A top lawyer has criticized Manhattan District Attorney Alvin Bragg for his handling of the case of Daniel Penny, who was charged with manslaughter after placing Jordan Neely, a mentally ill homeless man, in a fatal chokehold on May 1, 2023.
On Friday, the judge overseeing Penny’s trial dismissed the top charge in the case at the request of prosecutors, allowing jurors to consider a lower count after deadlocked on whether he was guilty of manslaughter.
Judge Maxwell Wiley’s decision now lets jurors deliberate on a charge of negligent homicide, which carries a lighter sentence.
But former Assistant U.S. Attorney Andy McCarthy has accused Bragg of using “strongman” tactics to influence the jury.
According to McCarthy, Bragg added a controversial recklessness charge to the indictment to give the jury the opportunity to compromise and increase the likelihood of a conviction – even if it does not result in prison time.
To write National ReviewMcCarthy wrote, “Bragg added an unfounded charge of recklessness to the indictment so that the jury would get two points, increasing the likelihood of conviction by giving the jury something to compromise on.”
Witness testimony revealed that Neely, who was reportedly under the influence of drugs, entered a subway train in a psychotic episode and threatened passengers.
Initially, the jury could only deliberate on the secondary charge of negligent homicide if they acquitted Penny of manslaughter on grounds other than justifiable violence.
Jurors have been deliberating since Tuesday on whether to convict Daniel Penny (pictured) in the death of Jordan Neely
Former Assistant U.S. Attorney Andy McCarthy, pictured, has accused District Attorney Alvin Bragg of using “strong-arm” tactics to influence the jury
Manhattan DA Alvin Bragg is a Democrat who has reduced violent crimes from felonies to felonies
However, after jurors reported several times that they were deadlocked, Assistant Manhattan District Attorney Dafna Yoran successfully requested dismissal of the top charge.
The move now allows the jury to focus solely on the lesser charge, which carries a maximum sentence of four years.
McCarthy expressed his frustration with this development and continued Fox News“Today, Allen’s jurors were instructed to strong-arm them into deciding the count, despite indicating they were deadlocked after three days.”
He also criticized the prosecutor in National Review, arguing that the case lacked the elements necessary for a recklessness charge.
“This was not even remotely a recklessness case where it could be said that Penny willfully ignored a clear risk of death,” he wrote.
Jurors have been considering since Tuesday whether to convict Penny in Neely’s death.
If the jury still cannot reach a unanimous decision, there is a risk that the case will fall apart and be dismissed. If that happens, it is up to the prosecutor to take the case again to a new jury.
The difference between the two charges is whether Penny acted recklessly versus negligently when he placed Neely in the chokehold.
Penny put Neely in a chokehold on the subway floor while others assisted on May 1, 2023
The May 2023 incident caused an uproar in America – BLM says it was the racist murder of a mentally ill black man by an overzealous white military believer
after jurors reported being deadlocked several times, Assistant Manhattan District Attorney Dafna Yoran successfully requested dismissal of the top charge.
McCarthy pointed out that Penny had adjusted Neely’s position to help him breathe, was cooperating with police and was unaware that Neely had died during the incident.
“There is evidence that Penny put Neely in a position that made breathing easier, waited for the police to arrive and fully cooperated with them, and did not even know Neely was dead when he voluntarily spoke to the police and explained what had happened – that he I tried not to hurt Neely, but suppressed him until the police arrived.
‘Now that the jury has not found Penny guilty of recklessness after four days – and how disturbing it is that one or more jurors apparently were in favor of that – Judge Bragg has the recklessness count removed from the case. It will go down as an acquittal for Penny on that charge, so he no longer faces a 15-year prison sentence. However, for the jury it makes the hard work of the last four days meaningless,” McCarthy explains.
Despite McCarthy’s objections, he acknowledged that the prosecution’s dual charging strategy had its intended effect. “Unfortunately, the strategy is working as intended,” he noted.
Judge Maxwell Wiley will now let jurors deliberate on a negligent homicide charge, which carries a lighter sentence after the manslaughter charge was dismissed
Manslaughter requires proof that a suspect recklessly caused someone else’s death, and can take up to fifteen years.
Criminally negligent homicide involves committing serious “culpable conduct” without appreciating such risk, and carries penalties 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 made alarming comments and gestures. Prosecutors said Penny reacted far too forcefully to someone he viewed as a danger, not a person.
During the month-long trial, the anonymous jury heard from witnesses, police, pathologists, a Marine Corps instructor who trained Penny in chokehold techniques, as well as Penny’s family members, friends and fellow Marines. Penny chose not to testify.
The case became a flashpoint in the national debate over racial injustice and crime, as well as the city’s ongoing struggle to address homelessness and mental health crises on a public transportation system used by millions of New Yorkers every day.