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BOSTON — An attorney for Karen Read on Wednesday argued at the state’s highest court that trying her again on several charges related to the death of her Boston police officer boyfriend amounted to double jeopardy and that it should allow jurors to be questioned about the verdict.
Read is accused of ramming into John O’Keefe with her SUV and leaving him to die in a snowstorm in January 2022. Read’s attorneys argue she is being framed and that other law enforcement officers are responsible for O’Keefe’s death. A judge declared a mistrial in June after finding jurors couldn’t reach an agreement. A retrial on the same charges is set to begin in January, though both sides asked Monday for it to be delayed until April. 1.
“Today’s appeal goes to the core issues regarding double jeopardy protection that safeguard defendants, in this case Ms. Read, from the risk of reprosecution for the very same offenses for which a prior jury was discharged,” Read’s attorney, Martin Weinberg, told judges at the Massachusetts Supreme Judicial Court.
Weinberg went onto to say four jurors and fifth indirectly came forward after her mistrial to say that they were deadlocked only on a manslaughter count and had agreed that she wasn’t guilty on the other charges of charges of second-degree murder and leaving the scene. But they hadn’t told the judge.
As a result of the the revelations about the jurors, Weinberg argued for the court to allow holding of an a evidentiary hearing where jurors could be asked whether they had reached final not guilty verdicts on any charges.
The judges questioned Weinberg over the the merits for holding inquiry. Associate Justice Frank Gaziano noting that such inquiries are usually reserved for “extraneous information” such as “racisms in the jury room” while Chief Justice Kimberly Budd wondered about the limits of allowing an inquiry, which she suggested could open the door for other defendants to argue a juror came to them to say “ that’s not really what happened.”
Other justices raised concerns about juries having to discuss their deliberations during an inquiry while others questioned the merits of holding an inquiry when three notes from the juror made it clear they were at an impasse.
“You have an exhausted jury writing this very eloquent message saying we’ve done our best, we haven’t been able a verdict on the charges,” Justice Scott Kafker said. “There is no inkling in that that they have reached verdicts on charges or that this only relates to the second charge.”
Weinberg also argued that Judge Beverly Cannone abruptly announced the mistrial in court without first asking each juror to confirm their conclusions about each count or to give defense counsel a chance to weigh in.
But Associate Justice Serge Georges said Read had seasoned defense attoreys who must have sensed that a mistrial was possible when Cannon gave juries what is called Tuey-Rodriguez charge, a last ditch effort to get them to reconsider their positions before a mistrial was declared.
“There isn’t any lawyer that’s worth their salt that wouldn’t think they might get a mistrial on this,” George said, pushing back on the contention that the defense didn’t have an opportunity to be heard. “How do we factor in that you’ve got to know that is going to be on the table, a mistrial. What obligation is there on counsel to say, hey, before you declare a mistrial, let’s talk about alternatives to that.”
In August, a judge ruled Read can be retried on those charges. “Where there was no verdict announced in open court here, retrial of the defendant does not violate the principle of double jeopardy,” the judge, Beverly Cannone, said in her ruling.
Prosecutors have maintained that there’s no basis for dismissing the charges of second-degree murder and leaving the scene of the accident. In court, they argued defense counsel should have sensed a mistrial was “inevitable or unavoidable” and that they had every opportunity to be heard.
Still, Gaziano asked Assistant District Attorney Caleb Schillinger whether Cannone had “either the discretion or an obligation to ask the jury after the last note about continued deliberatios or a verdict on any lesser included offense.”
Schillinger responded that Cannone had no obligation to question the jurors further, though he acknowledged she had discretion. But argued the Cannone had “no doubt” basd on the juries note that they “had not reached agreement on any charges” and that probing further risked coercing the jury into reaching a verdict.
“You have a jury that has sat through a gruelling 10-week trial, nearly 100 witnesses, hundreds of exhibits now four or five days of deliberation,” Schillinger said. “They’ve returned three times indicating they are deadlocked at an impasses and they do not want to continue to deliberate.”
But George said Schillinger’s argument lent support to the idea of Cannone telling defense attorneys about the last note and getting their thoughts.
“You’ve spent a lot of time, energy and money, anxiety, angst in this trial,” George said. “Why wouldn’t we talk about what potentially we could do short of saying mistrial, let’s start again.”
Prosecutors said Read, a former adjunct professor at Bentley College, and O’Keefe, a 16-year member of the Boston police, had been drinking heavily before she dropped him off at a party at the home of Brian Albert, a fellow Boston officer. They said she hit him with her SUV before driving away. An autopsy found O’Keefe had died of hypothermia and blunt force trauma.
The defense portrayed Read as the victim, saying O’Keefe was actually killed inside Albert’s home and then dragged outside. They argued that investigators focused on Read because she was a “convenient outsider” who saved them from having to consider law enforcement officers as suspects.
