Advisory Opinions - Perceptions of Violence

Episode Date: May 9, 2023

Damon Preston, public advocate for the commonwealth of Kentucky, joins Guest-Host David French to break down the Jordan Neely incident. While some New Yorkers view it as the result of growing violence in New York, others as mere vigilantism... but what are the legal elements? This special one-topic episode will try to make some sense of the available reporting. Show Notes: - Subscribe to The Dispatch and watch an exclusive live Remnant with Jonah, Steve Hayes, and Chris Stirewalt Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. Don't turn off your iPhone. This is actually the Advisory Opinions Podcast with David French sitting in in the prime host chair for Sarah Isger, who is gone. She is hanging out with judges right now. Might even be walking the Gettysburg battlefield with judges. So she's going to come back and have some great stories, maybe some audio. I don't know.

We'll see. But in the meantime, I have retaken the helm of the Advisory Opinions podcast and we have a repeat guest, my friend, commissioner of the Boston Baseball League, the greatest fantasy baseball league in the known universe, the one that I belong to. And also, what's your title, current title right now? I said you were the emperor of a, that you ran an empire of criminal defense lawyers in the state of Kentucky, but that's not your title. That's not the official title. The official title is I'm the public advocate for the Commonwealth of Kentucky.

So I run our public defender system. So I just realized I didn't say your name. Damon Preston, commissioner, Boston Baseball League, public advocate, state of Kentucky. Also notable for purposes of this podcast, a former public defender in New York City. And so what we're going to do is we're going to talk about this really terrible killing in New York. This is the killing of Jordan Neely. So this is on May 1. A man named Daniel Penny Marine choked Jordan Neely to death on a New York City subway train.

That's what we know. New York City subway train. That's what we know. And it has absolutely torn the city apart. The fury on the side of those who say that what happened to Jordan Neely was unconscionable has led to protests, shutdowns of the sub, some dangerous protests, including people jumping on the tracks to stop subway trains. Then others are absolutely in the camp that say that Daniel Penny, the person who choked Jordan Neely, was completely in the right. Folks have even called him a hero.

So what we're going to do in this podcast is we're going to try to just very systematically break down the law here. This is a legal podcast. We're not going to do in this podcast is we're going to try to just very systematically break down the law here. This is a legal podcast. We're not going to talk about the political, cultural ramifications of that much, except in how they play on sort of the law and the legal considerations. But this case is really, really interesting because this is a situation where it seems pretty darn clear that Mr. Penny did not intend to kill Jordan Neely. He did intend to intervene physically, obviously, because he did. He intended to intervene physically, did not intend to kill, but he did, in fact, kill Jordan Neely. And we're going to talk about the circumstances under which you can intervene

in defense of others, certainly in defense of self. What are the legal standards where you can intervene? Under what kind of level of force can you use when you intervene? And what happens if the level of force that you use has consequences that you don't intend? level of force that you use has consequences that you don't intend. So we're going to walk through all of this. And let's just start with some general overall background, get into the specific facts. We'll talk about the law and then we'll put the law with the facts. Very ABC, very organized, hopefully. But we'll just start with what we know. And I'll give you a brief overview of what we know, which is actually not as much as you might think. Because there is a video of the choking itself. But here's what we know. And then I'll go to Damon to sort of see what stands out in Damon's mind.

So what we know is there have been a number, and I think this is important, there have been a number of recent violent encounters on the subway, including murders on the subway. Where, how dangerous the subway is right now, relative historically, I'm not sure, but it is absolutely the case. There have been a number of dangerous, violent encounters, including murders, including what seem to be random murders on the subway. So there is a heightened sense of alarm and concern that people have on the subway. Then here comes Jordan Neely. Jordan Neely, who had some, I'm not going to say notoriety because that sounds negative, but some small degree of subway fame in years past because he was a Michael Jackson impersonator. He was somebody who danced on subway cars, entertaining people, but then had gone into a mental health spiral. Apparently his mother had been killed.

He went into a mental health spiral. He walks onto a subway, on a subway train last Monday and he starts getting very aggressive. He talks about being hungry. He talks about that he doesn't, he doesn't care if he dies. It's creating a scene. People close to him start to move away. He took off his jacket. He threw it on the ground. And

here's the quote that's circulating. I'm tired already. I don't care if I go to jail and get locked up. I'm ready to die. Now, here's where things get kind of hazy. It's not clear if Mr. Neely or Mr. Penny had an exchange. There's not video of the initial grabbing of Neely, but there is a thump. Then the video starts rolling. Both men are on the floor and Penny, the Marine, has Neely in a chokehold. If you've ever seen this hold before, if you watch any kind of MMA fighting, if you've seen sort of combatives training in the military or participated in combatives training in the military, it's like a classic chokehold slash submission hold. It's like a classic chokehold slash submission hold. It's the kind of thing where you, in MMA parlance, you might see someone try to tap out before they pass out or a kind of hold that you have seen people do

where people seem to sort of slowly pass out. Well, Mr. Neely doesn't just pass out. He's in the chokehold and he dies. And here we are. So the police question, Mr. Penny, release him. Now, apparently a grand jury is going to take up the case. We don't have any charges as of the time that we're recording this podcast, but those are the general facts. And so Damon, what were your thoughts as you saw this event unfold and as you began to dive into the facts? What were your thoughts on the what happened of all of this?

