← The Stefon Diggs Trial: Commonwealth Confidential
The Stefon Diggs Trial: Commonwealth Confidential
Karen Read's mistrial motion denied | Officer says evidence changed
00:21:57
Big accusations were made in the Karen Read trial Tuesday — did they stick? Prosecutors' questioning of a dog bite expert led the defense to move for a mistrial, citing activity that was "abhorrent to a fair trial," but it was ultimately denied. Then, a Dighton police sergeant testifies that a piece of Read's now-broken taillight "was intact" when he saw it, soon before state police took custody of the vehicle. Our chief legal analyst explains the arguments behind the mistrial motion and the possible significance behind the taillight discrepancy. Plus, what's a missing witness instruction, and why is the defense asking for it in this case?
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- [00:00]
Host 1
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Host 1
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Legal Analyst 1
The only remedy is a mistrial with prejudice.
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Host 2
The motion for mistrial is denied Tonight.
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Host 1
Testimony back on track after the judge denies a motion to declare a mistrial. The line of questioning that prompted such.
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Expert Witness 1
A move, I reconsidered. However, my opinion did not change.
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Host 1
The defense's dog bite expert doubles down on her opinion after DNA testing gets a moment in the spotlight.
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Legal Analyst 1
Plus, what's different about this photo?
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Expert Witness 2
Sir, that tail light is completely smashed out.
- [01:47]
Host 1
A Dighton police sergeant takes the stand. More on the evidence he says looks different now compared to his initial observation. Canton Confidential the Karen Reed murder trial starts right now.
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Host 3
The defense team's dog bite expert back on the stand for more cross examination. Good evening, everyone. I'm Glenn Jones. JC is off tonight. She first took the stand Monday to testify that she believed John o' Keefe's injuries were caused by a dog, not Reed's suv. Today, under cross, she was accused by the prosecution of changing her opinion and not having the expertise to assess John o' Keefe's injuries. Let's get out to Melanie Mendez for more on her testimony. Mel.
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Host 2
Well, Glenn, listen, we saw this from the defense when it came to witnesses for the prosecution, right? We saw them leaning in and pressing those witnesses. And today we saw the exact same thing, only the roles were reversed. Now it's the prosecution leaning into these defense witnesses. So this one in particular is Dr. Marie Russell she is, of course, the forensic pathologist, the former ER doc. She yesterday on the stand said she she was confident that the injuries on John o' Keefe's arm are from a dog, whether it's claw marks or bite marks, and she said they were not from a collision with a vehicle. Now, Brennan pushed back on her expertise and on her memory. It led to this.
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Expert Witness 2
Do you have any memory issues?
- [03:17]
Legal Analyst 2
No.
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Host 2
That audible gasp setting the tone for a surprising and sometimes contentious cross examination of Dr. Marie Russell. The retired ER DO and forensic pathologist has 30 years of experience. Today, prosecutor Hank Brennan questioning her experience, methodology and opinions.
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Expert Witness 2
And so with no readily accepted standards in the dog bite community, you're just eyeballing it based on your personal experience with dog bites?
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Expert Witness 1
I don't think so. I'm using my past experience, my strong interest in dog bites over 30 years. I use standard methodology of pattern recognition and differential diagnosis.
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Host 2
Brennan tried to show jurors Russell has changed her opinion about the injuries. But Russell stood by her testimony, saying her opinion has not changed.
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Expert Witness 2
Haven't you expressed an opinion that taking this alone, you would not be able to say that was from a dog.
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Expert Witness 1
Bite, that that is correct? In and of themselves, they're not that specific or characteristic. However, as a group, they are highly characteristic of a dog.
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Host 2
Brennan questioned Russell about her investigative work, asking if she ruled out the possibility of a vehicle strike before having all the pertinent information. Russell standing by her determination, pointing out that she's treated thousands of victims in vehicle collisions and o' Keefe's injuries are not consistent.
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Expert Witness 1
I don't see any medical evidence that there was impact with the vehicle.
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Host 2
The doctor specifically detailed why a broken.
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Expert Witness 1
Tail light in and of itself could not cause those injuries. There would have to be multiple projections from the vehicle that were lined up in certain pattern to give those parallel marks all in the same direction.
