Commonwealth v. Read — Trial ArchiveProcedural - Motions
63 linesCOURT CLERK: ... is open. You may be seated. 22117, Commonwealth vs. Karen Read.
COURT OFFICER: Your honor, uh, just for your information, at this very second, uh, FTR is not running. Miss King is the official -- anyway, but she is on the record.
JUDGE CANNONE: Okay. All right. Good morning. So we're here on the Commonwealth's renewed motion.
COURT OFFICER: Can we turn off one of those air conditioners, please?
JUDGE CANNONE: The Commonwealth's renewed motion for reciprocal discovery and the motion to exclude the defendant's newly provided expert, Dr. Marie Russell. I will hear you on your motion, Mr. Lally --
MR. LALLY: Morning, your honor.
JUDGE CANNONE: Oh -- I'll hear you, Ms. McLaughlin.
MS. MCLAUGHLIN: Essentially, the Commonwealth is just seeking that the defendant produce what the Commonwealth is entitled to under Rule 14, and what every criminal defendant in the Commonwealth of Massachusetts must produce to the prosecution. It was not until the day prior to trial, on April 15, 2024, that the defendant provided notice of all their experts. During jury empanelment, the Commonwealth filed a renewed motion for reciprocal discovery, and the defendant was ordered within a week to produce the expert opinion testimony that the Commonwealth is entitled to. We are now entering, I believe, week eight of the trial.
MS. MCLAUGHLIN: The Commonwealth has not received any intended expert opinions, and anything that those experts -- any -- written reports, opinions, or anything that those experts have based their opinions on. Essentially, the defendant's strategic decisions not to retain their own expert, but rather rely on the U.S. Attorney's Office investigation, does not alleviate them or relieve them from their Rule 14 obligations. As it pertains to Dr. Marie Russell, the Commonwealth did not receive notice that she is an intended expert until about week six of the trial, on May 21st, and it wasn't until May 30th that the defendant provided a brief synopsis of what her expected testimony would be.
MS. MCLAUGHLIN: Essentially, looking at the balancing tests set forth by the case law, the Commonwealth was extremely surprised by this disclosure, and further, the Commonwealth would put that the defendants' delayed decisions to produce reciprocal discovery is in bad faith. It is intended to ambush the Commonwealth and conduct a trial by surprise. We are still receiving reciprocal discovery -- over the weekend we received additional photographs that the defendant intends to use. The Commonwealth is extremely prejudiced by these delayed disclosures. So looking at all the balancing factors, exclusion of Dr. Russell is really the only remedy that's appropriate, given that we are in week eight of the trial. The Commonwealth cannot seek a continuance.
MS. MCLAUGHLIN: The Commonwealth sort of has its hands tied with how to effectively prepare for cross-examination of that witness, as well as all the other witnesses. We don't have any materials, we don't know what the experts' precise opinions are and what they will testify to, and it's essentially -- it is in bad faith, and there's no less severe sanctions. So the Commonwealth would move to exclude Dr. Russell, and at this point we are essentially just seeking the reciprocal discovery that the Commonwealth is entitled to, to be able to effectively prepare cross-examination of these witnesses so late in the game. Thank you
JUDGE CANNONE: Very much. All right. Who's doing this for the defendant?
MR. YANNETTI: There's no mic at counsel table, so I'm going to go to the podium with the court's permission.
JUDGE CANNONE: We need to be heard on this -- that's why we're here. Mr. Yannetti, thank you. I'd like to start with the most outrageous and false assertion that the Commonwealth made in its motion. Can I just ask you -- there's no jury here -- can I just ask you how long this is going to take?
MR. YANNETTI: Between 5 and 10 minutes, because I -- I don't need, you know, the hyperbole. I need to make my argument in the way that I think is most effective for my client. I will keep this brief and succinct, but I have points to make that I need to put on record.
JUDGE CANNONE: Okay. And I'm the person you are trying to convince.
MR. YANNETTI: Correct. I understand that. The Commonwealth, in a public filing, wrote the following on page three of its motion: quote, "During a pre-trial hearing on February 15th, when asked by the court whether there was any dispute about a canine's involvement or K9 DNA, Attorney Yannetti indicated no and that the defense was not pursuing such claim." I was astounded to read that for two reasons. First of all, it is false. It is a lie. Second, the Commonwealth has knowingly lied about something where it's easily verifiable that they lied. We pulled the tape from February 15th.
