A strange legal move last week by Manhattan prosecutors ultimately led to the acquittal of Daniel Penny on Monday, legal experts 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.
Follow The Post’s live blog for the latest updates on Daniel Penny’s not guilty 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.”
Penny, a US Marine Corps vet, claims he acted to protect other straphangers on the train from Neely, who was menacing passengers and at one point yelled, “Someone’s going to die today!”
The caught-on-video encounter shows Penny grab Neely from behind, taking him to the ground with a chokehold until he stopped moving.
