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Daniel Penny judge dismissed Count 1, manslaughter, after a hung jury — BUT he is going to allow the jury to consider Count 2, negligent homicide, on Monday. Look at the instructions. Count 2 consideration was contingent on Count 1 deliberations. The decision to allow consideration of Count 2 removes the defense-protective obstacles from the instruction. If Penny is convicted as a result, the defense will have a field day on appeal.