WASHINGTON - TelAve -- A jury of seven women and five men, all of whom have had first-hand experience with someone acting erratically on the subway system, has been seated to decide the fate of a former marine who risked his own safety to protect other more vulnerable passengers from threats from a violent mentally unstable man, with a criminal record for violent assaults including several on the subway,  He is charged in New York City with manslaughter and criminally negligent homicide.

But the law professor whose legal analysis (http://banzhaf.net/by/GoetzDefense.html) helped keep Subway Shooter Bernhard Goetz out of jail insists that the defendant, Daniel Penny, is a good samaritan and not a vigilante, and that he has an even stronger legal defense under the laws of New York; especially since, unlike Goetz, Penny risked his own safety to protect not himself but others.

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Thus public interest law professor John Banzhaf, who has provided successful legal defenses in other similar situations - including the eerily similar case of Bernie Goetz, dubbed the "Subway Shooter" or the "Subway Vigilante" - maintains that Daniel Penny's legal case is stronger than the others in which the professor was been successful.

Penny is no vigilante, says Banzhaf.  In contrast to other definitions of "vigilante," Penny was certainly not seeking to take the law into his own hands since the law of New York [§ 35.15], like the law of virtually all states, seeks to encourage citizens to go to the defense of others less capable of protecting themselves; an ancient legal privilege which has been expanded in many states over the past generation as the need for self help by private citizens has continued to become more evident.

To permit if not encourage individuals to go to the aid of their fellow citizens, the law permits them to use reasonable force not only against perceived threats of death or serious injury, but rather against any perceived threats of any use of "unlawful physical force."

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A fair minded jury should not find to the contrary, especially not beyond a reasonable doubt, says Banzhaf, and jurors should certainly not seek to punish Penny for whatever failures there might be in governmental actions and inactions which permit violent mentally deranged criminals to regularly ride the subways.

And since many jurors ride the subway and are familiar with individuals who make even large men afraid of being assaulted, almost certainly at least one will and should refuse to vote "guilty" beyond a reasonable doubt - since a conviction would only further discourage even brave men from going to the aid of fellow passengers, says Banzhaf.

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