Analysis of the Daniel Penny Verdict

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Brian Lehrer: Brian Lehrer on WNYC. We'll talk now about the acquittal of Daniel Penny. The acquittal surprised many people who thought there would be some kind of conviction, if for no other reason than because he had Jordan Neely in that chokehold on that F train for six minutes, even after Neely defecated on himself. The public saw a video of one of the riders saying, "Enough, you're going to kill him." How did the jury acquit Daniel Penny? WNYC and Gothamist public safety reporter Samantha Max was in the courtroom covering the trial, and she joins us now. Hi, Sam. Thanks for coming back on the show.

Samantha Max: Hi, Brian.

Brian Lehrer: Listeners, we can take some questions about evidence in the trial and the jury's decisions at 212-433-WNYC. Call or text, 212-433-9692. Have jurors commented publicly that you've seen on their reasoning?

Samantha Max: Not that I am aware of at this point. All of these jurors have been kept anonymous. We know what they look like, and I have information about them from when they were questioned during jury selection, but we don't know their names. Given the division over the case, I would not be surprised if many of them want to state that way.

Brian Lehrer: They had a hung jury on the more serious charge of manslaughter, but acquitted Penny on the less serious charge of criminally negligent homicide. Is it clear how that happened? It would seem to be backwards, being more open to the more serious charge.

Samantha Max: It's a good question. Basically, these two charges are very similar, and the difference between them is a sense of mindset, essentially. They would have never been able to charge on both either way. It would have been up to whether they felt it was one or the other or neither. When we're talking about manslaughter, basically, the jury would have had to have found that not only did Penny directly cause the death with his actions and that he was unjustified, but they also would have had to have found that he was reckless. The legal definition for that in criminal cases in New York is that he knew that he was putting Neely's life in danger.

Then the key difference between that and criminally negligent homicide is that he didn't necessarily know, but that he should have known that a reasonable person would have thought, "You know what, I might be doing something that could really cause serious harm here." It seems that they were not able to come to an agreement about whether he knew that he was being reckless, but they decided, I guess, that they didn't feel like it rose to the level of he should have known, but of course--

Brian Lehrer: I guess not. Is there any way to know why not? I realize the jurors are anonymous, they haven't spoken publicly, but from the evidence that you watched being presented moment by moment for day after day in the trial, what about the six minute chokehold and the warning from a passenger that he could be killing Jordan Neely, and the testimony by, I think, somebody who supervised Penny in the Marines that he wasn't applying the chokehold in the way that he was trained. All of those things. To a lot of people who are just consuming news reports about the trial seem like the definition of recklessness or negligence that you were just describing under the law, it would seem to fit, yes, he should have known.

Samantha Max: It's an interesting question that I think I am trying to make sense of myself. There's something interesting that happens when you're in a courtroom for a month-and-a-half every day hearing testimony. The things that the public is seeing from just watching the video or getting snippets here and there is very different than the experience when you are zoomed in in the courtroom. These jurors and everyone else who was in the courtroom that day, we all watched Jordan Neely held in a chokehold for six minutes. We watched that video over and over, slowed down from different angles when forced responders are responding to the scene.

We also heard from all of these different people who were on the subway that day who were very divided. We heard from people who have been riding the subway for decades who said they had never seen anything like this in their life, that they were genuinely afraid, that they were relieved when Penny put Neely in a chokehold. We heard from others, including the person who can hear in the video saying, "You have to let him go, you're going to kill him." We heard from that person, too. It was a real whiplash of hearing different folks perspectives.

Brian Lehrer: How much did the prosecution try to lean on the length of the chokehold and that witness's warning? Sure, everybody was scared on that train of Jordan Neely's behavior and maybe relieved at first when Penny put him in a chokehold. It would seem to be, even if that was well intended by Daniel Penny, which I don't think there's a lot of dispute about, how much did the prosecution lean on the length of the chokehold to try to win the conviction on that point?

Samantha Max: I think that was really the heart of their case. Throughout the trial, the prosecutors, their tagline was, he had good intentions, but he went way too far. That was a line that was repeated throughout the trial. They brought in someone who did an analysis using different pieces of evidence, like cell phone videos, the timing for when the subway train was moving, all these different things to assemble a timeline of when everything happened.

For instance, we know now that Penny put Neely in a chokehold within less than 30 seconds, because the trip from Second Avenue to Broadway Lafayette is only 30 seconds. Then we know that the doors opened once they got there, the train stopped moving, and he kept holding on for about 6 minutes, including approximately 51 seconds after Neely's last voluntary movement. That was a portion of time that they really kept coming back to. Why did he keep holding on for all that time?

