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Started By
Message
re: Marine veteran Daniel Penny indicted for subway chokehold death of Jordan Neely
Posted on 6/14/23 at 9:58 pm to Broke
Posted on 6/14/23 at 9:58 pm to Broke
quote:For citing the statute and explaining that there is a CHANCE a jury may convict Penny based upon the elements set forth IN the statute?
you are a real piece of shite
Whatever you say, friend.
Seriously, what have I said in this thread that you find so offensive? I am genuinely curious. Was it this?
quote:
This story disturbs me greatly.quote:
Indeed.
As far as I can tell, this guy was trying to protect innocent people, yet he is being treated like those McMichael yahoos in Georgia.
This post was edited on 6/14/23 at 10:07 pm
2
Posted on 6/14/23 at 10:19 pm to AggieHank86
quote:
all that I have seen is witness statements asserting that Neely was “acting erratically.” There is a huge gulf between that and reasonably fearing “deadly physical force.”
I did a cocktail napkin analysis of the NY statute in, I think, the initial OT thread. NY is a typical "step in the shoes" vis a vis self-defense state. So you have to show the people he was defending had the right to use deadly force. The video I saw did not start soon enough to establish this so that will have to be done via witness statement. I never saw any statements made at the time, others may have. One the others had the right to use deadly force then Penny would have had the same right in their defense. It doesn't matter that he got the blood choke incorrectly and air choked him to death by, what I assume, was an accident. The issue there is the long visually unseemly air choke, had he correctly had his arms against the carotids Neely would have been out much quicker and the lights would have come back on in less than 30 seconds. While it makes no difference under the law if he had the right to use deadly force it makes a difference to some jurors as they watch it.
This case will turn on the witness statements and you need at least one of the people being accosted on the train to say they met the requirements for using deadly force themselves. If Penny can not produce that testimony he is in a tough position.
Without seeing the scene earlier or at least having statements of those accosted I don't think anyone can say he is guilty or not guilty, making a judgment without that is a feelings-based decision not one framed by law.
My gut says he is innocent under NY law but I have not seen the facts to support that nor have I seen the facts to indicate he is guilty. AFAIK none of that has ever reached TD, please correct me if I am wrong.
Posted on 6/14/23 at 10:20 pm to EKG
Wish I was on that jury.
Posted on 6/14/23 at 10:23 pm to Joeybd
quote:
He killed a man with his bare hands. He will face a jury for his actions.
Defense of others has been an affirmative defense for decades. Do you support his prosecution?
This post was edited on 6/14/23 at 10:35 pm
Posted on 6/14/23 at 10:29 pm to AggieHank86
quote:
The inability of the vast majority of posters on this form to engage in rational analysis is absolutely fascinating
Hank, I’m a former prosecutor. You know very well that if a prosecutor wants an indictment they can get one. Don’t know if this dude went through the grand jury process, but as an attorney you may have to believe this charge is BS. He was clearly acting in defense of others. Any reasonable person standard applied here would be clear that he was a Good Samaritan. His prosecution is clearly political. I am sickened by what our criminal justice department has become.
Posted on 6/14/23 at 10:34 pm to AggieHank86
quote:
For citing the statute and explaining that there is a CHANCE a jury may convict Penny based upon the elements set forth IN the statute?
Nobody, for sure not me, is condemning you for posting the statute. But to pretend this isn’t politically motivated is silly. Cases like this are why people don’t intervene. The chilling effect is real.
Posted on 6/14/23 at 10:52 pm to Obtuse1
quote:solid
Obtuse1
Posted on 6/14/23 at 10:56 pm to Joeybd
You’re a fig
Posted on 6/14/23 at 10:56 pm to EKG
First, don’t go to New York City for any reason. Good people should avoid it. It’s lost to the left. Second, if you are there(because you have no choice) walk away if you see anything. You will be charged for defending others or yourself. That’s what a liberal paradise gets you.