My initial thought was that this is just, it's clearly a very difficult legal case, and we'll get into why it's difficult legally. But it's also just legal. It's difficult for me, morally, to put yourself in the position of the people on that subway train. Since this happened, we've learned more about Mr. Neely's background and a little more about Mr. Penny's background. But none of that was known to the people on the subway car at the time. All they see, maybe they had seen this Mr. Penny or Mr. Neely in his Michael Jackson act in the past, but whether they knew that was him or not, even if whether they did or not, they didn't know why is this man screaming? What are the limits of his outrage here? Or is the verbal going to turn into more threatening, aggressive, and perhaps assaultive behavior or even more violent than that, like other cases that you talked about?

So that's the first thing that jumped out on me is just how difficult this would be in the moment to figure out how do we respond to this. how do we respond to this? And that's, as we get into the law, that's what's difficult, because you don't want the law to be in a situation where there's no good answer. And here, this is just really difficult. And I did live in New York for a period of time in the 90s, and you did as well. And it was not uncommon at the time to be sitting on the subway, reading a book or just trying to get to your job or wherever you were going. And for someone to start acting really strangely on on the car and it's always a little off putting an off kind of upsetting. Like, I don't know how to respond to this situation. There's no book for this because this person is acting in a very unpredictable way. I know nothing about their background. I know nothing about their mental health status, their medication, their physical health status.

And so that's the main thing that jumps out on me is, you know, Mr. Penny may or may not be legally liable, but I'm definitely sympathetic to Mr. Penny facing a situation that was unpredictable and he acted to try to address the situation. Yeah. Now, you raise a couple of things I think that are interesting here. Number one is, so you'll notice when I was watching through the facts, I did not talk about Neely. Neely is the victim.

Penny is the, uh, I'm not going to say perpetrator cause he's not been convicted of anything, but you know, he's, he's the guy who did the chokehold. Uh, but Neely,

since this incident has happened, it has become known that this guy was arrested a lot. Um, this guy had committed acts of violence before. And a lot of people are using the fact that he committed these acts of violence and had been arrested before to sort of post-hoc see, see, Penny was exactly right to judge Neely a threat in that moment, because guess what? He'd been a threat a lot. But if Penny didn't know that about Neely, you cannot take that knowledge and impute that into the situation. You would have to have evidence that Penny knew of Neely's propensity for violence in the past for it to have any bearing whatsoever on this. And the other thing that I think is interesting, and Damon, I wonder if this is your experience as well. When you live in New York, sadly, over time, you're going to encounter people who are having mental health episodes in public. And there's a kind of jaded sense that

takes over where people will kind of move away from someone who's having that kind of episode. But it happens often enough that at least when I was living there, my mind was not immediately going to, this is dangerous. It was much more like, this is sad. Don't know what to do. We need to give this person space. But if you're not from there and you're seeing this unfold it can be incredibly unsettling because it is not your normal experience of life and i wonder if that dichotomy because there's some long-time new yorkers are like give me a break this is something that we'd seen a lot and others are saying what are you talking about you see this this a lot. Yeah, I think that's exactly right. And the subway, that's the crucible. So many people are packed onto the subway, and New York is such

a diverse culture that it's a fascinating sociological study just to ride the subway in New York. And you're right that there is this sense when you live there that these kinds of things can happen. And most of the time, at least when I lived there, most of the time it is of no serious threat. And it is something that simply, if you're uncomfortable moving away, solves the issue. And it rarely escalates to something more. But yes, it can be very unsettling the first time you see it. Or if you believe that this is just the train ride, like a train ride across the West, then it's just an Amtrak. Well, the New York subway is a little different when it comes to the people that ride the subway. Yeah. You know, that's something.

And from what I don't live there now, I live there in the midnight, well, late 90s. And the city had really turned the corner. It was substantially safer than it had been in the late 80s and early 90s. This was at the height of the Giuliani era. And we forget now after four seasons total landscaping and the whole debacle of the 2020 election, that there was a time when Rudy Giuliani was America's mayor. He was the guy who had turned around New York. But even then, even when the tide had turned, you still encountered instability in public frequently.