Brian Lehrer: People were scared enough in just 30 seconds of Jordan Neely's behavior that Penny reacted and initiated contact the way he did. All of that. That part happened in just 30 seconds?

Samantha Max: Yes. Penny was not talking to-- No one said anything to each other other than what Neely was saying. What Penny said in his interview with detectives that we got to hear was that he signaled to someone, "Hey, can you hold my phone?" Handed someone his phone, took out his earbuds, and then put Neely in a chokehold.

Brian Lehrer: A few more minutes with our public safety reporter Samantha Max, who was in the courtroom for all the testimony in the Daniel Penny trial. We'll take a few of your questions about how this went at 212-433-WNYC in a minute. Then we're going to get a response from City Council Member Tiffany Cabán, who, interestingly, has wound up in a social media exchange with Elon Musk over this in the last day.

I wonder if this was a key to the acquittal, Sam. You wrote an article called Defense Lawyers in New York City Subway Chokehold Case Blame Sickle Cell, Echoing George Floyd Trial. This piece of your reporting in that story jumped out at me. I'm excerpting here. You wrote, jurors sent a note requesting to listen back to a portion of the testimony from Dr. Cynthia Harris, the medical examiner who performed Neely's autopsy. A request to hear Harris's cross examination, including a portion where she said she wouldn't have changed her mind about Neely's cause of death, even if drug testing had shown fentanyl in his system.

They also wanted to listen back to an exchange where she said she had told the grand jury, that's who indicted, that she didn't know if she had observed Penny exerting sufficiently consistent pressure on Neely's neck in the video to kill him. She didn't know if she had observed sufficiently consistent pressure. Did the medical examiner's conclusion of the cause of death being the chokehold not convince the jury because of those passages? That is to say, the defense cast enough doubt on whether she was right to be certain about the chokehold as the cause of death, rather than it just exacerbating underlying conditions?

Samantha Max: I think this was really one of the key parts of the trial and certainly one of the most contentious ones. The medical examiner, her testimony, including some very lengthy cross examination. It spanned over three days. Then there were another couple days where the defense brought in their own forensic pathologist that they paid about a $100,000 to do his own analysis. They came to opposite conclusions, essentially.

The medical examiner was steadfast that this was a chokehold death. I'm looking at my notes. She actually said no toxicological report would have changed her opinion. That even if he walked onto the subway with enough fentanyl to put down an elephant, that would not have changed her mind. Whereas the defense's expert said this was everything except a chokehold death, saying that it was a combination of this genetic trait, his schizophrenia, all these different factors, that he had synthetic cannabinoids in his system, and also that he was exerting himself during the struggle, that that's what killed him.

This was a line of questioning that was really drawn out. We're talking about complex medical terms, looking at all these diagrams. I could only imagine what the experience was like for a juror trying to make sense of this. I think that was definitely a big thing that came up, was that basically what we learned is that the medical examiner, she did an initial autopsy. She said waiting for further results, a pending cause of death. Then she and the rest of the medical examiners who were in the office that day all watched the video together, and then all after watching the video, unanimously decided that this was a chokehold death.

She walked us through signs that were happening in his body. Like different movements that were showing the process of death and things like that, and explaining things about where the pressure was on the neck and different injuries that she found. We don't know which element it was that led the jury to convict. If it was about cause of death, you would have to think that just all of this testimony must have played a role.

Brian Lehrer: Listener asks in a text message, "Why wasn't Penny charged with involuntary manslaughter? If one, including the reluctance by the jury, didn't believe that Penny acted intentionally, he was ultimately responsible." That wasn't one of the charges that was--

Samantha Max: That was the charge. Manslaughter--

Brian Lehrer: Oh, that was the manslaughter charge. It was involuntary.

Samantha Max: Manslaughter means that he didn't have intent to kill as opposed to murder.

Brian Lehrer: Greg in Toms River, you're on WNYC with Samantha Max. Hi, Greg.

Greg: Hi. I had a thought. I look back and I think to myself, "Why was O.J. Simpson acquitted?" O.J. Simpson was acquitted, I believe because the Black jurors were sending a message to society that they were tired of police brutality in Los Angeles on their Blacks. Why is Luigi Mangione being hailed as a--

Brian Lehrer: O.J. Simpson was held liable in a civil suit. He was acquitted in the criminal trial, but go ahead.