Posted on 6/14/23 at 11:01 pm to AggieHank86
The thug was still breathing when Penny released him from the “chokehold”.
But I am sure that doesn’t matter.
Also what does the unreleased toxicology report say?
That probably doesn’t matter either.
But I am sure that doesn’t matter.
Also what does the unreleased toxicology report say?
That probably doesn’t matter either.
This post was edited on 6/14/23 at 11:12 pm
Posted on 6/14/23 at 11:02 pm to BBONDS25
quote:No question that this is the case factually, which is why I said (several times) that he has my sympathy for the arrest and indictment. I wish the prosecutor had exercised the discretion to NOT charge him. But that is not the question.
He was clearly acting in defense of others
No sane person can assert that blocking Neely’s air passage for literally MINUTES is not “deadly physical force,” which is legally-justified ONLY if the jury believes that Neely himself was about to commit “deadly physical force.”
The answer to that question is a crapshoot at this point. Anyone who pretends otherwise is naïve.
Posted on 6/14/23 at 11:08 pm to BBONDS25
quote:I have not said otherwise, but the charges HAVE been filed,“ and Penny must respond to them.
to pretend this isn’t politically motivated is silly
All I have done is evaluate the statute as applied to the known facts in that train car.
As usual, this board is throwing an emotional tantrum, rather than conducting a rational analysis. they are trying to simply “wish away“ the charges, rather than addressing the situation as it actually exists.
The perfect evidence of that assessment lies in the fact that no one even looked at the statue until posted it a full page into this thread. And at that point in time, one of the usual emotional children accused me of having “no conscience” for evaluating the case rather than rending my clothing about the injustice of it all.
This post was edited on 6/14/23 at 11:12 pm
Posted on 6/14/23 at 11:36 pm to AggieHank86
quote:
As usual, this board is throwing an emotional tantrum,
Hank, my man, there is nobody on this board acting emotional. You have admitted the charges are politically motivated. This should infuriate you as a member of the profession. Equal application of the law is a tenant of our profession.
This is weaponization of the justice system. You know it. As a member of the bar you should be infuriated. Yet you seem apathetic. It’s a message board. I could be reading you wrong. Your posts should be blasting this. Not defending it.
Posted on 6/14/23 at 11:42 pm to AggieHank86
Dans haircut and facial hair is the 2023 equivalent of Patriot meme guys haircut and facial hair from when it was popularized in 2021
This post was edited on 6/14/23 at 11:42 pm
Posted on 6/14/23 at 11:44 pm to AggieHank86
I'm disappointed that you're blind to your own hypocrisy. You really should be outraged at how our justice departments have been so nakedly weaponized these last 11 or so years
This post was edited on 6/14/23 at 11:46 pm
Posted on 6/14/23 at 11:55 pm to BBONDS25
quote:
Equal application of the law is a tenant of our profession.
It might be a tenant of yours. Hank has demonstrated otherwise.
Posted on 6/15/23 at 12:41 am to Badface
quote:
The thug was still breathing when Penny released him from the “chokehold”.
There is no need to put chokehold in quotes he was (apparently) trying to use a rear naked choke though he had it wrong and it was an air choke instead of a blood choke. That makes ZERO difference under NY law, because this is about what he did and not what he meant to do because of the "in the circumstances in which it is used" clause" in NY defense of self code. It is all about whether he had the right to use deadly force in defense of others or not. As long as he can show that he is fine. Since defense of others is an affirmative defense the burden shifts to Penny to prove it by a preponderance of the evidence.
quote:
But I am sure that doesn’t matter.
Also what does the unreleased toxicology report say?
That probably doesn’t matter either.
The first does not matter at all under the law if the choke was the proximate cause of the death which according to the ME it was, the second only matters in as far as it helps bolster the claims of those Penny was defending if their testimony is that they reasonably believed that Neely is using or about to use deadly physical force. The bold portion is what is required for them to use deadly force in defense which carries over to Penny under NY law. Also, note NY is a duty-to-retreat state, and without footage or testimony from prior to the video starting we don't know the facts of that. The video started with the train stopped but if the train was in motion when Neely's assault began then it would be fairly easy to make the case they could not have safely retreated.
