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Oct. 30, 2024 - Lionel Nation
24:44
Lionel on Redacted: The Sham Prosecution of Daniel Penny
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Well, this is a trial about race and class and an indictment about lawlessness in our society.
The Daniel Penny trial is kicking off.
He is a former Marine on trial in New York City for the death of a homeless man, Jordan Neely, who was known to subway riders as a Michael Jackson impersonator.
Neely was placed, he placed...
Okay, let's get the characters right.
Penny placed Neely in a chokehold while he was acting erratic and threatening fellow train riders.
Neely later died, and now it's Penny that's on trial for manslaughter.
Now, we've spoken about this trial before.
Train riders did admit that Neely had yelled to passengers that he was tired and hungry and willing to go to jail.
So was that threatening.
Was Penny within his rights to subdue him?
What is this trial really telling us?
Former litigator and legal expert, Lionel Nation, from the Lionel Nation YouTube channel, to join us.
Thank you for joining me, Lionel.
Did I get all that right?
Sort of.
Sort of.
Good, good, good.
By the way, former prosecutor and current litigator, current licensed lawyer, but let's go to this very, very quickly.
He said, someone is going to die today.
And I love this.
Known as a former Michael Jackson.
Nobody knew who the hell is.
They might have recognized him, but they're saying, he killed a Michael Jackson?
It's just like when Trayvon Moore, remember that?
They showed the picture of him in kindergarten with a little mortarboard.
He killed a little kid?
No!
He's 30 years old today, but this was a picture then.
So they're immediately making him out to be this wandering minstrel, this busker, you know, trying to ply his entertainment wares, and here he was.
Right.
Beloved New York City subway icon is the story.
No!
There's 50 million people on the F train alone.
Before we begin, and before I forget, the first thing I would do, and any lawyer should do, is file a motion in limine, which says, do not call this a choke hold.
Choke is when you press upon the throat, the windpipe, and it stops.
Breathing as a certain person who was dispatched in a certain place in a certain detention center while he was awaiting trial and they ruled it as a homicide.
That was a choke.
Hyoid bone fracture, thyroid cartilage fracture.
That's a choke.
Carotid restraint is on the side where you are.
It's the old sleeper.
You're breathing fine.
You don't die of asphyxia.
You may die of brain damage later on.
So we've got to, and people call it a chokehold.
They've used this word, and it is the wrong term.
He was not choked.
By putting my arm around the sides of your neck, you are breathing.
You're not doing that.
So that being that.
What happened was, Natalie, I'm sorry, I don't want to jump ahead, but this drives me crazy when I hear choking.
Let's pretend that you're his defense attorney and not the prosecutor for the city then.
Okay, so that's one thing you would do.
And then what are the other obvious bits of this case that you would be arguing if you were, and then we'll go to the other side, and then you can play the prosecutor for the city.
Good.
That's exactly the way to do it.
The first thing was, is the law, there will be a jury instruction, I would insist upon, and the judge would instruct, that you have the right for self-defense of yourself and others.
When you see that there is some type of harm, the force that you exert has to be commensurate with the threat.
I mean, if you pull out a gun and shot him, you know, that's illegal for a number of reasons.
But the question is, does he have the right to do this?
Yes.
Does he have the right to hold him while the police are coming?
Yes.
And one of the cases, one of the things I would like to say in closing argument, jumping ahead is, there were other people involved.
They aided and abetted.
If this is a crime, they were helping him.
But he, Natalie, he is white!
And to Michael Jackson, Mr. Neely is black!
And I'm sorry, but if it were the other way around, you know it and I know it, if this was his home, this former black Marine with, let's say, a white craze, whatever, nothing would have happened.
Not only that, he would have had no bond, it would have been cashless bond, goodbye, see you later, and that sort of thing.
And how relevant is it that the condition of the subway is such that riders are regularly scared?
We hear of lots of crime, stabbing, things like that on the subway.
So riders are regularly on alert about crime because New York City has ridden with crime these days.
Is that relevant?
There is not a human being who has never even been to New York who knows subways, death wish.
Bronson Subways?
Not only that, let's assume this was a little ferry, a little tram at Disney World, and if somebody says, okay, but on this little tram, this crazed degenerate came in and said, somebody's going to die today.