It was not rare to encounter it. And every time it was unsettling. And every time I was kind of left with, I don't know exactly what to do here, except to adopt a pose of like watching and waiting sort of tense being tense and prepared to do something but not doing anything um were you ever in when you were there in the in roughly the same time were you ever in circumstances where you thought, will I have to do something about this person? Yeah, I was actually going to make the point that there are encounters that I had that I think are fairly common that where it is, you are faced with actual criminal behavior, not a mental health

breakdown, but there are people who are actually committing crimes, whether it be theft or intimidation. I didn't see any assaults, but I certainly saw there were individuals that would walk through the subway cars and they would kind of intimidate people. And you knew that they were looking for somebody to maybe con, maybe convince them to give money under certain circumstances. And I think relevant to this, not all criminal behavior is worthy of a physical

response. And we'll get into that with the legal standards, but you have to, I think if you live in New York, which is different from visiting because you don't build the skills through visiting. But if you're living there, you just become comfortable with the defense mechanisms to recognize, okay, this person's probably up to no good. But I'm not going to take them on about it. I will just, you know, read my book, look down, turn away, and just hope they move on. And at least in my experience, they typically did. Yeah. And again, to a lot of people, this might seem, well, wait a minute. How are you helping if you're watching somebody up to no good and you don't

intervene? Well, one of the reasons is perhaps the very situation we're talking about now is things can escalate, especially if you're dealing with somebody who is unstable, escalate far to a situation far more grim and gruesome than the situation you were trying to address. And I think that that's a kind of a subjective mental calculus that a lot of New Yorkers make all the time, which is, is the upside of intervening here far worse than the upside? Is this a transient moment of inconvenience and concern or a catastrophic moment of physical danger? Knowing the line between those two often depends on instinct and experience, right? That's right. I think the law would say that you need to be conservative in that response because you don't want to overreact, both because it can escalate, but also just you

can do something that you later realize in hindsight, okay, I went too far there. And so it is something that you have to be disciplined, but that's a lot easier in hindsight than it is in the moment when it's very unpredictable. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents

love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right. So let's talk about the law here. And I want to call this maybe the law of the bar fight, because one of the things that we'd focus on a lot, and we focused on in this podcast, you talk about it in the public square quite a bit. We talked about it when we did a deep dive into the Rittenhouse verdict where he used deadly force. When can you use deadly force in defense of self and others has been a point of

real contention. This is what standard ground laws often revolve around. But this is different. This is not a situation where I don't think that Penny's going to say that, oh yeah, I believe deadly force was necessary. I intended to use deadly force and use deadly force. He's going to say that, oh, yeah, I believe deadly force was necessary. I intended to use deadly force and use deadly force. He's going to say, no, I did not intend to use deadly force. I intended only to restrain this individual until the danger had passed. And what happened, his medical crisis that resulted was unpredictable, unforeseeable, and very unfortunate. But that's going to be what he'll likely say.

So what we're not talking about is justification for the use of deadly force. So Damon, I like to go to jury instructions sometimes rather than statutes because the jury instructions are written in such a way as to be understandable to ordinary folks. So let me look at it, read a jury instruction and love to get your reaction to this. All right. So here is the jury instruction. Pretend I'm the judge and you're the jury listening. The defendant has raised the defense of justification, also known as self-defense.

The defendant, however, is not required to prove that he was justified. The people are required to prove beyond a reasonable doubt that the defendant was not justified. I want to stop right there because I think that's super important. So, Damon, as your defense lawyer, how does raising this defensive justification operate at trial? Well, it's you always have to be strategic. It doesn't just happen. And so you have to build your whole case around that defense. Um, while the burden of proof remains on the, in our state, the Commonwealth or the state, you do have a burden of production.

You have to raise the issue enough to get the jury instruction that you just mentioned. And so you want, you have to take on every fact and make sure that it's framed in terms of how does this build the case that this was case that the state cannot prove beyond a reasonable doubt that this wasn't a justified act, that the circumstances that your client, my client faced at the time were such that it was reasonable for him or her to believe that this act was necessary. And so it can't simply be, in my opinion, that the state puts on its case of, in this case, an act that resulted in a death, and then the defense at the last minute just put the client on the stand to say, no, I thought I was in danger, therefore I had to do that. It's got to be more than that, through cross-examining, through opening, through closing, through looking at the medical evidence, because this will be medical evidence as to what the cause of death was here, which was essentially asphyxiation.

And that's all of that you want to frame in the way that this was a reasonable response to a threatening act. a reasonable response to a threatening act. But I think what's important is it doesn't work like this. It doesn't work where I, the prosecution, prove you killed him. And then you have to prove your affirmative defense of justification. That's not how it works. I have to prove you killed him and I have to prove there was no justification. And that's a distinction between other defenses like insanity. In most jurisdictions, if you raise insanity, it works on your alternate path

that you just mentioned, where the state will prove that the crime occurred, that there was an intent and it was an intentional act. And then you would say the defense would then have both the burden of production and the burden of proof to say, yes, committed this crime, but did so while not meeting the definition of of being of sane mind at the time. This, as you say, is different. Once the once the defense brings up some evidence of self-defense, then the state has to prove beyond a reasonable doubt it wasn't self-defense. And truthfully, that's the way it should be. Self-defense has a long history within the law in this country and worldwide. Justification is extremely important that people be able to act to protect themselves and others.

