Marine veteran Daniel Penny 'doesn't have to prove anything' in manslaughter case: Former NY prosecutor

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Here's what the prosecution needs to prove to convict Daniel Penny of manslaughter: Elliot Felig

Former prosecutor Elliot Felig discusses the manslaughter charge against Marine veteran Daniel Penny on 'Sunday Night In America.'

Former prosecutor with the New York district attorney's office, Elliott Felig, joined "Sunday Night in America" host Trey Gowdy to discuss the legal implications of the case involving Marine veteran Daniel Penny and Jordan Neely. Felig called the case, "not the usual" second-degree manslaughter case.

Penny is currently being charged with second-degree manslaughter in the death of Jordan Neely, over the May 1 incident on a New York City subway train. The Marine veteran asserted in an interview with the New York Post, that the incident in question "had nothing to do with race" and was "deeply saddened" by Neely's death.

Felig highlighted the prosecution’s burden to prove beyond a reasonable doubt that Penny acted recklessly, created a substantial and unjustifiable risk of death and consciously chose to disregard that risk.

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"A lot of elements there, a lot to unpack, but obviously the one that jumps out is unjustifiable, because he has asserted, and his lawyers have asserted that he was justified, that he was acting in self-defense," Felig said. "And a very important point here, Mr. Penny does not have any burden of proof. He doesn't have to prove anything. He does not have to prove that he was justified. Rather, the prosecutors have to prove beyond a reasonable doubt that he was not justified."

Daniel Penny leaves the 5th Precinct of the NYPD on Friday, May 12, 2023. Penny is charged in connection with the death of subway rider, Jordan Neely.  (Julia Bonavita/Fox News Digital)

Fox News host Trey Gowdy highlighted Penny's statement to the New York Post, where he cited "threats," "menacing," and "terror" as part of his interaction with Neely. Felig pointed out that the prosecutors have "acknowledged" that "Mr. Neely was behaving in a threatening manner." Which Felig noted, lays the groundwork for a potential defense on Penny's part.

However, Felig mentioned, prosecutors could argue that Penny's initial chokehold may have been justified, but the continuation of the restraint "went on too long."

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"The prosecutors may point to Mr. Penny's background in the military and say he knew or should have known that if a chokehold went on for this long, it was more likely to cause death and that maybe he was justified initially, but he wasn't justified to go on for as long as he did," Felig said.

Gowdy noted how articles refer to Mr. Penny as a veteran and Mr. Neely as homeless. Adding that "ordinarily," "neither one of those facts would be relevant," but that in this case Penny's training in the military "could theoretically be relevant."

Felig responded by adding that this is, "not the usual manslaughter case" where the risk of death is obvious.

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"This is a chokehold, it's not as obvious, but the prosecutors could lean on his background," Felig said. "As to Mr. Neely's background, the fact that he had the arrests and the prior violence on his record, that probably won't come in because the jury is going to be asked to look at it through the eyes of what Mr. Penny was aware of at the time. And because they were strangers to another, there's no way that Mr. Penny could have known about Mr. Neely's background with regard to the criminal justice system."