So yes, the history of that, I think most New Yorkers know implicitly, but the particular statements of this man really put it into play.
Now here's the issue.
Alvin Bragg, the same prosecutor who brought 34 counts of what we still don't know against President Trump, is basically looking at two things.
Manslaughter and this kind of negligent homicide.
And basically between two things, and we're not going to go into the specifics of it, the more serious, the 15-year version of this, is that he knew He knew the threat of what he was doing, and he discarded it.
Or in the negligent homicide, he didn't know what he was doing, and it was an accident.
Oops!
First is recklessness.
And what was that recklessness?
You put your arms, your hands around it, and you put this person in a position, this carotid restraint.
They're going to call it a choke, and you should have known better.
This, of course, is going to...
Have all of the trappings of the Chauvin, the cop, and George Floyd and all that other stuff, and they're going to take this video and they're going to splice it apart and give it kind of like a Zapruder look, you know, and they're going to make it sound like it was elongated because here's the issue, jumping ahead, his biggest hurdle.
How long did you have this thing on you?
How long did you have this carotid restraint on this person?
If he's not moving, And you've got people around you.
Was the threat perhaps removed?
Could you have let go?
And the million-dollar question is, assuming all of that, what was the cause of his death?
Was it Daniel Penney?
Or was it some comorbidity, to use COVID language?
Was it perhaps the K2 cannabinoids floating through his?
And by the way, the talk screen was a little iffy.
Yeah, that's relevant, because we were not told that George Floyd had incredible amounts of drugs in his blood, and so that was hidden from us at trial.
So this is a familiar tactic.
Right, but did he die because of an overdose, or did he die because of this carotid restraint?
And of course, you have the battle of the experts.
There's so much reasonable down here.
The biggest thing about this is that all of the jurors in this case are going to be Manhattan residents.
I don't care who you are.
By virtue of this particular venue, this is a state court case.
It's not federal where they could be coming from, you know, Westchester.
No, it's here.
So they know.
And when the witnesses testify, when other people testify, When they see the video itself, depending upon how much is allowed, what other people say, what Alvin Bragg is maybe hoping for is, I'll try two bites of the apple.
I'll go for this 15-year maximum, which is probably not going to get, this manslaughter, and I'll go for this negligent, and I'll let them see.
They'll say, well, you know what, we'll...
We'll acquit him of the serious one.
But the bottom line is, the issue is, depending upon how the jury instructions are going to work, is, ladies and gentlemen of the jury, there is reasonable doubt here.
We don't have to prove anything.
But if we show you that you have a doubt with which you can attach a reason to, do you have a doubt as to how...
Unreasonable this was, because for him to be found guilty, you have to show that he was unreasonable in jumping in, unreasonable in the particular force that he applied, unreasonable in the situation that he perceived, unreasonable based upon the totality of the circumstances, and other witnesses are going to say, he was 100% reasonable.
And also, thank God for this man!
Thank God!
If somebody says, somebody's going to die!
Now, you can also, we have to bring in...
Experts.
Let's show what this is.
And I would make that jury an expert in what a carotid restraint is.
It's on UFC.
And Joe Rogan does it.
And you see it all the time.
And it's on TV.
It's not a joke.
Police are taught that.
It's an effective means of quelling and minimizing the situation.
What they should have done, jumping back to that case of Chauvin with George Floyd, I would have had witness after witness after witness saying, that is precisely what you do.
The knee on the throat may be problematic to you, but that's what we teach him.
And he was merely, again, I'm jumping ahead, once jurors say, you want them to say, I didn't know that.
See, I'm just a regular guy who came in here and I thought they really, oh, they didn't choke him?
No!
And...
If they really wanted to do it, and this would be the greatest, to a courtroom demonstration, have the sleeper hold apply.
You've seen it on TV a million times.
It's nothing.
It's kids do it.
Which then comes into the issue of medical examiners.
Why did he die?
Okay, so then let's jump to this jury selection, because now his lawyers are arguing they want subway riders specifically on the jury, and the city is saying, well, no, subway riders, they need to work.
They're low-income people, so we may not be able to get you that.
Well, first of all, you can't ask for people.
You go through the jury process.
But when you pick a jury, New York is...
Normally very, very boring the way you pick them, but you have two types of challenges.
Two different ways you can get people off the jury's net.
One is a...
