A strange legal move last week by Manhattan prosecutors ultimately led to the acquittal of Daniel Penny on Monday, legal pros told The Post.
The move to dismiss the top charge of manslaughter against Penny, 26, in the May 2023 subway chokehold death of Jordan Neely backfired spectacularly on prosecutors in Manhattan District Attorney Alvin Bragg’s office, attorneys said.
“To say that as a tactical matter, the DA botched their analysis here is an understatement,” said former Manhattan prosecutor Mark Bederow, who called the case “a failure of prosecutorial discretion.”
"I don’t think there was ever a situation in which a jury of 12 Manhattan subway riders was going to convict a US Marine who came to the aid of riders who were being threatened by an unstable man,” Bederow, now a defense attorney, said.
Prosecutors on Friday had rejected calls for a mistrial from Penny’s legal team after the jury was hopelessly deadlocked on the manslaughter rap, which carries a maximum sentence of 15 years in prison.
Instead, they begged Manhattan Supreme Court Justice Maxwell Wiley to sign off on a request to throw out the top charge and have the jury continue deliberating on the lesser charge of criminally negligent homicide, which carried a maximum of four years in prison.
“I’ll take a chance and grant the people’s application,” the judge said on Friday. “Whether that makes any difference or not, I have no idea. But I’m going to direct you to focus your deliberations on count two.”
The move drew a sharp rebuke from Penny’s lawyers, who argued it could “coerce” the jury into a “compromise” verdict.
But it was Penny who came out on top in the end.
According to legal experts, Wiley’s ruling is not unprecedented, but rare.
“I’ve never seen it while a jury is deliberating,” said former Brooklyn prosecutor and current criminal defense lawyer, Julie Rendelman, “and after a jury has come back with being hung on the top count.”
Rendelman also said the move could impact future criminal cases, with prosecutors possibly over-charging “even if, arguably, the evidence wasn’t there” and then pointing to the Penny trial and moving to dismiss the counts if they see their cases are failing.
“What we saw here,” Rendelman told The Post, “is that they were like ‘eh, I guess it didn’t work the way we wanted, so let’s pretend [the top charge] doesn’t exist.’
“I’m sure the prosecution had hoped that dismissing the top count would result in a conviction for criminally negligent homicide,” Rendelman added following the jury’s verdict to acquit. “Clearly that was not the case. One does have to wonder what exactly the jury was hung up on with the manslaughter charge, given the ultimate acquittal.”
Arthur Aidala, former Brooklyn prosecutor turned criminal defense lawyer, said he believes not only did the DA’s office make a blunder, the judge did, too.
“When you send jurors home over the weekend, it’s not that rare that when they come in after having relaxed and cleared their head, that they come in with a little bit of a different mindset — and maybe that’s what happened here today,” Aidala told The Post.
“I think it came down to the term ‘reasonableness,’” citing the last note the jury passed to the judge on Friday.
“Was it reasonable for Penny to act the way he did to have the fear that he did, for himself or a third party, regarding self-defense? And I guess once they took manslaughter in the 2nd degree off the table, they pretty swiftly reached a verdict regarding criminally negligent homicide.”
Aidala says he suspects that some jurors were persuaded by Penny’s self-defence claims, leading to the hang-up on the manslaughter charge last week.
“Only those jurors really know what took place in that room,” he said, “but I think you have to think that the self-defense claim worked here.”
He also agreed with Rendelman that this could set a precedent in other cases.
“What Judge Wiley set up is, for in the future, prosecutors to overcharge a case, and if the jury gets hung up on that top charge, well the prosecutors will just move to dismiss the top charge and then try to get a decision on the lower charge,” Aidala said. “So it gives them almost two bites at the apple. That’s why, in all the research everyone’s done, we’ve never seen a situation in Manhattan where a judge has allowed a prosecutor to dismiss the top count while the jury’s deliberated”
When asked about the future of Bragg, who defeated rival, and Penny lawyer, Thomas Kenniff in a landslide during the 2021 general election, Aidala said “I would think he would be vulnerable.”
“I don’t know why someone hasn’t run against him,” Aidala said. “There’s some issues that in a debate, he could be attacked.”
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