Karen Read’s attorneys argued in court filings Monday that a hung jury last week unanimously agreed she was not guilty on two of three counts and that retrying her on those two charges would violate double jeopardy protections.
The Norfolk County District Attorney’s Office said it intended to seek a new trial against Read on July 1 after a deadlocked jury led Judge Beverly Cannone to declare a mistrial.
On Monday, Read’s attorneys filed a motion to dismiss two of the charges because they claim three jurors testified in “unequivocal terms” that the 12-person jury found Read not guilty of second-degree murder and leaving the scene of a car crash that caused death, but that the judge never asked whether the jurors agreed on any of the charges.
The defense wrote that Cannone did not ask whether jurors had reached a verdict on any charges before declaring the mistrial.
Under Massachusetts state law, judges can require juries to return verdicts on charges on which they agree and “order such verdicts to be received and recorded.”
The jurors wrote to Cannone that they were “deeply divided” and that further deliberation would be “futile.” The note did not indicate that the jurors agreed on any of the charges or that the jury had returned verdicts marked “not guilty” on any of the three counts.
MassLive was unable to verify the attorneys’ claims that the jury unanimously agreed on any of the charges.
A “very weak” argument
A former Massachusetts judge told MassLive on Monday that he did not find the double jeopardy arguments very convincing.
Jack Lu, an adjunct professor at UMass Lowell, New England Law Boston and Boston College Law School who spent 16 years as an associate justice in the state’s superior courts, said it is “reckless” for a judge to ask jurors why they were deadlocked.
“You cannot interfere with the jury’s deliberations,” Lu said. “The jury’s verdict is sacrosanct and the judge must be extraordinarily sensitive in what he says.”
Lu said the double jeopardy argument was “very weak” because no verdict was reached in the end.
“I reject the double jeopardy argument based on the proposition that the jury… had a valid verdict of not guilty on two counts,” he said.
The strongest argument made by Read’s attorneys in the motion is that they were “overruled” by Cannone and did not have a chance to argue for a mistrial before it was declared, according to Lu, who reviewed a copy of the document.
But even that argument struck Lu as false, recalling the experience of Read’s lawyers, Alan Jackson and David Yanetti.
“I find that incredulous,” he said, adding that Jackson or Yanetti could have asked that Cannone be heard before the jury was impaneled and a mistrial declared.
However, the motion says Cannone did not read the jurors’ note before calling them, meaning Jackson and Yanetti can argue they could not have known she was going to declare a mistrial.
“Best practice” would have been for the employee to show the note to the attorneys before Cannone entered, Lu said.
Uncertainty about the effects of a new trial
Shira Diner, a legal expert and professor at Boston University School of Law, said that “judges have a variety of ways to make sure they know everything they need to know about where jurors stand on different counts.”
There is no specific way for judges to conduct that investigation, and Diner did not know what steps Judge Beverly Cannone took before declaring the mistrial.
“She’s an exceptionally responsible and careful judge and I just don’t know what was said,” Diner said.
Prosecutors still have the discretion not to file all charges in a second trial, and that is at their discretion, Diner said. “I don’t know if the fact that this information is being presented would change their minds about how they want to proceed; again, it’s all just speculation on my part.”
Read’s attorneys also raised the possibility that the court could hold a hearing and recall the original jury to determine whether they reached a unanimous agreement on any of the charges.
“The court has a lot of leeway and a lot of discretion when it comes to any issue involving the jury,” Diner said.
On the question of double jeopardy: “I don’t know. I think it raises a lot of really interesting legal questions.”
