Karen Read of Mansfield has been indicted on charges of Second-degree murder, Manslaughter while Operating a Motor Vehicle, and Leaving the Scene of an Accident Involving Personal Injury Resulting in Death in connection with the death of Boston police officer John O’Keefe, who was found unconscious outside the home of Brian Albert, a Sergeant on the Boston Police force, on January 29, 2022. If convicted of second-degree murder, Ms. Read will be sentenced to life in prison. Defending a person accused of murder is no small task.
Realities of Defending Those Accused of Crimes
All criminal trials come down to credibility. If the jurors distrust a lawyer, they will not only reject his arguments and any “points” he scores during cross-examination, they will punish his client – whether that client is the government or the defendant. But, it is a mistake to presuppose that jurors view these litigators as equally trustworthy – or shifty – courtroom combatants.
At the beginning of a trial, most jurors trust the prosecutor. They assume that he would not prosecute an individual he believed was innocent. The overworked Assistant District Attorney has, after all, no reason to pursue innocent men and women when there is no shortage of guilty people to indict and imprison. Some jurors likely think that the adjudicative process has procedural safeguards in place, overseen by a judge, to separate the innocent from the guilty before trial – that if a judge would have dismissed the charges unless there was compelling evidence of the defendant’s guilt. From this misunderstanding of the process, many jurors presume the defendant guilty rather than innocent. A prosecutor can only forfeit his credibility through a series of blunders, obvious mistruths, and outright disingenuousness.
Unlike the prosecutorial white knight, the defense attorney suffers from a credibility deficit. The jurors are well aware that he is being paid to represent the defendant and, therefore, more likely motivated by the fee than a commitment to justice, moral or ethical considerations be damned. The defense attorney must earn the trust of the jury by being unscrupulously fair, honest, and decent. A single discretionary lapse or mistake, during any stage of the trial, can dismantle his carefully rehabilitated integrity and fracture his relationship with the jurors, dooming his client.
Summary Legal Analysis of Indictments
To prevail at trial, defense attorneys are required to prove nothing. The prosecution must prove each element of a charge, beyond a reasonable doubt, to prevail. More particularly, with regard to the 2nd Degree Murder charge, the prosecution must prove the following:
Karen Read caused the death of Brian O’Keefe; and,
- Intended to kill O’Keefe; or
- Intended to cause grievous bodily harm to O’Keefe; or
- Intended to do an act which, in the circumstances known to Ms. Read, a reasonable person would have known created a plain and strong likelihood that death would result.
Importantly, the Court will instruct the jury:
If you have a reasonable doubt as to whether the victim’s death was accidental, because the death was caused by a negligent, careless, or mistaken act of the defendant, or resulted from a cause separate from the defendant’s conduct, you may not find that the Commonwealth has proved this element of intent to kill the victim.
In Ms. Read’s case, the District Attorney’s Office possesses – from what I have read – little to no evidence to prove that she intended to kill Officer O’Keefe. If Ms. Read killed Officer O’Keefe, it appears she did so accidentally and, therefore, should be acquitted of murder.
To prevail on the charge of manslaughter while operating a motor vehicle, in violation of G.L. c. 265, §13 ½ , the Commonwealth must prove, beyond a reasonable doubt, that:
- Ms. Read intentionally inflicted an injury or injuries on Officer O’Keefe likely to cause death; and,
- Ms. Read caused the death of the victim while operating a motor vehicle.
For this crime, the District Attorney’s Office must prove that Ms. Read deliberately struck Officer O’Keefe with her motor vehicle and, thereby, caused his death. Again, it is unclear if the prosecution has any evidence that Ms. Read intentionally rammed Officer O’Keefe with her motor vehicle. However, the Commonwealth will likely ask the Court to instruct the jury on involuntary manslaughter, as a lesser included offense. If the Court grants such as request, it will instruct the jury that involuntary manslaughter is the unlawful killing of another unintentionally caused by wanton or reckless conduct, requiring the Commonwealth to prove, beyond a reasonable doubt, that:
- Ms. Read caused Officer O’Keefe’s death;
- Ms. Read intended the conduct that caused Officer Read’s death; and,
- Ms. Read’s conduct was wanton or reckless.
