← The Stefon Diggs Trial: Commonwealth Confidential
The Stefon Diggs Trial: Commonwealth Confidential
What does Karen Read's near-total acquittal mean for the Walshe case?
00:20:56
This is a bonus episode taken from "The Searches for Ana Walshe," our sister podcast available wherever you listen. Subscribe for all the updates in this ongoing case. The legal battle over critical digital evidence in the Ana Walshe murder case is intensifying as Brian Walshe's lawyers argue that police stepped out of line when obtaining the alleged Google searches about how to dispose of a body. Could the mistrust in Norfolk County law enforcement seen in the Karen Read trial help the Walshe defense team?
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- [00:01]
Matt Fortin
When work gets crazy, I like to.
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Michael Coyne
Stop by the bar after, have a few cold ones.
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Jen
I don't drink at all until 4 o'. Clock.
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Legal Analyst
We limit ourselves to one bottle of wine a night.
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OnDeck
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Matt Fortin
Matt Fortin here with a bonus episode from our sister podcast on another big murder case in Massachusetts, in fact involving some of the same investigators called the Searches for Anna Walsh. In this episode, NBC 10 Boston Chief Legal analyst Michael Coyne and I discuss the Karen Reid trial at length. If you want to follow the Ana and Brian Walsh murder case with us, subscribe to the show. Wherever you listen to podcasts, just type in the Searches for Anna Walsh. Thanks. And here's the episode. Welcome back to the Searches for Anna Walsh. I'm podcast producer Matt Fortin. Today we're going to dive deep into the intensifying legal battle between Brian Walsh's lawyers and the prosecutors charging him with with Ana's alleged murder. We're also exploring how Karen Reid's recent near total acquittal could impact this case, potentially helping the Walsh defense. A lot of back and forth right now centers around key digital evidence against Walsh and whether or not that will be allowed to be presented in the trial, which is quickly approaching three months away from now in October.
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Michael Coyne
And joining us today to help us break all that down is NBC 10 Boston chief legal analyst Michael Coyne. Michael, thank for joining us again today. I appreciate it.
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Legal Analyst
Always a pleasure, Matt.
- [01:57]
Michael Coyne
Well, Michael, so a lot's been going on in this case over the past month or so and honestly, I think a lot of it has kind of flown under the radar because obviously the past month has been huge for the Karen Reed case and there was verdict watch in that case. In fact, Brian Walsh actually appeared in court in a different court now the same day that Karen Reid's verdict came down. So again, I just think a lot of this has kind of flown under the radar, both kind of in the media and in just the public. So I to take a moment to kind of dive back into this case, especially now that we're just a little over 90 days away from when this trial is scheduled to happen. So that is quickly approaching. So the first thing I want to ask you though, Michael, is this is the first Time that you and I are discussing the Brian Walsh case after Reid was basically entirely or almost entirely acquitted from her charges. And there is a little bit of an overlap here with those two cases. So what does that almost entire acquittal mean for Brian Walsh, if anything?
- [02:59]
Legal Analyst
Well, what it means, at least in part, is that he can rely on the level of skepticism I think that a jury is likely to have with respect to some of the same officers that were involved in the Karen Reed case, who are heavily involved in this case. And so, you know, have some hope if you were him, that you could explore and have that argument resonate with the jury that there's a lack of professionalism, a lack of expertise, and a general sloppiness and rush to judgment that very well might be a sufficient basis for his defense to be able to try and establish a reasonable doubt. The Reid verdict gives him some hope, but it also provides him an awful lot of information with respect to the police misconduct in that case.
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Michael Coyne
It seems that there are very different public perceptions of the actual defendants in each case, meaning Karen and Brian. From what I can tell, the public sees them very differently. Do you have thoughts on that and could that impact the case and would that make the law enforcement thing matter less?
