Former federal prosecutor Andy McCarthy said there is a “faction” of jurors in the Daniel Penny trial that have bought into Manhattan District Attorney Alvin Bragg’s alleged racial narrative.
Jurors told Judge Maxwell Wiley on Friday that they were at a “deadlock” in their deliberations on the verdict, leading the judge to dismiss the second-degree manslaughter charge and leave the lesser charge of criminally negligent homicide up for consideration. As the jurors continued their deliberations Monday, McCarthy told “America’s Newsroom” that the trial will likely result in a mistrial due to several jurors believing in Bragg’s “racialized” framing of the case.
“Let’s remember what Bragg was pushing for up until Friday was the recklessness charge which carried a 15-year penalty,” McCarthy said. “So, I don’t see any change in the position of the DA, I see a change in the strategy of someone who couldn’t get the count that he was pushing for so now he’s onto this other count. But as far as this overcharging is concerned, look, we’ve spent a lot of time talking about two cases from Bragg. This case, where he overcharged it to push for a compromised verdict, and the other case which was at most a single transaction business record case and turned it into 34 felonies. So that’s what we’re dealing with here.”
“You have to wonder if some jurors think that they’re basically being brought back to court everyday until they finally convict this guy of something,” McCarthy continued. “My own view of it is that you probably have two factions on the jury, one that’s bought into this racialized presentation by the DA’s office that wants Penny convicted because [Jordan] Neely died whether Penny was actually responsible for that or not, and then you have another faction of jurors who think nothing should happen here, this guy should be acquitted. And what I assume is probably going to happen is after a day or two, it will be clear that we have a stalemate there will be a mistrial. I’d like to see him get acquitted, but it’s hard to believe that’ll happen given that there were some jurors, at least one, who was willing to convict him on the recklessness which I don’t even think there’s any evidence for.”
Bragg charged Penny, a 26-year-old former Marine, over the death of 30-year-old homeless man Jordan Neely after the defendant restrained him in a chokehold on a subway in New York City in May 2023. Neely allegedly screamed at commuters in an “aggressive” and threatening manner by throwing his jacket on the ground and telling passengers he did not care if he went to jail, prompting Penny to take action.
A Manhattan medical examiner ruled Neely’s death a homicide in May 2023, further prompting Bragg to press charges against Penny. The now-dismissed manslaughter charge came with a potential 15-year prison sentence, while the negligent homicide charges comes with a maximum four-year sentence.
In a separate case, Bragg charged President-elect Donald Trump with 34 counts of falsifying business records to cover up an $130,000 hush money payment to former porn actress Stormy Daniels ahead of the 2016 election. A jury convicted Trump on every felony count in May, though Judge Juan Merchan indefinitely delayed the sentencing date following the election and permitted the president-elect’s legal team to file a motion to dismiss the case.
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