A motion hearing Tuesday in the high-profile Karen Read case was suspended by the judge after she expressed "grave concern" over new information provided to her by the prosecution.
Read is accused of hitting her boyfriend, John O'Keefe, with her SUV back in 2022 and leaving him to die in the snow.
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“The commonwealth just provided the court with information that causes me grave concern," Judge Beverly Cannone said in court. "The implications of that information may have profound effects on this defense and defense counsel.”
The new information involves communications with the federal government about experts from high-profile forensic consulting engineering company ARCCA. Based on statements made in court by prosecutors, the federal government told the defense that though a contract had ended with ARCCA experts, the original materials were still protected.
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ARCCA provides, among other things, accident reconstruction expertise.
While the update provided in court did not specify which experts or what materials may be protected, it raises the question of whether the expert testimony will be allowed in court. In Read's previous trial, the defense presented two ARCCA experts to examine whether John O'Keefe was struck by Read's vehicle.
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Prosecutors filed a motion looking to keep two experts ARCCA off the stand in the second trial. Special Prosecutor Hank Brennan says the state and the court weren’t given full disclosure about the experts. In the first trial, he says the commonwealth was never told the defense was paying the experts $23,000 and collaborating with them on their testimony.
”I don’t care about their opinions, but I care that it’s unfair, imbalanced and hidden, and the commonwealth like the defense is entitled to discovery," Brennan said Tuesday.
"The court is very troubled by the ARCCA experts and whether that information was properly disclosed, whether there was an attempt to mislead the court, specifically Judge Cannone when she asked questions about whether had counsel spoken to these experts," said NBC10 Boston legal analyst Michael Coyne. "And also about the question about the payment of their fees and the like."
He adds that it's too soon to know how serious the matter is, but Cannone's concern suggests she will dig deep into the issue.
"It could be somewhat of a misunderstanding but it also could be a much more serious matter where the court may have to intervene and potentially even take steps as drastic as limiting the roles of these attorneys who have been admitted to the court," Coyne said.
Cannone could eliminate the the ability of defense attorney Alan Jackson and others from out of state to appear in her courtroom, according to Coyne.
"She could revoke it if she thought that they were not acting in accordance with our rules of court and our ethical requirements," he said.
Retired Judge Jack Lu has worked as a trial judge in the same court where Cannone serves. He dismissed speculation that has followed online about her demeanor at Tuesday's hearing.
"She's on edge because this has taken a long time, and this case demands your best management abilities, so she wants to get it done fairly without committing any errors," Lu said Wednesday.
"Very dramatic, but I think this case, it comes with dramatic situations," added attorney Morjieta Derisier. "They're making real accusations here, so, you know, the gloves are off, I'm telling you. The gloves are definitely off."
Jackson left court without much to say after Cannone shut the hearing down.
"I don’t know. I don’t know we’ll find out," Jackson said outside court. He denied paying the traffic experts for their opinions.
Read's first trial ended in 2024 as a mistrial. The motions hearing was rescheduled for next week.
What happened in the hearing before it was suspended?
Tuesday's hearing started by tackling a range of motions concerning discovery from both sides.
The first topic addressed was a defense motion about surveillance footage from the Canton Police Department, video that has been key evidence in the case from early on.
The defense is pushing for all the video they believe is in the Commonwealth’s possession, including metadata from the files, which they say have not been provided. The defense also claims the video that has been given through discovery was provided piecemeal despite their requests dating back three years.
“These videos have been a pain point in this case,” Jackson said in court Tuesday, saying the defense was never given clear records on how the video was stored, where it was coming from, chain of custody or the full files the team requested.
Metadata is digital information that can provide context like when a file was created, if it was altered, who altered it, and other details that could be material to the case.
However, Brennan said he is unclear exactly what the defense is still requesting and that they’ve been given opportunities to access this video. He noted that previously he had casual agreements with the defense but now feels the need to have requests on record by the court.
In a separate motion, this one a motion to compel discovery, the defense discussed requests for other evidence, including unredacted records from the Sandra Birchmore case and the internal investigation into embattled Massachusetts State Police Trooper Michael Proctor.
Brennan questioned the relevance of the records from the federal investigation into Matthew Farwell, the former Stoughton Police detective accused of killing Birchmore, and argued the defense is trying to “create an illusion of impropriety” by connecting the two cases. The defense argues that because the Norfolk District Attorney's office and certain law enforcement witnesses are connected to both cases, the records and their behavior is relevant to establishing any "concerns about credibility."
Federal prosecutors brought charges against Farwell despite an initial state investigation ruling that Birchmore's 2021 death was a suicide. The federal case claims otherwise, laying out findings that Farwell groomed Birchmore for years from the time she was a teenager, then killed her when she became pregnant with his child.
Yet another motion, this one from the prosecution, focused on requesting reciprocal discovery from the defense — essentially information about what the defense intended to question the commonwealth's expert witnesses on so they could prepare. The defense said releasing all of that information would hurt their case, but Brennan called its withholding unfair. This ties back to his concern about the ARCCA experts.
More on the Karen Read case
Meanwhile, Read's team has filed an appeal in federal court trying to have two of the charges against her dismissed, an attempt to raise the issue already denied by the state's highest court to the next level.
Last week, the Massachusetts Supreme Judicial Court ruled that the charges against Read should not be dismissed, a decision opposing the defense's effort to have two of her charges dropped.
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.
The defense claims several jurors in the first trial revealed to them that the jury was in agreement that she was not guilty on the charges of second-degree murder and leaving the scene of a crash resulting in death. They wanted those charges dismissed, saying that trying her again on those charges would amount to double jeopardy.
However, last week's decision, the justices upheld the lower court's decision to deny the motion to dismiss.
"Can posttrial accounts of jurors' private deliberations that are inconsistent with their public communications in court render the declaration of a mistrial improper, or constitute an acquittal, where the jury did not announce or record a verdict in open court? We conclude that they cannot," the decision reads.
Read's attorney said they were considering whether to continue their fight for dismissal.
"While we have great respect for the Commonwealth’s highest court, Double Jeopardy is a federal constitutional right. We are strongly considering whether to seek federal habeas relief from what we continue to contend are violations of Ms. Read’s federally guaranteed constitutional rights," wrote Martin G. Weinberg in a statement.
Legal analyst Michael Coyne said he was not surprised by the ruling, which is consistent with centuries of Massachusetts law.
“The court has a delicate balance and the Supreme Court made clear here that you don’t want to coerce jurors who have a good faith belief in a decision one way or another to change that deeply held belief because they feel intimidated or coerced by the judge," Coyne said.