- [04:16]
Legal Analyst
Well, no, It's a very interesting question. Why is the middle aged female so sympathetic and the middle aged male not so sympathetic and his gender play a role here as well? I'm not so sure that at this point you really see the divide like that. I think because Karen Reid has been so out in the open, so vocal, so dominating the public discussion, that not a lot of people have turned their attention to Brian Wahl's case at this point. But I think they shortly will because it is on many levels, an even more fascinating case than Karen Reid. Because when you start with the notion that there is no body and usually having a body is the easiest part of proving a murder took place, that there is some fascinating pieces here that have to fall together, not the least of which is the question of whether the police acted appropriately and whether the search warrants were valid and whether they went beyond the scope of the search. Because there's a lot of evidence here that will be developed electronically, just like Karen Reid. And the question is, is did they all dot their eyes and cross their T's? Are the things done correctly with respect to the assembly of that information and then putting that information into evidence?
- [05:41]
Michael Coyne
Yeah. And the defense on the wall side, they were asking for a ton of information and documents relating to Massachusetts State Police, their Internal investigations. So Michael Proctor, his cell phone, his icloud, all these things, those, from what I can see in the filings, were almost entirely denied by the judge who's proceeding over this case. Now. It was Judge Kanoni and now it's Judge Vernier. So it looks like that what she is allowing is she's asking MSP to submit all rules and regulations of the governance of MSP in disciplinary proceedings, the MSP policy and procedure, Employee Evaluation system used in disciplinary proceedings, and that's it. So, I mean, those are pretty general documents and procedures. It doesn't sound like it's anything specific to any officers involved in this case. Do you see Michael Proctor being that I think you used to call him in the Karen Reed trial, kind of the boogeyman that that defense team used where you heard that name so much. He didn't even testify in the second trial. But he was also the case officer in Brian Walsh. So do you see that name coming up as much could. Could he be called?
- [06:57]
Legal Analyst
No, I don't see. No, I don't think the government will call him. I think you'll see his name splashed around. But as you pointed out, the judge has limited the discovery of his personal information to a much greater extent than Judge Kanoni did in the Karen Reid case. They have to show that what they're looking for is likely to be relevant. Where in the Reid case you had specific text messages, you had information that they were able to then use as a basis to go further. They haven't been able to show that yet. In the Walsh case, what you do have is an overlap of personnel and that's what they are hoping for, to be able to use that to develop that argument further. And it's another interesting piece here. When you start to think about the case and judge's rulings and evidence and all the rest is that Judge Canoni was a defense attorney her entire life. She was in fact in charge of CPCS in that region for a significant period of time, where Brian Walsh's judge was with the U.S. attorney's office as a prosecutor for many years. So there is a slight looking at the case. You look at it from a different lens depending on your experience. And the fact is, is that they're going to have to lay a better foundation that there was misconduct before they're going to be able to examine all of these personal records that they'd like to and have some basis to do it. It's not just, as some folks would call it, a fishing expedition. You don't know what you're going to get, but you're casting a wide net. Well, this judge has narrowed it so that you're going to have to make a more foundational showing before they get access to the information. It will still be, you know, casting aspersions on the mass State police and the rush to judgment and the searches themselves. Because a lot of this evidence against BR Walsh is circumstantial evidence. It's not direct evidence that someone witnessed him murder her and dismember her body. But you've got a lot of electronic information that has to then be admitted into evidence to show that he in fact committed murder, first degree murder, against his spouse.
- [09:17]
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Jen
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Michael Coyne
Finance teams, you shouldn't be chasing down.
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OnDeck
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- [10:11]
Michael Coyne
Expenses are sent with a text and reminders happen automatically. Switch your business to ramp.com today and love finance again. And that's the big thing too. I want to get to that right now because that is the big battle going on between these two sides right now that we're really waiting to see. See what happens with this, how the judge rules. Because like you said, I mean, Ana's body was never found. So, you know, there was pieces of clothing and some DNA and blood, but her body was never found. The prosecutors got these alleged Google searches that Brian made about how to get rid of a body. They got these from a search that they did of the household devices before a search warrant was issued. And they did that based off of a search that Brian consented to to help with the search for his wife. Now though, the defense is saying that that search went beyond what he did consent to saying that he consented to, hey, look, you can look at the communications between Ana and myself on my phone from this time to this time, and they're saying, look, GPS data, Google searches, that doesn't count. That's not included in that. The state says how do they word it? The State says that these were basically in plain view and discovery of this material was inevitable. If you're looking at these devices, what do you think of that?
