Jurors on the Daniel Penny chokehold trial returned to deliberations for a fourth day Friday for just an hour before telling the court they could not come to an agreement on the top charge, manslaughter, as they weigh the fate of a 26-year-old Marine veteran and architecture student accused of killing a mentally ill homeless man who threatened to kill people on a Manhattan subway car.

Around 11 a.m., the jurors sent a note to the court stating, “We the jury request instructions from Judge [Maxwell] Wiley. At this time, we are unable to come to a unanimous vote on count 1 – manslaughter in the second degree.”

The judge sent them back to deliberate more, but they told the court shortly after 3 p.m. that they still could not reach a unanimous decision.

The charge requires prosecutors to prove that Penny acted with recklessness when he grabbed Jordan Neely in a chokehold. Neely had barged onto the train while high on drugs, threatening to kill passengers during a psychotic episode, according to trial testimony.

“In this case, I think that they can’t move on to count 2 unless they find the defendant not guilty of count 1,” Wiley told attorneys for both sides, despite protests from the prosecution. “I have to at least try to ask the jury to find a verdict on count 1.”

After after the second note from the jury, Assistant Manhattan District Attorney Dafna Yoran said she would consult with her team and the prosecution might ask to have the top charge dismissed to allow the jury to debate the lesser charge of criminally negligent homicide, which carries a maximum punishment of four years in prison.

Wiley earlier gave the jurors “Allen charge” instructions after giving the attorneys time to review, but they still failed to reach a consensus.

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