Should evidence that someone other than Karen Read committed murder be allowed at her trial?
Karen Read didn’t do it. At least three other men could have done it, perhaps with help from a dog. Mission accomplished. Read’s lawyers have thrown out enough conspiracy theories to establish reasonable doubt in the court of public opinion about their client’s culpability for the murder of John O’Keefe, a Boston police officer who was also her boyfriend. Will so-called thirdparty culprit evidence — evidence that someone else besides Read committed the crime, or at least had the motive, intent, and opportunity to do so — be allowed into her trial? That’s the critical question before Judge Beverly Cannone. If the answer is yes, expect the circus-like atmosphere around these legal proceedings to become even more circus-like, the trial to be twice as long as it could have been, and the case against Read to be harder for prosecutors to make.
“It’s O.J. Simpson,” said Nancy Gertner, a retired federal judge who now teaches at Harvard Law School, referring to the infamous murder trial of the celebrity football player who died earlier this month. First, with Simpson, she said, there was “a straightup story” that he killed his former wife, Nicole
Brown Simpson, and her friend, Ron Goldman. “Then, there was a side story about cops planting a bloody glove,” Gertner said. Although Simpson’s defense
If the answer is yes, expect the circus-like atmosphere around these legal proceedings to become even more circus-like, the trial to be twice as long as it could have been, and the case against Read to be harder for prosecutors to make.
team never came up with a third-party culprit theory, his lawyers created enough doubt about what really happened to lead to Simpson’s acquittal. And they did it in the court of public opinion, as well as in the courtroom, with help from an enthralled media.
The Read case also began with what was presented as “a straight-up story.” As the Globe has reported, prosecutors claim that after a night of heavy drinking, Read intentionally backed her SUV into O’Keefe and left him for dead during a snowstorm on Jan. 29, 2022. With help from social media — most notably, from “Turtleboy” blogger Aidan Kearney — and from traditional media, Read has pressed the argument that she was framed as part of a coverup that involves multiple law enforcement agencies. As the Globe reported, the defense claims that Read is innocent and that O’Keefe “was beaten up by people he knew, possibly bitten by a dog, and left for dead outside a property owned by a fellow Boston police officer, who’d been hosting a gathering.”
At one point, that line of defense might have produced little more than a collective eye roll. Yet the Read case is now shaded by news that the US attorney’s office in Massachusetts has convened a grand jury to investigate the state’s handling of Read’s murder prosecution — a highly unusual development that Scott Harshbarger, a former state attorney general and Middlesex County district attorney, called “stunning.”
To Harshbarger, the federal investigation “caused the line of defense” — that someone else committed the crime — “to be more credible than usual.” It raises the possibility, he said via email, that the DA and police did not do a comprehensive investigation, but instead started off with just one theory — that Read did it. Harshbarger said he thinks that Read’s lawyers “are praying they can raise and have drummed up enough PR and enough questions that the judge will allow it in .... and then they can sell one or more on the jury on thinking there is enough there for reasonable doubt.”
In Massachusetts, third-party culprit evidence is admissible “provided that the evidence has substantial probative value.” The court must make a preliminary finding that the evidence is relevant, not too remote or speculative, and will not tend to prejudice or confuse the jury. As reported by the Boston Herald, when Read’s defense lawyers argued for the inclusion of third-party culprit evidence, Cannone expressed some skepticism, saying, “I don’t know who the third-party culprit is, even after reading 4,500 pages of discovery.”
If third-party culprit evidence is let in, prosecutors will have to prove beyond a reasonable doubt that Read committed the crime and also disprove that others weren’t involved. To Gertner, who was a defense lawyer before she was a judge, allowing this evidence into the trial is a strike for evening the playing field between prosecution and defense. In a criminal case, the burden is on the government to prove its case beyond a reasonable doubt. But the government also has enormous resources to make that case, providing a counterincentive for a judge to “defer to defense theories,” she said. If evidence is kept out, and Read is convicted, a conviction could be appealed on those grounds. “Caution would suggest you let this in,” Gertner said.
But the biggest incentive to allow this evidence in is the federal investigation into the handling of the Read case. It feeds into conspiracy theories that something happened that we don’t know about.
If only the dog could talk.