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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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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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