Former Marine Daniel Penny, who was acquitted of all charges in connection with the 2023 subway death of Jordan Neely, a homeless New York City man, is still facing a civil lawsuit where the burden of proof will be easier to meet, retired Judge Andrew Napolitano said Tuesday on Newsmax.
"The standards are very different," Napolitano said on "Wake Up America," explaining that in a criminal case, the prosecution must show proof beyond a reasonable doubt and to a moral certainty.
"Consider that [to be] about 99% out of 100," he said. "In a civil case, it's a preponderance of the evidence. Consider that 51% out of 100."
Last week, Neely's father, Andre Zachary, filed a civil lawsuit against Penny in New York Supreme Court, on accusations of negligent contact, assault, and battery that caused the death.
Zachary is demanding "judgment awarding damages in a sum which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction," according to the lawsuit.
Napolitano said as there are different standards involved, it will be easier for Zachary's attorney to achieve the burden of proof in a civil lawsuit.
"I don't know if [Penny] has an insurance policy," said Napolitano. "He certainly has a defense fund. I'm not sure what's going to happen to all of that cash but Mr. Neely senior is going to try to get his hands on it."
Meanwhile, Napolitano said he is looking forward to hearing what the jurors in Penny's criminal trial have to say about their verdict, but he thinks they understood that he was acting out of self-defense and the defense of others when he put Neely in a chokehold.
But that argument is "frowned upon by the legislature of the state of New York," said Napolitano.
"The judge told the jury, 'Daniel Penny had the duty to retreat,' meaning if there's a way for him alone to get out of this, he should have taken it. The jury disregarded that and viewed Penny as a hero," Napolitano said.
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Sandy Fitzgerald ✉
Sandy Fitzgerald has more than three decades in journalism and serves as a general assignment writer for Newsmax covering news, media, and politics.
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