Daniel Penny defense may have been handed 'partial victory' with dropped charge, legal expert suggests

Fox News legal analyst Gregg Jarrett suggested Daniel Penny's defense may have been handed a "partial victory" after Judge Wiley granted the prosecution's motion to dismiss the most serious charge of second-degree manslaughter on Friday.

"In [dropping the charge], Judge Wiley created what looks like reversible error so that if the jury convicts on the lesser charge next week, it would be overturned on appeal. Why? Because the judge contradicted his own earlier ruling that the jury could only consider the second count if they found Penny not guilty of the first count. Guess what? That didn't happen," Jarrett said on "Hannity," Friday, hours after the prosecution's motion was granted.

"Now the judge is letting the jury do what he said he couldn't do. And the defense is right. This is coercive, sort of forcing the jury to convict by changing the rules after the fact. It's not just unorthodox, it's legally wrong," he continued.

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"The judge's only option was to declare a mistrial on the deadlocked jury and dismiss one charge during deliberations and then double down on the remaining charge. You can't do that. To me, it clearly violates Penny's due process rights."

Harvard professor emeritus Alan Dershowitz, who also appeared on "Hannity," told guest host Tammy Bruce that the trial was destined to have a "hung jury" from the beginning, speculating that members of the jury were judging based on preconceived guilt.

Penny's defense said in a statement Friday that they are "cautiously optimistic" that the remaining count will be dismissed by the jury on Monday, allowing the "nightmare" to be put behind them so they can pivot to the civil case that awaits.

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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. 

Penny was charged with second-degree manslaughter for Neely's death, but that charge was dropped after the jury's two unsuccessful attempts to reach a unanimous verdict.

Jurors will instead weigh the lesser charge of criminally negligent homicide when court deliberations resume on Monday.