Jury in Daniel Penny subway death told to keep deliberating after saying they are deadlocked on manslaughter charge

[Igel]

4. In this case, he's rewriting his charge to the jury.

Jurors can only consider the criminally negligent homicide charge if they find Penny not guilty of second-degree manslaughter.

Becomes, 'Never mind what I said, it's a mulligan: So let's pretend that first charge doesn't exist so now you must consider the newly only remaining charge.'

Judge apparently forgot that really, datur tertium.