'He's defecated on himself... you're going to kill him now,' he said.
Another man who was helping Penny restrain Neely replied that it was an old stain on Neely's trousers, and that Penny was no longer 'squeezing'.
'He's not squeezing? All right. Because after he's defecated himself that's it. You've got to let him go,' he replied.
He then warned of a 'murder charge'.
The second man turned to Neely and said: 'Hey can you hear me?'.
Met with silence, the man told Penny to stand up.
Penny does not speak, but releases Neely and springs to his feet.
That witness certainly foresaw Jordan Neely's death and will make a compelling witness for the prosecution. Granted the charge would more likely be involuntary manslaughter or criminally negligent homicide. Both crimes require "a gross deviation from the standard of care that a reasonable person would observe under the circumstances." That witness is a reasonable person, and he witnessed a gross deviation by Mr. Penny as he choked Mr. Neely to death.
With that being said, convincing a jury of this is another matter. There is the possibility that societal contempt for the homeless combined with prejudice against African-Americans could result in an acquittal.
Nevertheless, the claim that Daniel Penny could not have foreseen Jordan Neely as a result of his actions is not supported by the facts and, in a perfect world, ought to be sufficient for a conviction.
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