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Host 2
Dighton Police Department Sergeant Nicholas Barros was next to testify. He responded to Reed's parents home when troopers went to collect Reed's suv. He testified that there was a piece of Reed's taillight missing at the time.
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Legal Analyst 1
Can you tell us what that description is?
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Host 3
There was.
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Legal Analyst 1
It was damaged.
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Expert Witness 2
The taillight was damaged, but there was a crack missing. That middle section was intact when I was there.
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Host 2
Jackson then showed the court a photo of the vehicle being towed from Dayton that shows a large red portion of the taillight still intact. Then showed him a picture of the taillight in the Sally Port at Canton PD with the entire casing gone.
- [05:36]
Expert Witness 2
Is this the condition of the right.
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Legal Analyst 1
Rear tail light when you showed up at the recent Reed household?
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Host 3
Absolutely not.
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Host 2
Under cross, Brennan pressed him on his report, prior testimony and what he witnessed.
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Expert Witness 2
Did you ever see them approach and touch the rear tail light of the defendant's Lexus?
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Host 3
I did not.
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Host 2
Karen Reed on her way out of court.
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Legal Analyst 1
What sort of stood out for you.
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Host 3
That the taillight was not completely smashed? I think the word the independent cop.
- [06:03]
Legal Analyst 2
As a prosecutor himself called him, was.
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Host 3
It was not completely smashed in or busted in at 3pm as it went into state police custody. That's all that matters.
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Host 2
All right, so there you have it from Reed leaving court today. Now listen, Barrows finished his testimony before court wrapped for the day, so we can expect to hear from a new witness on the stand first thing tomorrow morning. Glenn, back to you.
- [06:25]
Host 3
Melanie Mendez at the courthouse.
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Legal Analyst 1
Ms. Reed is entitled under the Constitution, under the Massachusetts Declaration of Rights to a fair trial. And what has just happened is antithetical, abhorrent to a fair trial. The only remedy. The only remedy is a mistrial with prejudice.
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Expert Witness 2
The defense does not get to pick and choose what words the Commonwealth can or cannot use. They do not get to pick and choose what parts of Dr. Russell's opinions are important and not important because they chose not to emphasize, highlight or discussion. The absence of dog DNA on direct does not mean it's beyond the scope of direct examination. It means they did not want to talk about it because it was not helpful to them.
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Host 3
Plenty of tension in the courtroom today as Karen Reed's defense team called for a mistrial. That was just a snippet of the surprise exchange this morning. It was in response to special prosecutor Hank Brennan's questioning and the mentioning of dog DNA during cross examination of dog bite expert Dr. Marie Russell. The judge ultimately denied that motion. And that's where we want to begin tonight with our panel. Joining the conversation tonight is our chief legal analyst, Michael Coyne and Sue o' Connell, our courtroom insider. So, Michael, maybe just walk us through this move for a mistrial by the defense, especially underscoring the part with prejudice, because that's important, right?
- [07:59]
Legal Analyst 1
Exactly. The mistrial with prejudice because of something the government did, as attorney Alessi was pointing, was claiming would mean this is not just an end to this trial. This is an end period of any case the Commonwealth has against Karen Reid.
- [08:15]
Host 3
Just as good as an acquittal.
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Legal Analyst 1
Just as good as an acquittal to a lawyer. Maybe some people out there are saying, no, we want to get a verdict and we want it to be innocent. The jury's never going to determine that she's innocent. They'll either determine she's guilty or not guilty. So if you can get the court to dismiss the case as a result of a mistrial with prejudice, what that means is she would get a get out of jail free card.
- [08:38]
Host 3
Can you sniff out any appellate issues with the judge's decision on this request from the defense team?
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Legal Analyst 1
I don't think so. Because the basic point is accurate. The jury is only supposed to consider evidence properly before them in determining guilt. But what the commonwealth is trying to say here is we get to test her opinion and what the basis for it is. So do you hold that opinion that he was bitten by a dog, despite the fact that you have seen no evidence, no evidence of DNA on his clothing or on his body, and that's a fact, is that there is no evidence of dog DNA on his clothing or his body? And if she wants to say, well, I don't know whether that exists or whatever, he has the right to test the depths of her opinion.