JUDGE CANNONE: I don't have that -- I don't have that in my
MR. YANNETTI: Motion. It's on page three, your honor. I have the Commonwealth's renewed motion for reciprocal discovery -- a motion to exclude defendant's expert, Dr. Marie Russell.
JUDGE CANNONE: I don't see your name at all, Mr. Yannetti.
MR. YANNETTI: I'm on page three -- sorry, it's not page -- it's page four. My apologies. My name is right there on page four. It says exactly what I just argued to the court. It's about the fifth line down, starts "During a final pre-trial hearing on February 15th," exactly as I said.
JUDGE CANNONE: Okay. All right.
MR. YANNETTI: We pulled the tape from that February 15th hearing. Here is what was -- here is what was actually said. This court asked me the following: quote, "While we're talking about DNA, Mr. Yannetti, do we need to be concerned about canine DNA? Where do we stand with that?" I replied, "No. I think this is the only outstanding DNA issue." The court then replied, "Okay. So, all right, we're not dealing with K9 DNA." And I said, "No." There is nothing in there contrary to what the Commonwealth has represented to this court in a public filing -- that I said there was no K9 involvement. There is nothing in there contrary to what the Commonwealth represented to this court and to the public that the defense was not pursuing such a claim.
MR. YANNETTI: Can you imagine the nerve of the Commonwealth to spend that -- inter--
JUDGE CANNONE: This is the hyperbole I don't need. Could you please get to the point? We've got a jury coming in in 15 minutes.
MR. YANNETTI: I understand, but my -- my integrity has been attacked. There have been allegations of bad faith -- that has been attacked -- and I need to defend myself and my client. We were only discussing at that time whether K9 DNA was still outstanding, and I succinctly replied "no," and they've spun that -- or tried to spin that -- into a claim that we're somehow waiving our right to argue that John O'Keefe's arm injuries were consistent with a dog attack. And I ask you, have they no shame? I'm sure it's not lost on this court that this false filing by the Commonwealth comes on the heels of their nefarious attempt to pass off an inverted video -- a false video -- before this good jury hearing this case.
MR. YANNETTI: Never once during the direct examination of Sergeant Bukhenik did they inquire or mention the fact that the video --
JUDGE CANNONE: Can we please -- all right, I'm going to stop you. Please direct your comments to Rule 14 and the reciprocal discovery obligations that the defense has. That's what this motion is.
MR. YANNETTI: I know. Your honor, it's -- most respectfully, it's not a speech. The defense is being alleged to have committed bad faith.
JUDGE CANNONE: So you've moved on from that. So please just focus on Rule 14, and let's do it in two separate parts. So -- so you've changed -- you're not calling Frank Sheridan?
MR. YANNETTI: We are calling Frank Sheridan.
JUDGE CANNONE: All right, so you've got a new medical expert, Dr. Russell. We'll do that part of it separately. Tell me about what you've provided the Commonwealth on Mr. Vani.
MR. YANNETTI: They've gotten his CV and they've gotten the substance of his opinion from us, and they've had that for a long time. And the court, I believe, has already suggested that a voir dire will be done prior to his testimony.
JUDGE CANNONE: All right, so it's starting to look like we might need a whole day of voir dire and I'm trying to avoid that. So is the Commonwealth satisfied? When did you provide -- did you provide anything recently since the filing of the Commonwealth's motion, Mr. Yannetti?
MR. YANNETTI: Not -- not on Mr. Vani, no.
JUDGE CANNONE: What does the Commonwealth have on Mr. Vani?
MS. MCLAUGHLIN: On Mr. Vani, all the Commonwealth has is what's contained in the synopsis on page two, the first full paragraph. We do not know what his opinions are. It says he'll testify regarding his opinions and conclusions about reconstruction and EDR data obtained in connection with this case. He'll testify to chronological data derived from the EDR, including key cycles and triggering events from the time period in question. I have no understanding or information about what chronological data he's going to testify to, what his ultimate opinions are -- anything beyond that relatively vague synopsis that does not comply with Rule 14.
JUDGE CANNONE: Okay. Similarly, what's outlined in the rest of the motion -- that's all the expert evidence the Commonwealth has received from the defense, contained within the Commonwealth's motion?
MS. MCLAUGHLIN: Okay.