Greg: Yes. Why is Luigi Mangione being hailed as a hero on many circles of social media? I think those people that are commenting on social media are sending a message to society that they're sick and tired of how they're being treated by the insurance companies. I think it's possible that these jurors were sending a message that they're sick and tired of the crime on the subway and the mentally ill people, unfortunately, that are in society and riding the subways and drug addicts riding the subways. I think maybe they were sending a message.

Brian Lehrer: Greg, thank you very much. Very interesting way to tie it all together. I don't know if there's any way for you to know whether that's what happened or whether it happened that way to any extent, Sam. They're not supposed to be taking social conditions into account as opposed to the evidence in a particular interaction.

Samantha Max: I will say, based off of the questions they were raising and the amount of time they deliberated, it seems that they were very steeped in the law and really in trying to make sense of what it takes to convict or acquit a person in a case like this. It was really interesting. I sat through several days of jury selection. These are all people who ride the subway, many of them every day or most days of the week.

They were also all asked whether they have experienced outbursts on the subway, whether they support the governor sending the National Guard onto the subway, things like that. The answers were really mixed. I know that there are several people who are on the jury who had witness outbursts, some that even made them really scared or uncomfortable. Of course, everyone is supposed to be fair and impartial, but also they are allowed to take into account their lived experience. I would be very curious to know what their conversations were like.

Brian Lehrer: Before you go, Sam. Part of the response from those outraged by the verdict is about racial bias or the perception or accusation of racial bias. Public advocate Jumaane Williams released a statement asking, "Does anyone doubt that if the roles were reversed and a white former Marine in a moment of crisis was choked to death by a Black homeless man, there would have been a different outcome." We'll talk to Tiffany Cabán, New York City Council member about this after the news.

Did race as a factor when a white Marine from the South Shore of Long island kept a Black homeless man from the city in that chokehold for that long come up explicitly or implicitly, either by the prosecution or the defense? Was the demographic makeup of the jury an issue? I see it was majority white with one Black juror, one Latino juror, one Filipino juror, one juror of Middle Eastern descent. Any knowledge of who voted how on the hung jury over the manslaughter charge? I guess none on that, but any discussion about race by the prosecutor or the defense, and any thought on the makeup of the jury?

Samantha Max: It's an interesting question, because the weird thing is that race really hardly came up during the trial, even though, of course, when this video came out, it was very central to the conversation, and understandably so. As you said, we have a white former Marine from Long island putting a Black man in a chokehold. The eye can see what's going on. One interesting way that it came up was during the medical examiner's testimony, she was explaining that part of the reason that she felt that he had died from a chokehold was because his face started to turn purple. That, she said, had to do with the oxygen flow being cut off, blood being trapped in the head.

Then you have the defense side saying, "Oh, maybe it was just a suntan." Even just a small comment like that. I think the really interesting thing is how each side was navigating that. I guess they had to make sense of whether or not it would be helpful to their case to mention race. The one other factor that you alluded to a little bit before was this conversation around sickle cell trait, which is a genetic trait that is almost always benign and that predominantly affects people of African descent, but in very extreme conditions can be connected to deadly outcomes.

You have the defense's expert saying this person died because of this trait. It's something that has actually come up in several dozen deaths related to arrests, including actually George Floyd had sickle cell trait. The defense in that case tried to use that to say, "Oh, he also died because of sickle cell trait." The prosecution at one point did try to bring up in their cross examination of the defense expert, that this is a pattern that sometimes sickle cell trait is used to excuse or explain deaths related to arrest. It was really cut off by the judge pretty early on. It was this beneath the surface element that only came up in little moments here or there, but that wasn't explicitly explored.

Brian Lehrer: Samantha Max, public safety reporter for WNYC and Gothamist was in the courtroom covering the Daniel Penny trial. Thank you for filling in so many more details for us. Appreciate it.

Samantha Max: Thanks, Brian.

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Brian Lehrer: It's the Brian Lehrer show on WNYC. Good morning again, everyone. Now we'll get a reaction to the Daniel Penny verdict from a critic of the verdict on New York City Council who also has legislation she hopes will prevent people in the future from winding up in the situation Jordan Neely was in in the first place. Will get her take as a lawyer on the civil suit that's now been filed by the Neely family against Daniel Penny.