- [09:25]
Host 3
All right, Sue. So Robert Alessi was fired up when he was making this argument, pounding the podium, raised voice. You've seen him in court for a few weeks now. Was it theatrics or was he really mad?
- [09:38]
Legal Analyst 2
Well, all those things. First, the jury wasn't there, Right. So that's not an Alessi that they have really seen yet. And this is really in Bob Alessi's wheelhouse, the variety of attitudes and passion that he has. Of course you're making the case for this and you want to make sure you're being clear about it. Due to a family emergency. I wasn't in the courtroom today. I was home. I was with my 24 year old daughter who hadn't been watching the trial at all. And this is when we tuned in or she tuned in and she was like, wow, who is this?
- [10:09]
Host 3
Right? This guy is great, commanding the room.
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Legal Analyst 2
How old is he? And she thought he was like 34 years old, you know, and so that's what you want your lawyers to do. You know, everyone likes to demonize the lawyers that aren't on their side. But the reality is if you're asking, you don't get unless you ask in court. And if you ask, you have to be passionate about it. And he's a very buttoned up and very succinct in these arguments. I think when he's making a motion like this, it's not the kind of wide ranging Colombo.
- [10:36]
Legal Analyst 1
The only time he succinct.
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Legal Analyst 2
But yeah, he's succinct when he does this. And I think the judge appreciates that.
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Host 3
As well as impromptu, which is very important.
- [10:43]
Legal Analyst 2
Brennan was great, too.
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Host 3
Yes. As we've mentioned, Dr. Marie Russell, the defense dog bite expert, was back on the stand today. She maintained her opinion that there was no way a collision with a car caused John o' Keefe's injuries, and also told the jury that there was no dog DNA found in samples from his clothing. Sue, how did Dr. Russell hold up on cross examination today on what was a lot of hours on the stand?
- [11:07]
Legal Analyst 2
Yeah, I'm more curious about how the jurors really held up over this, because I felt like we were in one of those video kind of games where you wander from farm, you know, lot to farm, lot to get the corn, and you bring the corn over to the table, and then you go over and you take your word for it. You just go around. And it was like Dr. Russell was this entire universe that both Brennan and Alessi were navigating through. And I can imagine a juror was thinking, well, why are we talking about this? Why are we talking about that? And every time Brennan would leave a crumb out, Alessi would pop up and pick it up and run with it, and then something else would get left on the table, and then Brennan would get up and he would run with that. So it was just this really kind of Marvel Universe, where are we? Kind of thing. You know, in the end, I think we started where we ended where we started with her. You know, she's very qualified. Do the jurors care that there's no real dog bite expert? I imagine she's going to open up a school as soon as this trial is over. And they'll be suddenly certified dog bite experts. Do we care that she can recognize injuries because of her emergency room? Well, they might care about that. Does that mean that she's qualified to say it wasn't a strike? Well, they may not care about that either, but in the end, I think it could have been a lot shorter.
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Host 3
All right, there was another witness on the stand today. Let's delve deeper into the testimony of Dighton Police Sergeant Nicholas Barros. He was called to help state police back on January 29, 2022. He testified he was asked to facilitate towing a vehicle involved in a homicide investigation that turned out to be Karen Reed's Lexus suv. So photos of the damaged tail light were not consistent with what Sergeant Barrow said he saw that day in Dayton. It's also worth noting that during the first trial, Barrows was a Prosecution witness. This time he was on the stand for the defense. So, Michael, I guess for you, does this sort of pave the way for the defense to kind of get the jury thinking, well, maybe some other police officer did something to this tail light between the time that Sergeant Barrow saw it and the time that that photo was taken?
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Legal Analyst 1
Yes. It further explores the whole issue of police misconduct, bad collection and preservation of evidence, and maybe for an improper purpose. That's the seed that they really want to water and see grow throughout the course of this. And he doesn't seem to have any interest in one side or the other here. He's a law enforcement officer. And so I think it is very helpful evidence to the defendant, even though Brennan made some fair points on cross. But, but again, I think, as sue pointed out, with respect to the dog bite expert, I think both examinations went on too long. These should have been relatively tight.