A challenge for cause.
You have unlimited numbers of those.
And they have a good reason.
For example, this is a relative of the defendant.
This is a relative of the victim.
This man is a convicted felon.
This person, you know, that's for cause.
And you can use as many of those challenges as you want.
Then you have peremptory challenges.
Oftentimes mispronounced as preemptory.
And peremptory is, this is where you have a certain number.
Six, three, depending upon the severity, the number of charges.
And you can get rid of people for whatever you want.
You don't have to give a reason.
And you only have a certain number of those.
Now, in this case, jury selection is important, but I am telling you one thing.
I have never in my life ever seen a person able to predict what a juror is going to do.
Once they hear the case, I have heard say, don't pick black defendants if you're prosecuting because black people tend to, you know...
Nonsense!
In many respects, they know crime more than anybody else.
If you have something that's really persnickety like a DOI, pick a teacher because teachers are into rules.
Nonsense!
Teachers probably drink more than anybody else.
So whatever you think, a woman, a man, whatever you are in that position, you find yourself also asking yourself, how do you fit in with the dynamic of other people?
Because you can find yourself kind of arguing with them, maybe there's a lunatic, and you might vote one way.
Or another to spy somebody else.
So those dynamics, jury selection is wonderful.
I love it.
But don't put too, too much emphasis.
People will just listen to common sense and just say, evidence didn't show it.
I don't like the man.
But understand what this is, though.
This is the classic case of a kind of a social justice warrior.
As a prosecutor, I would have said two things.
I am going to decline prosecution.
First of all, don't even show me who the victim is.
I don't even know what it is.
Just tell me what happens.
Number one, did this person, did this Mr. Petty, did he have any intent of committing a crime?
No.
Did he go up and just molest or menace somebody?
No.
Like Neely did?
No.
He was really trying to help people out.
So there was no criminal intent, no recklessness, no nothing.
To help out?
And not only that, we have something sometimes called Good Samaritan statutes, where in many jurisdictions, they will say, listen, if you, let's say, pull over if there's an accident, and you try to render first aid, and let's say you're not really adept at this.
And you kind of screw things up.
We're going to kind of hold you harmless unless you're really reckless because we want to encourage people to render aid.
We don't want somebody to be driving.
That's a good Samaritan statue.
So in that theory, as a prosecutor, I would say, number one, he didn't mean any harm.
He didn't mean to commit.
Number two, we kind of want to encourage this.
And number three, he probably saved a life by stopping this guy.
When somebody comes in and says, and I forgot to tell you something.
I forgot to tell you.
Here's the best one.
He has 40 arrests.
This is nearly the stiff.
40 arrests under his belt.
He was just released from Rikers Island, get this, for punching this old woman, smashing her nose, shattering the orbit of her eye.
This guy's got a reputation.
This isn't some walk in the park.
Now we get into the question of how relevant this is.
The question, though, people say, well, you don't know in that moment about his priors.
You don't know how.
And so other witnesses on the train said, well, one thinks he may be armed.
He was acting aggressively and through his jacket.
People say, well, you don't know how erratic that behavior will get in that moment.
So you don't wait until a gun or a weapon appears, until assault appears when someone has threatened.
You take them at their word.
Well, exactly.
Now, in the rules of evidence, you hope that somebody on the prosecution, because they go first, talks about what a wonderful man Neely was.
He was a good man.
He was a guy who, you know, he was just...
And what if somebody said, oh, really?
Are you familiar with his reputation in the community for peacefulness?
Well, would it surprise you if I told you that he had 40 arrests under his belt?
That he was at Riker's Island?
Well, I'm impeaching.
Yes, because what I'm doing is I'm impeaching.
I'm contradicting your testimony as to his peacefulness.
So I'm hoping normally you can't bring up the fact that the dead guy was a dirtbag because, as you said, Nobody knew that.
He didn't walk around with his rap sheet on him.
But if somebody during the course of this provides some kind of, I don't know, some kind of testimony as to, you know, he was such a nice guy, then I'm going to say, oh, so are you familiar with his reputation in the community?
Oh, yes.
Good.
Well, would it surprise you if, so now I'm impeaching, meaning I'm lessening, I'm attacking the credibility of the person.
So, this case, why?
Alvin Bragg is doing this.
Just think about this.
