Recap: Karen Read has major hearings in federal, Mass. courts

Wednesday's long day in two courts ended just after 4 p.m., with another defense argument postponed until March 18.

Cannone listed several deadlines ahead, and there was a brief discussion over whether Yannetti's character had been wrongfully impugned in Tuesday's hearing. She then adjourned court.

Tune in to NBC10 Boston at 7 p.m. for a recap of what happened in court today!

Jackson took his chance to respond to Brennan, saying essentially that the prosecutor constructed a straw man in his arguments.

Of the claim about jury tampering, Jackson said, "this isn't about court officers … this is about what happened at sidebar in the matter of minutes that denied Ms. Read her constitutional right."

Of the videos, he said his team didn't contest that a piece of the taillight was broken, but that the pieces purportedly found near O'Keefe's body showed much more damage. The video from Canton police that might have confirmed that, Jackson said, was hidden "from us for nearly three years."

And Jackson noted that Brennan appeared to discuss an interview with Lt. Fanning during the prosecutor's jury tampering argument which, he said, was "the first time I'm hearing about this."

He called it representative of the arguments he's been making throughout, "the punctuation mark at the end of this sentence. Why am I just now getting that? Why wasn't that appended at the end of his motion."

Part of the defense's motion to dismiss the case against Read involves a claim that a member of the investigative team oversaw security in court at the trial, but Brennan portrayed that as a deliberate attempt to use a rumor to poison proceedings.

Jury tampering would be "one of the biggest, most abhorrent transgressions that could happen," he said, and likewise a baseless claim of tampering "is not only a direct attack on the judicial system, it would seem to be an effort to try to undermine" the court's authority.

"When you make an extraordinary claim … there should be extraordinary evidence," Brennan said. "There isn't even ordinary evidence. There is no evidence of jury tampering in this case."

Brennan concluded by arguing that baseless claims underlie the defense's motion to dismiss, which is why Cannone should reject it.

"The only way to dispel innuendo ... is with fact," Brennan said, listing ways in which Fanning did not have influence over the jury in Karen Read's first trial.

Brennan went on to cite one more piece of evidence that he called "perhaps the best" to refute claims of tampering with Canton police video: Karen Read's words in an interview with reporter Gretchen Voss.

In that interview, Brennan said, Read notes that the taillight was broken before the car was taken to Canton police: "I, when my car was seized, there was a few small pieces of taillight missing that I had picked out at John's."

She also describes picking out pieces of the broken taillight and having them fall into the driveway, he said.

Brennan concluded this way: "The production should have been sooner, it should have been cleaner, there should have been a log or entry. the failure to provide was inadvertent, was unfortunate, it shouldn't happen, but it's not Brady. It's not exculpatory, it's not intentional, it's not tampered with, it was inadvertent and inconsequential because the evidence is overwhelming that that light is missing before the car makes it to the foot of the sallyport so that there can be no plant."

Brennan pushed back against the defense's position that the taillight was intact when it arrived at Canton police headquarters both through the witness they've been relying on, whom the prosecutor said notes that there was a piece missing, and through video evidence.

That fact, Brennan said, undercuts the notion the defense was arguing about videos being undercut.

"It is unequivocally clear that piece of the taillight is missing well before that car ever gets to Canton," Brennan said.

He showed several video clips of the SUV recorded before the vehicle reached Canton police that, he said, show a piece of the taillight was missing. See images from the courtroom video here:

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Brennan began his own argument by stating that there is "absolutely no evidence, none" that the commonwealth tampered with evidence, as the defense claimed.

Discussing Proctor's testimony in the trial about video, he said it was clear that the trooper "was unaware of the inverted video until it was produced right before trial or right during trial by Canton police," not hiding it.

Brennan did concede that Proctor's awareness of exterior video that hadn't been shared with the defense meant he "should have" turned the video over. "It was his oversight," Brennan said, going on to note that Read's team never asked for Canton police video specifically, and it isn't incumbent on prosecutors to provide evidence about every theory from a defense attorney.

Judge Cannone invited special prosecutor Hank Brennan, who took over the case after the first trial, to take the stand and started him off by asking about how the commonwealth worked to provide the sallyport video evidence, and why it came through in "drips and drabs,"

Brennan said he started tracking down the origin of the videos in November, after being asked about it by defense.

He said the prosecution didn't know early on in the case to save the videos from the Canton Police Department, since "there was nothing about it that it was particularly relevant to them" and the defense's theory of what happened hadn't gotten to that point.

Proctor requested video from the sallyport and received it but didn't share it with prosecutors. "That remained with Trooper Proctor for some time," Brennan said.

The lead prosecutor in the first trial, Adam Lally, read about the video in a grand jury report before the trial, then asked Proctor about it and received a copy himself right before the trial started.

In his final remarks, Jackson noted how close the case was and asked Cannone to ask what the jury might have done if they'd been able to see the evidence he'd discussed.

He said the prosecution's point is that the argument "is just about a broken camera," but it "defies logic" that so many cameras broke at the same time.

"It makes one question what was going on with that evidence," he said, going on to say that "justice demands" the dismissal of the case.

He then asked that, if Cannone declines to dismiss the charges, that she hold an evidentiary hearing so the defense can press investigators on what happened.

After a few questions about specific details of the defense's argument, Jackson stepped down.

Jackson continued to hammer at the notion that video from Canton police headquarters was intentionally withheld from the defense, and possibly the commonwealth's lawyers as well.

As for an argument recently made by the prosecution that it would have made use of the video evidence as well, Jackson said, "the commonwealth can't shift the blame because the videos have literally been in their posession the entire time."