JUDGE CANNONE: So the defense needs to provide -- I'd suggest you listen -- the defense needs to provide what chronological data Mr. Vani relied upon and exactly what his opinion is. All right, by the close of business tomorrow.
MR. YANNETTI: That's fine.
JUDGE CANNONE: All right. Now regarding the three experts from ARCCA -- so I've read that report. I can't tell who does what or what the basis of their opinion is. So what have you provided?
MR. YANNETTI: Your honor, we've provided everything that we know. We've mentioned to this court at sidebar -- these experts did not arise from us. I understand that these experts were hired by the federal government and they provided a report to us pursuant to the Touhy request, and it was specifically outlined and ruled that they could not prep with us for Touhy.
JUDGE CANNONE: So I'm to believe that the defense is calling three witnesses that you've never spoken to and putting them on the stand here?
MR. YANNETTI: When we -- that's essentially -- we've, we've -- spoken to them only for the purposes of coordination of their testimony and their background — that's it. We have not been able to interview them regarding their findings, which are outlined in detail in the reports.
JUDGE CANNONE: I don't see that as being detailed. It leaves a lot of questions as the gatekeeper as to what they can testify to, and you have not complied with your Rule 14 obligations.
MR. YANNETTI: We can't, Your Honor. So we can't.
JUDGE CANNONE: So you can't, but you haven't. So I am left with — you haven't complied. So we need to get everybody here for a voir dire. They can testify in a voir dire, right?
MR. YANNETTI: Yes, we need to do that. Well, in advance of their testimony.
JUDGE CANNONE: That's fine. All right, and now tell me about this expert — is she an ER doctor? I haven't seen her.
MR. YANNETTI: She's a pathologist, but she has a lot of experience in an ER, which is why she has the experience of having seen dog scratches and dog bites and dog attacks.
JUDGE CANNONE: All right. So this is not somebody that was involved in the federal investigation. Correct?
MR. YANNETTI: Correct.
JUDGE CANNONE: All right. So you need to provide — immediately, I want a voir dire heard this week so we can get her here Wednesday. And we want the other folks up here from Pennsylvania this week as well.
MR. YANNETTI: Well, we'll make those calls. So we need to pick a day.
JUDGE CANNONE: How long do you expect the voir dire of each of these witnesses? If in fact the defense has not spoken to these witnesses from Pennsylvania about the nature of their opinion, you must want it too — to be able to question them. How long do you expect the voir dire of each of these witnesses to take? I went and told the jury last week — excuse me, I'm sorry — last week that we were going to get them this case by the end of the month, based on your representations which included voir dires. It looks like at least a day of voir dire hearings here.
MR. YANNETTI: Yes. At least with regard to the ARCCA witnesses — that's my co-counsel's bailiwick — he anticipates that unless there are a substantial number of objections during the voir dire, he anticipates being able to accomplish that between 45 minutes to an hour with each of those three. With regard to Dr. Russell, we anticipate a half hour.
JUDGE CANNONE: Two? I'm sorry — only two? That's right, you're only calling two. Which two are you calling? Are you calling the two that are certified as accident reconstructionists?
MR. YANNETTI: Dr. Rentschler and Dr. Wolfe, yes.
PARENTHETICAL: [recess]
COURT CLERK: All persons having any business before the Honorable Justice of the Norfolk Superior Court, give your attendance. You shall be heard. Massachusetts Superior Court is now open. You may be seated. 22-117, the Commonwealth versus Karen Read.
JUDGE CANNONE: Good morning. We all met here at 8:30 to try and streamline things, and as a result of what we did this morning, it looks like there will be some day this week that we will all meet to go through things that we need to go through. But we will excuse you — I just don't know quite yet when that will be. You will know by the end of the day. And also, on the 21st — originally we said we'd be off for the 21st, but again, you know that we don't want to take up any more of your time than necessary. So we will meet on the 21st, but just in the morning, because I have a longstanding afternoon commitment that we cannot cancel. So the 21st will be a half day. So we'll let you know more as the day progresses. All right. I do have to ask those questions.
JUDGE CANNONE: Were you all able to follow the instructions and refrain from discussing this case with anyone since we left on Friday? Everyone said yes and noted affirmatively. Were you also able to follow the instructions and refrain from doing any independent research or investigation into this case? Yes, everyone said yes, noted affirmatively. Did anyone happen to see, hear, or read anything about this case since we left? Thank you — everyone nodded no or shook their heads. Thank you very much.