What is manslaughter and why was Daniel Penny charged with it in Jordan Neely's death? Experts explain
NEW YORK - Daniel Penny surrendered to police Friday morning.
The Manhattan DA's office said he would be charged with second degree manslaughter in the subway chokehold death of Jordan Neely.
David Schwartz, a former prosecutor and defense attorney, and Anna Cominsky, a law professor at New York Law School spoke with CBS2 about the charge.
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Why second degree manslaughter?
"I think this charge makes a lot of sense. From a charging standpoint, the DA would have three options. You have the basic murder charge, you have manslaughter, you have criminally negligent homicide. Now, we don't know what the grand jury is going to decide. This is just the initial charge for the arraignment," Schwartz said. "But the reason why this manslaughter charge was brought forward is because it's based on a recklessness standard. Was there a reckless and unjustifiable risk to human life? And that's going to be the question for the jury."
"Our law defines that as when someone is aware and disregards a substantial and unjustifiable risk of death," Cominsky said. "So in this case, the key is, is that they're saying that the potential defendant here, Mr. Penny, was aware of the substantial risk of death."
- Related: Daniel Penny surrenders to police to face manslaughter charge in Jordan Neely subway chokehold death
What's the difference between it and first degree manslaughter?
"The first degree manslaughter is an intentional act, where a homicide occurs. The second degree is based on this recklessness standard. Was there an unjustifiable risk taken in this particular case? Was the chokehold a reckless act where the defendant didn't intend to kill Mr. Neely, but a death did occur by this reckless act. And that's what the jury is going to have to tackle when looking at this," Schwartz said.
"With a murder charge, we're looking at intentional acts. There was an intent to cause death, or that someone acted with depraved indifference," Cominsky said. "The big difference here is that the prosecutor has decided that there was not an intent to cause death, but that Mr. Penny was aware of and disregarded the risk of death."
- Related: Manslaughter charge in Jordan Neely subway chokehold death follows pleas for action, change
What is the sentence for second degree manslaughter?
"For a first time felony offender in this case it would be 15 years in prison," Cominsky said.
Is it normal for a charge to be made without a grand jury indictment?
"Yes. It's very normal. Probably 99.9% of the cases are handled this way," Schwartz said. "This is the actual, normal way the case occurs."
"With respect to presenting a case to a grand jury, that is something that takes time," Cominsky said. "It's not just that they clear the docket and this case is put right in front of that grand jury. They have to make sure that they convene the grand jury, that those jurors are able to listen to all of the evidence, and then vote."
What about self defense?
"That's an affirmative defense, self defense. Was it justifiable, this act, was it justifiable? And under New York law, the affirmative defense has to be disproven by the prosecution beyond a reasonable doubt. So the defense doesn't even have that burden - under this, the prosecution would have to disprove that, if this case ever went to trial. So, bottom line is, was it justifiable?" Schwartz said.
Are more charges possible?
"Well certainly the prosecutor has the ability, when they present the case to the grand jury, to ask the grand jurors to come back with more than one charge, and the grand jurors have it in their power, in fact it's their sole power, to decide what charges to bring. So it could be one or it could be multiple charges," Cominsky said.
Will other people be charged?
"I don't think they'll be charged. I think this is the only charge we're going to see. I think the other witnesses were mere bystanders, and I think a lot of them reasonably thought that Mr. Neely was being restrained after acting erratically. Obviously, this is a tragic event that a death occurred in this particular situation," Schwartz said.