NY Attorney David Schwartz Weighs In On Subway Chokehold Death Case on WABC 7.

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this is Eyewitness News up close now
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back to the subway Chokehold case Daniel
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penny has now been charged with
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second-degree manslaughter and could
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face 15 years in prison if convicted the
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Manhattan district attorney decided to
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do it without going to a grand jury
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first so joining us now to talk about
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all of it David Schwartz a former
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prosecutor and now a defense attorney
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sir thank you welcome up close
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thank you I want to begin right there
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because it was our understanding that
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the case would be presented to a grand
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jury what does it tell you that the D.A
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decided to not present it to a grand
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jury
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it it's it's six and one half dozen or
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another it's a pretty normal course of
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business to not present a case to a
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grand jury in the very beginning usually
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an arrest is made like like in this case
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we have an arrest and there'll be an
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arraignment today and then after the
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arraignment the D.A uh will present the
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case to a grand jury so that's normally
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how cases work uh where there's this
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high price high profile crime sometimes
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the D.A will go to the grand jury first
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but in the majority of cases it works
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exactly the way this is working it's my
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understanding the defendant has an
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opportunity in a lot of these cases to
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testify in a grand jury proceeding is
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that true
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not only does the defendant have an
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opportunity the defendant has an
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absolute right to testify in the grand
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jury and that'll be an evaluation that
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is made in the far majority of cases
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99.9 percent of the cases the defendant
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never testifies in the grand jury
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because now you're giving away your case
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to the grand jury which can be used
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later on in the proceedings but because
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of the nature of this case you never
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know what I do suspect is that the
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defendant May profit some witnesses to
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the grand jury and trying to figure out
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what happened on board that F train is
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key we saw the about four minute video
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with the what appeared to be a Chokehold
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already applied to Mr Neely the question
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that a lot of people have is what
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happened before that we know there were
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five separate 9-1-1 calls including
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complaints from the train operator and
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at one point an eyewitness suspected
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that Mr Neely had some sort of weapon we
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know in the end that was not true but
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what do prosecutors need to prove when
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they're trying to to get a conviction in
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a manslaughter case
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oh yeah so in manslaughter it's a it's
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an act of recklessness right so uh it's
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not an intentional crime but when you're
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dealing with a manslaughter in the
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second degree and it's a reckless uh uh
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it's a reckless act so you so the
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question becomes was this act reasonable
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was this act taken where there was a
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justifiable
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um uh consequence involved a foreseeable
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consequence where a death may occur due
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to this act and was that consequence
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ignored by the defendant in this case
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penny so all those factors have to be
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looked at but like you preface the
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question you have to look at all the
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facts and circumstances there can't be a
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rush to judgment just based on a video
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alone you cannot do that and that's why
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the D.A has worked through this
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investigation methodically and that's
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the thing right everybody's forming an
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opinion particularly because we have
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video of at least partial evidence in
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the case I only have about 30 seconds
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left but in that video that we see with
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the choke holder at least it appeared to
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be a Chokehold being applied to Mr Neely
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it sounds like Mr penny is saying call
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9-1-1 how much of a factor will that
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play in the case
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right you have to look at all the facts
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and circumstances but there'll be an
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affirmative defense here of
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justification of self-defense and the
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question becomes did the choke hold go
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on for too long six minutes is a very
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long time so the question becomes on the
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self-defense of affirmative the
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affirmative defense of self-defense you
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know what was was that defense enough
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was it Justified and did the defendant
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assert as much physicality as it took to
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with to to withstand the situation and
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that's something that a jury will have
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to look at only got about 10 seconds
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left how tough of a case will this be
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for for prosecutors How likely is it
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that they're going to win this thing I
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don't know but it's it's a very tough
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case there's arguments on both sides and
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we'll have to see what the jury does or
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if there'll be a plea negotiation in
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this case David Schwartz always great to
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get your perspective we appreciate it
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great