Are we headed toward a hung jury?

As I noted a bit earlier, when the jury reported to Judge Maxwell Wiley that it was deadlocked on the count one second-degree manslaughter (reckless homicide) charge against Daniel Penny in the death of Jordan Neely, the parties argued about whether (a) a hung jury should be declared, (b) the jury should be instructed to move on to the lesser criminally negligent homicide charge in count two, or (c) the court should give the jury the so-called Allen charge on count one. The Allen charge is designed to push the jury into resolving a charge, and defense lawyers always lambaste it as coercive (as they have done here), but it is standard (arising out of the Supreme Court’s 1896 decision in Allen v. United States).

Judge Wiley gave the Allen charge, WABC News 7 in New York reports, after concluding that it would be premature to declare a mistrial. The prosecutor from Manhattan District Attorney Alvin Bragg’s office, ADA Dafna Yoran, argued that it would be a “crazy result” to declare a mistrial if the jury has never even considered count two. Reportedly, the jury has gone back to the deliberation room to further consider count one.

To repeat, I suspect a hung jury is in the offing (that is also my hope at this point since, to my chagrin, I don’t see an acquittal if some faction of jurors actually wants to find Penny guilty of recklessness). On that score, Penny and his lawyers had to be dejected by ADA Yoran’s remark that there would be a new trial if this jury “hang[s] the case.”

To be clear, there is nothing enforceable about such assertions at this stage. If the jury hangs, it will be up to Bragg whether to retry the case. Legally, he could do that. In terms of parochial politics, it may be what the woke-progressive base that got him elected would want him to do. But if Bragg is of a mind to seek statewide office in the future, the prosecution of Penny tends to be viewed with increasing disdain the further one gets from that Manhattan courthouse.