The Court will further instruct the jury that “[w]anton or reckless conduct is conduct that creates a high degree of likelihood that substantial harm will result to another. It is conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences of such conduct. Whether conduct is wanton or reckless depends either on what the defendant knew or how a reasonable person would have acted.” The Court will advise the jurors that in deciding whether Ms. Read knew, or should have known, her conduct created a high degree of likelihood that substantial harm would result to Officer O’Keefe, they may consider any credible evidence that Ms. Read suffered from a mental impairment or was affected by the consumption of alcohol or drugs. From the video evidence obtained from the two bars she visited that night, it appears that Ms. Read was served at least nine alcoholic beverages. If she killed Officer O’Keefe, the jury may acquit her of manslaughter. If convicted of Manslaughter While Operating a Motor Vehicle, she could be sentenced to up to 25 years in prison.
Finally, Ms. Read is charged with Leaving the Scene of an Accident Involving Personal Injury Resulting in Death. This crime, which is punishable by up to 10 years imprisonment, requires the Commonwealth to prove, beyond a reasonable doubt, that:
- Ms. Read operated a motor vehicle on a way or in a place where the public has a right of access or upon a way or in a place where members of the public have access as invitees or licensees
- She knowingly collided with or otherwise injured another person; and,
- After such collision or injury, she did not stop and make known her name, home address, and the registration number of her motor vehicle.
This charge is the most problematic for the defense. If the jury concludes that the District Attorney’s Office has proved, beyond a reasonable doubt, that Ms. Read knowingly struck Officer O’Keefe with her vehicle and then left the scene of the accident, they will find her guilty. And, the trial judge could sentence her to a significant period of incarceration.
The Gamble: Karen Read was Framed
As well publicized, Karen Read’s lawyers claim that she has been framed by the actual murderers, together with law enforcement, constructing a defense around Jennifer McCabe’s Google search, “Hos (sic) long to die in cold,” Apple Health data apparently showing the alleged victim, O’Keefe’s iPhone, traveling a number of feet and changing elevation after Read departed the area, and injuries to O’Keefe’s right arm – which they contend were inflicted by the Albert’s dog. For this conspiracy to be true, at least fifteen individuals would need to be coordinating their efforts, willingly risking disgrace, prosecution, and imprisonment to extricate the real murderer or murderers from the consequences of killing a police officer.
While a conspiracy that includes trusted members of law enforcement might appear fantastical, my client, Christina Martin, was the victim of such methodical treachery, involving the State Police Crime Lab, the Chief Medical Examiner’s Office, and the Essex County District Attorney’s Office – as they concealed from her trial lawyer exculpatory toxicological evidence which demonstrated, unequivocally, that she had not fed her boyfriend Jell-O laced with LSD. It took me nearly eight years to free Ms. Martin. Not one of the conspirators was punished, never mind prosecuted. Indeed, Renee Dupuis, the ethically challenged prosecutor, was eventually rewarded with a Superior Court judgeship.
For Ms. Read’s team, the risk of claiming, at trial, that she is the victim of a conspiracy is certainly not insignificant. If the jurors are satisfied that the prosecution has proven that she struck Officer O’Keefe with her vehicle, they could conclude that she unfairly and maliciously accused the Alberts of murder, and Ms. McCabe (a close personal friend of Officer O’Keefe and the sister-in-law of Brian Albert) and Trooper Proctor of framing her. And, if they believe Ms. Read is depraved enough to wrongly accuse innocent people of murder and a cover-up in an effort to extricate herself from the criminal charges, they could presume that she is depraved enough to commit a murder.
For Ms. Read’s defense to succeed, the jurors must essentially believe every component of its theory, including the Google search, Apple Health data, and that Officer O’Keefe’s injuries were more consistent with an altercation and dog bites/scratches than being struck by a moving motor vehicle. If a single underpinning of that hypothesis is unpersuasive or worse laughable, the result could be catastrophic for the defense.