Jackson called that "bad faith" and a pattern from police investigators, and enough to warrant the case being dismissed, even if Read wasn't prejudiced by what happened, though she was, Jackson said — her team didn't know about missing videos when they were questioning police investigators, and so couldn't ask about them.

Cannone had asked Jackson what prejudice Read faced from the commonwealth's actions, and Jackson returned to that question after a back-and-forth with the judge.

Jackson discussed video, played in court, which prosecutors said showed lead investigator Michael Proctor by a taillight of Read's SUV. The video was inverted — a mirror image — but the prosecution didn't point that out before the jury, suggesting, Jackson said, that it showed that Proctor didn't touch the broken taillight.

Cannone asked if the video shows he does touch the taillight, and Jackson explained, "That's not the point! The point is there's a reasonable inference that he did touch it."

"You cleared that up," Cannone said, referring to the defense pointing the video discrepancy out during the trial itself.

But Jackson said it was the definition of prejudice, "literally propounding false information to a trier of fact. That is not a small thing."

Jackson has returned to the podium to discuss why video evidence the defense was slow to receive from the prosecution.

"Members of the prosecution knew of the existence of this and other videos and they hid it, and that's the galling issue," he said.

While the Karen Read hearing is underway, a separate hearing is taking place in Norfolk Superior Court on Wednesday in a related case.

Some of the charges brought against Aidan Kearney, the blogger known as "Turtleboy," are connected with his alleged conduct while covering the Karen Read murder case.

In a separate courtroom in the same building, his lawyer was set to argue for why charges against him should be dropped.

Jackson pushed back on the prosecution's claim, in their response to the motion to dismiss, that the defense's story has evolved by pointing out places where investigators' story has changed, as well as what evidence was apparently preserved.

"This is not a game of Wordle, this is not something that is supposed to be parsed," Jackson said about what evidence police and prosecutors should have retained from the start of the investigation.

One piece of evidence he pointed to was video from the Canton Police Department that was never turned over but which, it was later revealed, was on a 30-day overwrite schedule. Jackson said that Proctor testified to a grand jury that he would have reviewed.

Cannone eventually asked Jackson how much longer his argument would take, and when he estimated about 45 minutes, she paused proceedings for a lunch break.

Jackson goes through what he says is the piecemeal revelation of video evidence from the sallyport, where Read's SUV was brought after the crash, saying lots of it was returned after the first trial, some of it withheld intentionally.

Cannone asks some questions, including how the video would prove Read's innocence. Jackson says they "all tend to show that the commonwealth doesn't want the condition of the taillight to be seen by anybody."

The defense's theory is that the video shows the taillight, whose damage is part of the evidence the prosecution says points to Read killing O'Keefe, wasn't damaged until it was in police custody.

The lengthy motion to dismiss, citing "extraordinary governmental misconduct," was made public last week.

Read the partially redacted document here:

Jackson says that the commonwealth intentionally withheld evidence from the sallyport of the Canton Police Department.

"Dismissal in this case is required because of the cimulative impact of clear-cut discovery violations," Jackson said.

He called the conduct egregious enough that "prejudice must be presumed."

The judge continued to push back over Jackson's argument of Fanning's presence around the court having sway over what happened inside of the court.

"Now that you know that he had absolutely no access to the jury, what's the nature of the conflict? How is your client's right to a fair trial compromised?" she said.

Jackson outlined again what he described as an improper connection between Fanning and an apparently sympathetic juror who was dismissed from the pool before trial started, the lawyer said, over information Fanning provided to a court officer.

"He was at least within the orbit of commanding the extensive security services over this case and he ends up, just ironically, who knew, he ends up being the source of the information that got that juror removed. That's awfully coincidental, your honor, and yes, that's the foundation on which we built our argument," Jackson said.

After some discussion, Cannone had Jackson move on.

Jackson began with an argument about a Massachusetts police officer who'd been involved in the investigation also being, as the defense team was told, in charge of security operations at the court during the charge.

Cannone pushed back, saying they were told at the time about Lt. John Fanning's part in the court, but Jackson said the extent of his involvement wasn't made clear at the time.

"It seems wildly inappropriate," Jackson said.

Alan Jackson is now arguing before Judge Beverly Cannone — watch in the stream atop this story.

The federal court hearing has come to a close, and the judge said they will take the arguments under advisement. The judge said they expect the opinion to come out "as quickly as I can under the circumstances."

Karen Read is now scheduled to appear in Norfolk Superior Court later in the day. The hearing was originally scheduled for 11 a.m., but that will likely be pushed back since the federal court hearing just wrapped up.

Wednesday's federal court hearing in the Karen Read case is underway, with her legal team arguing their appeal for the dismissal of two charges in their ongoing double jeopardy argument. Her defense team filed the appeal to the federal court last month after the Massachusetts Supreme Judicial Court denied the request.

The defense is arguing that they should have had the chance to question potential jurors and witnesses after her trial to ensure fairness and impartiality, a process known as voir dire.

The defense claims Judge Beverly Cannone never asked prosecutors if they were happy with the outcome of the trial. They also say Cannone could have asked the jury if they came to a decision on any of the counts, or polled the jury, and that she did not do enough to remedy the impasse.

“She made a mistake (Cannone). She should’ve consulted counsel, she did not," defense attorney Martin Weinberg said.

Prosecutors, meanwhile, say Cannone was not required to do any of that, and that the Supreme Judicial Court found that she did explore alternatives to give counsel full opportunity to be heard.

Karen Read arrived in federal court in Boston shortly after 9 a.m. for a hearing dealing with her legal team's appeal for the dismissal of two charges in their ongoing double jeopardy argument. Her defense team filed the appeal to the federal court last month, after the Massachusetts Supreme Judicial Court denied the request.

Read was seen arriving with defense attorney Elizabeth Little.

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