Karen Read attorneys' mistrial request denied as dog bite expert finishes testimony
Karen Read's attorneys called for a mistrial Tuesday morning during a contentious hearing without the jury present amid a second day of cross-examination of Dr. Marie Russell, but the request was denied minutes later by Judge Beverly Cannone.
A Dighton police officer also took the stand, saying that the taillight on Read's SUV was more damaged in a photo taken at the Canton Police Department that it was when he saw it earlier that day.
Russell first took the stand Monday to testify that she believed John O'Keefe's injuries were caused by a dog, not Read's SUV.
Russell was called to the stand Monday by the defense and was questioned by Bob Alessi. Special prosecutor Hank Brennan was still cross-examining Russell when court ended for the day on Monday.
Just before the morning recess Tuesday, Brennan asked Russell if she knew that O'Keefe's clothing was swabbed for dog DNA, prompting a lengthy sidebar. The jury then left the room for a 30-minute break, and attorneys stayed in the courtroom for arguments before Cannone.
Read is charged with second-degree murder, manslaughter while operating under the influence of alcohol, and leaving the scene of personal injury and death. Prosecutors say Read hit and killed O'Keefe, a Boston police officer who she was dating, with her SUV after a night of heavy drinking in 2022 and left him to die in the snow.
Read's defense alleges that O'Keefe was killed during a fight inside Brian Albert's home at 34 Fairview Road in Canton, then dragged outside and left in the yard. Her attorneys say that O'Keefe was bitten by Albert's dog Chloe during the fight.
Karen Read mistrial request denied
Without the jury present during a break in Russell's testimony, Alessi accused Brennan of bringing up the topic of DNA when it should have not been allowed.
"He intentionally brought up DNA. Based upon that intentional mention, the defense moves strongly, vigorously for a mistrial with prejudice. A mistrial with prejudice," Alessi said. "There has been no mention in this trial of DNA with regard to what Mr. Brennan has raised. There has been none."
A mistrial with prejudice would have meant the case would be dismissed and could not be brought again.
The prosecution had a DNA expert testify in the first trial, but not during its case in the retrial. The expert noted in the first trial that there was no dog DNA detected on O'Keefe's clothing.
Brennan countered by saying that the absence of dog DNA is "inconvenient and hurtful" but not improper. The prosecutor also said Russell spoke about the absence of dog DNA and why she disregarded it from her analysis during pretrial hearings.
After taking the morning recess to think the arguments over, Cannone rejected the mistrial request.
Cannone ruled the prosecution can ask questions about the absence of dog DNA. The judge then ruled that she will not allow the prosecution to ask about some evidence in Russell's review of a defense medical examiner's findings because she does not remember it and it is not her work.
Brennan finished his cross-examination at about 12:15 p.m. by showing Russell pieces of taillight found at the scene.
Dr. Marie Russell completes testimony
Russell is a retired doctor from California who testified Monday under direct questioning that she was confident scratches on O'Keefe's arm were caused by the claws and teeth of a dog.
On cross-examination, Brennan highlighted that Russell has never testified as a dog bite expert other than in Read's trials. Russell also testified during Read's first trial, which ended in a mistrial due to hung jury. Russell said she became involved in the case after reading about it in the news.
Alessi had Russell read from studies about dog bite injuries that she took under consideration while making her opinion.
Later, Alessi showed Russell testing from Dr. Judson Welcher, a prosecution crash expert.
Russell said that in her opinion, if O'Keefe was hit by Read's SUV as Welcher depicted in his testing, she would expect to see bone fractures or at a minimum bruising.
On re-cross, Brennan noted that one of the articles Russell read from said that dog bite wounds generally have three characteristics, and O'Keefe's arm had none of them.
Russell completed her testimony around 2:45 p.m.
Dr. Marie Russell cross-examined
Earlier, Brennan tried to show jurors that Russell has changed her opinion about the injuries, from originally saying they could be caused by "teeth or claws" to now saying they were caused by teeth.
Brennan pointed to different groupings of wounds and asked Russell if she could give an opinion to a degree of medical certainty if they were caused by teeth or claws.
"Individually, no," Russell said.
Brennan asked Russell if she ever visited the scene of 34 Fairview Road where O'Keefe's body was found to assess the land, dirt, rocks and debris as she determined that the injuries were not consistent with being hit by a vehicle. Russell said she did not, but that she looked at photographs.