Former Marine.
I mean, just...
Good Samaritan.
Days of the old notion of the vigilantes.
Bernard Goetz in New York.
I'm tired of the crime and people fighting back.
This is the last case.
They could have...
Natalie, they could have told him, listen, would you enter a little program, something called, I don't know, anger class, and we'll drop it?
Okay.
Just give me something.
I don't want to try this.
Do something.
Oh, no.
They wanted to make, because this is about a progressive, you know, we're going to get this guy, this white Marine, choking to death this poor, you know, Thriller, this man, this Jacko impersonator.
Come on.
This case is fantastic.
Yes.
Well, but also, I think it allows the rest of us to admit we are scared in these little cities.
And that is a terrifying thing to admit.
It impugns these places that have allowed crime to run rampant.
In Springfield, Ohio, they're eating cats and dogs.
I don't care what anybody tells you.
Springfield, Ohio!
I guarantee you, New York may be per capita.
There's 8 million people here.
There might be less crime than in Davenport, Iowa.
Believe it or not.
Because you hear about this.
Because every day, there are days that go by with 8 million running around and nothing happens.
The odds of that.
So yes, the perspective is of course that.
But the idea of this man standing up and saying, I'm going to help these people out.
I'm not out trying to rough somebody up.
I wanted him to stop.
And he wouldn't.
And also, what about the other people who assisted him?
If he's guilty, they're guilty.
Anybody who aids, aids, abets, counsels, procures, hires, this is the...
This is the accomplice statute.
Why were they given a pass?
Why?
I think we know why.
But in the wake of this incident, there were riots in the New York City.
Well, I don't know if we call them protests in the New York City subway.
People saying, we've got another George Floyd on our hand.
We're protesting racial injustice.
And so now we have primed the city for another race riot.
Well, perhaps, maybe, kind of, sort of.
But I think we're a little bit kind of rioted out because we went through all this stuff with this Palestinian stuff.
Well, we're tired of it.
But also, this is weird to say, but I don't feel it with him.
George Floyd.
Mama!
Mama, I can't breathe.
There it is.
Yelling for his mother.
With this guy with that thing on his neck.
It just...
Sometimes it's the optics, the symbology, the semiotics.
I don't know what's...
Who knows?
But this one, especially, especially the people unlike...
A lot of people could have said, you know, with George Floyd, look, you had him on the ground, handcuff him, and that's enough.
Here you're going to have, that man is the hero.
That man, man, were you afraid?
You better believe I was afraid.
Are you glad there was a Daniel Penny?
Yes, I was.
Thank you.
Your witness.
Next witness.
Were you on that train?
Yes, I was.
And if it wasn't for that man, did you feel better?
Did you feel relieved?
Were you happy?
Because there's no police there.
There's no cameras.
There's no ring camera.
There's no help.
One after another.
That's the difference.
So in the event that this trial blows up in Alvin Bragg's face, does he face consequences?
No.
No.
Because he shows...
They went to a grand jury.
A grand jury said this?
He's merely doing this?
Right.
There was probable cause.
They had the chance.
They went before the judge.
The judge said, this case is good enough.
They go, no, no, no, he's not.
But it just goes to show you, this might be, and I don't know when this is eventually going to go to trial.
It's going to be after the election for sure.
But you know, Natalie, there's a difference.
There's a feeling in this country, obviously, on every level.
And remember, This weekend here in New York at the Garden, you don't, you can't even imagine.
They never showed you anything of what was happening.
That was Woodstock.
That was something I never saw or thought possible.
That zeitgeist, I hate to use that word, but that kind of collective way of thinking will permeate and be felt long after the election.
These people are here, and there are people who've had it.
We have Terrain de Araguay.
We have these gangs.
We have people.
We have open-air prostitution.
People are getting sick of this.
And when it finally gets to trial, it might, listen, this thing may be disposed of, I hope, with a dismissal and maybe, you know, go away and in the interest of justice and that sort of thing.
Right.
Well, it really is a shame of a story, but thank you for that context.
You can find more on Lionel Nation YouTube channel.
It's always a pleasure to have you on Redacted.
Good to see you, Lionel.
Thank you so much.
Have a great day.
All right, so let us know what you think of that story.
And again, you can follow Lionel and Lionel Nation YouTube channel.
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