Daniel Penny 'overcharged' by prosecution in 'patently unfair' move, attorney argues: 'Miscarriage of justice'

Attorney Brian Claypool accused the prosecution of intentionally "overcharging" Marine veteran Daniel Penny in the Jordan Neely subway chokehold case, knowing the move would boil down to the jury weighing on the "easier-to-prove" lesser charge. 

The judge in the high-profile case granted the prosecution's motion to dismiss the top charge of second-degree manslaughter before the jury broke for the weekend, leaving them to weigh the lesser charge of criminally negligent homicide when court deliberations resume on Monday.

Jurors failed to reach a unanimous agreement twice, prompting the dismissal.

"I thought when this case started that this prosecutor overcharged Daniel Penny. This never was a second-degree manslaughter case; that requires Penny to intend to harm Jordan Neely. That requires proof that Penny knew and had reasonable belief to know that Jordan Neely was going to die because of this chokehold and still did it," Claypool said.

"There's no facts to support that, so these prosecutors overcharged, knowing they'd never get a conviction on second-degree manslaughter, and then got what they wanted. Then they get the judge to say, 'Well, you can't agree on that one, but let's go to the lesser charge, which is easier to prove.' What that does is it induces jurors to throw up their arms after they've been deliberating three or four days and say, 'OK, let's just get them on the lesser charge,' so it's patently unfair, and that's a miscarriage of justice."

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Penny's defense said in a statement Friday that it is "cautiously optimistic" that the remaining count will be dismissed by the jury on Monday, allowing the "nightmare" to be put behind Penny.

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"…[This would] allow us to focus on the civil lawsuit, filed two days ago, for the same allegations contained in the criminal indictment," the statement continued.

Penny is accused of using a chokehold against 30-year-old Neely that resulted in his death after Neely told passengers aboard a New York City subway that someone was going to "die today" and that he didn't care about going to prison for life.