Karen Read's motion to dismiss 2 charges denied by Judge Beverly Cannone
DEDHAM - Karen Read's attempt to get two of the charges against her dismissed has been rejected by Norfolk Superior Court Judge Beverly Cannone. Read's attorneys plan to appeal.
Who is Karen Read?
Read, who is accused of killing her boyfriend, Boston Police Officer John O'Keefe in January 2022, had asked the court to dismiss two of the three charges on her indictment - second degree murder and leaving the scene. Read's trial ended in a mistrial due to a hung jury on July 1 and a new trial is scheduled for January 27, 2025.
Karen Read charges
Read's lawyers, including an attorney new to her team, Marty Weinberg, had argued in an August 9 hearing that they had heard from a number of jurors in the previous trial who told them the twelve person jury had voted to acquit Read on two charges.
Because of that information, they argued, the judge should dismiss the charges or bring in the twelve jurors to question them.
Read's attorneys argued that double jeopardy - the legal theory that you cannot be tried again for a crime for which you were acquitted - should apply.
Legal experts had said the argument was an "uphill battle" because it's highly unusual to bring jurors back after they have been dismissed from duty.
Karen Read ruling
In an early morning ruling Friday, Judge Cannone denied the motion to dismiss, meaning the two charges will stand on Read's indictment unless prosecutors decide to drop them.
In her ruling, Judge Cannone wrote that "because the defendant was not acquitted of any charges and defense counsel consented to the Court's declaration of a mistrial, double jeopardy is not implicated by retrial of the defendant" and the motion was denied.
Cannone also referenced discussions in the courtroom during jury deliberations. When the jury came back with a note to the court multiple times indicating that they were at an impasse, Read's attorney David Yannetti argued that they should be given a Tuey-Rodriguez instruction, saying the jury had exhausted deliberations and that it wasn't a matter of "lack of understanding," but of opinion. A Tuey-Rodriguez instruction in Massachusetts is known as a "dynamite" instruction, the last step encouraging a hung jury to reach an agreement before a mistrial is declared.
Because Attorney Yannetti argued twice for such an instruction to be given, Cannone wrote, he consented to a mistrial.
"A remarkable turnaround"
"Nevertheless, in a remarkable turnaround, defense counsel now argues that the result they twice advocated for was 'sudden' and 'unexpected,'" Cannone wrote.
"Although the Court did not specifically ask defense counsel if they had any objection to the declaration of a mistrial, counsel had multiple opportunities to voice an objection if they in fact had one," Cannone wrote.
Cannone also wrote that Read was not acquitted on two charges, because an acquittal must be public and in open court, per state law.
"Grab the mistrial"
WBZ legal expert Jennifer Roman said the defense was "being disingenuous." "They knew that asking for this instruction was implicitly saying if a mistrial happens, we accept that," Roman said.
"He was following the very well-founded conventional wisdom, which is, if you are the defense and you're in a situation where there's a hung jury. Grab the mistrial," retired Massachusetts Superior Court Judge Jack Lu said.
"Vigorous appeal"
Legal experts say an appeals process could take months and delay the next trial.
"We respectfully but strongly disagree with the cornerstones of today's rulings and fully intend a vigorous appeal to assert and uphold Ms Read's rights under the Double Jeopardy Clause," Weinberg told WBZ-TV in an email Friday.
"We believe that the judge's decision is consistent with almost 200 years of case law. We are moving forward to trying this case January 27," David Traub, a spokesperson for the Norfolk County District Attorney's office, told WBZ.
John O'Keefe's brother Paul said Friday that this is "just another failed attempt by the defense to mislead the court, the media and the public."
Lu said this was the result he expected.
"Any other ruling, as we think about it, would likely lead to a reversal, actually, in my opinion. You notice the judge didn't even conduct an evidentiary hearing, because, I'm afraid, this issue did not warrant it," Lu told WBZ. "I'm sorry to say, it's a very weak appeal."