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Daniel Penny Trial Starting – Defense Analysis

Daniel Penny Trial Starting – Defense Analysis

Prof. John Banzoff sees a strong legal defense: “in the face of such clear threats to kill others, Penny is entitled under New York State’s § 35.15 to use even deadly force because, in the words of the statute, “the actor reasonably believes that such other person is using or about to use deadly physical force”.”

Daniel Penny is the Marine who came to the defense of passengers on a NYC subway who were being threatened by Jordan Neely.

During the confrontation Penny put Neely in a hold that caused his death.

The case immediately was politicized and racialized, with activists demanding prosecution. Prosecutors succumbed to perssure from activists and charged Penny with manslaughter. See these prior posts for background:

Jury selection has just been completed, and trial starts Friday, November 1. The NY Post reports:

A jury was seated Wednesday in former Marine Daniel Penny’s subway chokehold trial — with the majority of jurors saying they’ve had first-hand experience with someone acting erratically on the rails.

The seven women and five men are now tasked with deciding whether to convict Penny, 25, of killing Jordan Neely, a homeless man who some witnesses said was “insanely threatening,” on a crowded subway train in May 2023.

He faces up to 15 years in prison.

They include three straphangers who say they’ve been harassed on the transit system — and nine New Yorkers who raised their hands when a judge asked them if they’ve seen someone have an “outburst” on the subway.

One woman, who lives in Greenwich Village and was chosen Wednesday, said a man once yelled and swore at her and her friend on a subway car.

Also selected were an Upper West Side paralegal whose father served in the Israeli military and who rides the subway five days a week, a Murray Hill corporate lawyer, and an Upper West Side retiree who moved to the city from Nebraska.

The 12 panelists, plus four alternates, were chosen after a two-week process that ended with some fiery moments in court Wednesday in the already highly charged case — such as when a Manhattan prosecutor accused Penny’s lawyers of illegally aiming to oust prospective jurors of color from the case.

Assistant District Attorney Dafna Yoran ripped Penny’s lawyers, Steven Raiser and Thomas Kenniff, for using eight of their nine no-questions-asked juror challenges on “people of color.”

We have not been following this case as deeply as we should have, in part because the election has been so consumming. So I was please to see this analysis (in the form of a press release) by George Washington Law School Prof. John Banzoff (follow him in Twitter) analyzing the defenses. He has given us permission to run the analysis in full:

Jury Selected to Try Subway Good Samaritan Penny

Marine’s Case Stronger Than Subway Shooter’s, Says His Defender 

 

WASHINGTON, D.C. (October 31, 2024) – A jury of seven women and five men, all of whom have had first-hand experience with someone acting erratically on the subway system, has been seated to decide the fate of a former marine who risked his own safety to protect other more vulnerable passengers from threats from a violent mentally unstable man, with a criminal record for violent assaults including several on the subway, He is charged in New York City with manslaughter and criminally negligent homicide.

But the law professor whose legal analysis helped keep Subway Shooter Bernhard Goetz out of jail insists that the defendant, Daniel Penny, is a good samaritan and not a vigilante, and that he has an even stronger legal defense under the laws of New York; especially since, unlike Goetz, Penny risked his own safety to protect not himself but others.

Thus public interest law professor John Banzhaf, who has provided successful legal defenses in other similar situations – including the eerily similar case of Bernie Goetz, dubbed the “Subway Shooter” or the “Subway Vigilante” – maintains that Daniel Penny’s legal case is stronger than the others in which the professor was been successful.

Penny is no vigilante, says Banzhaf. In contrast to other definitions of “vigilante,” Penny was certainly not seeking to take the law into his own hands since the law of New York [§ 35.15], like the law of virtually all states, seeks to encourage citizens to go to the defense of others less capable of protecting themselves; an ancient legal privilege which has been expanded in many states over the past generation as the need for self help by private citizens has continued to become more evident.

To permit if not encourage individuals to go to the aid of their fellow citizens, the law permits them to use reasonable force not only against perceived threats of death or serious injury, but rather against any perceived threats of any use of “unlawful physical force.”