- [13:50]
Host 3
You know what, in this case, we've discussed this in the hallway, so to speak, that it's been more about science this time versus conspiracy, where the last time maybe the two things were flipped. And. And so what the jury has to decide now after this testimony of Dr. Marie Russell, is whether or not the injuries on John o' Keeffe's arm were caused by a dog bite or an suv. And those two things are so.
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Legal Analyst 2
Or if it matters, which is the other part. You can believe that it belonged to a dog, but does that mean he wasn't hit by the car, the vehicle? I mean.
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Legal Analyst 1
That's right.
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Host 3
Both things can be true.
- [14:24]
Legal Analyst 2
All things can be true.
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Host 3
Which. Let's take us to a conversation about reasonable doubt. So let's focus on that now. It's. It's fair to say doubt exists, but is it reasonable? Here's a quick reminder at the charges Karen Reid is facing. Second degree murder, manslaughter while operating a motor vehicle under the influence and leaving the scene of a fatal collision. So, Michael, educate us on what reasonable means, because I know what doubt is. I'm not sure I can actually quantify what reasonable doubt is.
- [14:49]
Legal Analyst 1
Well, and that is the problem that the jury ultimately has to deal with is, you know, what is the reasonable person standard? What a reasonable doubt means is a doubt that would give you pause or hesitation. It means proof beyond likely, even highly likely. And so what it almost is that you've got to remove those doubts, not remove all doubts, because everything in life is subject to some doubt. But it's the type of doubt that if you were buying a car and you took it for a drive and you smelled something funny or there were other issues with it, you said, you know what, I'm just going to wait. If something gives you a pause or a hesitation in a decision in your life, that's what a reasonable doubt is.
- [15:32]
Host 3
Okay. So, Sue, I think you would agree a larger maybe volume of doubt existed after the prosecution rested in the first case. This time Brennan has streamlined that doubt. So where does the defense go from here? It does seem as if they're working harder with more witnesses and I guess a tougher cross examination while the prosecution was presenting a case.
- [15:56]
Legal Analyst 2
So I might say it seems that way because that big trial within a trial that the Commonwealth had to do last time, all those most many of those witnesses have been moved over to the defense side. Right. So that conspiracy reasonable doubt hasn't really, as you said earlier, hasn't really been part of this trial yet. So therefore we're focusing on the science and the data to move that they are to move that reasonable doubt forward. We still have a ways to go on the trial. So when we start seeing some of these other witnesses, maybe that conspiracy will be another thread in the reasonable doubt blanket they're trying to weave.
- [16:32]
Host 3
Okay, Sue, Michael, thank you. Don't go anywhere. We got a lot more to talk about. Don't you go anywhere either. You're watching Canton Confidential, the Karen Reed murder trial.
- [16:43]
Host 1
Don't miss any of the Karen Reed murder trial. Get the full recap of what happened in court, expert analysis and what we could see next. This is coverage you won't see anywhere else. Canton confidential, weeknights at seven on NBC 10 Boston.
- [17:03]
Host 3
So submission seven, all the items that are seven dash was submitted by Trooper Michael Proctor.
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Legal Analyst 1
Did former Trooper Proctor inform you of the working law enforcement theory?
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Expert Witness 2
Former Trooper Michael Proctor was not present.
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Host 3
It looks like it says it could say Trooper Proctor.
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Legal Analyst 1
State what that is.
- [17:23]
Host 3
It says TPR Proctor, you know the name, lead investigator and now former state Police Trooper Michael Proctor. He has been mentioned a lot throughout the trial, but he has not been called by the Commonwealth before it rested its case last week. Back now with us is Michael Coyne and of course, Sue o' Connell. So the Commonwealth's decision not to call Michael Proctor or two other key witnesses, Brian Higgins and Brian Albert, has prompted a new missing witness motion from the defense. This is really interesting. The motion reads, quote, this jury should be provided with the necessary framework for considering the absence of evidence or witnesses should they deem it relevant information to their deliberations and assess the weight and significance of the missing evidence or witness in relation to the evidence presented against the defendant, the defense says there is, quote, no logical explanation to not call the three men. So I guess, Michael, explain this defense tactic to us. Why have they taken this approach?