The Wounds to Officer O’Keefe’s Arm
The Chief Medical Examiner’s Office surmised, following the autopsy, that the wounds to Officer O’Keefe’s arm were caused by blunt force trauma – not a dog. If a dog bit Officer O’Keefe hard enough to puncture his skin, its teeth would necessarily have torn through his clothing. If the injuries were caused by a dog, forensic experts would, therefore, expect to detect dog saliva on the clothing of Officer O’Keefe and observe tears to the fabric. If the defense experts assert these wounds were caused by a dog clawing at Officer O’Keefe’s arm, the sleeve of his clothing should be shredded. Of course, if Officer O’Keefe was struck by a motor vehicle with enough force to cause these injuries to his arm, his clothing would almost certainly be damaged. And, as medical personnel worked to save his life, they may have cut or damaged Officer O’Keefe’s clothing. But, if attacked by a frenzied dog – whether with teeth or claws, there should be canine saliva somewhere on Officer O’Keefe’s clothing. If there is no canine saliva detected on the fabric, the jury may reject the contention that a dog inflicted the wounds and, therefore, the entire defense that the Alberts, Ms. McCabe, and law enforcement framed Karen Read. The viability of the defense team’s hypothesis will hinge on the available forensic evidence.
The Apple Health Data
According to the defense:
Officer O’Keefe arrived at the Albert Residence at 12:20 a.m., between 12:21 a.m. and 12:24 a.m., and “Apple Health recorded O’Keefe taking 80 steps (i.e., traveling approximately 200 feet or 60 meters) and climbing the equivalent of three floors with his location data pinging at or near the Albert residence.” The defense insists that “[t]he only reasonable interpretation of O’Keefe’s Apple Health Data, which shows an elevation gain of three floors at or near the Albert Residence, is that he made it inside the Albert’s three-floor residence.”
Assistant District Attorney Lally has contended that the Apple Health data is unreliable.
It is possible that Officer O’Keefe walked to the Albert home and entered the residence. It is also possible that he walked toward the home but turned around and walked back to Ms. Read’s motor vehicle. If Officer O’Keefe entered the home, the Apple Health data should – if it is accurate – show the iPhone leaving the home and stopping where it was recovered from beneath his body. If the data shows Officer O’Keefe entering and leaving the home sometime later, the Commonwealth’s case is doomed. If, however, the data is spotty, fickle, or nonsensical, the jury may disregard it entirely.
Google Search: “Hos long to die in cold”
For the prosecution, that Ms. McCabe, at 2:37 a.m., some three hours before Officer O’Keefe’s was discovered on the front lawn of the Alberts’ home, may have Googled “Hos (sic) long to die in cold,” which she reportedly later deleted, could be a major impediment to persuading a jury to convict Ms. Read. Assistant District Attorney Adam Lally has claimed in court that the defense has misconstrued the evidence its expert unearthed from Ms. McCabe’s cell phone. Perhaps, he has an expert who can successfully rebut the defense’s expert’s interpretation of the data. If, however, the defense is correct Mr. Lally will need to provide the jury with a compelling explanation that neutralizes what could be the central factual issue in the case.
Interestingly, there appears to be no evidence, following the alleged 2:37 a.m., Google search that Ms. McCabe actually visited any of the websites that Google would have recommended. If Ms. McCabe was anxious or concerned enough to perform the Google search at 2:37 a.m., it is unclear why she did not follow through with the inquiry by reading articles that would have addressed the factors, such as temperature, moisture, and wind, that accelerate or slow hypothermic progression.
