Former federal prosecutor Andrew McCarthy said Friday on Fox News that Democratic New York District Attorney Alvin Bragg “played games” with Daniel Penny’s case, following the announcement that a Manhattan judge agreed to drop his top count of manslaughter.
Assistant District Attorney Dafna Yoran announced Friday afternoon that prosecutors would move to dismiss Penny’s top count of second-degree manslaughter after the jury had already approached the judge twice, unable to reach a verdict on the charge. On “Your World with Neil Cavuto,” the Fox News host asked McCarthy for his thoughts on the “significance” of the judge’s last-minute decision.
“I think Bragg played games from the beginning here, Neil. This really was never a recklessness case. The evidence doesn’t lend itself to that. I think he threw in the recklessness charge in the hope that it would increase his odds of getting a conviction by giving the jury something to basically compromise on,” McCarthy said.
“He knew that they probably wouldn’t get him on the recklessness, so they could feel better about convicting him on the negligence, like they were being more fair. So what’s happened here is exactly that, in the sense that the recklessness charge after four days and 30 hours of deliberations is finally gone,” McCarthy added.
McCarthy went on to state that the jury would still have to return to court on Monday to deliberate on Penny’s negligence charge. He called the case unfair and said it should never have involved manslaughter.
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“But now the jury’s being told it’s got to come back and start from scratch on the negligence charge. And that’s really not the way the case was tried, because that was not the way the indictment tees it up,” McCarthy said. “So I think it’s really unfair to Penny in the sense that this should never have been. I don’t think it should have been a case at all, but it should never have been anything other than a one count negligence case. I think then it would have been decided by now.”
The 26-year-old former Marine’s trial began last month after Bragg’s office charged him with the death of 30-year-old homeless man Jordan Neely, following Penny’s attempt to restrain Neely on the subway in May 2023. At the time of the incident, Neely had allegedly been screaming and threatening commuters, prompting Penny to try to subdue him.
During the trial, Penny’s defense medical expert, Dr. Satish Chundru, testified that Neely did not die from Penny’s chokehold, but from the “combined effects” of synthetic marijuana, schizophrenia, and other factors, according to the New York Post.
Because only the lesser charge is being considered, the maximum sentence Penny could face is up to four years, according to NBC News. Penny has pleaded not guilty.
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