When jury deliberations began in the Daniel Penny case on Tuesday, I really expected we'd have a verdict in a matter of hours or certainly by Wednesday morning. Today, on the jury's 4th day of deliberations they have told the judge they are deadlocked on the manslaughter charge.

Jurors on the Daniel Penny chokehold trial returned to deliberations for a fourth day Friday for just an hour before telling the court they could not come to an agreement on the top charge, manslaughter, as they weigh the fate of a 26-year-old Marine veteran and architecture student accused of killing a mentally ill homeless man who threatened to kill people on a Manhattan subway car.

Around 11 a.m., the jurors sent a note to the court stating, "We the jury request instructions from Judge [Maxwell] Wiley. At this time, we are unable to come to a unanimous vote on court 1 – manslaughter in the second degree."

The judge's instructions in this case say that Penny can only be found guilty of one of the two charges he is facing, either manslaughter or criminally negligent homicide. However, they aren't allowed to even consider criminally negligent homicide unless they first decide they cannot convict him on the manslaughter charge. 

In the 18 or so hours they have been deliberating so far the jury has revisited a lot of the trial evidence, including the definition of "recklessness" which is the key to finding him guilty of manslaughter.

During deliberations, jurors asked to rewatch bystander videos of Penny restraining Neely, responding officers’ body camera videos and video of Penny’s subsequent interview with two police detectives at a precinct. They also asked to rehear the medical examiner’s testimony about issuing a death certificate before Neely’s full toxicology reports were completed. They also asked for the judge to read back the definitions of recklessness and criminal negligence and to have the definitions in writing.

Obviously there is some disagreement which isn't going away. The defense sought a mistrial but Judge Wiley insisted the jury keep deliberating. It's what lawyers call an Allen charge. He added that they should try to be flexible.

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...

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

The Manhattan District Attorney’s Office agreed with the judge’s decision to instruct the jury to keep considering the manslaughter charge, while defense attorney Thomas Kenniff argued they were hopelessly deadlocked.

“The jury has been deliberating for roughly 20 hours over four days on what is in many ways a factually uncomplicated case, an event that transpired over minutes on video,” Kenniff said.

After the Allen charge (keep deliberating!) the jury sent the judge another note:

Jurors then sent another note: "We the jury request further clarification in the determination of whether a person reasonably believes physical force to be necessary. The two part test mentions reasonable person. We'd like to better understand the term 'reasonable person.'"

The judge told them it's up to them to decide, and asked them to consider what a reasonable person would do in the same situation, to consider what they think Penny actually believed, and whether that belief was honestly held, even if mistaken. Would a reasonable person, knowing what Penny knew in the same circumstances, have thought the same thing, the judge said in reply to their question. 

Just reading the tea leaves here but it sounds like one or more jurors are stubbornly holding out for manslaughter while others are not willing to consider it and would like to move on to consideration of the lesser charge. Maybe they were hoping the judge would explain to the holdout that they are being unreasonable? If the jurors pushing for manslaughter are too stubborn they may get a hung jury in this case.

Sometimes we learn more about what happened in the jury deliberations after the trial is over. Any individual juror could decide to talk to the media. I'm very curious about who the holdouts are and what their motives are. As I've said all along, I don't see how manslaughter fits here. You can argue that Penny made a mistake in the amount of force he used based on two facts: He didn't intend to kill Neely but Neely died. But I don't think the record shows that he was reckless. Everyone in that train was afraid and Neely had been trained in applying this hold and tried not to overdo it. He genuinely thought he could control the situation so no one, including Neely, got hurt. That's not recklessness so manslaughter should be out.

I'm just speculating but I wouldn't be surprised to learn it was one juror holding out for the manslaughter charge as opposed to 11 in agreement on manslaughter and one juror refusing to go along with them. We'll have to wait and see if the prospect of continuing this standoff into next week causes the stubborn juror (or jurors) to reconsider and move on to the lesser charge.