NY Criminal Defense Attorney David Schwartz Breaks Down Daniel Penny Manslaughter Charge on CBS 2-NY

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you and right now we're being joined by
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former prosecutor and defense attorney
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David Schwartz David thank you for
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joining us good morning first off Daniel
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he was charged Daniel Penny rather
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charged with second degree manslaughter
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so why did the district attorney opt for
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this charge
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yeah I think this charge makes a lot of
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sense you know from a charging
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standpoint the the D.A would have three
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options you'd have the basic murder
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charge you have manslaughter and you
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have criminally negligent homicide now
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we don't know what the grand jury is
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going to decide this is just the initial
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charge for the arraignment uh the D.A
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decided to make the arrest and to and to
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charge with the Reckless manslaughter uh
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but then it's going to be presented to
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the grand jury next week and we'll see
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what they actually charge out but the
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reason why um this manslaughter charge
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was was brought forward is because it's
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based on a recklessness standard was
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there a reckless and unjustifiable risk
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to human life and that's going to be the
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question for the jury and one of the
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questions people will ask is second
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degree manslaughter rather than first
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what's the difference there well yeah so
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the first degree manslaughter is an
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intentional act where a a killing where
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where a Honda side occurs this second
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degree is based on this recklessness
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standard was there an unjustifiable risk
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taken
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um in in this particular case was the
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show called a reckless act where the
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defendant didn't intend to kill uh Mr
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Neely but but a death did occur by this
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Reckless act and that's what the jury is
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going to have to
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um tackle when looking at this so so
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David these charges came without a grand
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jury indictment first of all is this
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normal and will they have to be convened
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at some point
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yes it's it's very normal probably 99.9
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of the cases are handled this way where
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there's an arrest there's an arraignment
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charge and then and then the defendant
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has brought uh you know then the grand
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jury presentation is made so this is the
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actual normal way a case occurs it would
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have been the exception if there was a
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silent indictment meaning a presentation
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to the grand jury and then the arrest
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occurs so this is the usual way it
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happens and one of the issues in this
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case was this question of self-defense
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Daniel Penny's lawyer says he stepped in
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to protect himself and others what is
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the burden of proof for self-defense
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under New York law
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yeah so so basically that that's an
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affirmative defense self-defense it's
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this was the was it justifiable this act
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was it justifiable and under under New
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York law uh the affirmative defense has
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to be disproven by the prosecution
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beyond the Reasonable Doubt so the
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defense doesn't even have that burden
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under this the prosecution would have to
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disprove that if this case ever went to
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trial so bottom line is was it
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justifiable and you know we've seen the
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videos but the videos don't tell the
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whole story you have you have to look at
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all the evidence in in the case now six
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minutes is very problematic for the
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defendant in this case it's extremely
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problematic that this stroke holds was
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for six minutes long although I think
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many people could sympathize with the
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defendant here you know protecting
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himself and protecting the lives of
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others possibly we don't know what all
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the evidence is going to show and Dave
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Dave does that surprise you that we have
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haven't heard from the other Witnesses
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or even the other people that were also
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holding Mr Neely down and hey will they
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be charged as well do you think
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I I don't think they'll be charged I
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think I think this is the only charge
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we're going to see I think the other
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Witnesses were mere uh bystanders and I
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think a lot of them reasonably thought
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that Mr Neely was being restrained after
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acting erratically obviously this is a
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tragic event that a death occurred in
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this particular situation that probably
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there was didn't seem like there was
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that intent to kill which would have
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made it rise to a murder case that's why
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you're seeing a manslaughter I think the
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case is well charged at manslaughter and
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then there's going to be defenses and I
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think there should be no rush to
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judgment and for all the politicians to
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get up and start pontificating about the
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evidence in the case of what needs to
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happen I think that should be left to
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the courts in the in the jury
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David Schwartz thank you very much
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former prosecutor and defense attorney