If you are not a true crime aficionado, or if you don’t live in the Northeastern US, you may not have heard about Karen Read’s murder trial. Last year, she was charged with the murder of her boyfriend, Boston police officer John O’Keefe, whose body was found in the snow near their house after a night in which the two reportedly had a fight at a bar. Karen’s attorneys presented an alternative theory of the crime. According to the defense, a local law enforcement family was involved in John’s death, and the officer placed in charge of the investigation hid evidence implicating them.
A defense strategy that presents an alternative narrative can be very risky, in that it can confuse the jury into comparing stories and choosing the more likely one (rather than deciding whether the prosecution’s story was proven beyond reasonable doubt). But in this case, the alternative theory was carefully pieced together with texts, Google searches, crime scene evidence, and geographic proximity–enough so to provoke considerable debate during jury deliberations. The trial ended in a hung jury and the parties are gearing up for a retrial with a notable difference: one of the jury alternates, who is an attorney, has joined the defense team.
In addition, there are some legal issues of interest: Read’s team is appealing a pretrial decision not to dismiss certain charges to SCOTUS. The story, in a nutshell, is this:
At last year’s trial, the judge declared a mistrial after the jury sent notes repeatedly expressing it was at an impasse. But Read’s attorneys say they later heard from multiple jurors who indicated they did reach a unanimous decision to acquit Read of her murder and leaving the scene charges.
Read contends the Constitution’s Double Jeopardy Clause bars her from facing trial on the charges again, given the revelations.
“Read’s Petition contends that the jury’s decision that she is not guilty of Counts 1 and 3 constitutes an acquittal and precludes re-prosecution on those counts even if unannounced,” her attorneys wrote.
Let’s figure out what’s what. Here is the original indictment, according to which the three charges are as follows:
M.G.L. c. 265, Section 1. Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree. Petit treason shall be prosecuted and punished as murder. The degree of murder shall be found by the jury. Second degree murder in Massachusetts requires intent to kill but not premeditation.
M.G.L. c. 265, Section 131/2. Whoever commits manslaughter while operating a motor vehicle in violation of paragraph (a) of subdivision (1) of section 24 of chapter 90 or section 8A of chapter 90B, shall be punished by imprisonment in the state prison for not less than 5 years and not more than 20 years, and by a fine of not more than $25,000. . . Under Massachusetts law, operating a motor vehicle while intoxicated, exhibiting recklessness toward the potential of causing a death, and actually causing a death, constitutes manslaughter.
M.G.L. c. 90 (2) (a 1/2) (2). (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. . . Note that this offense, under Massachusetts law, does require the person to have been the cause of the lethal collision or injury, but the actus reus is the departure from the scene.
Of course, all three offenses revolve around the same scenario, but Counts 1 and 2 are the “same offense” for Blockburger purposes – which is to say, the elements of Count 2 are completely included in Count 1. It would be impossible, therefore, to convict Read of both murder and manslaughter. If convicted of murder, she’d have to be acquitted of manslaughter, and vice versa. Determining which is appropriate depends on what the jury finds regarding the mens rea, the mental state of the defendant: for murder, MA law requires intent to kill, and for manslaughter, recklessness at minimum.
Count 3 could come hand in hand with either Count 1 or Count 2. What complicates matters is the MA legal definition of the mens rea for this offense: it appears that this offense requires that the death-causing accident occur “knowingly,” which is more than the threshold required for the manslaughter charge. This is important, because here’s what we now know about jury deliberations in this case:
The motion filed in Norfolk County Superior Court said one juror told the defense team that jurors voted 12-0 to acquit Read of second-degree murder and of leaving the scene of an accident in which there was a death. The lawyers also received second- and third-hand accounts about two other jurors, both indicating there was agreement on acquitting Read of second-degree murder. The motion asked for the murder and leaving-the-scene charges to be dismissed.
Jurors were deadlocked, however, on the charge of manslaughter while operating a motor vehicle under the influence of alcohol, the juror told the attorneys.
Had jury instructions been administered properly, the jury would be on notice that they must deliver a separate verdict for each of the three counts. If that were the case, and if the information in the motion is accurate, then the jury would have voted to acquit of murder and of leaving the scene, and would have deadlocked on the manslaughter charge. This, given what we’ve just noted about mens rea, is a logical parsing out of the evidence. It would suggest that the entire jury was in agreement that intent, or even “knowledge”, was not proven here, and that the dispute revolved around at least one of two questions: (1) whether or not an accident had happened at all (which the defense disputed in their alternative story) (2) whether Read was reckless in causing the accident or had a lesser mens rea (such as negligence or less). This analysis means that an acquittal of the murder and leaving-the-scene charges would not bar a retrial on the manslaughter charges, nor would it create any collateral estoppel that would bar those charges (“the killing did not happen through Read’s knowing/intentional actions” does not bar the possibility that it happened through her recklessness). So, in this scenario, going into a retrial, the defense would have to refocus its energy on the alternative story (i.e., the accident did not happen at all) or on showing a mens rea lesser than recklessness.
But as we know, that’s not what happened. What happened was that the jury was not clear on the fact that they should deliver a separate verdict for each count, and therefore we don’t actually know–as in, ink-on-paper know–what their determination was, which the prosecution now argues makes all three charges fair game. It will be up to SCOTUS to decide whether the evidence we now have of jury deliberations is sufficient for a finding that these were, in fact, acquittals. We know from Fong Foo v. U.S. (1962) that an acquittal, no matter for what reason, is an acquittal and thus a jeopardy bar. In this case, we’d have to recur to Downum v. United States (1963), which holds that mistrials must be interpreted based on their circumstances. Mistrials that are, in essence, acquittal avoidances, should be treated as acquittals.
I’m not sure it’s fair to call what happened here an “acquittal avoidance,” because it doesn’t look like the verdict was solicited and procured with some sort of nefarious intent to avoid a situation in which the jury would acquit. After all, if the jury convicted of one of the homicide offenses (murder or manslaughter) it would necessarily have to acquit of the other, and that would’ve been clear to the judge and to the parties. But what we did get here was a vague verdict that stands in place of an acquittal and possesses enough internal logic to suggest what the jury actually thought to the point that I think justice would be served by dismissing counts 1 and 3 and reprosecuting only for the manslaughter charge.
As a coda, I know there are heated debates about this case and people seem strongly persuaded of Read’s guilt or innocence; I’d just say that the prosecution must be very convinced of her guilt to be reprosecuting after this verdict fiasco, after their own investigator was disbarred for how he conducted the investigation, and after the defense’s alternative theory managed to persuade a considerable number of jurors, including one who just joined the defense team. I’ll be following this with great interest.
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