He will be back in court despite this acquittal on the criminal charges, it seems. It's Queen City Council Member Tiffany Cabán, a former public defender who also ran for Queens DA as a progressive criminal justice reform-minded prosecutor. As it happens, Elon Musk has been responding to some things Council Member Cabán posted on social media since the verdict. Council member, thanks for coming on. Welcome back to WNYC.

Council Member Tiffany Cabán: Thanks for having me again, Brian.

Brian Lehrer: Your post that got Elon Musk's reaction began with, "Jordan Neely deserved better than the violence of being denied access to stable housing and health care, and then dehumanized for it." Musk's response maybe agrees with you somewhat. We'll see what you think about that. He wrote, "This illustrates why the term "homeless" is misleading. The vast majority of those on the streets are there due to severe drug addiction and/or mental illness. The issue is not that they got a little behind their mortgage payments and would be back on their feet if someone just offered them a job." How much are you and he coming from a similar place or to similar conclusions about what's needed in our country, in our city, with respect to mental health?

Council Member Tiffany Cabán: It's certainly interesting to get the attention of Elon Musk. I would say that I think there is agreement that we have a mental health crisis that exacerbates and contributes to our housing crisis. There are also really, really important points of a divergence. The stigmatization, first of all, of mental health and things like substance use disorder, and tying that to homelessness can be really problematic.

We know that at some point, I think, one in eight New York City public school students was homeless for at least some period of time last year. That was reported by the New York Times. There's also been a lot of information and studies that show that, in fact, the more people who are homeless actually encounter mental health challenges or substance use disorder or both subsequent to becoming homeless. That statement around homelessness wasn't accurate, and I think was meant to be politically charged.

For me, I think that the reality is that Jordan was denied stable housing and healthcare. It's not really a question of whether he was ever offered help, but it's whether we have systems of intervention and care that are comprehensive and most importantly, effective. His situation proves that we don't. He was denied the level and treatment and care he required and deserved for his acute needs.

The answer to our larger crisis is not one-size-fits-all. I certainly represented lots of folks as a public defender who remind me so so much of Jordan Neely. The mayor, our speaker, and probably most importantly, mental health and healthcare professionals have all stated a truth, that ours is a patchwork system and we need a comprehensive continuum of care, sending people through a revolving door of shelters, hospitals, jails, inpatient facilities. That's not stable housing and health care, and we can and should do better.

Brian Lehrer: I don't have this part in front of me, but I think Musk's post or one of his posts also included a snippet from coverage after the death of Jordan Neely that indicated he was given some kind of stable housing and he walked away from it. Familiar with that?

Council Member Tiffany Cabán: Yes, absolutely. I appreciate the opportunity to fact check. I think a lot of it is what I just mentioned. It's not the question of whether he was ever offered help. It's whether that system of intervention was comprehensive and effective for him, and it wasn't. I won't reiterate what I said about patchwork system and that not being the equivalent of stable housing and healthcare, that revolving door. I will add to that, that the worker that engaged with Jordan Neely will be the first to tell you that they don't have enough resources and they aren't operating in a system in a context that works for them.

We need to give those care workers what they need to do their jobs, and they'll be the first to tell you that they don't have that right now. What does that mean? They need better pay. They need a much larger workforce. They need more resources. To paint a picture of what that could look like , we are so used to, as New Yorkers, stepping into the subway system and seeing police officers. You see at least a dozen of them on your way to work, for example, on the platform, on the train car. What if we had an omnipresence of care workers with that presence that can be there not just to deescalate, intervene in a moment of crisis, but are actually there to help engage people before things escalate to acute instances.

Brian Lehrer: I think that's what Mayor Adams would say that he's doing. I know you often disagree with Mayor Adams on things like this, but I think he says, "In addition to the police officers who are there for public safety, they are deploying a lot of outreach workers who try to convince people sleeping on the trains to go into shelters or go into the care system. Do you feel like that's not happening despite what he says?

Council Member Tiffany Cabán: Yes, it's not happening despite what he says. I think an important part of this is that when he says, "We need more of these things," our mayor controls the purse. We don't get an A for effort at this point. You just have to look at the budget. We budget over $11 billion for the NYPD, and we budget just a little over $700 million for the Department of Health and Mental Hygiene. There is a lot of room to make an impact tomorrow by right-sizing those amounts. We have some good things in the city, but they're not scaled to the degree that allows every person who needs it to have access and take advantage. I'd love to give you a few examples of where we could be doing more that, but we've got some things. We have also--

Brian Lehrer: In the context of this, also tell us about your legislation, which I know you wanted to talk about, and what that would specifically change. Go ahead.

