During jury deliberations in the Daniel Penny trial on Friday, prosecutors successfully requested the dismissal of the top charge, second-degree manslaughter. The jury will now deliberate on the lesser charge of criminally negligent homicide, which carries a maximum sentence of four years.

While the dismissal of the manslaughter charge, which carries a potential 15-year sentence, might initially appear favorable for Penny, legal experts and the defense argue otherwise. The move has been characterized as a desperate attempt by District Attorney Alvin Bragg’s prosecutors to secure a conviction in an otherwise weak case.

As noted by The Daily Wire, the defense argued on Friday that dismissing a more serious charge mid-deliberation sets a dangerous precedent, allowing prosecutors to overcharge defendants while planning to scale back charges if the case falters.

They further contended that the state’s move amounted to “coercing” the jury by exerting undue pressure for a guilty verdict.

Based on jury instructions and deliberation questions, it appears the prosecution anticipated a hung jury or even a full acquittal. Rather than let the trial conclude on those terms, they opted to salvage their case by pivoting to the lower charge in hopes of securing a conviction.

Per the Daily Wire, in certain scenarios—most notably the likely one—the lesser charge of criminally negligent homicide can only be considered if the jury first delivers a guilty verdict for the second-degree manslaughter charge. Below are the relevant jury instructions (emphasis added):

If you find the defendant not guilty of count 1, manslaughter in the second degree, for the reason that the People have failed to prove beyond a reasonable doubt that the defendant was not justified, then, you must not consider count 2, criminally negligent homicide, and you must also find the defendant not guilty of that count.

According to the jury instructions, if the jury finds Penny not guilty of manslaughter because the state failed to prove that his actions were not justified, they must also find him not guilty on the second charge, resulting in a full acquittal.

By dismissing the manslaughter charge, the prosecution avoids the possibility of both charges being acquitted or a mistrial due to a hung jury. Now, jurors are deliberating on the second charge without the constraints of jury instructions that had previously bolstered the defense’s case, according to the outlet.

It’s worth noting, however, that under the original jury instructions, the jury could have potentially found Penny not guilty on the manslaughter charge (count 1) but guilty on the criminally negligent homicide charge (count 2). This outcome would apply if they determined Penny was not guilty of manslaughter “for some reason other than the lack of justification.”

“Look at the instructions Count 2 consideration was contingent on Count 1 deliberations,” Marina Medvin posted. “The decision to allow consideration of Count 2 removes the defense-protective obstacles from the instruction. If Penny is convicted as a result, the defense will have a field day on appeal.”

Daniel Penny judge dismissed Count 1, manslaughter, after a hung jury — BUT he is going to allow the jury to consider Count 2, negligent homicide, on Monday.

Look at the instructions. Count 2 consideration was contingent on Count 1 deliberations. The decision to allow… pic.twitter.com/ghf75ksjCM

— Marina Medvin 🇺🇸 (@MarinaMedvin) December 6, 2024

The defense is almost certain to appeal if the jury returns a guilty verdict on count two, and there is a strong likelihood of success given the highly unusual move by the state and the judge in dismissing the manslaughter charge mid-deliberation, the outlet added.