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

Youtube transcript
0:00 you and right now we're being joined by 0:01 former prosecutor and defense attorney 0:03 David Schwartz David thank you for 0:05 joining us good morning first off Daniel 0:08 he was charged Daniel Penny rather 0:09 charged with second degree manslaughter 0:11 so why did the district attorney opt for
0:12 this charge 0:13 yeah I think this charge makes a lot of 0:16 sense you know from a charging 0:17 standpoint the the D.A would have three 0:20 options you'd have the basic murder 0:22 charge you have manslaughter and you 0:25 have criminally negligent homicide now 0:26 we don't know what the grand jury is 0:28 going to decide this is just the initial 0:30 charge for the arraignment uh the D.A 0:33 decided to make the arrest and to and to 0:36 charge with the Reckless manslaughter uh 0:40 but then it's going to be presented to 0:41 the grand jury next week and we'll see 0:43 what they actually charge out but the 0:45
reason why um this manslaughter charge 0:48 was was brought forward is because it's 0:51 based on a recklessness standard was 0:53 there a reckless and unjustifiable risk 0:56 to human life and that's going to be the 0:58 question for the jury and one of the 1:00 questions people will ask is second 1:01 degree manslaughter rather than first 1:03 what's the difference there well yeah so 1:06 the first degree manslaughter is an 1:09 intentional act where a a killing where 1:12 where a Honda side occurs this second
1:16 degree is based on this recklessness 1:18 standard was there an unjustifiable risk 1:21 taken 1:22 um in in this particular case was the 1:24 show called a reckless act where the 1:27 defendant didn't intend to kill uh Mr 1:30 Neely but but a death did occur by this 1:34 Reckless act and that's what the jury is 1:36 going to have to 1:38 um tackle when looking at this so so 1:41 David these charges came without a grand 1:42 jury indictment first of all is this 1:44 normal and will they have to be convened 1:46 at some point 1:47 yes it's it's very normal probably 99.9 1:51 of the cases are handled this way where 1:53 there's an arrest there's an arraignment 1:55 charge and then and then the defendant 1:57 has brought uh you know then the grand 1:59
jury presentation is made so this is the 2:03 actual normal way a case occurs it would 2:05 have been the exception if there was a 2:08 silent indictment meaning a presentation 2:11 to the grand jury and then the arrest 2:14 occurs so this is the usual way it 2:16 happens and one of the issues in this 2:19 case was this question of self-defense 2:22 Daniel Penny's lawyer says he stepped in 2:24 to protect himself and others what is 2:26 the burden of proof for self-defense 2:28 under New York law 2:30 yeah so so basically that that's an 2:33 affirmative defense self-defense it's 2:35 this was the was it justifiable this act 2:39 was it justifiable and under under New 2:43 York law uh the affirmative defense has 2:46 to be disproven by the prosecution 2:48 beyond the Reasonable Doubt so the 2:51 defense doesn't even have that burden 2:52 under this the prosecution would have to 2:55 disprove that if this case ever went to 2:57 trial so bottom line is was it 3:00 justifiable and you know we've seen the 3:02 videos but the videos don't tell the 3:04 whole story you have you have to look at 3:06 all the evidence in in the case now six 3:09 minutes is very problematic for the 3:11 defendant in this case it's extremely 3:14 problematic that this stroke holds was 3:16
for six minutes long although I think 3:19 many people could sympathize with the 3:21 defendant here you know protecting 3:22 himself and protecting the lives of 3:24 others possibly we don't know what all 3:27 the evidence is going to show and Dave 3:29 Dave does that surprise you that we have 3:30 haven't heard from the other Witnesses 3:31 or even the other people that were also 3:33 holding Mr Neely down and hey will they 3:36 be charged as well do you think 3:39 I I don't think they'll be charged I 3:41 think I think this is the only charge 3:43 we're going to see I think the other 3:45 Witnesses were mere uh bystanders and I 3:48
think a lot of them reasonably thought 3:50 that Mr Neely was being restrained after 3:53 acting erratically obviously this is a 3:57 tragic event that a death occurred in 3:59 this particular situation that probably 4:01
there was didn't seem like there was 4:03 that intent to kill which would have 4:06 made it rise to a murder case that's why 4:09 you're seeing a manslaughter I think the 4:11 case is well charged at manslaughter and
4:13 then there's going to be defenses and I 4:15 think there should be no rush to 4:16 judgment and for all the politicians to 4:18 get up and start pontificating about the 4:21 evidence in the case of what needs to 4:22 happen I think that should be left to 4:24 the courts in the in the jury 4:27 David Schwartz thank you very much 4:29 former prosecutor and defense attorney