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Legal Analyst
MICHAEL well, the last two arguments the state makes the plain view and inevitable discovery are arguments that the state would make when they have gone beyond the scope of the either the authorization or the search warrant. So that that really is the crux of the question that the judge has to make a determination on, and that will likely be based on the facts that are developed either through an evidentiary hearing or a trial itself, because we need to know what was his authorization. And, you know, again, these days, what we're going to want to know was it in writing, was it explicit as to what the parameters of that authorization were? And then the question of, well, to what extent then, were they looking beyond what he authorized? And if the fact is, is that they discovered a lot of things in the ordinary course of their search that, in essence, they would have discovered sooner or later anyway. And that's probably a better argument to me than the plain view. Plain view is when we walk into a room and we are authorized to enter the house, and there's drugs or guns, clearly obvious, that are contraband, and they are in plain view, we're entitled to seize them and charge them and use them as evidence. That's the normal situation with respect to plain view. Inevitable discovery says that, well, sooner or later we would have found this information from a search on his phone or the other electronic devices, because, frankly, in every case where a spouse or a partner dies, the spouse or partner surviving is always the main suspect. So they would have, sooner or later had enough information to turn their attention to him with an authorized search warrant and been able to discover all this information. So that's what they're saying is inevitably we would have turned our attention to all of the devices and all his searches. And so even if the search went beyond what he ought authorized, we would have still discovered this information and can use it. He's arguing, no, no, no, it's all what we call fruits of the poisonous tree. You went beyond the scope. Anything you've obtained as a result of that, all of it, even stuff you might discover days or weeks later, all of it Is tainted by that improper search, and all of it is inadmissible evidence. And it's a very good legal argument on both sides. I think there's gonna need to be more factual development before we have an answer on that as to what exactly she's gonna allow in or out. And if they can't get that electronic evidence in, that's a big win for him.
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Michael Coyne
So a lot of this was verbal, right? When he was still talking to the state troopers, when they were going over to his house doing interviews about Ana being missing. So at that point, it was very much like they were kind of playing on the same team. Right. It was like it was kind of framed. Let's help you find her. What can you give us? And in all these court documents that I've been going through, you know, they have transcripts of these interviews, and they. They have the troopers saying, you know, we would download your whole phone, but we'd really only be focusing on communication. And Brian is hesitant. And then eventually there is an email that's exchanged. This was the only thing I could find that was really, like, in writing, like you said, that wasn't just verbal. And it's from Lynn beeland, who's an assistant district attorney in Norfolk county. And she says to Tracy minor, Brian's attorney. The Norfolk district attorney's office agrees that in the investigation into Anna Walsh, any conversation between the attorney and client Brian Walsh is excluded from the search and the examination of Brian Walsh's phone and an iPad. It is further agreed that any conversation between Brian Walsh and his wife one week before she was missing and prior, that's excluded from the search and examination. And then Tracy minor, Brian's attorney, says, we consent to all communications on or after 12:25. If you want to go back further, I will have to give you a list of attorneys, as he has used a bunch of them. So, I don't know. I mean, to me, she says, we consent to all communications, but again, that can have different meanings because the state troopers say, well, Google searches, that's digital communication. So it's very technical. Right.