While some have opined that this Google search will come down to a battle of experts, the jurors may be unable to determine which expert’s analysis is more likely true. They will, however, feel capable of assessing Ms. McCabe credibility while testifying – which will be tested during the crucible of cross-examination. The defense lawyers will need to do more than undermine her credibility; they will need to prove to the jurors that this suburban mother, with no criminal record, is depraved enough to forsake a severely injured Officer O’Keefe as he slowly died of hypothermia on the Albert’s front yard, callous enough to later accompany an emotionally distraught Ms. Read to search for her boyfriend, and cunning enough to exploit such an opportunity to frame her. Few individuals could watch a family member or members administer a savage beating to a friend and then drag the bleeding victim outside without intervening – unless threatened. Only a true sociopath could nonchalantly Google how long the victim might survive in the freezing temperature and, on a moment’s notice hours later, hatch an intricate plot to ensnare the grieving acquaintance. In short, if at trial the defense claims Ms. McCabe participated in a conspiracy, they will have to persuade the jury that she is remorselessly diabolical. If she is a normal, decent human being who braved blizzard conditions in the early morning hours to help Ms. Read look for Officer O’Keefe, it is difficult to conceive of a jury accepting the defense team’s theory.
Brian “Lucky” Loughran the Snowplow Driver
According to the Defense, Brian “Lucky” Loughran arrived at the DPW yard at 2:00 a.m. on January 29, 2022, because the area was anticipating heavy snowfall. Beginning at approximately 2:15 a.m., he began his shift and, throughout the early morning hours, he plowed Fairview Road in Canton several times. He informed Paul Mackowski, the Defense investigator, that while passing the Albert’s home, he did not observe a body on the lawn. He did recall, however, seeing a Ford Edge parked in front of the Albert residence, “[e]xactly where the body was found.”
While Mr. Loughran claims he looks side to side as he plows streets, it is unclear whether or not he would have noticed a body, possibly already covered with snow, on the lawn – especially in the dark and at least 75 feet from the nearest light pole. Most snowplow drivers are likely focused on keeping the plow as close to the curbs as possible without striking them. It is a bit odd that he remembers seeing a Ford Edge, the very type of vehicle that Colin Albert drives, so close to Officer O’Keefe’s body.
Wendy Murphy, a former prosecutor, has speculated that a snowplow may have inflicted the injuries to Officer O’Keefe’s right arm. If Mr. Loughran struck Officer O’Keefe’s body with the plow, he would have had a compelling reason to deny that he had seen a body that night. More troubling, though a Canton resident who lived close by, and probably well aware that Ms. Read had been charged with murder, he did not, apparently, immediately come forward to report his observations to the police.
If a vehicle was parked in front Brian Albert’s home that night, Mr. Loughran would have had to plow around the car and, therefore, he could not have accidently struck the body, exculpating him of any blame. But, any such vehicle would also have obstructed his view of the body.
Perhaps, Lucky Loughran will persuade the jury to acquit Ms. Read. Nevertheless, it would be a mistake to overvalue his potential contribution to the defense.
Ms. Read’s TV Appearances
Ms. Read appeared on Dateline and Nightline. Advising or even allowing Ms. Read to be interviewed on television, where her lawyers have no control over what she is asked or how she answers, was simply reckless. It is impossible to grasp what, if any, objective the defense hoped to achieve by taking such a risk, other than to generate publicity.
Ms. Read likely engendered little empathy from viewers as she answered Matt Gutman’s questions, which suggests that she was not properly prepared for the rather obvious questions she would be asked or, due to the stress of being interviewed by a major news program, unable to follow the advice of her attorneys.
During the interview, Ms. Read recalled that she and Officer O’Keefe had argued on New Year’s Eve. She noted that he had become “incoherently drunk,” leaving her with his niece and nephew. She admitted feeling “very much taken advantage of,” though she conceded that he had “apologized profusely for what happened on New Year’s Eve.” Unfortunately, she volunteered that he had expressed growing frustration with her for refusing to accept his apology, admitting that he had told her, ‘If you can’t get over it, then you need to spend some time at your house. I can’t keep apologizing; I don’t want to keep rehashing this.” To some viewers, Ms. Read may come across as difficult and unappeasable during this episode. It is also baffling why she chose to disclose this troublesome anecdote when she could have shared a more touching reminiscence of their relationship.
