Daniel Penny defense eyes Manhattan DA Alvin Bragg for potential malicious prosecution lawsuit

Days after his acquittal in the chokehold death of Jordan Neely, lawyers for Marine veteran Daniel Penny are floating the possibility of a malicious prosecution lawsuit against Manhattan District Attorney Alvin Bragg, who secured an indictment against their client days after police let him go, then failed to convince a jury he committed a crime.

Penny, 26, was on his way to the gym after class when Neely, 30, barged onto a subway car and started threatening to kill passengers. Penny grabbed him in a headlock and held him as other riders called 911. By the time police arrived, about seven minutes later, Neely had lost consciousness. He never woke up.

"It's not necessarily even about breaking the law," attorney Steven Raiser told "Fox & Friends" on Wednesday morning. "It's blurring ethical boundaries and failing to act in the manner in which you are expected, because of your office."

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That included pushing for an arrest not to protect the public, but allegedly to protect Bragg's image, he said. 

"It was clear that there was a fear that if an arrest wasn't made – and made very quickly – that there might be rioting in the streets, and that that may ultimately look very bad for District Attorney Alvin Bragg," he said. "And if that in fact happened, that could affect his re-election."

In addition to Bragg, he said the lawsuit could also potentially name Dr. Jason Graham, New York City's chief medical examiner, who signed off on Neely's cause of death as a homicide by strangulation before toxicology results had come back.

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"He was appointed by Mayor [Eric] Adams, same political party as Alvin Bragg," he said. "There was collusion there, and, I mean, the collusion began from the very beginning of this case and all the way through. The district attorney needed the medical examiner and needed the medical examiner to act quickly, and he did just that."

During the trial, Penny's lawyers also argued that the politically charged case unfairly carried racial undertones, highlighted by Bragg's underling, Assistant Manhattan District Attorney Dafna Yoran, who also prosecuted the city's first ever "restorative justice" case on a homicide charge, resulting in a 10-year sentence for someone who snuck up on an elderly retiree and killed him for $300.

"There were some highlights that were put out there, quite extensively, in regards to this office's practice of not prosecuting crime, and some very serious cases to talking about restorative justice and such, which, by the way, in some circumstances, that's a great thing," Raiser said. "But some brutal cases of an individual who attacked an 80-year-old man, mugging him and punching him and ultimately killing him, and yet you're going to go after full-throated against my client, who you admit did a laudable thing and is a fine young man? Despicable."

Now that the criminal case is behind him, Penny still faces a civil lawsuit from Neely's father.

Penny, a Marine veteran who received a humanitarian award for helping hurricane victims, is a Long Island native who friends described as calm and empathetic during trial testimony.

He played lacrosse and was in his school's orchestra as a teen and worked two jobs while studying architecture at the New York City College of Technology following his honorable discharge.

Neely had a lengthy criminal history and an active arrest warrant at the time of his death. He was high on a type of synthetic marijuana called K2 and had schizophrenia.

Witnesses testified that Neely's threats scared them more than a typical subway outburst would. They were thankful for Penny's intervention.