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PaperclipPerfector  1yr ago (text post)   30404 thread views

Culture War Roundup for the week of May 8, 2023

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I'm going to throw out a theory, which is wild speculation but I feel the need to include because it strikes me as obvious.

The fifteen minutes duration increases the odds that this is drug related. Daniel Penny almost certainly did not intend to murder Neely, from the video Neely is still struggling minutes into being choked. Instead it seems likely that Penny attempted to choke Neely unconscious so as to avoid violence, failed to properly execute the maneuver, and instead had Neely in a restricted breathe restraint for several minutes. You can tell because the hold should knock out anyone, if properly applied, within seconds; Neely continued to struggle against three men holding him down for minutes. If Neely had stopped struggling, even if Penny wanted to kill him, it seems unlikely that the other two strangers would have continued to restrain him. Under the stress of the incident, combined with likely drugs or other underlying issues and the restricted breathe, Neely had some kind of heart attack etc.

Penny was not intentionally setting out to kill Neely, instead he was negligent in applying a less-than-lethal restraint and Neely died as a result. So the legal (and moral) question becomes twofold: Was Penny entitled to use less-than-lethal restraints against Neely? And was Penny Negligent or Reckless in how he applied those restraints?

Unfortunately, every detail of this will end up in the public sphere. A few points I am very curious to see:

-- How much did Neely actually know about applying a Rear Naked Choke to a resisting opponent? Was he an active BJJ enthusiast? Was this something he learned briefly ten years ago but never really used? Or perhaps he had never received actual training, but watched MMA videos on youtube sometimes and though it looked easy enough? If he was a purple belt, it increases the probability he intentionally killed Neely because negligence is less likely; but it also makes his choice to try seem more appropriate, because it is something he knew how to do. If he saw it once on Youtube and thought he could pull it off irl, it makes negligence more likely, but also makes the decision to try it seem more reckless.

-- How long, exactly, was Neely struggling for? When did he cease to struggle? How long after he ceased to struggle was the hold released?

-- Unfortunately for Penny, if he is like 90%+ of people his age, his diary that he places in the hands of third party corporations that will hand it over at the first problem is going to come into this. As Hoffmeister noted in his post on the topic, if Penny has posts like many on here indicating that he thinks the homeless are subhuman scum that need to be cleared off the streets, we will know soon. This is quite likely where the story will hinge. Prosecution will aim to portray him as "looking for a fight" and looking for an excuse to hurt or kill someone.

-- The prosecution was smart to charge him with a lower homicide felony rather than Murder 1, that's why Rittenhouse got off. While I think Rittenhouse was more or less entirely justified in what he did, he probably could have been convicted of negligent manslaughter on the theory that he made some procedural mistake in going somewhere he shouldn't have, but he was never going to get convicted of premeditated murder. Penny's case will push the idea that he responded appropriately to what Neely did/said, and that he never intended to kill him, but other causes (drugs) lead to Neely's death.

-- Whether Neely was a capital A Addict I have no idea, but if they don't find signs of drug use in his system, I'll be shocked.

-- The various Death Wish style masturbatory fantasies that are floating around the internet are totally inappropriate to what happened. This has nothing to do with whether homeless people ought to be murdered, because that was not what anyone intended to do. It has to do with whether one has the right to use reasonable less-than-lethal force to protect oneself and others, and remain protected if the egg-shell-victim happens to die.

As Hoffmeister noted in his post on the topic, if Penny has posts like many on here indicating that he thinks the homeless are subhuman scum that need to be cleared off the streets, we will know soon. This is quite likely where the story will hinge. Prosecution will aim to portray him as "looking for a fight" and looking for an excuse to hurt or kill someone.

Stuff like this generally isn't admissable as evidence (it wasn't in the Rittenhouse case, for instance). The fact is that idle words made weeks or months in advance are not the same as intent or premeditation.

While true, these cases are also tried in the media. My parents, with their steady diet of CNN and MSNBC, were sad when Rittenhouse got off because he they thought he was a "white supremacist" who shot people in cold blood.

It's tough to find a jury that is insulated from the news media, and people can also lie to get on a jury.

If the media tars Neely as motivated by hate, he will have a tough time getting a fair trial regardless of what happens in the courtroom.

