'Desperate' Daniel Penny prosecutors' latest 'bullying' attempt to sway jury
The Manhattan District Attorney's office has been contacting journalists reporting on the Daniel Penny case to try to influence coverage of the proceedings.
The 26-year-old Marine veteran is accused of manslaughter and negligent homicide following the May 2023 death of 30-year-old Michael Jackson impersonator Jordan Neely.
Neely was behaving erratically on the subway and threatening passengers when Penny put him in a chokehold which prosecutors say went 'too far' and ultimately killed Neely, who was homeless and mentally ill.
If convicted, he faces up to 15 years in prison.
Under a barrage of public criticism for bringing charges, the prosecutors in Alvin Bragg's office have been on a mission to remind the jury that Penny may not get any prison time at all, even if he is found guilty.
That's down to the fact there is no minimum sentence for two of the charges he is facing.
The DA's office has been contacting news outlets, including Daily Mail, requesting for that fact to be pushed to the forefront of coverage.
Penny's lawyers say it's the latest desperate attempt to get the jury to convict him, on the notion that they will be more inclined to do so if they know he won't rot in prison for years.
Penny (center) is being defended by Thomas Kenniff (left) and Steven Raiser (right)
Neely was a Michael Jackson impersonator who was known and recognized in Times Square (pictured in 2009)
Assistant District Attorney Dafna Yoran repeated the possibility that Penny may not get prison time if he's found guilty. The DA's office has been asking journalists to update their stories throughout the trial to reflect that fact
'The District Attorney's efforts to have the jury speculate as to a potential sentence are both improper and misleading.'
'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.'
Lawyer Danielle Iredale said the DA's message effectively tells jurors that they don't have to be concerned about Penny's fate if convicted, because he may not ever serve a day in jail regardless.
'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,' she said.
'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!''
Jurors are still deliberating as of Friday morning. They have sent several notes back into the courtroom asking for clarification about key details of the trial.
Tellingly, they have asked the judge to repeat his instructions relating to the 'justification' defense.
When he handed down jury instructions on Tuesday afternoon, Justice Wiley made a concerted effort to detail how justification works in a case like this.
Penny is now waiting to learn his fate as the jury deliberates
Penny held Neely in a chokehold on the subway car floor while others assisted on May 1, 2023
District Attorney Alvin Bragg's office had been contacting media outlets telling them to include in their stories that Penny's charges do not carry a minimum sentence, Kenniff claimed in court
He told jurors that the onus is not on Penny to prove that his actions were justified, but on the state to prove beyond a reasonable doubt that they were unjustified.
There are two types of physical force that jurors were required to weigh – ordinary physical force and deadly physical force.
A person can be justified in using ordinary physical force to defend themselves or others if they honestly and reasonably believed that such force was necessary to protect themselves or others from violence.
Deadly physical force has a slightly higher threshold. A person can only be justified in using deadly physical force if they reasonably believe the person – in this case Jordan Neely – was using or about to use deadly physical force against him or against other people.
Penny must have believed that his only way to protect himself or those around him was to use deadly physical force in order to have a justification defense if jurors determine he used deadly physical force in the chokehold.
Jurors were told that if they decided the state did not prove beyond a reasonable doubt that Penny’s actions were not justified, they must find Penny not guilty on both counts.
Speaking separately to the legal teams involved in the case, he quelled any fears that justification could be found in one charge but not the other, saying: ‘That would be an immediate acquittal.’
Both the state and the defense repeatedly addressed justification during the trial.
Assistant District Attorney Dafna Yoran faced criticism from the defense for telling jurors Penny may not go to prison even if he is convicted
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Prosecutors argue that Penny’s initial reaction may have been justified, but any responsibility he had to protect commuters ended when the train doors opened at the next station and passengers could safely exit.
Meanwhile, his defense countered that submission by arguing that Penny considered Neely to still be a threat to people around him and the people who were observing on the platform.
They contend that he was pleading for help by asking for those around him to call the police, and that he maintained contact with Neely as he was waiting for first responders to arrive.
Jurors have also asked for testimony from the Medical Examiner to be read back to them, focusing on a portion of her cross examination in which she revealed she wouldn't have changed her mind about Neely's cause of death even if he had enough fentanyl in his system to 'put down an elephant.'
On Thursday, jurors asked for a clear distinction between reckless behavior and negligent behavior - which is the defining difference between the two charges.
If Penny is convicted of manslaughter, jurors must accept that he behaved recklessly. But the negligent homicide charge has a lesser burden of proof, in that the state had to prove that he acted negligently.
Kennif said: 'My client has the presumption of innocence. He’s on trial here. The consequences are serious.
'He should not have his right to a fair trial decimated because the people act like an unsworn witness in this case.'
