Daniel Penny 'overcharged' by prosecution in 'manifestly unfair' approach, says lawyer

Attorney Brian Claypool accused the prosecution of intentionally “overcharging” Marine veteran Daniel Penny in the Jordan Neely subway chokehold case, knowing that decision would come down to what the jury weighed lesser accusation “easier to prove”.

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

Jurors failed to reach unanimous agreement twice, leading to dismissal.

“I thought when this case started, this prosecutor overcharged Daniel Penny. This was never a second-degree manslaughter case; it requires that Penny intended to harm Jordan Neely. It requires the evidence that Penny knew and had a reasonable belief to know that Jordan Neely was going to die from that chokehold and I still did it,” Claypool said.

“There are no facts to support this, so these prosecutors overcharged the charges, knowing they would never get a conviction for second-degree manslaughter, and then they got what they wanted. Then, they make the judge say, “Well, you can't agree on that one,” but let's move on to the less serious charge, which is easier to prove. This makes the jurors throw up their hands. after deliberating three or four days and saying “OK, let's charge them with the lesser charge,” so it's obviously unfair, and it's a miscarriage of justice.”

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Daniel Penny arrives at Manhattan Supreme Court, Friday, November 22, 2024. Penny, a Navy veteran, is charged with second-degree manslaughter and criminally negligent homicide in the 2023 death of Jordan Neely on a New York subway. (Rashid Umar Abbasi for Fox News Digital)

Penny's defense said in a statement Friday that it was “cautiously optimistic” that the remaining count would be thrown out by the jury on Monday, putting the “nightmare” behind Penny.

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Jordan Neely is photographed before going to see the Michael Jackson film, “This is It,” outside the Regal Cinemas at 8th Avenue and 42nd Street in Times Square, New York, in 2009. (Andrew Savulich/New York Daily News/Tribune News Service via Getty Images)

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

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Penny is accused of using a chokehold on Neely, 30, which led to his death after Neely told passengers aboard a New York subway that someone was “going to die today” and that he didn't care about going to prison for life.