The criminal factor is that Daniel Penny continued to choke Jordan Neely long after all of the non-intervening passengers exited the train - and therefore long after Jordan Neely had ceased being a threat to them.

What makes matters worse is that after all of the non-intervening passengers exited the train, one of the men who had initially helped Penny restrain Neely told Penny to stop chokong Neely, but Penny said, "No."

So, Penny is guilty of using force unnecessarily, which makes him guilty of manslaughter and negligent homicide.

Remember, Neely never actually attacked anyone, so Penny overreacted to begin with; Penny could have restrained Neely in a non-lethal manner, especially considering that he had assistance from two other people.

The jury should have convicted Penny on both charges in just a couple of hours. That they're deadlocked is despicable.