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Legal Analyst
Well, you know what. What they're trying to protect there is both attorney client privilege information as well as spousal communications privilege, Both well recognized privileges in the commonwealth of Mass and really across the country. But that is the crux of the question, as you rightly point out, the Google search, that's not really a communication to anyone. That's a search for information. So how is it worded as to what they would be looking for? That Also, clearly, to me, does not include GPS information. That's not a communication either. So that's what they're fighting about, and this is what lawyers, you know, always fight about, is the words themselves. And one could easily argue that when I'm on Google, when I'm searching for information that's not a communication, and when I'm using my GPS, that's not a communication, there was no authorization for that. That's why they're also arguing the inevitable discovery argument.
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Michael Coyne
This could impact more than just the immediate searches. The defense goes even further to say that, look, we're also asking for the evidence that was found with search warrants to be thrown out because there would not have been probable cause without the searches that they say were not consensual. So that's a whole other issue.
- [17:47]
Legal Analyst
Yeah, that's called the fruits of the poisonous tree doctrine, is that but for your illegal searches, you're going beyond the authorization, beyond what was permissible. You never would have found all this other information. So all of it, all of it has to be excluded because you have violated his constitutional rights. There's really strong arguments on both sides of these questions. So the judge will rightly struggle with some of this, and it does ultimately, to me, require a significant factual development. So I think some of this will be examined and displayed through a foundation that has to be met at trial as to exactly what's in and what's out of these communications. And again, partly what they'll have as a basis to support the defense's argument is this mistrust of the Mass. State police and the same officers that were involved in Reid and doing. Doing improper things. The argument is, did they. Did they cut corners again here, in essence, in that rush to judgment that the jury, to me, readily accepted in the Reid case.
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Michael Coyne
What do you think is the most important thing to watch over the next three months? And is this surprising to you that this has kind of become an issue? Because, I mean, we were talking about these Google searches from the beginning. The prosecutors read them in his arraignment, and they kind of rolled them out as this piece of gotcha evidence, and now they're at risk of being completely thrown out. Does that surprise you?
- [19:26]
Legal Analyst
Yeah.
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Michael Coyne
No.
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Legal Analyst
I mean, it is. You're absolutely right. It is gotcha evidence. And they are significant, again, because we don't have a lot of evidence other than that, other than these communications with respect to his searching and all the rest of it, with respect to a premeditated murder and a dismemberment of her body. So it's not surprising that the defense is focusing heavily on whether the police's actions were appropriate with respect to the searches, the authorizations, the search warrants, and the subsequent discovery of various information. It's the case they have. The defense has to try that part of the case because if the searches are all the information that comes in, then even though it's still circumstantial, it's a strong circumstantial evidence case. And so this is where the battleground has to be fought. And it's not surprising because again, you're playing at least in part on some level of distrust of law enforcement that's much more common today than it was even just a few years ago. But certainly when we think about 10 or 15 years ago, the level of skepticism that the jury is likely to have as they get in panels, a good defense lawyer will play on that and try to encourage the jury to question further law enforcement's activities here. And they're asking the judge herself to also question whether what they did was exactly appropriate under the Constitution.
- [21:03]
Michael Coyne
All right, Michael, thank you. Well, we'll be watching this closely. So there could be an evidentiary hearing, you're saying with all this before the trial?
- [21:12]
Legal Analyst
Yeah, I wouldn't be surprised at some point that there is a really significant evidentiary hearing in order to be able to make sure that the judge is comfortable making the right call on this. Right now they've submitted affidavits and those are sworn statements and the like. But we do know that there's been some testimony taken under oath already. It would not surprise me that additional evidence would be taken under oath before all of these issues are resolved.
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Michael Coyne
All right, Michael, thank you so much for your time. We'll keep a close eye on this and follow this case as we approach a trial date for Brian Walsh in October. Thank you, Michael, so much for joining us today.
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Legal Analyst
Thanks, Matt.
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Matt Fortin
And thank you for listening to the searches for Anna Walsh. Be sure to subscribe to our podcast to stay up to date in this case. It's available wherever you get your podcasts. I'm podcast producer Matt Vork.
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Legal Analyst
In.
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Legal Analyst
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Legal Analyst
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