So the legal (and moral) question becomes twofold: Was Penny entitled to use less-than-lethal restraints against Neely? And was Penny Negligent or Reckless in how he applied those restraints?

I think this actually isn't going to be legally an issue. Instead, the state will argue that a chokehold is deadly force, which I believe is established law in New York. But that's a bit of a double-edged sword; having established that a chokehold is deadly force, it becomes much harder (though not impossible) for the state to argue that Neely was reckless in applying it.

If the state chooses to argue that Penny intended to kill Neely, I predict an acquittal.

Well, that's why they're not arguing that. They're arguing that he caused the death by acting recklessly; by putting Neely in a chokehold he ignored a substantial and unjustifiable risk. The problem for Penny is that to get an acquittal he has to argue that the risk was justified, which is a tall order. New York law already recognizes that chokeholds are a form of deadly force, and claiming deadly force was justified is effectively the same as claiming that he would have been justified in shooting Neely on the spot.

They've already not chosen that argument, by charging with 2nd degree manslaughter rather than some form of murder.

having established that a chokehold is deadly force, it becomes much harder (though not impossible) for the state to argue that Neely was reckless in applying it.

If anything, the opposite is true. In New York, under Penal Law 125.15 "A person is guilty of manslaughter in the second degree when: 1. He recklessly causes the death of another person; or ....".

Under Penal Law 15.05, "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

So, IF he used deadly force, that strengthens the argument that he disregarded a substantial and unjustified risk. Of course, he might not have knowingly used deadly force -- eg he was using force which he thought did not carry a risk of death. Or, his use of force might have been justified.

Are all methods of "deadly force" really treated as a single risk category legally? Hard to believe a chokehold would be treated the same as shooting someone with a firearm.

I believe that the key issue is the intent to use deadly force. Eg Calif Criminal Jury Inst 505 says that for self-defense, the defendant must actually believe that deadly force was necessary. If he has that belief it doesn’t matter what form the deadly force takes.

No. You've ignored the most important part, which is "unjustified". If a chokehold is deadly force, then to successfully use the self-defense argument Penny must show that deadly force was justified. But once he's done that, the fact that Neely died doesn't show recklessness.

You've ignored the most important part, which is "unjustified

I literally said, "Or, his use of force might have been justified."

The point is that it is EASIER to prove recklessness if deadly force is used, not harder, as you said. Deadly force obviously carries a greater "risk that such result will occur" -- the result referred to is the "result . . . described by a statute defining an offense[,]" which in the case of manslaughter is the risk of death. Obviously, deadly force carries a greater risk of death than does non-deadly force.

Again, none of this means he is guilty. As I said, "Of course, he might not have knowingly used deadly force -- eg he was using force which he thought did not carry a risk of death. Or, his use of force might have been justified." But it does mean that you were incorrect when you said that arguing that a chokehold is deadly force makes it harder for the DA to secure a manslaughter conviction.

But it does mean that you were incorrect when you said that arguing that a chokehold is deadly force makes it harder for the DA to secure a manslaughter conviction.

What I said is that it is a double-edged sword. If a chokehold is not legally deadly force, and Penny was justified in applying non-deadly physical force, and Neely died as a result, the prosecution can argue that he applied the force in a reckless manner and killed Penny. But if a chokehold IS legally deadly force, and Penny was justified in applying deadly physical force (a higher bar, which is one edge of the sword) then the fact that Neely died as a result of such force is only expected (since it's deadly force), not evidence of recklessness (the other edge of the sword).

There is no double edge. If the People argue that the chokehold was deadly force (note that although there is NY authority that the use of a knife is deadly force as a matter of law, People v Kerley, 154 AD3d 1074, 1075 (2017), I don't see any such authority re chokeholds, though I only looked briefly), then the People have two arguments:

  1. If the jury finds that the chokehold was deadly force, it must convict because Penny was not justified use of deadly force; and

  2. If the jury finds that chokehold was not deadly force, it must nevertheless convict because it was so dangerous that its use constituted recklessness.

If they instead concede that it was not deadly force, then they only have argument #2.

There is no way that Penny is helped by a jury finding that the chokehold was deadly force. The more extreme or dangerous Penny's actions were, the easier it will be for the People to win.

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