And one way of making sure that that's firmly rooted in the law is to put it as an element of the defense that the prosecution has to prove that this wasn't self-defense. Yeah. And I think that's a very important point to pause and highlight on because when you're a prosecutor making a charging decision, you've got to have confidence that I think I can disprove this defense beyond a reasonable doubt. I have to prove beyond a reasonable doubt it's not justified. And that's an extra step that is difficult. All right, now let's move on. This is as the jury instruction continues. I will now explain our law's definition to the defense of justification as it applies to this case. Under our law, a person may use physical force upon another individual when, and to the extent that, he reasonably believes it to be necessary to defend himself or someone else from what he reasonably believes to be the use or imminent use of unlawful physical force by such an individual. This is, we'll pause here.

This is interesting. So obviously, if you see person A physically attacking person B, you can intervene under this standard. But also, Damon, if I reasonably believe you're about to attack person B, the imminent use of unlawful. So if you can defend someone else from the imminent use of unlawful physical force. So this is where it gets tough seems easy to say if per you know bob is as it's wailing on jim i can pull bob off but when can i intervene to pull bob away from jim before bob start and i'm just using these making up these names starts wailing on jim seems to be really ambiguous there. It's going to kind of try to sharpen it up, but wanted your thoughts on that portion. Yeah, I think if Bob's going to wail on Jim,

you, this is partly, as we already said, it depends on the context, depends on the history you're aware of. If you know that Bob has a history of whaling on Jim, then you can step in sooner because you know the pattern. Here, there's no evidence that anyone knew his prior behavior. As you mentioned, we've since learned that perhaps he had some convictions for assaults. I don't believe there were any convictions for anything more serious than assault or anything with weapons. I think it was hand-to-hand assaults.

But nobody knew that. So in the moment, the imminent question in this is one of the things, as I thought through this legally, that is one of the keys. If I were a defense attorney, well, actually, if I were a prosecutor, I would say that there's no – it's an open question as to whether there was an imminent act here. Now, in the instruction that you read, it said use or imminent use. In Kentucky, our law is that it has to be imminent, and there's expansive case law because this is often the issue because when you want to act, and again, these are split second decisions, do I act or do I not act? And if you act too early, when there was still an exit lane, essentially that the violence wasn't imminent, then you're not protected under the law if it's not imminent. So let me ask you this. How much do these two other factors play in? Factor number one, I know the subways are more dangerous lately. There's been lots of bad things that have happened on the subway. How much does that allow to play into this? And the other part is, how much is

no one can retreat? In other words, no one can leave. If someone's having a breakdown on a street, you can just walk away. But if you're on a subway train in a subway car, you're in a confined space. So first, how much does it play in for someone to get on the stand and say, look, I've seen the news. Things are getting really dangerous on the subway and I didn't want things to escalate. Like how much can sort of background sense of alarm or danger influence that eminence? And then how much does it factor in that it's an enclosed subway car? Well, to claim self-defense, there's an objective part of it and a subjective

part of it. And what you talk about with other acts of violence and awareness of general unsafe conditions on the subway, that can play into either of the subjective or the objective. And by subjective and objective, I mean this. Subjectively, you have to believe that you need to act to defend yourself or others. that you need to act to defend yourself or others. And so, if you're aware of other unsafe conditions, that may play into your actual belief. But it also could go to the objective of would a reasonable person in this same circumstance believe it? And a reasonable person, I think it's fair to say a reasonable person in New York City would be aware of perhaps increasing unsafe conditions on subway. And so we can go into those factors as far as did he really believe it and was it reasonable to believe it?

And I know our intent here is to stick with the law, and we should for the most part, but there is a political aspect to this because public safety is, in 2023, a political issue. It gets a lot of media coverage, particularly in certain corners of the media. And so there is a little bit of a self-fulfilling prophecy here in that if I convince myself that the world is an unsafe place, I'm more likely to take an act because my perception is that it's very likely I will face an unsafe situation. Whereas if someone didn't have that frame of mind, if somebody just rode the subway and assumed everything was going to be fine, you might interpret a situation differently in that you think, well, this person's having a mental health breakdown, but they're not actively threatening. They don't have a weapon. They're standing, you know, a few feet away from me. I'm not going to act because I don't believe that the subway is an unsafe place. And so it does come into it a little bit. And unfortunately, different people's perceptions

are different as far as the likelihood that they're going to face a violent encounter. Yeah. And I think, I mean, being on the subway car, I think is also a factor here in the sense that it's not like being, say, in Times Square, where you just give the person a wide berth. Until the next stop, you're kind of stuck together. And people can move away, but can't fully leave the scene if somebody is getting extremely dangerous. And certainly the ability to, you know, I think in some cars, you might be able to move from one to the other with some ease, but it's still not like being outside on the street. You're still far more confined.

I think that also plays into law enforcement's presence here as well. And the subway is a hard location to police because of the separate cars. If you were in an open space, there could be a policeman anywhere within 100 yards that could come running when a situation starts developing. But when you've got these cars that are, I don't know how long they are, maybe 50 feet, 75 feet long cars, maybe 100 foot cars, but then they have these doors, each car has a door, they're all separate. If something's happening in one car of the subway and a police officer is one or two cars away, it's the same as they're in a different county. They're not going to know what's going on in real time. They can get a radio call and same processes as any other call.

