Prominent attorney criticizes Manhattan DA Alvin Bragg’s attempt to influence Daniel Penny jury with surprising legal tactic

A prominent attorney has criticized Manhattan District Attorney Alvin Bragg for his management of the Daniel Penny case. Penny faced a manslaughter charge for fatally putting Jordan Neely, a mentally ill homeless individual, in a chokehold on May 1, 2023.

During Penny’s trial, which took place on Friday, the presiding judge, acting on the prosecution’s request, dismissed the primary charge. This decision permitted the jurors to deliberate on a lesser offense after failing to reach a unanimous verdict on the manslaughter charge.

Judge Maxwell Wiley’s decision will now let jurors deliberate a charge of criminally negligent homicide, which carries a lighter punishment.   

But former U.S. assistant attorney Andy McCarthy has accused Bragg of using ‘strong-arm’ tactics to sway the jury. 

McCarthy criticized Bragg for introducing a contentious recklessness charge in the indictment. This addition was perceived as a strategy to offer the jury a middle-ground option, potentially increasing the likelihood of a conviction, even if it does not entail a prison sentence.

Writing in National Review, McCarthy wrote, ‘Bragg added a baseless recklessness charge to the indictment so the jury would have two counts, increasing the odds of conviction by giving the jury something to compromise on.’ 

Trial testimony revealed that Neely, who was reportedly under the influence of drugs, had entered a subway car in a psychotic episode, threatening passengers.

Initially, the jury could only deliberate on the secondary charge of criminally negligent homicide if they cleared Penny of manslaughter on grounds other than justifiable force.

However, after jurors reported being deadlocked multiple times, Assistant Manhattan District Attorney Dafna Yoran successfully requested the dismissal of the top charge.

This move now allows the jury to focus solely on the lesser charge, which carries a maximum sentence of four years.

McCarthy expressed frustration with this development, stating on Fox News, ‘Today, the jurors have been Allen-charged to try to strong-arm them into deciding the count despite indicating, after three days, that they were deadlocked.’

He also criticized the prosecution in National Review, arguing that the case lacked the elements needed for a recklessness charge.

‘This was not remotely a recklessness case, where it could be said that Penny wantonly disregarded an obvious risk of death,’ he wrote. 

Jurors have been deliberating since Tuesday on whether to convict Penny over Neely’s death. 

If the jury still cannot reach a unanimous decision there is a risk that the case will fall apart and be declared a mistrial. If that happens, it will then be up to the prosecution to retry the case in front of a new jury. 

The difference between the two charges is whether Penny behaved recklessly vs negligently when he put Neely in the chokehold. 

McCarthy pointed out that Penny had adjusted Neely’s position to help him breathe, cooperated with police, and was unaware Neely had died during the incident.

‘There is evidence that Penny moved Neely into a position that would make breathing easier, waited for the police to come and fully cooperated with them, and did not even know Neely was dead when he voluntarily spoke to police and explained what happened — that he wasn’t trying to hurt Neely, just subdue him until the police arrived.

‘Now, after the jury could not find Penny guilty of recklessness after four days — and how disturbing it is that one or more jurors were apparently in favor of doing so — the judge is letting Bragg remove the recklessness count from the case. It will go down as an acquittal for Penny on that charge, so he is no longer facing a potential 15-year prison term. For the jury, however, it makes the hard work of the last four days pointless,’ McCarthy explained.

Despite McCarthy’s objections, he acknowledged the prosecution’s dual-charge strategy was having its intended effect. ‘Unfortunately, the strategy is working the way it’s designed to work,’ he remarked.

Manslaughter requires proving a defendant recklessly caused another person’s death, and carries up to 15 years. 

Criminally negligent homicide involves engaging in serious ‘blameworthy conduct’ while not perceiving such a risk and carries punishments ranging from probation to up to four years in prison.  

Penny’s lawyers have said he was protecting himself and other subway passengers from a volatile, mentally ill man who was making alarming remarks and gestures. Prosecutors said Penny reacted far too forcefully to someone he perceived as a peril, not a person. 

During the monthlong trial, the anonymous jury heard from witnesses, police, pathologists, a Marine Corps instructor who trained Penny in chokehold techniques, as well as Penny’s relatives, friends and fellow Marines. Penny chose not to testify . 

The case became a flashpoint in the nation’s debate over racial injustice and crime, as well as the city’s ongoing struggle to deal with homelessness and mental health crises in a transit system used by millions of New Yorkers every day.