The top court in Massachusetts is allowing Karen Read's attorneys access to a witness' phone records that the defense has called into question.
Read is charged with murder in the death of her boyfriend, Boston Police Officer John O'Keefe, whose body was found outside a home in Canton, Massachusetts, in January of 2022.
Read has pleaded not guilty. Her attorneys have claimed that she is being framed in the case.
The defense has said that Jennifer McCabe, who has been named as a witness in the case, searched "Ho[w] long to die in cold" hours before O'Keefe's body was found in front of the home of Brian Albert — her brother-in-law, who is also a Boston police officer. According to the defense, McCabe then tried to delete that search.
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Attorneys for Read had been pushing for access to Albert's and McCabe's phone records, which the judge overseeing the case had denied. The defense filed a petition with the Massachusetts Supreme Judicial Court seeking relief from that ruling.
On Wednesday, the SJC upheld Norfolk County Superior Court Judge Beverly J. Cannone's conclusions regarding Albert's phone records and some of McCabe's, but allowed the defense access to data from McCabe's phone during a 24-hour time period related to the search she allegedly made.
John O'Keefe's death and Karen Read's arrest
O'Keefe was found in the snow outside the Canton home on the morning of Jan. 29, 2022, and later pronounced dead at a hospital. Read was arrested days later on suspicion of hitting him with her SUV and leaving him to die.
In the hours beforehand, O'Keefe and Read had been drinking at a bar with a group of people, including Albert and McCabe.
Prosecutors have said they were at C.F. McCarthy's bar in Canton with several friends on the night of Jan. 28, then went to Waterfall Bar & Grille across the street around 11 p.m., where they stayed for about an hour. They left there and were invited to a party at Albert's home on Fairview Road. Hours later, O'Keefe would be found fatally injured outside that house.
Read told police she dropped O'Keefe off at the house shortly after midnight and went home because she was having stomach issues. Read returned to the home with two friends early in the morning after she was unable to get O'Keefe to respond to her calls and texts, and they found him unresponsive outside the home on Fairview Road in the snow amid blizzard-like conditions.
An autopsy found several abrasions to O'Keefe's right forearm, two black eyes, a cut to his nose, a two-inch laceration to the back of his head and multiple skull fractures. Hypothermia was also believed to be a contributing factor in his death.
Read was arrested three days after O'Keefe's body was found. Initially charged with manslaughter, she pleaded not guilty to second-degree murder.
Since last year, Read's team has alleged a large-scale coverup in the case. They have pointed to McCabe's phone, evidence found on O'Keefe's body, and the state police investigator in charge of the case, who they say had ties to the homeowner.
'Ho[w] long to die in cold'
On April 12, in a motion seeking access to Albert's phone records, Read's attorneys said newly uncovered records from McCabe's phone showed she had searched the phrase, "Hos [sic] long to die in cold" on Google hours before 911 was called to report O'Keefe was found in the snow.
In a statement at the time, defense attorneys said this evidence establishes other people "were aware that John was dying in the snow before Karen even knew he was missing."
Read's attorneys say that she frantically began calling friends, including McCabe, after becoming concerned that O'Keefe had not returned home to his children.
Read's attorneys said in the court documents that McCabe "inserted herself into the 'search' for O'Keefe, making every effort to delay Ms. Read in returning to the Albert Residence to look for him." The defense said she "insisted" they drive Read's car back to O'Keefe's home, where Read had already searched for him unsuccessfully.
Read and McCabe arrived together at 6 a.m. on Jan. 29, 2022. Read found O'Keefe unresponsive, her attorneys say. McCabe called 911.
"Immediately after disconnecting with 9-1-1 dispatch," attorneys for Read say McCabe made two calls at 6:07 and 6:08 to a cellphone belonging to her sister — Albert's wife, who was also out with the group the previous night — and deleted them from her phone. She also made an unanswered call to Albert at 6:23, which was also deleted, Read's attorneys say.
Less than a minute after that call, the lawyers also allege McCabe opened an article titled "How Long Does It Take to Digest Food," which the defense connects with the digestion process often being used by investigators to calculate time of death.
The attorneys add that Albert and his wife "were among the first individuals to be notified that O'Keefe was lying unresponsive mere feet away on their front lawn, and in spite of being in such close proximity, made no effort to go outside and assist or otherwise investigate the emergency that was unfolding on their doorstep."
Hours later, McCabe allegedly tried to "sanitize" her phone of contact with Albert, deleting his contact information, which had been saved under "uncle brian a."
Additionally, on Feb. 1, Read's attorneys say McCabe made "a transparent (and unsuccessful) effort to conceal her own criminality and blame it on Ms. Read," telling police that after the two arrived at the scene of O'Keefe's death, "Karen then immediately yelled at [me] two times to Google, 'How long do you have to be left outside to die from hypothermia.'"
At an earlier court hearing, the prosecution and the defense had different interpretations of the data and what it meant, both citing forensic experts. The Norfolk County District Attorney's Office said the evidence suggests that McCabe made the search in the minutes after O'Keefe's body was found.
After both sides in the case traded explanations, Cannone denied the defense's request for more access to cellphone data.
Wednesday's SJC ruling
Justice Scott Kafker of the Massachusetts Supreme Judicial Court partly allowed and partly denied the defense's motion seeking relief from the judge's decision to withhold access to the data.
The ruling pointed out that neither party disputes later searches McCabe made at 6:23 and 6:24 a.m., "but they disagree about the existence of that particular 2:27 a.m. search (and, accordingly, about any attempt to delete that search)."
"The technical reasons for their experts' disagreement are not self-explanatory, nor can this disagreement be reconciled on the record before me," Kafker wrote.
The justice went on to explain that by his interpretation of her words, Cannone believed that McCabe had, in fact, made that search.
"In her decision denying the defendant's rule 17 motion, the judge notes the two google searches conducted at 6:23 a.m. and 6:24 a.m. As to the defendant's additional assertion that McCabe searched at 2:27 a.m. for 'hos long to die in cold,' and then attempted to delete the search, the judge noted that the Commonwealth 'disputes that McCabe did so. The court assumes that she did only for purposes of this motion.' The judge, in other words, assumed that McCabe conducted the search at 2:27 a.m. for "hos long to die in cold," and then McCabe attempted to delete it," he wrote.
Kafker said he found no basis to overturn the judge's decision on Albert's phone records, agreeing that Read's "requests for that information amount to a 'fishing expedition.'"
But related to the Google search, he disputed Cannone's determination that the records weren't relevant to the case.
"The judge specifically presumed, for purposes of the defendant's rule 17 motion, that McCabe had initially conducted this search at 2:27 a.m. and then attempted to delete it thereafter," he wrote. "It does not follow from that presumption that the defendant's request for McCabe's cell phone records related to this search are not relevant or that the request amounts to a 'fishing expedition.' Indeed, what does follow is that the information related specifically to that request is relevant and sought in good faith."
Kafker said he did not find it necessary to produce records from the full timeframe sought by Read's defense, between Jan. 28 and Feb. 2 of 2022. But he said the request for McCabe's phone records in the 24 hours "beginning with the departure of the defendant, the victim, and McCabe from the bar approximately at midnight" was proper.
What's next?
At the conclusion of Read's court hearing in September, the judge set a trial date of March 12, 2024. She also set several other key dates in the proceedings.
All remaining motions must be filed by Nov. 16. The next in court hearing is scheduled for Dec. 8, and the judge set a Jan. 15, 2024 deadline for filing all evidentiary motions. A final pretrial hearing is scheduled for Feb. 26, 2024, leading up to the beginning of the trial in March.
