New York prosecutors’ decision to drop the most serious charges against defendant Daniel Penny to avoid a mistrial underscores the power of prosecutors. The withdrawal – allowing the jury to consider a lesser charge – makes clear that while the defendants are entitled to the presumption of innocence, the government has an advantage. In other words, Tails District Attorney Alvin Bragg wins, Mr. Penny loses.

Mr. Penny’s lawyer, Thomas Kenniff, rejected prosecutors’ request to dismiss the second-degree manslaughter charge against him after a jury twice said it was deadlocked. He called it “bending the jury.” Mr. Penny, whose fatal encounter with Jordan Neely aboard a New York subway sparked this case, wants a mistrial. Mr Kenniff fears the jury could concoct a “forced verdict or a compromised verdict”.

That seems to be a well-founded fear. The Legal Information Institute explains that a compromised judgment can take the form of an “agreement to meet in the middle,” thereby avoiding a mistrial that would send the parties back to square one. Judge Maxwell Wiley, not exactly the embodiment of legal panache, ventured that I have no idea whether the dismissal “makes any difference or not.” He asked the jury to reach a verdict.

However, is judgment better than none? We understand that judges are reluctant to preside over mistrials. But such a strong push for a verdict in the Penny case risks trampling on the due process that makes the verdicts stable in the first place. Already at the eleventh hour, the decision to withdraw the top charge appears ripe for appeal. If the government were as convinced of its cause as it claimed to be, why would it say: “Never mind”?

Mr. Kenniff calls the prosecution of Mr. Penny, a Marine veteran, “a factually straightforward case” and contends that differences among jurors are unlikely to be resolved through further deliberations because the events in dispute are all captured on video. Our Marie Pohl reports that as the sun set Friday, the defense was becoming increasingly concerned that the judge’s insistence on a verdict despite the stalemate was becoming “coercive.”

A veteran litigator, Ron Kuby, told Ms. Pohl: “The law is pretty clear. From a procedural standpoint, we don’t want the jury to compromise if it can be avoided.” Judge Wiley’s decision barring the more serious charge appears to lead to that result. Mr Kuby ventures that the case has now reached “an unusual procedural position” as the prosecution has secured the dismissal of its most ambitious charge, despite the defense’s objections.

The machinations of the assistant district attorney prosecuting the case, Dafna Yoran, run counter to the prosecutorial ideals set forth by FDR’s Attorney General Robert Jackson, later a Supreme Court justice. Jackson stated that “the prosecutor has more control over life, liberty and reputation than any other person in America.” He was aware of the decisions a prosecutor makes – and how those decisions can affect life and liberty.

It is not our intention here to speak for or against an acquittal. It’s more about due process. Mr. Kenniff opposed the dismissal of the involuntary manslaughter charge not only because he lobbied zealously on Mr. Penny’s behalf, but also out of concern about the “political angle” lest prosecutors be induced to “overcharge.” Because the more spaghetti is thrown at the wall, the greater the chance that a strand will get stuck. No judgment is superior to a compromised judgment.