I have seen several people call the charges political, I think this is imprecise and IMO ideological is a better term, though in this case, it may be a distinction without a difference.
One thing I am struck by is there is no one exasperatedly posting about the fact the video started well after the point one needs it to in order to make an informed opinion on the guilt or innocence of Penny, which is common on TD. The actions prior to the video starting are imperative to determine guilt or innocence. This is why the testimony of the accosted/assaulted passengers is crucial for Penny.
This is a case where I think I know the answers but I am also aware there is a significant piece of the puzzle listed and even if one doesn't have a JD if you methodically go through the logic I think you will see how important that missing piece is under the law.
Outside of the pesky laws, the case is frustrating in that even if Penny's actions are not allowed by law they were almost certainly righteous when taking in the full picture and if he is not able to prove the affirmative defense the outcome of the case (barring jury nullification) will likely have a chilling effect on the defense of others, particularly in NY. The bad ripple effects of bad cases are not limited to judicial precedent alone.
Posted on 6/15/23 at 5:48 am to BBONDS25
quote:Obligatory joke that my profession is not a landlord and has no “tenants.”
This should infuriate you as a member of the profession. Equal application of the law is a tenant of our profession.
In any case, I would need more data to opine as to whether this prosecutor is engaged in a discriminatory application of the law and thereby violated a tenet of the legal profession. How often has he declined to prosecute a Black good Samaritan who accidentally kills a White thug? I have no idea, and I doubt that anyone here has that data.
Obtuse probably said it better, when he said that this prosecution is IDEOLOGICAL, with that ideology being the notion that citizens not exercise this sort of self-help but instead rely upon law enforcement. Personally I disagree, which is why I choose not to live somewhere that this ideology prevails.
New York is New York, and I see little point in whining about it. I find it more interesting to examine Penny’s chances at trial under the applicable legal standards in New York. Sue me.
As an example, we have someone posting that Penny is exonerated because other bystanders attempted to assist in subduing Neely. Under the statute, that is utterly irrelevant. They are attempting to grab arms and legs. While that is indeed “physical force,” it is NOT “deadly physical force.”. NO ONE is claiming Oenny was not justified in using mere “physical force,”. The ISSUE is whether he was legally justified in escalating to “deadly physical force.”
This post was edited on 6/15/23 at 6:11 am
Posted on 6/15/23 at 5:49 am to Obtuse1
quote:Another solid post.
Obtuse1
Posted on 6/15/23 at 5:58 am to Obtuse1
quote:
I did a cocktail napkin analysis of the NY statute in, I think, the initial OT thread. NY is a typical "step in the shoes" vis a vis self-defense state. So you have to show the people he was defending had the right to use deadly force
ALL such statutes are moronic and a great example of what happens when people with ivory tower thinking start writing law.
It is pretty much impossible for a person who has never been in such a situation to genuinely imagine how they would view the situation if placed in it. This doesn't just go for self defense. The same can be said of heroic actions like pulling someone out of a burning car. No one really knows or can even hope to know what they'd do until called upon to do so.
The true standard for self defense should be simple. Did the person who ended up dead create the situation that led to the need for defense? If yes, then everything that flowed after this is the fault of the dead person.
We shouldn't be trying people in court with some odd expectation that the entire population have the ability to operate as completely trained professionals who have been preparing for the moment for years.
Sure, we can expect the cops to act as trained professionals. But typical citizens? No.
Yes, under my standard more perps end up dead. Oh fricking well. The only reall question with Penny should be, "Was the perp's behavior such that he needed to be physically removed from the situation and subdued? After that, I frankly don't give a frick "how" he was subdued. And, if on the jury, the judge could blather law at me all he wanted in the jury instructions. I'm going to follow intelligence, not ivory tower stupidity.
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