(BOSTON) — Judge Beverly Cannone denied Karen Read a mistrial in her second murder trial in the killing of her cop boyfriend John O’Keefe on Tuesday.
Attorneys for Karen Read asked the judge to declare a mistrial with prejudice in her second murder trial after prosecutors questioned a defense witness over whether she was aware no dog DNA was found on O’Keefe’s sweater from the night of the murder, in an attempt to discredit the defense’s theory.
Dog bite expert and forensic pathologist Dr. Marie Russell testified that markings on O’Keefe’s arm were caused by dog bites and scratches, supporting the defense’s claim that O’Keefe was attacked by a dog and beaten by other parties before being thrown out into the snow the night of the murder.
Prosecutors — for the first time in this trial — admitted O’Keefe’s sweater into evidence and cited a forensics report that said there was no evidence of dog DNA.
Prosecutors have alleged Read hit O’Keefe with her car outside the home of fellow police officer Brian Albert — causing the marks on his arm — then left him there to die during a major blizzard.
Read is accused of killing O’Keefe in 2022. Read is charged with second degree murder, manslaughter while operating a motor vehicle under the influence and leaving a scene of personal injury and death.
She has denied the allegations and maintained her innocence.
Read’s first murder trial ended in a mistrial after the jury was unable to reach a verdict. At least four jurors who served on her first trial last year confirmed she was found not guilty of murder and leaving the scene.
The prosecution rested last week and the defense began presenting its case.
On Tuesday, prosecutors introduced evidence — O’Keefe’s sweatshirt from the night of the murder — to the defense’s expert witness, asking her if she was aware that holes in the arm of the sweatshirt had been swabbed for traces of dog DNA. The evidence had not been previously presented to this jury.
Before she could answer, the defense objected. After a short sidebar between attorneys and the judge, the jury was removed from the courtroom.
After the jury and the witness on the stand — Russell — left the courtroom, Read’s defense team requested the judge declare a mistrial with prejudice.
“Attorney Brennan — just with regard to Dr. Russell — in open court, in front of the jury, used the concept of DNA in this case. He has introduced it and brought it in for the very first time in front of the jury. He has done so intentionally,” defense Attorney Robert Alessi said Tuesday.
“Based upon that intentional mention, the defense moves strongly, vigorously for a mistrial with prejudice,” Alessi said.
Lawyers for Read argued that during this trial, prosecutors did not call a witness who, in her first trial, testified about the testing of DNA evidence.
“For whatever reason, the prosecution has chosen not to bring that witness in who would testify, perhaps to DNA. As a result of that strategic decision that the prosecution made, there’s been no mention,” Alessi said.
The defense said that it has purposefully not mentioned DNA in the trial so far and it is not permissible for prosecutors to present it now.
“The prosecution has put in the jury’s mind that topic. That is irremediable. That cannot be reversed,” Alessi said.
“The prosecution has to suffer the consequences of its own intentional actions of bringing up that topic,” Alessi said. “The only remedy is a mistrial with prejudice.”
Prosecutors claimed they had always planned on bringing an expert to discuss DNA on rebuttal and argued that asking the defense’s witness about the presence of dog DNA is permissible and essential.
“The defense is on notice that there is no dog DNA in the sweater of John O’Keefe,” prosecutor Hank Brennan said in court Tuesday.
Alessi argued that there was no swabbing of the wounds in O’Keefe’s right arm for DNA. He also argued that there is a series of concerns about the chain of custody of O’Keefe’s sweater.
O’Keefe’s sweater was “left on the floor of the ambulance, left on the floor of the hospital, carried around by Mr. Proctor for weeks maybe even months, not submitted for testing for months,” Alessi said.
“There are huge issues that prevent a fair determination about whether there was even proper determination of whether there was DNA or not,” Alessi said.
Prosecutors argued that the defense had brought up DNA evidence in previous hearings in the case, making it permissible for them to ask a witness about DNA.
After a short recess, the judge allowed prosecutors to continue questioning the witness about the presence of DNA evidence in the sweater.
Russell testified that there are many reasons why there was no evidence of dog DNA in testing, but said the report stating there is no evidence of dog DNA does not change her determination that a dog caused the marks on O’Keefe’s arm.
Russell also pointed to the delay in the testing of the sweater and concerns mentioned about the chain of custody of the sweater.
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