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

Youtube transcript
0:00 this is Eyewitness News up close now 0:03 back to the subway Chokehold case Daniel 0:05 penny has now been charged with 0:06 second-degree manslaughter and could 0:08 face 15 years in prison if convicted the 0:10 Manhattan district attorney decided to 0:12 do it without going to a grand jury 0:14 first so joining us now to talk about 0:15 all of it David Schwartz a former 0:17 prosecutor and now a defense attorney 0:19 sir thank you welcome up close 0:21 thank you I want to begin right there 0:23 because it was our understanding that 0:25 the case would be presented to a grand 0:26 jury what does it tell you that the D.A 0:28 decided to not present it to a grand 0:30 jury 0:31 it it's it's six and one half dozen or 0:34 another it's a pretty normal course of 0:37 business to not present a case to a 0:40 grand jury in the very beginning usually 0:42 an arrest is made like like in this case 0:44 we have an arrest and there'll be an 0:47 arraignment today and then after the 0:49 arraignment the D.A uh will present the 0:52 case to a grand jury so that's normally 0:55 how cases work uh where there's this 0:58 high price high profile crime sometimes 1:01 the D.A will go to the grand jury first 1:04 but in the majority of cases it works 1:06 exactly the way this is working it's my 1:09 understanding the defendant has an 1:10 opportunity in a lot of these cases to 1:12 testify in a grand jury proceeding is 1:14 that true 1:15 not only does the defendant have an 1:18 opportunity the defendant has an 1:20 absolute right to testify in the grand 1:23 jury and that'll be an evaluation that 1:25 is made in the far majority of cases 1:29 99.9 percent of the cases the defendant 1:32 never testifies in the grand jury 1:34 because now you're giving away your case 1:36 to the grand jury which can be used 1:39 later on in the proceedings but because 1:42 of the nature of this case you never 1:44 know what I do suspect is that the 1:47 defendant May profit some witnesses to 1:49 the grand jury and trying to figure out 1:52 what happened on board that F train is 1:53 key we saw the about four minute video 1:55 with the what appeared to be a Chokehold 1:57 already applied to Mr Neely the question 2:00 that a lot of people have is what 2:02
happened before that we know there were 2:03 five separate 9-1-1 calls including 2:06 complaints from the train operator and 2:08 at one point an eyewitness suspected 2:10 that Mr Neely had some sort of weapon we 2:12 know in the end that was not true but 2:13 what do prosecutors need to prove when 2:15 they're trying to to get a conviction in 2:17 a manslaughter case 2:19 oh yeah so in manslaughter it's a it's 2:22 an act of recklessness right so uh it's 2:25 not an intentional crime but when you're 2:27 dealing with a manslaughter in the 2:29 second degree and it's a reckless uh uh 2:32 it's a reckless act so you so the 2:36
question becomes was this act reasonable 2:39 was this act taken where there was a 2:42 justifiable 2:44 um uh consequence involved a foreseeable 2:47 consequence where a death may occur due 2:50 to this act and was that consequence 2:53 ignored by the defendant in this case 2:56 penny so all those factors have to be
2:58 looked at but like you preface the 3:00 question you have to look at all the 3:02 facts and circumstances there can't be a 3:05 rush to judgment just based on a video 3:07 alone you cannot do that and that's why 3:10 the D.A has worked through this 3:12 investigation methodically and that's 3:15 the thing right everybody's forming an 3:16 opinion particularly because we have 3:18 video of at least partial evidence in
3:21 the case I only have about 30 seconds 3:22 left but in that video that we see with 3:25 the choke holder at least it appeared to 3:26 be a Chokehold being applied to Mr Neely 3:28 it sounds like Mr penny is saying call 3:30 9-1-1 how much of a factor will that 3:33 play in the case 3:34 right you have to look at all the facts
3:36 and circumstances but there'll be an 3:38 affirmative defense here of 3:39 justification of self-defense and the 3:42 question becomes did the choke hold go 3:44 on for too long six minutes is a very 3:47 long time so the question becomes on the 3:50 self-defense of affirmative the 3:51 affirmative defense of self-defense you 3:54 know what was was that defense enough 3:57 was it Justified and did the defendant 4:01
assert as much physicality as it took to 4:04 with to to withstand the situation and 4:07 that's something that a jury will have 4:09 to look at only got about 10 seconds 4:11 left how tough of a case will this be 4:13 for for prosecutors How likely is it 4:14 that they're going to win this thing I 4:16 don't know but it's it's a very tough
4:18 case there's arguments on both sides and 4:21 we'll have to see what the jury does or 4:23 if there'll be a plea negotiation in 4:26 this case David Schwartz always great to 4:28 get your perspective we appreciate it
4:29 great