But it is difficult. It's not practical to have a police officer on every subway car. So you're right. It is a confined space with limited ability for constant monitoring. Right. And let's get to the test for use of force. You've already alluded to it. It's got both a subjective and an objective component.

Let's again go back to the jury instruction. The determination of whether a person reasonably believes physical force to be necessary to defend himself or someone else from what he reasonably believes to be the use or imminent use of physical force for another individual requires a two-part test. The test applies to this case, Mr. Neely was using or was about to use physical force against him or someone else, and that the defendant's own use of physical force was necessary to defend himself from it. And so, point one, you've got to actually believe that you needed to use force or the use force against you or someone else was imminent. And then second, a reasonable person in the defendant's position, knowing what the defendant knew and being in the same circumstances would have had those same beliefs. It does not matter that the defendant was or may have been

mistaken in his belief, provided that such belief was both honestly held and reasonable. So again, maybe it could be that there was never any danger. You could have been mistaken in that. But if your belief was reasonable and honestly held, you've got your defense. So Damon, in practice, how do that reasonable person, how do you approach that reasonable person standard with a jury? Well, you hope that your jury is going to be reasonable people first, which is not always the case. But you go with it in mind that eventually this case is going to be heard by 12 reasonable people. And so what do they think? And I'll just say,

as a practice tip, one of the things we do when we're trying to work towards a trial is we try to involve as many non-lawyers as possible. Because one of the problems, and here it is on the podcast, we've got two lawyers talking about this. And we think we're reasonable people, but really we're reasonable lawyers and reasonable people are not lawyers. They don't come from a legal background. They're not that the word the use of the word imminent never occurs to them. And so you want to think of it in terms of a regular person. You know, it could be your cousin, your aunt, could be somebody from your church.

You want to think about what is how would they react to this? You want to work hard on what are they perceiving? I've said this a number of times, but it's the most important thing. What are they perceiving in the moment? How would a reasonable person and if we say another word for reasonable, maybe normal. There's some value judgment there, but a regular person, a normal person, just the guy you see on the street corner, how would that person respond to this? It can be hard, again, as a lawyer to step into those shoes, but that's extremely important. And that's been around as long as the law is the standard of the

reasonable person. And so you just want to involve other people in the conversation to figure out, is this reasonable or not? It's easy as lawyers to dig into the elements and say, well, this doesn't meet this element. But reasonable person is inherently a non-legal concept. Right, right. Okay, so now we're going to get into reputation. We've already talked about this. It says, jury instructions deal with this. You have heard testimony that Mr. Neely had

a reputation for violence, engaged in violent acts. Normally, the law does not permit such testimony. In this case, they're probably not even going to hear testimony, I would think. What do you think of the would there? I would argue I would I would guess that the testimony about Neely's past violence would not be admitted in this case unless there's evidence that the you know, that the Marine knew of the guy's reputation, which we don't have that evidence yet. I'm guessing that Neely's violent past doesn't come into this trial. Do you think it does or doesn't? Yeah, I think if I was prosecution, I would argue strongly and be jumping up and down that none of that comes in. Now, the one gap we have, and you just noted it, is we really don't know anything about what

Mr. Penny saw, thought, knew, or anything. We don't have anything from him. His lawyers have made a general statement that he didn't intend to kill Mr. Neely, but we know nothing else about what he perceived. So even as to the last part, we assume he was acting to protect himself and others, but he hasn't said that. We don't know that from him yet. Maybe the lawyer's statement laid that out as a defense. But yes, if he didn't have actual knowledge of past convictions, the fact that Mr. Neely may have been convicted of assault or may have had a history of mental health breakdowns that resulted in harm to others. I would say none of that would be admissible.

Now, it's also the jury instructions and the law says that you can't claim self-defense or defense of others if you're the initial aggressor. But who is the initial aggressor if you believe it is imminent? So, if you believe it is imminent, reasonably, you can be the aggressor. But if your belief is unreasonable, then you're the aggressor and you can't raise defense. So, everything is going to, seems like, well, not everything because we're going to get to one more thing, but so much is going to come down to whether or not that initial decision to intervene was going to be deemed reasonable. Because if it wasn't, then he is the aggressor here, that the Marine is the aggressor on Neely. where basically everything flowed from that initial first encounter that Rittenhouse had,

where he was chased before he fired that first shot. If Rittenhouse was deemed to be the initial aggressor, every shooting after that is the shooting of an active shooter. But if he was not the initial aggressor, if he was firing in self-defense, everything that flowed from that was self-defense. And that's going to be key here. Yeah, I think that was a bigger issue in Rittenhouse. Here, unless more evidence comes out, I don't think Mr. Penny started this encounter. And so the question is, was Mr. Neely simply flipping out or was he actually threatening other people?

