’s father, who has been present at the trial, sued Penny on Thursday, alleging negligence, assault, and battery.