The latter term includes virtually any wrongful touching, including mere groping (sexual or otherwise), a touching of the clothing or possessions such as a purse of another passenger, or removal of something from a third party’s pocket.

Moreover, so that people need not fear arrest or a lawsuit if they make an honest mistake about the need to use force to protect others, the statute requires only that their belief in the need to use force be a “reasonable” one; not necessarily the best or only one, or even the one many other people might claim they would have employed under the circumstances.

As the noted jurist Oliver Wendell Holmes once declared in a self defense case, “detached reflection cannot be demanded in the presence of an uplifted knife” – or in this violent thrashing and verbal threats to kill.

And, says Banzhaf, the best evidence that Penny’s belief was not an unreasonable one are the actions of other passengers who were present at the time, and therefore could best understand and knowledgeably evaluate the situation. In Penny’s situation, many of the other passengers said they felt threatened by Neely, even if they didn’t know he had a violent criminal history with over 40 known arrests, most for violence against innocent bystanders.

Indeed, they had compelling reasons to fear not just a mere touching, which is all New York law requires for the legal privilege of defense of others to apply, but real physical injury or even their very lives.

Witnesses said he had been demanding money while making what they perceived to be threats, such as “someone is going to die today,” and that he was “ready to go to Rikers” and “ready to do life. Passenger described Neely’s shouts and “insanely threatening” and “satanic.” One frequent subway rider said that she had encountered many things on the train, “but nothing that put fear in me like that.” Another said he was “insanely threatening.”

That many passengers suffered real fear – a reasonable fear of imminent physical harm if not death – is also proven by the uncontradicted fact that two fellow passengers on the subway car independently jumped in to join Penny in restraining Neely until the police arrived, thereby showing that Penny’s belief in the need to restrain Neely for a considerable period of time, and the neck hold – apparently not a coke hold cutting off his air supply – Penny was employing, were both not unreasonable under the circumstances.

Indeed, these two men believed it so strongly that they were willing to risk physical injury to themselves as they continued to hold down a demented man with a criminal record as he violently thrashed around. So, argues Banzhaf, following the prosecutor’s legal theory, these two fellow passengers should also be charged with manslaughter and convicted if Penny is found guilty.

Also, unlike with the Eric Garner situation, none of the other passengers were yelling to let him up – which they presumably would have if any of them deemed the restraint not reasonable under the circumstances, and/or unreasonably dangerous to Neely.

Finally, to win any criminal prosecution, the DA must prove beyond a reasonable doubt that the defendant acted with a wrongful criminal intent (scienter). But the undisputed facts that Penny asked other passengers to call the police, and remained (rather than fleeing as Goetz had) once they arrived, certainly shows that he did not act with any criminal intent, and certainly not with a criminal intent to kill Neely.

Indeed, the additional fact that the police did not make an arrest, nor even issue Penny a desk appearance ticket, shows that those who were actually on the scene, and who talked with the other passengers immediately following the incident, certainly thought that Penny’s belief under the circumstances was not an unreasonable one, and that the force which he used was also reasonable under the circumstances as they evaluated it on the scene.

Those who argue that Penny’s use of a neck hold to restrain Neely constituted deadly force are also wrong, says Banzhaf, noting that New York law [§10.00(11)] defines that term narrowly to mean only “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.”

But while a neck hold might in some cases possibly cause death, so also can (and has) the use of Tasers, tear gas, a blow from a police baton or nightstick, throwing a criminal violently resisting arrest to the ground and then landing upon him, or even a punch to the face or body (remember Houdini) – all of which are frequently and lawfully used in self defense as well as in defense of others by both police and by private citizens defending themselves or others.

Also, as anyone who watched judo matches at the Olympics or otherwise has frequently observed, chock holds are taught and regularly used in such matches.

That any of these tactics might in some circumstances cause a death does not mean that they are “readily capable of causing death,” especially “under the circumstances” in which they are used in self defense or defense of others as in this instance.