- [18:26]
Legal Analyst 1
Well, they don't want to call him themselves either, so that they. They're concerned what he might put into evidence, and he may not as well come across as badly as they have made him out to be already. So for their own decision, they've decided not to call him. But if they can get what's known as the missing witness instruction, which in essence says if a party controls a witness, an employee, for instance, or a partner, someone along those lines, and they choose not to call him, then the jury should be instructed that they didn't call him because the evidence would be harmful to their side of the case. A presumption, in essence, that that witness would have given harmful testimony. So it's almost the best of both worlds for the defense is if, in fact they get the missing witness instruction now, the jury, it's reinforced. Well, they really should have put Proctor or Higgins or Albert on the stand. The problem with the logic now, though, is he has been fired. Proctor is no longer an employee of the Commonwealth. He's not necessarily going to be friendly to the Commonwealth's case, and so there's not for certain that they're even going to get the missing witness instruction. If he had still been employed by the Commonwealth, I think there's no doubt they would have been entitled to the missing witness instruction.
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Host 3
So, sue, if we think about Proctor, but also Higgins and Albert, if ultimately they are on the witness stand for some reason in this case, what impact do you expect it to have? Because the way that this trial has proceeded is so different from the first.
- [19:55]
Legal Analyst 2
You know, it's interesting. I almost feel like Brian Albert is the person, if we're going to use the missing witness, he really hasn't been involved in the testimony or the evidence that much at all. Even talking about the dog bite expert, we haven't heard about the dog. There's a whole bunch of stories and narratives that were told in the last trial that didn't. I don't know that we would even notice if Brian Albert didn't testify. I don't know how that would affect their, you know, their conspiracy arguments.
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Host 3
It's different for the other two, huh?
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Legal Analyst 2
It is. So everything Michael said, obviously, about Proctor, who, if he is called by the defense, could bring some good things to the Commonwealth, and they certainly. Or maybe he'll be completely rehabilitated and he'll be sympathetic to the jury and won't have the same impact. Higgins, on the other hand, I think, would be a get for the defense because he can actually bring some more to the theory that there was more going on between him and Karen. He'll be asked some questions about those text messages that we didn't hear in the first trial, that we heard in the second trial. So I think, you know, if. If I were the defense, the one person I would want to call is Higgins.
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Legal Analyst 1
Yeah, I agree with Sue.
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Host 3
Yeah. Michael, I wanted to ask you just before we were done here about Kelly Dever, who testified yesterday, the former Canton Police Department police officer who's now with Boston pd. There was a lot of discussion about whether or not she met the definition of a hostile witness. You say maybe the defense could have benefited from making the request that she be treated as such.
- [21:23]
Legal Analyst 1
Yes. When someone is determined to be a hostile witness, the Jackson, the defense now would have been allowed to ask leading questions. So it wouldn't have been sort of the meandering question of who, what, where, when, how described. You told the FBI this when you tested, when you talked to them, you then reinforce that they were in the Sally Port for a wildly inordinate amount of time. Yes or no, you get to fix that witness because they're hostile to the party. They're not going to cooperate. And to me, she was a hostile witness. She said that they threatened her with perjury, they tried to intimidate her. The foundation could have relatively easily been laid, that she was, in fact, hostile to Jackson and the defense team. I think just pick a half a dozen of her sentences would indicate that.
- [22:13]
Legal Analyst 2
Or the way she looked at them.
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Legal Analyst 1
Yeah.
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Host 3
She certainly did not want to be there.
- [22:16]
Legal Analyst 2
No.
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Host 3
Sue o' Connell, Michael Coyne, thank you both very much. And thank you as well for joining us. If you have questions about this case, keep sending them our way. The email address is on your screen. Canton.confidentialbcuni.com we'll answer as many questions as we can. And remember to join us every weeknight at 7 on NBC 10 Boston. We'll have a full recap of the latest developments from court, as well as legal analysis. Plus, this week's episodes will stream on Peacock beginning Sunday. And be sure to check out our true crime podcast about this case. It's the audio version of our nightly show that will get you caught up on all the twists and turns happening in the Karen Reed murder retrial. You're watching Canton Confidential, the Karen Reed murder trial.