Retired New Jersey Superior Court Judge Andrew Napolitano told Newsmax that "the problem" with the Daniel Penny case lies in a New York law that prohibits personal defense in certain circumstances.
Marine veteran Penny, 26, is on trial in New York City for manslaughter after placing homeless man Jordan Neely, 30, in a deadly chokehold in a subway car in May 2023. Penny said he believed the man to be a threat and was trying to stop him before he hurt someone on the train.
"The problem with the case is the judge is going to tell the jury of this terrible law in New York called the duty to retreat," Napolitano said Friday on "Wake Up America." "You cannot manfully, in New York, defend yourself from an oncoming threat if there's a clear path out of that threat and what would the clear path be? Go to another subway car."
Napolitano said the New York law will "deter people from ever wanting to defend themselves, much less defend an innocent person sitting on the subway next to you."
"This guy [Neely], who's dead, was a real menace," Napolitano said. "The question is, did he deserve to die in that place and in that manner? The answer is probably not."
Napolitano also noted that states like "Oklahoma and Texas do not have the duty to retreat" law.
"What states have the duty to retreat laws? Take a guess: New York, New Jersey, Connecticut, Illinois, California. You see a pattern?" Napolitano said.
Penny's trial doesn't seem to be "going well for him," Napolitano said, but "it is not yet the defense's turn."
"So, having tried many of these cases, I know that you cannot form a judgment as to how the jury is receiving the evidence until all of the evidence comes in, but, thus far, the government's witnesses, I think, have painted a very, very clear and convincing case that too much force was used," Napolitano said.
Napolitano also commented on the trial of illegal migrant Jose Ibarra, who is accused of murdering Georgia nursing student Laken Riley, saying that Ibarra likely waived his right to a trial by jury because his defense team thought they couldn't find 12 impartial jurors.
"I don't think he's going to gain anything from this, but it's about the best the defense can do," Napolitano said. "The evidence of his guilt is so overwhelming they should enter a guilty plea. Now, in order for there to be a guilty plea, he has to agree to plead guilty. He has to go on the witness stand and say under oath exactly what he did. He probably can't bring himself to do that."
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