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The 55-year-old Combs has been behind bars since his arrest in September
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The case arose from subway rider Jordan Neely's death after he made an outburst and Penny put him in a chokehold in May 2023.
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A judge declared a mistrial after jurors deadlocked in the case of Karen Read, a woman accused of killing her Boston police officer boyfriend by striking him with her SUV and leaving him in a snowstorm.