Commonwealth v. Read — Trial ArchiveProcedural — Motions
93 linesP R O C E E D I N G S June 10, 2024
(Court in session at 8:35 a.m.)
(Defendant present. Jury not present.)
COURT CLERK: 22-117, Commonwealth versus Karen Read. Counsel and Your Honor, for your information, at this very second, FTR is not running. Ms. King is the official court reporter, and she is on the record.
JUDGE CANNONE: Good morning. So we are here on the Commonwealth's renewed motion for reciprocal discovery and the motion and the motion to exclude the defendant's newly provided expert Dr. Marie Russell. I will hear you on your motion, Mr. Lally.
MS. MCLAUGHLIN: Thank you, Your Honor. 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 impanelment, 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 8 of the trial. The Commonwealth has not received any intended expert opinions, anything that those experts -- any written reports, opinions or anything that those experts have based their opinions on. Essentially, the defendant's strategic decision is 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 6 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. Essentially, looking at the balancing test set forth by the case law, the Commonwealth was extremely surprised by this disclosure and, further, the Commonwealth would put that defendant's 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 of the balancing factors, the exclusion of Dr.
Russell is really the only remedy that is appropriate, given that we are in Week 8 of the trial. The Commonwealth cannot seek a continuance. The Commonwealth sort of has their 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 would testify to and, essentially, it is in bad faith and there is no less severe sanction. 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. Thank you very much.
JUDGE CANNONE: Who is arguing?
MR. YANNETTI: I am, Your Honor. There is no mic at counsel table. So I am going to the podium with the Court's permission.
JUDGE CANNONE: Yes.
MR. YANNETTI: We need to be heard on this.
JUDGE CANNONE: That's why we are here, Mr. Yannetti.
MR. YANNETTI: Thank you. I'd like to start with the most outrageous and false assertion that the Commonwealth made in its motion.
JUDGE CANNONE: There is no jury here. Can I just ask you how long this is going to take.
MR. YANNETTI: Between five and 10 minutes, tops.
JUDGE CANNONE: Because I don't need --
MR. YANNETTI: Your Honor, 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 am the person you are trying to convince, correct?
MR. YANNETTI: I understand. I understand that. The Commonwealth, in a public filing, wrote the following on page 3 of its motion, quote, "During a pretrial hearing on February 15th when asked by the Court whether there was any dispute about a canine's involvement or canine 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 of 2024.
JUDGE CANNONE: I don't have that.
MR. YANNETTI: I'm sorry?
JUDGE CANNONE: I don't have that in my motion.
MR. YANNETTI: It's on page 3, Your Honor.
JUDGE CANNONE: I have the Commonwealth's renewed motion for reciprocal discovery and motion to exclude defendant's expert, Dr. Marie Russell. I don't see your name at all, Mr. Yannetti. I'm on page 3.
MR. YANNETTI: Oh, I'm sorry. It's not page 3. It's page 4. I apologize. My name is right there on page 4. It says exactly what I just argued to the Court. It's about the fifth line down. It starts, "During a final pretrial hearing on February 15th," exactly as I said.
JUDGE CANNONE: Okay.
MR. YANNETTI: All right? We pulled the tape from that February 15th hearing. Here is what was actually said. This Court asked me the following, quote, "While we are 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 are not dealing with canine 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 canine involvement. There is nothing in there, contrary to what the canine (sic) represented to this Court and to the public, that the defense was not pursuing such a claim. Can you imagine the nerve of the Commonwealth to spin that interaction --
JUDGE CANNONE: This is the hyperbole I don't need. Could you please get to the point? We have the jury coming in in 15 minutes.
MR. YANNETTI: I understand. But this is -- my integrity has been attacked. There have been allegations of bad faith, that's been attacked. And I need to defend myself and my client. We were only discussing at that time whether canine DNA was still outstanding, and I succinctly replied, no. And they've spun that or tried to spin that into a claim that we are 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. Never once during the direct examination of Sergeant Bukhenik did they inquire or mention the fact that the video shows Michael Proctor --
JUDGE CANNONE: All right. I am 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. I know you have a speech you want to make, Mr. Yannetti.
MR. YANNETTI: It's not a speech. Your Honor, most respectfully, it's not a speech. It's a defense of 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 you changed -- you're not calling Frank Sheridan?
MR. YANNETTI: No. We are calling Frank Sheridan.
JUDGE CANNONE: All right. So you've got a new medical, Dr. Russell. We'll do that part of it separately. Tell me about what you've provided the Commonwealth on Chris Van Ne.
MR. YANNETTI: They've gotten his C.V. 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 that -- when did you provide -- did you provide anything recently since the filing of the Commonwealth's motion?
MR. YANNETTI: Not on Mr. Van Ne. No.
JUDGE CANNONE: What does the Commonwealth have on Mr. Van Ne?
MS. MCLAUGHLIN: On Mr. Van Ne, all the Commonwealth has is what's contained, the synopsis on page 2, 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. Similarly, what's outlined in the rest of the motion, that's all the expert evidence the Commonwealth has received from the defense, is contained within the Commonwealth's motion.