Worse, Ms. Read admitted that she “told both Jen and Kerry that [she had] cracked [her] taillight.” She recalled telling them, ‘I just hit my car, on top of everything. But I didn’t look at the damage.’ And both women said, ‘It’s cracked. It’s cracked. Calm down, you cracked your taillight. You’re okay, let’s go look for John.’” The prosecution will argue that Ms. Read was aware that she had struck something with her vehicle and constructed a pretext, however inartful, to explain away the damage to the taillight. The defense will contend she was referring to backing into Officer O’Keefe’s vehicle as she was leaving his home to drive to Ms. McCabe’s home – which was recorded by a camera. At trial, accident reconstructionists will offer competing interpretations of the available evidence, including the damaged taillight, in an effort to either implicate or exonerate Ms. Read. It is no small task to cross-examine experts. Competent accident reconstructionists have spent decades studying engineering, calculating velocities, examining and drawing conclusions from vehicle damage, and refining their courtroom presentations. It is a mistake to arm them with admissions. They relish humiliating pretentious attorneys.
Finally, when asked how much she had had to drink on the night of January 28, 2022, Ms. Read replied, “probably about four,” when the available video footage reportedly shows her being served nine alcoholic beverages. This was, to put it charitably, a gift to the prosecution. After all, if she is capable of misrepresenting the number of drinks she consumed, despite the unassailable video footage, jurors will naturally question the defense – which depends on not just her innocence but her assertion that the Alberts, Jennifer McCabe, and Trooper Proctor are guilty of murder and orchestrating a cover-up.
If Officer O’Keefe had been beaten within the Albert’s home, the Alberts chose to drag him outside to die, rather than call 911 to arrange emergency medical care, elevating a possible charge of assault and battery to a murder indictment – when they could have claimed that the individual who assaulted Officer O’Keefe did so in self-defense. And, under this scenario, not one individual of the 15 or so people within the home insisted on summoning an ambulance for Officer O’Keefe or, after departing the residence or some period of reflection, summoned an ambulance for Officer O’Keefe.
The unthinkable in the criminal justice system sometimes seems almost routine. If the defense has uncovered a vast conspiracy to frame Ms. Read, the Alberts, Ms. McCabe, other guests at the Albert home, first responders, and members of law enforcement have, at least to some degree, coordinated their efforts, imperiled their reputations and pensions, and risked prosecution and lengthy prison sentences, to rescue a cop killer or killers from their canonical reckoning. If true, each and every conspirator embarked on a precarious escapade, and now lies awake each night, praying that no other member of the conspiracy grows a conscience or chooses self-preservation over a misplaced sense of group loyalty.
If, as reported, the F.B.I. and U.S. Attorney’s Office are investigating these alleged conspirators and calling them to testify before a Grand Jury, the pressure would certainly be mounting. Salvatore “Sammy the Bull” Gravano, underboss of the Gambino family, eventually agreed to testify against John Gotti rather than spend decades behind bars. To date, there is no evidence, or even unsubstantiated rumors, that any member of this alleged conspiracy has betrayed his fellow conspirators or corroborated the suspicions of the defense team.
While a moral individual may be reluctant to disclose wrongdoing to law enforcement if it means a loved one will be prosecuted for a serious crime, at some point he will have to unburden the anxiety, heaviness, and guilt by telling someone he trusts – or spill it while intoxicated. And that individual, in turn, shares the information with someone else, either because it is too dark or too juicy to hold inside. With all the media attention, the allure of contacting the Boston Globe, Fox News Live, or a local blogger to divulge some inside information would be irresistible. If there is an ongoing conspiracy, and secrets have a shelf life, we would anticipate a few leaks to trickle out over the course of the last year and a half.
If there is no conspiracy, and Karen Read, intoxicated and embittered, deliberately struck Officer O’Keefe with her vehicle and left him for dead, she should realize – before it’s too late – that media coverage, raucous supporters, and a celebrity lawyer from California with an appetite for the cameras are no substitutes for good judgment and a sound legal strategy. Maybe Ms. McCabe’s Google search will be enough. Maybe not. The District Attorney, Michael Morrisey, has released a statement absolving the alleged conspirators of any involvement in Officer O’Keefe’s death and castigating Ms. Read’s supporters for harassing people he has characterized as innocent. Having staked his entire career on the outcome, to obtain a conviction he will commit whatever resources the case requires.