Manhattan DA's downplaying of Daniel Penny's potential punishment 'improper and misleading': defense

Manhattan District Attorney Alvin Bragg's office has been aggressively pushing for the media to note that if convicted of second-degree manslaughter at trial, Marine veteran Daniel Penny faces no mandatory minimum prison term, Penny's lawyers told the judge this week.

The 26-year-old aspiring architect would face a maximum punishment of 15 years behind bars, if convicted for Jordan Neely's death on a Manhattan F train.

Neely rushed onto a subway car with women and children, shouted that someone would "die today," and warned that he wasn't afraid to go to prison for life. Penny grabbed him in a chokehold or headlock, took him to the ground, and he later died.

"The District Attorney’s efforts to have the jury speculate as to a potential sentence are both improper and misleading," Penny's defense lawyers, Steven Raiser and Thomas Kenniff, told Fox News Digital Wednesday. "While it is technically true that these charges do not carry a mandatory minimum, that is the case with most felonies in New York. It is equally true that the maximum sentence is 15 years in state prison."

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Penny's defense has raised concerns throughout the trial that the prosecution is overstepping its bounds and unfairly depicting the altercation as something with racial undertones, even though prosecutors have not alleged a hate crime.

"Moreover, the tenacity with which the District Attorney has sought to obtain a conviction against Mr. Penny strongly suggests that they will advocate for a substantial sentence in the event of a guilty verdict," the attorneys said.

Outside experts said there are a few possible explanations regarding what Bragg's office described as "something factual for context."

"Defense lawyers are barred from mentioning potential sentences at trial — the reasoning being that it would be an attempt to seek sympathy from jurors who then may reach a verdict based on something other than the facts, In other words, ‘He may be guilty, but 10 years is too much time,’" said Danielle Iredale, who previously represented New York subway vigilante Bernhard Goetz in a marijuana case.  "Here, there is a hypocrisy to the DA’s messaging. In attempting to publish the fact that there is no statutory mandatory minimum sentence, they are essentially saying, ‘It’s OK to convict, he may not go to the jail!’"

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Goetz was involved in one of New York City's most prominent self-defense cases. He shot four teenage muggers with an unlicensed handgun, paralyzing one of them. Jurors found him not guilty of attempted murder, but he spent several months in jail on the illegal firearm charge. Iredale represented him in the 2010s on a low-level pot case that was ultimately dismissed.

"It’s exceedingly unusual, if not unprecedented, for a prosecutor’s office to use the press to assuage the public’s concern if they were to achieve a conviction," Iredale, who is licensed to practice in New York but now works in San Diego, told Fox News Digital. "This suggests an awareness on the part of the DA’s office that public sentiment is not supportive of this prosecution.  This backpedaling raises a serious question as to whether or not the prosecution even believes they should have brought charges in the first place."

Bragg could be trying to save face after bringing a case against a man viewed by many of the witnesses as a good Samaritan, according to several legal experts.

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"It appears that [the Manhattan DA] is finally reading the room regarding the unpopularity and weakness of this case and may be considering asking the judge for a ‘non-carceral’ sentence in the event of a conviction," said Paul Mauro, a former NYPD inspector, using a term to describe sentences that don't involve prison time. "And if that's the case, they shouldn't have brought the…case to begin with."

Even New York City Mayor Eric Adams has spoken in defense of Penny.

"We’re now on the subway where we’re hearing someone talking about hurting people, killing people," Adams said on the Nov. 30 episode of "The Rob Astorino Show." "You have someone [Penny] on that subway who was responding, doing what we should have done as a city."

Bragg could also be concerned that the judge could impose a light sentence, regardless of what his prosecutors seek.

"It could be that the district attorney is trying to prepare people for, ‘Hey, there’s a conviction, but you know the judge could provide a lenient sentence for this guy,'" said Matthew Mangino, the former district attorney of Lawrence County, Pennsylvania. "And on the other hand it could be that the way the trial has proceeded, even the prosecution has said what Penny did is laudable. He stepped in, but he went too far. And maybe the DA is preparing people for their recommendation of a lenient sentence."

But during her closing arguments this week, Assistant District Attorney Dafna Yoran aggressively painted Penny as a man without remorse, who didn't see Neely's "humanity." Penny remained on scene and voluntarily spoke with police, who did not tell him Neely was dead.

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"Penny was standing there for 10 minutes watching resuscitation efforts -- at no point did Penny say, "Oh, by the way, how's that guy doing? Did he make it?'" she told the jury. "The defendant, as nice and empathetic as we hear he can be, seems to have a real blind spot for Mr. Neely."

Penny, when he spoke with detectives, described Neely as a "crackhead" and raised concerns about a spate of violent subway crimes leading up to the incident – crimes that progressives spent years downplaying with Bragg in office.

"He was talking gibberish...but these guys are pushing people in front of trains and stuff," he told detectives. There were more than 20 subway shoves in the year before Penny's encounter with Neely.

Just three days earlier, a straphanger had been stabbed with an ice pick on a J train, according to reports from the time. It was about a month after a PBS reporter got sucker punched on a No. 4 train. There was a shove a week before that, and the victim hit the side of a moving R train and survived.

In that climate of fear, witnesses said they were terrified by Neely, who shouted death threats at them.

Witness Ivette Rosario, a 19-year-old student, testified that Neely shouted someone would "die that day."

But Yoran told the jury that Penny "was so reckless with Neely’s life because he didn’t seem to recognize his humanity."

"He saw him as a person that needed to be eliminated," she said.

The defendant's remorse can be a key factor if there is a sentencing. But it has less to do with guilt.

"Remorse is a big issue at sentencing," said Neama Rahmani, a Los Angeles-based trial attorney and former federal prosecutor. "Judges want to see people who have accepted responsibility for their actions. It doesn’t really have any impact on guilt or innocence."

The Associated Press contributed to this report.