Council Member Tiffany Cabán: Absolutely. We're looking, in our role as legislators, how we work to change the systems that lead to these horrific outcomes. Some of them are purely expense. They're programmatic, they're policy. Some are legislative interventions. To start with what we have that's good that we could scale, we have mental health clubhouses. We have the overdose prevention centers. We have crisis respite centers. We have B-HEARD that is our alternative mental health responder program. That's good, but needs to be better. I think I even talked to you specifically, Brian, about visiting other cities to see how they do it because they're getting some better outcomes.

Puring more money into those things to scale them, great. On the state level, for sure. I'll start with what's outside of my control. We need the New York Health Act. We need universal housing and universal health care to complete that continuum of care. Let's talk about legislation. I have a bill that would mandate that homeless outreach be conducted first and foremost, not by law enforcement agents, but rather nonviolent service workers who are trained in trauma-informed care and are able to provide tangible support items.

We have a supportive housing bill that would require-- This is a really, really important one. It would require the Department of Social Services to include families and individuals with severe mental illness and substance use disorder, and also who are homeless, at risk of homelessness and have had justice system involvement. What a lot of people don't know about our current supportive housing structure, which is we have some. We need more of it. It's great. They're not prepared, and the eligibility excludes people with what we call a dual diagnosis.

People who have both a mental health diagnosis and substance use disorder are not eligible. The reality is that that then leaves out a significant group of people who need the support, and they play into each other. You have people who have a mental health diagnosis who don't have access to regular mental health care and then self medicate and develop substance use disorder. That's a gap we need to address. I mentioned B-HEARD, and I'll just wrap up with a couple of quick other ones. I mentioned B-HEARD and we're not getting as strong of outcomes as we could. I think that has a lot to do with the public reporting. We've had oversight hearings on the B-HEARD program. There's a bill that would require--

Brian Lehrer: B-HEARD is deploying social or mental health workers along with police when people call 911 because they're in crisis, right?

Council Member Tiffany Cabán: Not exactly. It is a deployed team that first and foremost is mental health professionals and EMS workers. Then they call in the police if necessary. Lots of times that isn't necessary. I love telling the Denver Star, which is their equivalent story of that. They, in the first two years of their operation, went on over 700 calls and called police backup zero times. It's a really effective model. We're not keeping good enough data on our program to be able to identify pain points to see where we can make adjustments to get better outcomes so that we can scale it. We have a bill to do exactly that.

Mental health in schools. We can't just engage adults. There's a bill that would require the city to develop and offer middle and high school students peer to peer mental health training programs. Those are those are some of the things that we could do legislatively that would create conditions, an environment that would reduce the number of emergency acute crises. There's two parts of this. You want to be able to have the right response in a moment of crisis, but the reality is that you want to have the infrastructure in place that reduces the number of emergencies that occur. That is the true mark of success.

Brian Lehrer: We'll continue in a minute with Council Member Tiffany Cabán. As a former public defender, we're going to get her take on the verdict itself and also on the civil suit that's now been filed and what's likely to happen as the Neely's and the Penney's apparently go to court again. Stay with us with City Council Member Tiffany Cabán from Queens. Brian Lehrer on WNYC.

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Brian Lehrer: Brian Lehrer on WNYC. A few more minutes on the Daniel Penny verdict with Tiffany Cabán, city council member from Queens. Councilmember, I know you only have a Few minutes, but your post that got Elon Musk's attention and response also went on to say, "Jordan Neely deserved better than the systems that allow for and justify extrajudicial white supremacist violence against Black people." Many people will take issue with that term 'white supremacist violence' in this case. To many people's ear, that'll imply that Penny was trying to lord it over Jordan Neely with some racial animus rather than what he thought was defending people even if he went too far. You see it differently?

Council Member Tiffany Cabán: Yes, absolutely. Let's talk about what that means to internalize white supremacist ideology or just in a larger context. To broaden it a bit, this is really difficult. When you start looking at this case and what happened to Jordan Neely, you can't get away from these lightning rod, heavy-hitting subjects where you're seeing the intersection, and you can't separate them, of homelessness, housing, of race, of violence, of mental health issues.

The reality is, is that we have seen time and time again situations like this that have been disproportionately fatal for Black people and particularly Black men. There is an overarching problem that we need to come to terms with that's rooted in racism, that there are folks who internalize Black bodies, particularly those of Black men, as inherently more dangerous. You will see the use of force be much more severe than you might see in other situations with people of other genders or races. I know that these are hard conversations to have, but we cannot ignore them.

