The defense argues that Manhattan DA's underestimation of Daniel Penny's potential punishment is incorrect and misleading.

This week, Penny's lawyers informed the judge that if convicted of second-degree manslaughter at trial, Marine veteran Daniel Penny would not be required to serve a mandatory minimum prison term, despite Manhattan District Attorney Alvin Bragg's office's efforts to emphasize this point to the media.

If convicted for Jordan Neely's death on a Manhattan F train, the 26-year-old aspiring architect could face a maximum of 15 years in prison.

Neely was grabbed in a chokehold or headlock by Penny, who later died.

"The District Attorney's attempts to have the jury speculate about a potential sentence are both improper and misleading, according to Penny's defense lawyers, Steven Raiser and Thomas Kenniff, who spoke to Planet Chronicle Digital on Wednesday. While it is true that these charges do not carry a mandatory minimum, that is the case with most felonies in New York. Additionally, the maximum sentence for these charges is 15 years in state prison."

The prosecution's actions have been criticized by Penny's defense team, who argue that the depiction of the altercation as having racial undertones is unfair and unfounded, despite the absence of hate crime allegations.

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.

Experts have proposed several theories about the contextual information described by Bragg's office as "factual."

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. — Danielle Iredale, former attorney for Bernhard Goetz

"Defense lawyers are prohibited from discussing potential sentences at trial, as it could elicit sympathy from jurors and lead to a verdict based on emotions rather than facts. However, the DA's messaging in this case is inconsistent, as they are effectively saying, 'It's okay to convict, but he won't be going to jail,' which creates a hypocrisy in their messaging."

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

"It is highly unusual, if not unprecedented, for a prosecutor's office to use the media to address public concerns if they obtain a conviction, according to Iredale, who practices in San Diego despite being barred in New York. This suggests that the DA's office is aware that public opinion is not in favor of this prosecution. The backpedaling raises a serious question about whether the prosecution believes they should have brought charges in the first place."

Several legal experts suggest that Bragg may be attempting to salvage his reputation after accusing a well-regarded Good Samaritan of wrongdoing.

"According to Paul Mauro, a former NYPD inspector, it seems that the Manhattan DA is recognizing the unpopularity and weakness of the case and may be considering asking the judge for a "non-carceral" sentence if convicted. If this is the case, Mauro believes they shouldn't have brought the case to begin with."

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

"On the subway, someone is discussing harming and killing people, and Penny is responding, as we should have done as a city," Adams stated on the Nov. 30 episode of "The Rob Astorino Show."

Bragg may worry that the judge could give a lenient sentence, even if his prosecutors ask for a harsher one.

"Matthew Mangino, the former district attorney of Lancaster County, Pennsylvania, stated that it is possible that the district attorney is trying to prepare people for the possibility that the judge may provide a lenient sentence for the defendant, despite the conviction. On the other hand, it could also be that the trial has progressed in a way that even the prosecution has acknowledged the defendant's actions as commendable, although they went too far. As a result, the DA may be preparing people for their recommendation of a lenient sentence."

During her closing arguments this week, Assistant District Attorney Dafna Yoran portrayed Penny as a heartless individual who failed to recognize Neely's humanity. Despite being present at the scene and willingly conversing with the police, Penny was not informed that Neely had passed away.

"Penny stood there for 10 minutes watching resuscitation efforts without mentioning anything about the patient's condition, according to her testimony."

Neely was described as a "crackhead" by Penny when he spoke with detectives, and he raised concerns about the increase in violent subway crimes prior to the incident. Despite the efforts of progressives to minimize these crimes under Bragg's leadership, they had been occurring for years.

"He was speaking nonsense...but these individuals are shoving people in front of trains and other incidents," he informed detectives. In the year prior to Penny's encounter with Neely, there were over 20 subway shoves.

A month ago, a PBS reporter was sucker punched on a No. 4 train. A week prior to that, there was a shove on a R train, and the victim survived. Three days before that, a straphanger was stabbed with an ice pick on a J train, according to reports from the time.

Neely shouted death threats at terrified witnesses in that climate of fear.

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

Yoran stated to the jury that Penny's actions were reckless with Neely's life because she didn't seem to acknowledge Neely's humanity.

She stated that he viewed him as someone who required elimination, she said.

The defendant's remorse can be a crucial element in determining the sentence, but it is not necessarily related to guilt.

"Sentencing judges prioritize remorse as they want to see defendants take responsibility for their actions, regardless of its effect on guilt or innocence, according to Neama Rahmani, a trial attorney and former federal prosecutor based in Los Angeles."

The Associated Press contributed to this report.