The judge at the center of a controversial decision to drop the manslaughter charge against Daniel Penny in his highly-publicized subway death trial is no stranger to contentious decisions.
Justice Maxwell Wiley is an acting Justice of the New York County Supreme Court, having presided over controversial trials in the role for 20 years.
On Friday, Justice Wiley risked creating ‘reversible error’ and handing the defense a pathway to appeal any conviction when he contradicted his own jury instructions which demanded they don’t consider a secondary charge of negligent homicide until they’d reached a verdict on the manslaughter charge.
The strict instructions they received stated that negligent homicide could only be deliberated on if they returned a not guilty verdict on the manslaughter charge.
Jurors are deliberating on a month’s worth of testimony and evidence to determine whether Penny committed negligent homicide when he placed homeless mentally ill street performer Jordan Neely in a chokehold on a subway train in May 2023.
Neely died on the floor of the subway carriage, but jurors heard differing testimony about his death. The state’s witness said he died as a direct result of the chokehold, while the defense expert said it could have been a combination of factors.
Neely had drug K2 in his system at the time of his death and a sickle cell disorder.
Justice Maxwell Wiley is an acting Justice of the New York County Supreme Court , having presided over controversial trials in the role for 20 years
On Friday, Justice Wiley risked creating ‘reversible error’ and handing the defense a pathway to appeal any conviction when he contradicted his own jury instruction
Penny held Neely in a chokehold on the subway car floor while others assisted on May 1, 2023
‘The judge is letting the jury do what he said he couldn’t do. And the defense is right. This is coercive, sort of forcing the jury to convict by changing the rules after the fact. It’s not just unorthodox, it’s legally wrong,’ Fox News legal analyst Gregg Jarrett said.
‘The judge’s only option was to declare a mistrial on the deadlocked jury.’
There has been an uptick in interest for the Judge since the ruling, with critics accusing him of being soft on Assistant District Attorney Dafna Yoran and bending to her requests.
He was also slammed for allowing Penny to be referred to as ‘the white man’ throughout the trial in front of a jury.
Justice Wiley was the man who dismissed an attempt to prosecute Donald Trump’s 2016 campaign chairman Paul Manafort.
The District Attorney’s office in 2019 was trying to pursue state charges for mortgage fraud and other felonies, similar to the federal charges he was convicted of, and later pardoned for by Trump.
But Justice Wiley shot down the attempt due to double jeopardy.
There has been an uptick in interest for the Judge since the ruling, with critics accusing him of being soft on Assistant District Attorney Dafna Yoran and bending to her requests
He also presided over the highly-publicized Etan Patz murder case, which took place three decades after the six-year-old boy vanished from his home
At the time, he said ‘the law of double jeopardy in New York State provides a very narrow window for prosecution.’
But he’s also got a history of handing down harsh sentences in death cases – and of encouraging jurors to keep working through deliberations when the going gets tough.
He sentenced Queens man Lloyd T. McKenzie to 85 years in prison, the maximum sentence for murder in the second degree, after presiding over his three-month jury trial in 2017.
Even as McKenzie continued to protest his innocence, Justice Wiley said ‘I think the evidence was extremely powerful.’
He also presided over the highly-publicized Etan Patz murder case, which took place three decades after the six-year-old boy vanished from his home.
Justice Wiley handed store clerk and father Pedro Hernandez a sentence lasting 25 years to life after he was convicted by a jury.
‘The defendant kept a terrible secret for 33 years,’ the judge said. ‘His silence caused the Patz family indescribable anguish and served to compound their grief.’
Justice Wiley was the man who dismissed an attempt to prosecute Donald Trump’s 2016 campaign chairman Paul Manafort (center)
During an initial trial against Patz’ killer, Justice Wiley urged jurors to continue deliberating twice after they told him they could not reach consensus.
By the third juror note, he agreed to declare a mistrial.
Similarly in the Penny case, jurors told him twice they could not reach an agreement on the manslaughter charge.
He was inclined to send them back in for deliberations once more when Yoran’s sensational intervention took place, revealing the state was willing to dismiss the top charge.
Yoran hoped that in doing so, jurors would be free to move onto the negligent homicide charge, and reach a verdict.