Indeed, many police and sheriff’s departments still permit the use of neck holds even though police officers also have other so-called non-lethal weapons they could alternatively employ, restraint devices such as handcuffs and/or plastic ties to safely restrain a violent criminal, usually work together in pairs, and can call for backup – all advantages and alternatives which Penny did not have and could not call upon.

Moreover, notes Banzhaf, Penny would still have a strong defense even if a jury were to conclude that a choke hold does constitute “deadly physical force.” Here, according to statements by Penny, and apparently corroborated by other passengers, Neely was expressly threatening to kill others on the subway car; shouting that he was going to kill them, and that he didn’t care if he died.

Thus, in the face of such clear threats to kill others, Penny is entitled under New York State’s § 35.15 to use even deadly force because, in the words of the statute, “the actor reasonably believes that such other person is using or about to use deadly physical force”.

Without handcuffs or plastic ties, how else could Penny, even with the aid of two other passengers, effectively restrain Neely in a swaying subway car as he continued to dementedly thrash around violently, Banzhaf asks.

In a carefully researched piece in the New York Times entitled “A Killing on the F Train,” a well known New York based columnist describes how “about once a week” he encounters on the subway men “actively menacing other passengers” (usually women) to the point where they “make you genuinely afraid that you are about to be assaulted.”

The author, John McWhorter, is a 59-year-old man of large stature in apparently good physical condition. If he, despite these physical attributes, is “genuinely afraid that [he is] about to be assaulted” on the subway “about once a week,” it is easy to understand and believe that it was at least reasonable (i.e., not unreasonable) for Penny, much less the women who were genuinely put in fear by Neely, to be concerned about a mere (but not necessarily harmful) touching, which is all that the law requires for the legal privilege of defense of self or others to apply.

In other words, since McWhorter’s words above appears to be an accurate description of the very real threats all passengers, and especially female ones, face weekly on the subway, Penny’s belief that other passengers were being threatened with at least a physical touching – if not something far more serious – from Neely, and Penny’s decision to utilize a hold frequently used by police and others to restrain someone threatening others, are not unreasonable, and therefore are not only expressly permitted by New York law but also clearly not a serious crime, says Banzhaf.

This also seems to be the overwhelming consensus among many of the public, since they have so far contributed well over $2 million to an online fund page for Penny, and very little for Neely.

A fair minded jury should not find to the contrary, especially not beyond a reasonable doubt, says Banzhaf, and jurors should certainly not seek to punish Penny for whatever failures there might be in governmental actions and inactions which permit violent mentally deranged criminals to regularly ride the subways and put even able bodied men such as McWhorter in legitimate fear of being violently assaulted.

And since many jurors ride the subway and are familiar with individuals who make even large-statured men afraid of being assaulted, almost certainly at least one will and should refuse to vote “guilty” beyond a reasonable doubt – since a conviction would only further discourage even brave men from going to the aid of fellow passengers being threatened by people with major mental problems which manifests itself in irrational violence against others, says Banzhaf.

 

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Comments


 
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ChrisPeters | October 31, 2024 at 2:30 pm

In these dark days, heroes are punished while criminals are cherished.


 
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TargaGTS | October 31, 2024 at 2:44 pm

The worst part is if/when he’s convicted, he will certainly go to prison and will remain a convicted felon for the rest of his life because there’s ZERO chance any Democrat governor in NY will ever commute his sentence much less pardon him. If you’re living in a blue disaster area like NY, you are literally gambling with your life. Choose wisely.


 
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destroycommunism | October 31, 2024 at 2:45 pm

like Bernard Goetz

the leftists have their scapegoat,Penny, to excuse all the lefts instigated slavery and continued attacks against good people being free from demons,,,many if not most who roam the streets thanks to that Leftist agenda


 
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Olinser | October 31, 2024 at 2:50 pm

He’ll most likely be found not guilty, but the entire point of this farce was to prove to the uppity peasants that if you DARE try and exercise your rights, you will spend years and hundreds of thousands of dollars defending yourself.


     
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    TargaGTS in reply to Olinser. | October 31, 2024 at 2:57 pm

    Why do you think that a community/jury poool where only 23% of 2020 voters voted for Trump will produce a jury that will find this young man ‘not guilty?’ The very best he can likely hope for is a hung jury.