If it could be perceived as a threat, then I think Mr. Penny, there's no question he was acting in response to Mr. Neely. But the key is Mr. Penny unquestionably escalated it by engaging in an act that resulted in death. You know, if somebody's having a fist fight, you can't pull out a gun. That escalates the encounter to where then it's similar to initial aggressor. You're now the initial enhanced aggressor. You're the one who made it more serious. And so you can be legally liable in that. Yeah. Okay. So now this gets to an interesting question. Let's say I'm a prosecutor and I'm saying, you know, I really am not convinced that I could persuade a jury that this was unjustified, an unjustified initial intervention. But he killed him. So,

I can't, it might be justified, if you see two people fighting, it might be justified to grab one of them and pull him off the other one. It is not justified to pull out a gun and shoot him in the head. So, the use of force has to be proportionate to what the actual threat is so what happens damon if i'm coming in and i'm saying look my i i'm a marine i'm trained in combatives i know that the chokehold is a way to cause submission it is not intended as a means of causing death that that is horrible it's unfortunate I can't believe that happened. But I'm not reasonably responsible for that because what I did was not like pulling out a gun. It was like pulling someone away and he wouldn't stop fighting me. So I held him until he couldn't

fight me any longer. How's the law going to treat this? Because it is not the same as pulling a gun, but it's obviously worked out in the same manner. It killed him. So does the Marine have legal jeopardy, not because of the initial intervention, but mainly because of the outcome? Yeah, I think that is the key. And part of your analysis there was something I thought about as well, is when Mr. Neely was having his breakdown and before he touched anybody, before anybody touched him, simply pulled out a gun and said, and shot the person, or in some other way brought about their instant death in a way that wasn't threatening to others that simply neutralized Mr. Neely?

Would that have been justified? I do think that's a relevant legal question here. The facts when it comes to the cause of death, you know, how was there something about Mr. Neely that made him more susceptible to this? Did he have a weakness? We don't need to get into, you know, eggshell plaintiff territory here with who he was, but something could come out there that affects it somewhat. But I think legally, you've got to look at, because it did end in a death, I think it is helpful to fast forward to that to say, what if the death had happened instantly? Is that any different? But as to on the training issue, two things you mentioned, the training and the fact that Mr. Neely was still resisting. On the training issue, I don't think that's going to help Mr. Penny, the Marine, because undoubtedly I am not from a military background.

I've never had training in chokeholds, but I am sure that whatever training there was cautioned on a certain duration of time, a certain amount of pressure, releasing when the person who's in the hold shows certain physical signs of submission. who's in the hold shows certain physical signs of submission. And to result in death, I'm confident that Mr. Penny, whether intentionally or not, exceeded the limits that he was trained on chokeholds. And so I don't know that, yes, he may have used that because he's been trained in that but part of that training would have been limits that again having not had the training myself i i believe i believe the military wouldn't be training people to kill people um or at least they would know where the line is on that i was going to say the opposite well yeah and you you know more about that than i do unless you're an mp so if you're an MP, you're going to be trained in restraining individuals in non-lethal ways.

But if you're in the infantry, if you're going to be engaged in hand-to-hand combat, it may well be to the death. And so you may not be trained in limits. You may be trained in this. This is how you break an arm. This is how you choke somebody to death. This is how now, if you're then going to go on and be trained to maybe in dealing with detainees and detainee operations, if you're going to be military police, and I'm sure we'll listen, hear from listeners, but they're my very limited, uh, exposure to combatives training was not about limits at all. It was about incapacitation. It's about rendering the threat, neutralizing the threat,

not about restraining an individual safely. And I think that's an interesting distinction. First thing I thought of when I heard he was a Marine was I thought, this guy is not trained to do this safely. If to the extent that you can do it safely at all, was sort of my thought on it. This guy's trained to incapacitate. But you are going to have another aspect of this related to resisting. of this related to resisting? Yeah, the other part is if the facts come out that Mr. Neely kept resisting and that that somehow affected the physical chokehold, then it could be that even if there were limits that Mr. Penny was trying to stay within that Mr. Neely's resistance that just physically the death was caused by a combination of the chokehold and the resistance. You know, we don't know factually and how the medical and scientific evidence, and there'll probably be an expert for the defense, I would assume here,

if this goes to trial. And so that'll be left to the battle of experts. But that would go to it as well, because while the outcome does color all of this, the outcome could have come about in ways that weren't exclusively Mr. Penny's actions. And if you've not been to law school, you've never heard that phrase before. But that is essentially in civil law. If I'm going to be like, let's say I punch I didn't know this, but he has a genetic condition that means that his bones are very fragile and I break all the bones in his face. Well, I'm liable for all of that harm, even if I didn't intend all of that harm civilly. I caused it. I injured him to that extent. Therefore, I am responsible for the injuries that I caused him, even if I didn't intend to cause all the injuries that I caused. And this is sort of called the eggshell skull rule, the eggshell plaintiff rule. Criminal law, if I didn't intend the criminal, the consequence, and if I was justified in the initial intervention, and even with the initial form of intervention, let's say a punch and response, but let's say

the punch accidentally kills a person as a punch can in very rare circumstances. Does that mean that I'm therefore facing a similar kind of liability? Yeah, it's a tough question. And there's another concept called the felony murder here that if you're committing a crime otherwise and a death occurs, you can be held criminally responsible for the death even when you didn't intend the death.

