Thread by @innercitypress

OK - now NY v. Daniel Penny Day 4 of jury deliberations, after videos & read-back of instructions Inner City Press wrote book "Penny for Your Thoughts" & is here in the courtroom for any jury notes or verdict, will live tweet, thread belowamazon.com/dp/B0DNXVK8JC

Update of 10:27 am: Have been here in the courtroom for some time, still no sign of the judge, jury, ADAs or Danny Penny & his lawyers, presumably waiting in their room down the hall to be called in for a note or verdict. In the interim some exhibit & comparisons

Transcript of 9-1-1 call, belatedly put into the public docket this week: "someone started acting crazy on the train, talking about he's not afraid to go to jail, he's ready to hurt someone, and this guy put him in a chokehold to calm him down, so -

A comparison, in terms of jury deliberations here in NY criminal court: for the 1979 murder of 6-year-old Etan Patz, in NY v Pedro Hernandez a jury in 2015 deliberated 18 days (!) before mistrial declared. Retried in 2017, jury convicted after 9 days

Update of 10:55 am - Judge Maxwell Wiley finally takes the bench... but it is for another case, an agreed "time served" sentence to a defendant who pled guilty to criminal possession of a weapon in the 4th degree. It's all over in 30 seconds, defendant walks out

Update of 11:01 am - ADA Dafna Yoran has just walked into the courtroom. She has been handed a single page. Now Daniel Penny and his lawyers / team walk in. [The Penny team member who was on Netflix' Get Gotti is in a sweater today, not suit]

Judge: We have received a note from the jury, We would like instruction from Judge Wiley, we are unable to reach a unanimous verdict on Count 1. Parties?
Penny's lawyer Kenniff: They shouldn't consider Count 2.
Judge: I have to give them an Allen charge

ADA Dafna Yoran: It would be a crazy result that they can't move on to Count 2.
Judge: I have to ask them to try to reach a verdict on Count 1. Do you want time?
ADA Yoran: Let me talk to my colleagues. [Bragg?]

Judge: All step out. [ADA Yoran on phone]
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[As ADA Dafna Yoran works her phone, here's from the NYS CPL:
"...the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict"

Update of 11:45 am - ADA Dafna Yoran tells the Court Officer, "We're good."
He: They're ready.

Daniel Penny and his lawyers walk in.
Come to order!
Judge Wiley: What's the defense position?
Penny's lawyer Kenniff: We are moving for a mistrial, after 20 hours of deliberations over 4 days, in a case that is not factually complex

Penny's lawyer Kenniff: We oppose the Allen charge as coersive.
ADA Dafna Yoran: We want the Allen charge. And we may be willing to dismiss count 1, to get them to count 2.
Judge Wiley: They may hang on both. Over the defense objection I will give the Allen charge

Judge: They went several hours without asking for any exhibits. They are methodical and conscientious. I will follow the CJI script for the Allen charge. Bring the jury out.

Judge Wiley: You 12 were selected to serve, both side expressed confidence in your fairness. There's no reason to think a future jury would be more intelligent or hard-working. I am asking you to resume deliberations. Be flexible and willing to change position

Jury exits.
Judge: I think they can go on to Count 2.
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While we wait, here's a NY Court of Appeals case concluding that a trial court "violated the partial verdict procedure under CPL 310.70 [and] impinged on defendant's right to a trial by jury" - People v. Rivera (2010), caselaw.findlaw.com/court/ny-court…

Update of 12:26 pm - ADA Dafna Yoran has come back in and is handed a note.
Court Officer: They're ready.

Daniel Penny and his lawyers come in, get the note.
Judge Wiley: So got the next note. It states, We the jury request further clarification on whether a person reasonably believes force is necessary. We would like more on what is a reasonable person

Judge Wiley: There's a passage in People v. Goetz (chuckles) in which they note that reasonableness must be based on circumstances. Maybe that will help.
Penny's lawyer Kenniff: We obviously know the Goetz case very well, that's speaking to the subjective...

Judge Wiley: Bring them back out.
Jury entering!
Judge Wiley: Reasonableness is up to you to decide. What would a reasonable person do in this situation? He must have honestly believed Jordan Neely was going to use physical force against him or someone else

Jury exits.
Judge: They'll lunch at 1, then we'll resume
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Update of 2:54 pm - back in the courtroom for a while, court officers but no sign of Judge Wiley or lawyers. Below is the agreed verdict sheet, go to Count 2 if not guilty on Count 1 for reason other than justification - nothing about going to count 2 if hung on 1

Update of 3 pm - ADA Dafna Yoran has come into the courtroom
Court Officer: The judge is coming down.
[ He does. Now Daniel Penny and his lawyers come in]
Judge: We got the note, We the jury would like to inform, we cannot come to a unanimous verdict on Count 1

ADA Yoran: We are considering withdrawing Count 1.
Judge Wiley: I'm not sure that's consistent with NYS law. What do I tell the jury? That we deem Count 1 an acquittal? Could they properly do Count 2?
ADA Yoran: They can do what they want

Judge Wiley: I think either I declare a mistrial, or give them a second Allen charge, maybe tell them to come back Monday. But I don't know what I would say.
ADA Yoran: There's no point to that if we don't resolve this first.

Judge: Go think about it. Let's break
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Update of 3:30 pm
ADA Dafna Yoran comes in, with another lawyer. "Sergeant, tell the Judge we are ready. Can we get another chair?" she asks / says. Sips from a pink Ice (water) bottle.

Daniel Penny & his lawyers come in.
Judge Wiley: What do the People want?
ADA Yaron: We'd like to dismiss count 1, please let ADA Steven Yu, our appeals chief speak.
Judge: May not be necessary. Dismissing the first count would resolve the compromise verdict issue

Penny's lawyer Kenniff: This would be elbowing the jury, coercing them
Judge Wiley: The DA's proposal would resolve that.
ADA Wu: Your Honor put it correctly. Removal of the top count, with prejudice, takes that concern away.
Judge Wiley: What do I tell the jury?

ADA Yoran: Don't tell them it's an acquittal (on Count 1), only that it's dismissed.
Penny's lawyer Kenniff: This has never been done before. It would encourage prosecutors to over-charge in the grand jury, with the option of withdrawing if hung, under coercion

Judge Wiley: I'll take a chance and grant the People's application. I'm going to let them go to return and consider Count 2 on Monday. Bring them in.
Jury entering!
Judge: Manslaughter in the 2d degree is dismissed. You are free to consider Count 2- on Monday

Judge Wiley: I'll take a chance and grant the People's application. I'm going to let them go to return and consider Count 2 on Monday. Bring them in.
Jury entering!
Judge: Manslaughter in the 2d degree is dismissed. You are free to consider Count 2- on Monday

Penny's lawyer Kenniff: It seems a juror has been talking to the media, expressing frustration with the process. The name given is not a name of a juror.
Judge: Well, I see no reason to question jurors. Investigate if you want.

Judge: See you Monday.
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