Brian Lehrer: Mayor Adams said he respects the jury system, and we all weren't in the courtroom, and he wasn't going to say one way or another whether he thought the verdict was wrong. You are a public defender. The defense presented evidence and won an acquittal with a jury. Do you respect the jury process and outcome here?

Council Member Tiffany Cabán: This is, again, a complicated question that I feel like I have to give more context as a former public defender who went to trial, who litigated criminal cases in Manhattan criminal court. There are lots of things that happen in a trial that are outside the view of the jury, for example. It's really hard to say-- Again, you had a reporter who sat through the whole thing and I certainly did not.

There are legal arguments that happen outside of the view of the jury that the judge makes a decision on that determines what arguments can be made, what testimony can or can be heard, what charges can be given. There's even a conference of how the judge explains the charges to the jury before it's given to the jury. After the case is over, there's something called a charge conference. That's probably one of the most contentious, heated portions of a trial that happens outside of the jury and impacts how the rules and the language use that are given to the jury that they then take in and deliberate upon. Then there's other-- Sure.

Brian Lehrer: Is there something on any of those things, and it sounds like you want to add another one, that you were critical of the way the judge handled in this case?

Council Member Tiffany Cabán: I would have had to sit through every minute of the trial to be able to give you an answer on that. I can at least identify some of these points or issues that we could look at that could affect how a jury would determine it. The other thing that I would-- two other things that I would say is that after trying cases in criminal court, one of the things that I always did, and some people had different ideas about this. Some defense attorneys would never go talk to the jury after because it just would break their brains. Some people were like, "I have to talk to the jury to understand how they deliberated."

I got to tell you, it is so unpredictable. You talk to folks, and you really-- Sometimes you just are never expecting the things that they're hung up on or considering or what brings them that decision. I will say that the verdict wasn't unexpected. We've seen this over and over again. I think that the important thing to pull out of this is that no matter the verdict, whether it had been a guilty or a not guilty, our criminal legal system was never designed to provide true accountability and justice. If we want to deliver those things to people, that false promise that our criminal legal system puts out into the world, if we really wanted to deliver those things, we have to go back and look at other areas for that.

Brian Lehrer: Policy areas primarily, I guess. Right?

Council Member Tiffany Cabán: Yes. Could I add to that briefly, Brian? When we talk to, and there have been studies on this, actually, but the priorities of survivors of victims of crime and violence, there are three priorities that come out consistently. It's the ability to heal. It's to make sure that they're not hurt the same way, and nobody else is hurt the same way they were. That requires a change in behavior from the person who harmed them.

When you look at the options of the criminal legal system, either an acquittal or you get a jail sentence, a stint in a jail or a prison isn't going to deliver those things. It removes somebody for a bit, it exacerbates health problems, all these different things, and then throws them out in the community without doing that work of effectively changing behavior. That might mean care, it might be behavior modification, but we don't get those things from that system.

Brian Lehrer: Last question, there's a civil suit that's now been filed by the Neely family. Came up earlier in the show, the O.J. Simpson acquittal followed by being held liable for that murder in a civil case. What do you expect in this? The standard of proof is lower, I think it's accurate to say as a non lawyer-

Council Member Tiffany Cabán: Yes, it is.

Brian Lehrer: -in a civil trial. What do you expect is going to happen here and how's it going to play out?

Council Member Tiffany Cabán: The likelihood of civil liability in this case is much higher than that really, really high burden of proof in a criminal case. In a criminal case, the proof is beyond a reasonable doubt. Also, you have these statutes, and they're broken down into elements, and every single element has to be proven beyond a reasonable doubt. Even talking about what the charges were, that involuntary-- One struggle to meet that burden, always in any criminal case that involves an element where you have to determine the intent of the person is really hard.

It's always going to be hard to prove beyond a reasonable doubt what was in somebody else's brain. That's a challenge. In a civil case, that burden is much, much lower. I believe it's a preponderance of the evidence. More likely than not. You're going to have a different jury. There's jury selection is a determinative part of any litigation. You had 12 people on the criminal court jury. You're going to have a different set of people coming together to discuss a situation that might come to different determinations. I think that the hurdles are much lower and so there is a higher likelihood of civil liability.

Brian Lehrer: Tiffany Cabán, New York City Council member from Queens. Thank you very, very much.

Council Member Tiffany Cabán: Thank you.

 

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