This week, Daniel Penny’s defense attorneys flagged Judge Maxwell Wiley to what they say are improper and misleading actions by Manhattan District Attorney Alvin Bragg’s office working with the media.
Penny, a 26-year-old Marine veteran, is on trial for the death of Jordan Neely, whom Penny restrained on the NYC subway last year after Neely allegedly threatened passengers.
The defense says Bragg’s office has been aggressively pushing the media to add in their coverage that there’s no mandatory minimum sentence if Penny is convicted on the second-degree manslaughter charge.
“The District Attorney’s efforts to have the jury speculate as to a potential sentence are both improper and misleading,” Penny attorneys Steven Raiser and Thomas Kenniff told Fox News. “While it is technically true that these charges do not carry a mandatory minimum, that is the case with most felonies in New York. It is equally true that the maximum sentence is 15 years in state prison.”
“Moreover, the tenacity with which the District Attorney has sought to obtain a conviction against Mr. Penny strongly suggests that they will advocate for a substantial sentence in the event of a guilty verdict,” the attorneys added.
A defense attorney named Danielle Iredale told Fox that this appears to be a signal to the jury that it’s okay for them to convict Penny since he potentially won’t serve any time behind bars.
“Defense lawyers are barred from mentioning potential sentences at trial — the reasoning being that it would be an attempt to seek sympathy from jurors who then may reach a verdict based on something other than the facts, In other words, ‘He may be guilty, but 10 years is too much time,’” Iredale explained. “Here, there is a hypocrisy to the DA’s messaging. In attempting to publish the fact that there is no statutory mandatory minimum sentence, they are essentially saying, ‘It’s OK to convict, he may not go to the jail!’”
In closing arguments and throughout the trial, the state has argued that Penny went “too far” and was “reckless” when restraining Neely, ultimately killing him.
Controversially, the prosecution has leaned heavily into race, implying that Penny, who is white, was motivated by Neely’s race when restraining him. Notably, Assistant District Attorney Dafna Yoran has referred to Penny as “the white man” during the trial, while referring to Neely by his name, The Daily Wire reported. She also told the jury during closing arguments that Penny “didn’t recognize that Jordan Neely was a person” and viewed Neely as “a person [who] needed to be eliminated.”
The defense, alternatively, has repeatedly asked the jury to consider who they’d want on the subway with them if they were under a serious threat. Raiser argued that Penny could have done nothing when Neely allegedly threatened terrified subway riders, but instead, he chose to act, putting his “own life on the line” to protect “perfect strangers.”
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Penny’s defense has also raised serious doubt about the manner in which Neely died. The New York medical examiner said he died of asphyxiation, but, controversially, she admitted during the trial that she made that determination based on viral video evidence before she ever received a toxicology report.
Moreover, a forensic pathologist brought by the defense testified that Neely’s death was caused by the “combined effects” of sickle cell, K2, which is a synthetic drug tied to psychosis, schizophrenia, and other factors. He also said that the chokehold did not directly kill Neely.
Notably, Neely still had a pulse when police arrived on the scene. Mouth-to-mouth was not given to Neely because, according to police testimony, he looked filthy and like an apparent drug user.
Penny has been charged with second-degree manslaughter, which carries a 15-year sentence, and criminally negligent homicide, which carries a four-year sentence. Closing arguments in the case wrapped on Tuesday, and the jury will continue deliberations on Friday.