Manhattan District Attorney Alvin Bragg is trying to "strong-arm" the jury in the Daniel Penny case into deciding on a verdict by dismissing manslaughter charges when they appeared deadlocked, former U.S. assistant attorney Andy McCarthy says.
"Bragg added a baseless recklessness charge to the indictment so the jury would have two counts, increasing the odds of conviction by giving the jury something to compromise on," McCarthy wrote in National Review.
The manslaughter charge required prosecutors to prove that Penny acted with recklessness when he put mentally ill homeless man Jordan Neely in a chokehold on May 1, 2023. Neely had barged onto a subway car while high on drugs, threatening to kill passengers during a psychotic episode, according to trial testimony.
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The judge initially ruled that the jury could not deliberate on the second charge unless they found Penny not guilty of manslaughter by some reason other than that the chokehold was justified. However, after jurors said they were deadlocked a second time, Assistant Manhattan District Attorney Dafna Yoran asked to have the top charge dismissed to allow the jury to debate the lesser charge of criminally negligent homicide, which carries a maximum punishment of four years in prison.
"Today, the jurors have been Allen-charged to try to strong-arm them into deciding the count despite indicating, after three days, that they were deadlocked," McCarthy wrote.
McCarthy said that he believes Bragg's strategy in the case against Penny was to push forward with two charges, manslaughter and criminally negligent homicide, in order to maximize his chances in the court system.
"Unfortunately the strategy is working the way it's designed to work," McCarthy said on Fox News Channel on Friday.
In National Review, he said the prosecution should never have happened.
"This was not remotely a recklessness case, where it could be said that Penny wantonly disregarded an obvious risk of death," he wrote. "There is evidence that Penny moved Neely into a position that would make breathing easier, waited for the police to come and fully cooperated with them, and did not even know Neely was dead when he voluntarily spoke to police and explained what happened — that he wasn’t trying to hurt Neely, just subdue him until the police arrived."
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Other commentators, including Claremont Institute senior fellow Jeremy Carl, responded angrily to the recent court developments.
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"Kyle Rittenhouse was clearly not guilty, but the Daniel Penny case makes the Kyle Rittenhouse case look like a model of blind justice," Carl wrote. "He is unquestionably in every way a hero and the prosecution against him a total disgrace."
"I don’t think the left fully grasps how much they are radicalizing people when a Marine who saved a bunch of people on the subway from a violent person with mental illness yelling ‘someone is going to die today’ is demonized," former "The View" co-host Meghan McCain argued. "Daniel Penny did nothing wrong, you lunatics."
Fox News' Michael Ruiz and CB Cotton contributed to this report.