And so that kind of can play into this. But I would think when it comes to this concept of reasonableness that we've talked about, that if it turns out that Mr. Neely had some health condition that made it more likely that he would die quicker through this kind of maneuver, I think the focus is going to be on what Mr. Penny's actions were at the time. I don't think the eggshell skull concept would make Mr. Penny went up and engaged in a chokehold because he thought it was funny or whatever reason, then he would be responsible. But in the context of justification, where the reasonableness of the response is the key element, then I don't think, I think if it turns out Mr. Neely died for some other

reason that wasn't fully the chokehold or that the chokehold was more lethal on Mr. Neely died for some other reason that wasn't fully the chokehold or that the chokehold was more lethal on Mr. Neely than it would have been on another person. I think that would probably work to Mr. Penny's legal advantage and make him less likely to be held liable. Okay, so we've walked through everything. Now, let's kind of sum it up. I want you to put on a prosecutor hat and then a defense attorney hat. So let's start with the prosecutor hat. You're looking at the case. What's your strongest point from a prosecution perspective?

What's your weakest? One concept that I haven't mentioned that I would use as a prosecutor is I'm very sympathetic. As I said at the very beginning. I'm very sympathetic to the fact that Mr. Penny was trying to do some good here. He felt like he and others on the subway may be under threat and he was trying to act. But there's a concept in the law basically that you assume a risk. When you act, you are assuming a risk. And so a classic law school example is if someone is in trouble on the side of the road, maybe their car is burning or something, and you stop and you pick them up. And you take them and you drop them off in the middle

of a freeway bridge where they're in heavy danger. You can't then say, well, I didn't have to pick them up at all. They were going to die in this first place, but I picked them up. Once you act, you don't have to act at all. But once you act, there's a legal responsibility to act with care and reasonableness. And so what I would say as a prosecutor is that Mr. Penny didn't have to act. We want people to be able to act, but once you act, you have to act reasonably. until Mr. Neely's body was limp, such that they had to physically turn him on his side when they hoped and thought he was still alive. And it turns out that the damage had been done by then to lead to his death, that that was too extreme of a response to this. We've talked about imminent, that there was no imminent threat,

and there certainly wasn't an imminent threat of lethal force by Mr. Neely. And so this was an overplay. So I'd say, I think that's the theme of a successful prosecution. I think the weakest point is you want people to be able to act to protect others. And if there were 50 people on the subway, 48 people are living their life now, and one is dead, and one we're talking about putting in prison for trying to protect the other 48. And so I think just the narrative works to the defense's favor

here in that the one guy that dared to stand up for others is the one that we're looking to punch. Yeah. And it strikes me just from my assessment of this all, it really does strike me that a prosecution would have to depend on saying that the chokehold was so obviously and inherently dangerous that this was something akin to pulling out a gun in a fistfight. That this was something equivalent to that. But that strikes me, Damon,

is not the easiest case to make um especially if you may have testimony from this you know from mr penny the the marine who says no no no i you know look i've done this before um i've you know been involved in combatives before. I've used chokeholds before. And this was, I had not the slightest hint in my mind that what I was doing was potentially deadly. I can't believe this happened. I'm so sorry this happened, but he just was fighting to get away from me and I couldn't stop him from getting away.

And besides, you can't expect an average person to be an expert in restraint. It's up to the person being restrained to stop their aggression. Strikes me as kind of a relatively, as a pretty compelling argument to make to a jury, perhaps. Yeah, I think it is compelling in the moment. The question would be, where do we go from there? That are we setting up a situation to where people are convinced that the subway is a dangerous place and we're deputizing people as the enforcers of public safety and saying, you know, whatever you

need to do to control the behavior. It really is contrary to the legal principles that we've talked about. And that's what makes this a tough case. The legal principles are you have to respond in kind and not escalate. Well, Mr. Neely wasn't choking anybody. Mr. Neely wasn't assaulting anybody. And if you're going to respond with physical force, wasn't assaulting anybody. And if you're going to respond with physical force, there's got to be a limit there somewhere. Right. Right. Yeah. To me, I was talking to a colleague about it because there's just so much confusion. Everyone gets it that when you say someone's threatening to kill me, I can respond. Or if someone's punching me, I can respond. kill me, I can respond. Or if someone's punching me, I can respond. This gray area of no one is punching anybody yet, but you believe that violence is about to break out. Again, even if