       
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      inspectorudy in reply to TargaGTS. | October 31, 2024 at 4:51 pm

      They will acquit him because many ride the subway and have seen this sort of thing themselves. They know what it feels like to be sitting in a car and be confronted by a raving whacko nut job. There is no place to go nor anyone in authority to turn to. As the old saying goes, “A liberal until you have been mugged”.


         
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        CommoChief in reply to inspectorudy. | October 31, 2024 at 5:17 pm

        That’s a good theory… but wouldn’t the same pool of jurors taken from registered voter list, according to this theory, also have been voting out the d/prog political class that created the unsafe conditions in the first place instead of returning them to power?


     
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    AbrahamFroman in reply to Olinser. | October 31, 2024 at 3:02 pm

    Did you happen to watch either of Trump’s NYC trials the last two-years where there was a jury seated? This kid, sadly, probably doesn’t stand a chance.


     
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    destroycommunism in reply to Olinser. | October 31, 2024 at 3:49 pm

    the guy down in austin texas who shot the lefty during the blmplo riots with the “Assault” rifle was found guilty by a sinister lefty mob


 
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destroycommunism | October 31, 2024 at 2:57 pm

the other man who is helping penny restrain the violent suspect,,is he also on trial??


 
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Ironclaw | October 31, 2024 at 3:21 pm

He should be trying to move his trial to a different jurisdiction, there’s no way he can get a fair trial there.


 
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OldProf2 | October 31, 2024 at 3:31 pm

This is why in NYC no one helps stop crimes in progress.

In NYC (and many Democrat cities) they don’t effectively enforce laws against mugging, shoplifting, etc. But there is one unwritten law they enforce rigorously:
That is the law against interfering with normal criminal activity.

Everyone knows of many examples of this where the criminal runs away and is never charged, and the hero sticks around and gets charged. Or, in this case, where the criminal croaks (often from a drug overdose), and the hero tries to revive him, but gets charged.

That’s why a mugging can occur in broad daylight on a crowded sidewalk, and everyone just slinks away and says “I didn’t see nuthin.”


 
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guyjones | October 31, 2024 at 3:41 pm

I’m so tired and angered by this never-ending corruption of and politicization of, our prosecutorial process, by unethical, vindictive and partisan Dhimmi-crat prosecutors.

George Zimmerman; Kyle Rittenhouse; Darren Wilson, Derek Chauvin, Penny, and, too many others to list, here, are all victims of that corruption and unethical conduct. Sure, Wilson wasn’t charged with criminal wrongdoing, but, he should have been instantly cleared after initial investigation; not subjected to a multi-year investigation by the vile Obama’s/Holder’s corrupt and politicized DOJ.

Has anyone bothered to calculate the chilling effect this scurrilous prosecution has/had on other good Samaritans to intervene on behalf of others? Didn’t think so.


 
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E Howard Hunt | October 31, 2024 at 4:28 pm

Mr. Penny comes across absolutely brilliantly in this video. His manner is so perfect that I think even an all black jury will find him not guilty on all charges. He is an extraordinary young man.


 
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diver64 | October 31, 2024 at 4:35 pm

I think he will be found not guilty for the fact the jurors have all ridden the subway and seen the freaks running around


 
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The Gentle Grizzly | October 31, 2024 at 5:10 pm

Some things the jury might have at the back of their minds while they’re deliberating.

Some newspaper or another, or some leftist group, will doc the jurors if the vote is not guilty.

Penney killed one of the protected classes.

The jurors might also be thinking about the riots they might cause with the not guilty verdict. See above about doxing.

This is New York we’re talking about.

I don’t think this gentleman stands a chance.


     
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    CommoChief in reply to The Gentle Grizzly. | October 31, 2024 at 5:24 pm

    Agreed. Even if a jury was sympathetic to him and recalled their own bad subway experiences.

    This is an example of why folks should stop relying on others. The only one who is gonna save you is ..you or maybe a relative. The old societal expectations are gone until we make it explicitly legal to intervene and stop second guessing on the street actions in defense of others.

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