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Civil rights attorney Leo Terrell criticized Judge Maxwell Wiley Monday for allegedly “going along” with Manhattan District Attorney Alvin Bragg’s plan of “gaming the system” in the case against former Marine Daniel Penny.

A Manhattan jury acquitted Penny on the criminally negligent homicide charge in the death of 30-year-old homeless man Jordan Neely, who the defendant held in a chokehold to protect surrounding passengers on a New York City subway train in May 2023. Terrell accused Wiley of going along with Bragg’s attempt of “gaming the system” by suddenly dismissing a portion of the case when the jury was in a deadlock.

“Let me be very clear, Alvin Bragg was gaming the system,” Terrell said. “Look, when you file charges, you start off the case with the charges, you don’t all of a sudden dismiss part of the case if you have a hung jury or a mistrial. You don’t dismiss a part of the case and say ‘well judge, let’s go after this portion of the case.’ He was gaming the system. Why, John ? Because he was desperate for a win. He lost. He lost his case and he did everything. I’m embarrassed for the judge who went along with this scheme. The jury spoke unanimously not guilty on the negligence charge, which is the lower standard.”

Wiley instructed the jury to reach an agreement on the second-degree manslaughter charge before considering the charge of criminally negligent homicide. The jury told the judge they were deadlocked on the manslaughter charge Friday, eventually prompting Wiley to dismiss the first charge at the prosecution’s behest.

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Bragg charged Penny with second-degree manslaughter and criminally negligent homicide after a medical examiner ruled Neely’s death a homicide in May 2023. The manslaughter charge carried a sentence of up to 15 years in prison, while the negligent homicide charge held a maximum of four years imprisonment.

Dr. Satish Chundru, a forensic pathologist hired by Daniel Penny’s attorneys, said during the trial that Neely died from the “combined effects of sickle cell crisis, the schizophrenia, the struggle and restraint and the synthetic marijuana” in his system, according to NBC News.

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Terrell said “race hustlers” attempted to “intimidate the jury” into convicting Penny for alleged racial purposes.

“And the point is very clear, you had people out here which I think has to be addressed,” Terrell continued. “You had race hustlers out there trying to intimidate the jury. People out there always playing the race card for 10 years, they’ll play the race card again. This case wasn’t about race, it was about a Marine veteran who was trying to protect people in the subway, who was terrorized and the jury saw it.”

Former federal prosecutor Andy McCarthy said during a Monday Fox News segment that the jury reached a “deadlock” likely due to many jurors buying into Bragg’s alleged “racialized” narrative of the incident.

Protesters in support of Neely gathered outside of the courthouse to call for retaliation in response to Penny’s acquittal.

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