you just held him down or if the chokehold had caused him to momentarily pass out, to momentarily pass out. We never hear about this. Never. It's not even a news item. It's just, this is something that happened and a good Samaritan intervened in a potentially dangerous situation. Everything's okay. It just strikes me that everything everything everything is coming down to how reasonable was the chokehold itself more so than the intervention itself um it's just how i'm looking at this case yeah well it's interesting you use the phrase good samaritan um i mean that that presumes a conclusion i think um, because you can imagine someone is just annoyed. They want a peaceful subway ride, and a man with clear mental illness gets on and starts screaming and yelling, but not overtly threatening, not directly threatening the imminent use. And then somebody's annoyed and they respond out of anger. Well, that shouldn't be protected and that person wouldn't necessarily be a good Samaritan,

but that situation looks a lot similar to what this looks like in the end, in one man grabs another man around the neck and here we are. Yeah. Yeah. Gosh. All right. So just putting on your, you know, and for all we know, by the time this podcast comes out, there's a charging decision or not. I don't think they're going to make a decision that that quickly. Do you see a prosecution here? Do you see one unfolding? Do you think that this is a situation where the prosecutor might say, look, I'm just going to I'm going to present this to the grand jury.

If the grand jury indicts away, we go. What's what what's your what's your assessment? That's a common tool to for a prosecutor to essentially divert responsibility to the grand jury. to essentially divert responsibility to the grand jury. And that's what grand juries are there for, is to have, like we talked about, regular people review of a criminal case to see whether somebody should go to trial. I do think that this will be presented to a grand jury.

The question is, because the old saying is, prosecutors could get a grand jury to indict a ham sandwich. Prosecutors have a lot of control over what grand juries do. And so the question is, will the prosecutor ask them to indict or simply give a neutral, you know, do what you think is right type of instruction? Because certainly in most cases that I handle that are not this close, the prosecutor goes into the grand jury and says, here's what I want you to do. And they already have the charging document written out in advance and say, we want you to vote positive on this charge. If the prosecutor does that here, I actually do think that my prediction would be that there will be a charge here.

Whether there's a conviction is a whole different question down the road. My prediction would be that there will be a charge here. Whether there's a conviction is a whole different question down the road. I think there's a lot of pressure on there being a charge here. I will say, there's not a lot of subways that run through Kentucky, so I haven't had a lot of cases like this in the last... Any subways? There are no subways that run through Kentucky, and we barely get Amtrak just in the corner. No subways that run through Kentucky and we barely get Amtrak just in the corner. But generally in cases like this where there's some type of public encounter and one person acts and another person winds up dead, it's extremely rare that there's no charge from the beginning.

And so I do think one of the complaints, public complaints here is that Mr. Penny is not being treated the way that others would be treated. Perhaps even if these same two individuals, if it had reversed and Mr. Neely had acted against Mr. Penny with the racial difference, that maybe it would be different. I think that's that in my experience, when there's someone killed at the hands of another, not in the home, you know, if it's home self-defense, that's a whole different thing. But in a public place, I think in most circumstances, someone would be charged and then the case would be investigated. I think that pressure may lead there to be a charge here. Yeah. Well, that raises a, you raise a good question about the prosecutor's sort of ability to, I'm not going to say manipulate, or maybe that's the right word, a grand jury. Have you seen it very much in your career at all where a prosecutor wants a grand jury to indict and a grand jury just says, nope, not going to do it?

Sure. It's rare. It's called a no true bill when a grand jury hears a case and then says there's not enough evidence. I haven't seen it in a high profile cases. Most of my cases are way much more mundane than that. But I certainly have seen cases where police officers think they have a strong case. Prosecutor presents it and asks the grand jury to indict. And the grand jury says, I just don't see it. Either I don't agree with the police officer or I think there's another motive going on here.

But yeah, but that's rare. And for the most part, the prosecutor works closely with the grand jury. They've got a, at least in Kentucky, weeks long, if not months long relationship where they're meeting on regular intervals, hearing lots of cases. And prosecutors are pretty good at getting grand juries to do what they want to do. All right. Well, this has been thorough and the finest advisory opinions tradition. And how's my team doing, Damon, by the way? Well, you're ahead of me, which is not something I'm proud of at this moment. But if you will invite me back in five months, I'm confident that won't be the case. The backstory is I have long since stopped really paying close attention to baseball,

although I value being in the Fantasy Baseball League immensely. These are my close friends. I missed the draft for the first time in, oh gosh, since I was in Iraq, since 07 or 08, in April of 08. So the first missed draft in 15 years and I'm distraught about it. And I had a friend draft my team for me

and it's already a better team than I normally have. But I got to confess, I don't keep up as closely as I do, say, with the Memphis Grizzlies. Yeah, I was going to ask you who your best players were, Dave, but maybe I won't ask that. I literally have no idea. Literally. Well, Damon, thank you very much for coming back for a repeat performance on the Advisory Opinions podcast. Really appreciate it. Great to be here. Good to talk to you dave and thank you yeah well and listeners sarah doesn't normally ask you to rate us anymore but i'm going to go ahead and ask you to rate us and and leave us a nice review on on apple podcasts wherever you get your podcasts and thanks for listening. And Sarah will be back. The true host of advisory opinions will be back,

uh, later this week. So we'll both be talking to you in a few days until then. Uh, thanks so much for listening. Bye.