Daniel Penny jury returns after judge's controversial dismissal of deadlocked top charge

NEW YORK – The Manhattan jurors weighing the fate of Marine veteran Daniel Penny return to court Monday, but only to consider the lesser charge against him after a judge controversially tossed the more serious charge and avoided a mistrial.

Judge Maxwell Wiley on Friday agreed to the prosecution's request to dismiss the most serious charge, second degree manslaughter, after jurors twice told the court they had deadlocked on the issue. 

They had previously been instructed to deliberate the lesser charge of criminally negligent homicide only if they found Penny not guilty of manslaughter for some reason other than a lack of justification.

"Manslaughter in the second degree is dismissed," Wiley told the jurors before sending them home Friday. "What that means is you are now free to consider count two. Whether that makes any difference, I have no idea."

DANIEL PENNY MANSLAUGHTER CHARGE DISMISSED AS JURY BREAKS FOR WEEKEND

They return Monday to consider only the lesser charge.

The defense had opposed the last-minute charge swap, arguing it presented a violation of state laws and could encourage a precedent where prosecutors overcharge from the start, knowing they can downgrade charges later on the fly if their case doesn't stand up.

"The risk here of a coercive verdict or a compromised verdict…New York is clear that compromised verdicts are discouraged," Penny's lawyers told the judge. "It would force them into what we would submit would be manufactured, as to the lesser count of criminal negligence."

While the judge agreed the defense was correctly stating the law, he said he would "take a chance" and dismiss the top charge.

DANIEL PENNY TRIAL: KEY EVIDENCE JURORS ASKED TO SEE AGAIN DURING DELIBERATIONS

"We are cautiously optimistic that the one remaining count will be dismissed by the jury on Monday," one of Penny's defense attorneys, Steven Raiser, told Fox News Friday. "That would finally put this nightmare behind Danny and allow us to focus on the civil lawsuit, filed two days ago, for the same allegations contained in the criminal indictment."

Penny, 26, was an architecture student at City Tech in Brooklyn on May 1, 2023, when he was taking an F train to a gym after class and Jordan Neely, a 30-year-old homeless man with schizophrenia and high on drugs, barged onto the train and started shouting threats at passengers.

"Now the judge is telling the jury, 'forget about the law, forget about what I told you,'" Fox News legal analyst told "Fox & Friends" Monday morning. "His ruling also violates the New York procedural law that forbids dismissal at this late stage during deliberations unless both sides agree. The defense didn't agree."

DANIEL PENNY TRIAL: JURORS ASKED TO SEE KEY EVIDENCE AGAIN DURING DELIBERATIONS

Many witnesses testified they were horrified during the ordeal and relieved when Penny put an end to the outburst by placing Neely in a headlock and wrestling him to the ground, where he and other passengers held him for several minutes.

Penny remained at the scene and spoke with responding officers. He also agreed to speak with NYPD detectives at the 5th Precinct building.

"He was talking gibberish... but these guys are pushing people in front of trains and stuff," he told investigators. There were more than 20 subway shoves in the year before Penny's encounter with Neely.

Just three days earlier, a subway rider had been stabbed with an ice pick on a J train, according to reports from the time. It was about a month after a PBS reporter got sucker punched on a No. 4 train. There was a shove a week before that, and the victim hit the side of a moving R train and survived.

Jurors spent most of last week deliberating and failed to come to a unanimous decision on the top charge.

"Judge Wiley should have declared a mistrial," Andrew McCarthy, a former Chief Assistant U.S. Attorney for the Southern District of New York, wrote in a Fox News op-ed Sunday. "To continue at this point is to seek to browbeat the jury into a conviction. I further believe it would violate New York criminal-procedure law."

Penny's defense fundraiser on GiveSendGo has garnered more than $3 million in donations from supporters around the country, and small dollar contributions continue to arrive Monday, on the fifth day of jury deliberations and after Neely's father announced a civil lawsuit against the Marine vet.

Penny faces a maximum of four years in prison on the lesser charge.

Fox News' CB Cotton contributed to this report.