The Manhattan district attorney’s office has contacted journalists covering the Daniel Penny case to try to influence coverage of the proceedings.
The 26-year-old Marine veteran is charged with manslaughter and negligent homicide in 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 that prosecutors said 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 filing charges, prosecutors in Alvin Bragg’s office have been on a mission to remind the jury that Penny may receive no jail time at all even if he is found guilty.
That’s because there is no minimum sentence for two of the charges he faces.
The district attorney’s office has contacted news media, including the Daily Mail, asking them to highlight this fact.
Penny’s lawyers say this is a last-ditch effort to get the jury to convict him, because they believe they will be more inclined to do so if they know he won’t languish in prison for years.
Penny (center) is defended by Thomas Kenniff (left) and Steven Raiser (right)
Neely was a Michael Jackson impersonator who was well known and recognized in Times Square (pictured in 2009)
Assistant District Attorney Dafna Yoran reiterated the possibility that Penny may not face jail time if found guilty. The district attorney’s office asked reporters to update their stories during the trial to reflect that fact
“The district attorney’s attempts to cause the jury to speculate on a possible sentence are both inappropriate and misleading.”
“While it is technically true that these charges do not have a mandatory minimum, most crimes in New York do.
“It is equally true that the maximum penalty is fifteen years in state prison.”
Defense attorney Danielle Iredale said the prosecutor’s message is essentially telling jurors not to worry about Penny’s fate if convicted because he will never spend a day in jail anyway.
‘Lawyers are not allowed to mention possible punishments at trial – the reasoning is that it would be an attempt to seek sympathy from jurors who could then reach a verdict based on something other than the facts, in other words: ‘He is possible guilty. but ten years is too much time,” she said.
‘There is a hypocrisy in the messages from the public prosecutor. In an attempt to publicize the fact that there is no statutory minimum sentence, they are essentially saying, “It’s okay to convict, he can’t go to jail!”
Jurors are still deliberating Friday morning. They have returned several notes to the courtroom asking for clarification on key details of the trial.
Significantly, they asked the judge to repeat his instructions regarding the “justification defense.”
As he handed down jury instructions Tuesday afternoon, Judge Wiley made a concerted effort to explain in detail how justification works in a case like this.
Penny now awaits his fate while the jury deliberates
Penny put Neely in a chokehold on the subway floor while others assisted on May 1, 2023
District Attorney Alvin Bragg’s office had contacted the media and told them to include in their stories that Penny’s charges did not carry a minimum sentence, Kenniff claimed in court.
He told jurors that the onus is not on Penny to prove his actions were justified, but on the state to prove beyond a reasonable doubt that they were unjustified.
There are two types of physical strength that jurors had to weigh: ordinary physical strength and deadly physical strength.
A person may have the right to use ordinary physical force to defend himself or others if he or she honestly and reasonably believes that such force is necessary to protect himself or others from violence.
Lethal physical force has a slightly higher threshold. A person can only have the right to use deadly physical force if he or she has a reasonable belief that the person – in this case Jordan Neely – used or was about to use deadly physical force against him or 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 that he used deadly physical force in the chokehold.
Jurors were told that if they decided the state could not prove beyond a reasonable doubt that Penny’s actions were not justified, they should find Penny not guilty on both counts.
In a separate conversation with the legal teams involved in the case, he quelled fears that justification could be found in one charge but not the other, saying: “That would mean an immediate acquittal.”
Both the state and the defense repeatedly discussed the justification during the trial.
Assistant District Attorney Dafna Yoran was criticized by the defense for telling jurors that Penny should not go to prison even if convicted
The May 2023 incident caused an uproar in America – BLM says it was the racist murder of a mentally ill black man by an overzealous white military believer
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 disembark safely.
Meanwhile, his defense refuted that claim by stating that Penny still viewed Neely as a threat to those around him and those observing on the platform.
They allege that he begged for help by asking those around him to call the police, and that he maintained contact with Neely while he waited for first responders to arrive.
Jurors also asked for testimony from the medical examiner to be read to them, highlighting part of her cross-examination in which she revealed that she would not have changed her mind about Neely’s cause of death even if he had had enough had fentanyl in his system. system of ‘putting an elephant down’.
On Thursday, jurors asked for a clear distinction between reckless conduct and negligent conduct – which is the decisive difference between the two charges.
If Penny is convicted of manslaughter, jurors will have to accept that he acted 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 is on trial here. The consequences are serious.
“He must not allow his right to a fair trial to be decimated because the people act as an unsworn witness in this case.”