The couple 'apparently took a video of the incident, and since that time have declined to testify in the Grand Jury, and have gone back to their home, which apparently is in Europe someplace,' the judge said.
They have so far refused to share the video that they took. They refused to share it with the DA, or with anyone else, and they are so far refusing to come back to testify.
Penny, who was not in court Monday, faces charges of second-degree manslaughter and criminally negligent homicide for the caught-on-camera confrontation that left Neely dead.
The former infantry squad leader has repeatedly said he didn't mean to kill Neely, a homeless former Michael Jackson impersonator who had battled mental illness.
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