JUDGE CANNONE: So the defense needs to provide -- I'd suggest you listen. The defense needs to provide what chronological data Mr. Van Ne relied upon and exactly what his opinion is.
MR. YANNETTI: Correct.
JUDGE CANNONE: All right? By the close of business tomorrow.
MR. YANNETTI: That's fine.
JUDGE CANNONE: 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 have provided everything that we know. We've mentioned to this Court at sidebar these experts did not arise from us finding them.
JUDGE CANNONE: I understand that.
MR. YANNETTI: These experts were hired by the federal government and they provided a report to us pursuant to the Tuey request. And it was specifically outlined and ruled that they could not prep with us for trial.
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: That's essentially it. We've spoken to them only for the purposes of coordination of their testimony and their background. We have not been able to interview them regarding their findings which are outlined in detail in the reports that both sides have.
JUDGE CANNONE: See, I don't see that as being -- the report, 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.
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 voir dire, right?
MR. YANNETTI: Yes.
JUDGE CANNONE: We need to do that well in advance of their testimony.
MR. YANNETTI: Okay. That's fine, Your Honor.
JUDGE CANNONE: All right?
MR. YANNETTI: Yes.
JUDGE CANNONE: And now tell me about this E.R. doc. Is she an E.R. doc? I haven't seen her --
MR. YANNETTI: She is.
JUDGE CANNONE: She's not a pathologist?
MR. YANNETTI: Well, she is a pathologist but she has as lot of experience in an E.R., 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 of her 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: Okay. We will make those calls.
JUDGE CANNONE: So we need to pick a day. 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. 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 -- last week --
MR. YANNETTI: I'm sorry. I'm just conferring with my client.
JUDGE CANNONE: -- that we were going to get them this case by the end of the month based on your representation which included voir dires. It looks like at least a day of voir dire hearings here.
MR. YANNETTI: May I --
JUDGE CANNONE: Yes.
MR. YANNETTI: At least with regard to the ARCCA witnesses, that's my co-counsel's bailiwick. He anticipates that unless there are, you know, 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. Oh, I'm sorry. Only two from ARCCA. That's right.
JUDGE CANNONE: You are only calling two?
MR. JACKSON: We are not calling --
JUDGE CANNONE: Are you calling the two that are certified as accident reconstructionists?
MR. JACKSON: Drs. Rentschler and Wolfe, yes.
MR. YANNETTI: So that's about two hours, total, for those two plus Russell.
JUDGE CANNONE: I think it will be a whole lot more. What do you say, Mr. Lally or Ms. McLaughlin? How long do you anticipate for voir dire?
MR. LALLY: It's a little difficult to say, considering I don't know what they would testify to. But, for voir dire purposes, I don't anticipate it being much more than 20 minutes, 10 minutes, 20 minutes. Somewhere in that area.
JUDGE CANNONE: Do you think we can get a half a day of evidence in?
MR. LALLY: I certainly hope so. I mean, that's more what I'm focused on, obviously.
JUDGE CANNONE: What have you provided regarding Dr. Russell?
MR. YANNETTI: We've completely complied with Rule 14.
JUDGE CANNONE: So I have to make that decision. Could you just tell me what you've provided, please?
MR. YANNETTI: Sure. Yes. Well, first of all, Your Honor, we came in contact with her or were notified of her on May 17th.
JUDGE CANNONE: Did she reach out to you first?
MR. YANNETTI: No. We reached out to her, but it was through a mutual contact. And we learned of her expertise and that she might be able to help. And then within days of that, we made the decision to retain her, and we sent along her C.V. within four days of our initial contact with her. Then on May 30th, Ms. Little actually sent an email to both Mr. Lally and Ms. McLaughlin, talking about what she reviewed and what her anticipated testimony will be including a substance of the opinion she will give. When the Commonwealth says they don't know what she is going to say, I just don't know where that's coming from. It's right in the email.
JUDGE CANNONE: So if the email is part of the motion, that's insufficient. All right. We'll figure out a day later this morning. I suggest you contact your experts and tell them they're all needed here this week. Perhaps they can agree upon an afternoon that they will be ready to be here.
MR. YANNETTI: Yes, Your Honor.
JUDGE CANNONE: We'll come back out for trial in 10 minutes.
(Whereupon, there was a brief recess taken.)
(Court resumes.)
(Defendant present. Jury present.)
COURT CLERK: 22-117, the Commonwealth versus Karen Read.
JUDGE CANNONE: Good morning, jurors. 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. We will know by the end of the day today. Also, on the 21st, originally we said we would 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 that we cannot cancel. So the 21st will be a half a day. So we will let you know more as the day progresses. All right. I do have to ask those questions. Were you all able to follow the instructions and refrain from discussing this case with anyone since we left on Friday? Everyone said "yes" or nodded affirmatively. Were you also able to follow the instructions and refrain from doing any independent research or investigation into this case? Everyone said "yes" and nodded affirmatively. Did anyone happen to see, hear, read anything about this case since we left here on Friday? Thank you. Everyone said "no" or shook their heads. Thank you very much. Can we get Sergeant Bukhenik, please.