The special prosecutor asked Russell if she had watched Read's various media interviews, or other statements from the scene. She said she had seen some, and wasn't surprised Read had said things like "I hit him" or "Could I have hit him?"
"Because the defendant had undergone a very stressful event, finding her loved one in the snow. After a stressful event, many people suffer from what's called an acute grief reaction. Very common," Russell said. "They do things that seem to be irrational, they ramble, they act bizarrely, they make statements that irrational that don't make sense. And they oftentimes tend to blame themselves for whatever has happened. I've seen this many, many times in the emergency department."
"Does it happen months later when you go on 20/20 or Nightline?" Brennan responded, prompting Russell to say "I've never seen that situation."
"Does it happen a year later when you go and speak to documentaries and be interviewed, is that the same condition you see a year, a year and a half later?" Brennan asked.
Russell said, "A grief reaction can last years. Usually it's very brief. But it can last years."
Hank Brennan says witness violated sequestration order
Tuesday's cross-examination began with Brennan honing in on Russell's testimony from Monday when she had help editing a report that she wrote, but that it was not from one of the defense attorneys.
Brennan noted that in December, Russell said during a hearing that Alessi helped her with the report.
After being asked a question, Russell asked to see a transcript. Brennan asked Russell if someone advised her to ask for transcripts after she concluded her testimony Monday. She said that while she was riding in the limo to court with Alessi Tuesday morning, he suggested she ask for transcripts.
Brennan suggested that Russell violated the sequestration order in the case based on the conversation with Alessi.
"I did not know that particular conversation would be a violation," Russell said.
Brennan asked several questions about what else Russell and the attorney spoke about.
"We spoke about Boston, how I love the Boston area. We spoke about New York. We spoke about other things. In fact I have to say even on the ride back to the hotel yesterday with others in the car, nobody spoke about the case," Russell said.
Later, Russell asked for a transcript and Brennan said "Pursuant to attorney Alessi's advice, may I approach?" Alessi objected, and the judge warned Brennan not to make any comments.
Karen Read's broken taillight
Russell completed her testimony around 2:45 p.m. on Tuesday and defense attorney Alan Jackson called Nicholas Barros, a police officer for the Dighton Police Department. He was present when Read's SUV was towed from her parents' home in Dighton.
Barros testified during Read's first trial as a prosecution witness, but the defense did not ask him any questions on cross-examination.
The officer said he arrived at the home at 3:27 p.m. on January 29, 2022 after being called by Michael Proctor, who worked at the time as an investigator for Massachusetts State Police. Proctor was later fired.
Jackson asked Barros if he looked at the rear of Read's SUV.
"I noted in a report that there was damage to the taillight," Barros said, referring to the right rear taillight.
Barros noted that the taillight was cracked and a piece was missing, but it was "not completely damaged."
Jackson displayed a photograph of Read's SUV with a heavily damaged taillight that was taken inside the Canton Police Department garage. Jackson asked Barros if that is the condition of Read's taillight when he saw it in Dighton.
"Absolutely not," Barros said. "That taillight is completely smashed out."
When the taillight broke is a critical part of the defense's case. Read concedes it was somewhat damaged that morning, and then she says broken more by police. "It's on video. We all know when it was tampered with," Read said outside court Tuesday.
Cross-examination of Officer Barros
On cross-examination, Brennan tried to show the jury that Barros described the damage in less detail during a court proceeding a year ago. Attorneys are not supposed to specifically refer to Read's first trial.
Brennan also asked Barros about his meeting with the defense team at Jackson's hotel ahead of his testimony at Read's second trial.
Brennan asked Barros about a piece of his previous testimony that he did not remember correctly. Brennan told the officer that it wasn't an intentional error, "It's a matter of time passes and memory fades."
"I know what I saw. And that wasn't it," Barros said, referring to how he remembers Read's taillight in the photograph from the Canton Police Department.
Brennan showed Barros a video from early January 29, 2022 as Read backs out of the garage in O'Keefe's driveway and her taillight appears to be damaged. The prosecutor showed another video from later in the day before the vehicle was towed where the taillight also appeared to be damaged with snow caked on.
Jackson returned for additional direct questioning, highlighting that while Barros told Brennan he did not see Proctor manipulate the taillight in Dighton, he was not with the trooper and vehicle later in Canton.
Barros completed his testimony around 3:40 p.m. and the jury was dismissed for the day.
A half day of testimony is scheduled for Wednesday.
The defense began calling witnesses Friday after the prosecution rested its case a day earlier.
