Whether the jury should move on to consider count two (negligence) hinges on the rationale for its resolution of count one (recklessness).
On X, Marina Medvin has helpfully posted the verdict sheet the jury is working through in the Daniel Penny case. Upon perusing it, you can see why there is confusion about whether the jury should be permitted to move on to count two (negligent homicide) if it is unable to resolve count one (reckless homicide).
Penny’s main defense in the case is justified use of force. When a defendant puts this in play, the burden is on the prosecution to prove beyond a reasonable doubt that the defendant was not justified.
Hence there are essentially two ways for Penny to be found not guilty of recklessness: first, if the jury finds he was justified (i.e., that the prosecution has failed to negate justification); or second, even if the jury finds the prosecution has negated Penny’s justification defense, the jury could acquit Penny on count one if it finds the prosecution has failed to establish that Penny acted recklessly (i.e., that he perceived a risk of death and acted with wanton disregard of it).
How the jury resolves count one is crucial to whether it should move on to consider count two.
If the jury concludes with respect to the reckless homicide charge that Penny’s use of force was justified (again, that the state has failed to negate Penny’s claim of justification), then there is no reason to move on to count two. That is, if he was justified in using force with respect to the recklessness charge, he was a fortiori justified as to the negligence charge.
On the other hand, even if it were to find that prosecutors had succeeded in negating the justification defense, the jury could still find Penny not guilty on count one if, for example, it found that the prosecutors had failed to establish recklessness.
If that were the case, the jury could move on to consider count two. Why? Because the finding that a defendant did not act recklessly does not necessarily preclude the possibility that he acted negligently — the lesser offense in which a person fails to perceive a risk of death that the average person would have perceived under the circumstances.
As an aside, I don’t understand why what’s true of justification is not true of causation. That is, if the jury acquitted on count one because it found that Penny’s chokehold had not caused Neely’s death (because, say, the jurors concluded that the drugs in Neely’s system are what killed him), then that conclusion would necessarily call for acquittal on the negligence charge, too. Nevertheless, the verdict sheet does not reflect that. This is probably because justification is a defense that the prosecution must disprove if a defendant puts it in play; by contrast, causation is an element of the homicide offense that the prosecution must establish beyond a reasonable doubt. Ergo, if the jury concluded that the prosecution had failed to establish that Penny caused Neely’s death, then it would obviously acquit him of both charges.
Obviously, the confusion in the courtroom owes, at least in part, to the fact that the jury has told the judge that it is deadlocked on count one but has not elaborated on why it is deadlocked.
This explains the competing positions of the parties. The defense is taking the position that if the panel is hung on count one, it must be because the state has failed to negate justification. The DA is arguing, to the contrary, that it is not known why the jury is deadlocked on count one — for all we know, the jurors agreed there is no justification and are divided on some other element of the alleged crime — and therefore we should let them move on to the second charge.
This also makes it easier to understand why the judge gave the Allen charge. If the jury resolves count one, everything becomes more straightforward. If the jury acquits on count one and then, following the instructions on the verdict sheet, it moves on to consider count two, then we must infer that the jury rejected the justification defense. On the other hand, if the jury convicts on count one (the greater homicide offense), it has been told that that would be the end of the case — it should not move on to consider count two (the lesser offense).
The latest reports I’ve seen indicate that we’ve not heard from the jury since the judge gave the Allen charge.