Commonwealth v. Read — Trial ArchiveProcedural - Aidan Kearney
44 linesCOURT OFFICER: Back on the record on the Read matter.
JUDGE CANNONE: All right, sort of a side issue in the Read matter. So the defendant and her lawyers have been excused. Okay, so — why don't counsel identify yourselves please?
MR. LALLY: Sure. Adam Lally for the Commonwealth, your Honor.
MS. MCLAUGHLIN: Laura McLaughlin for the Commonwealth.
JUDGE CANNONE: Good morning. Good morning.
MR. BRADO: Timothy Brad on behalf of non-party Aidan Kearney, who for the record is present in the courtroom.
JUDGE CANNONE: Hey, does Mr. Kearney want to sit with you?
MR. BRADO: I think he's okay right there.
JUDGE CANNONE: Okay, that's all right. All right, so — Commonwealth — so I do want to say — a question before we begin. Commonwealth, in your — — motion to exclude an individual charged with witness intimidation in connection with this case from the courtroom during the testimony of certain witnesses. Before we begin, are you advancing the concerns of the DA's office or the concerns of the witnesses themselves, or both?
MR. LALLY: Both.
JUDGE CANNONE: Alright. Okay, so — if I may — I'm sorry to jump in — but just, if I may, I do have what I think is a pretty substantial procedural objection.
MR. BRADO: Maybe I'd ask that you sort of just make a quick bifurcation of the issues here, and we can address the procedural issue before we get into the substance of the motion.
JUDGE CANNONE: Sure. I'll hear you. We could —
MR. BRADO: Thank you very much, your Honor. Your Honor, just so the record is clear — because we may need an appellate record in this case — okay — I was here in Norfolk Superior Court today, completely unrelated to Mr. Kearney, my client, as you know, in the other matters. And I was here today on the matter of Commonwealth v. (unintelligible) for a motion to suppress, which is a case that I am in the middle of — that motion to suppress with you, exactly. And I actually figured that we wouldn't do the motion and get a date, but I was fully focused on that matter and had no notice whatsoever that the Commonwealth was — was in the Read matter — was seeking to exclude my client as a journalist from this courtroom.
MR. BRADO: The first — so the first thing is that — and I know the court has a job to do in terms of ruling on this motion, and that's fine — I ask that the ruling be that it be denied on procedural grounds. The procedural grounds are, Judge, that there's been no service — no service of process whatsoever — on a case where the government is seeking to essentially trample all over my client's First Amendment rights as a journalist, on 15 minutes' notice. You know, I know you gave me the thing 15 or 20 minutes ago, and it's more than a half an hour, but I understand. All right, you get the point. So — you know, this is not something that I can process and absorb and make any sort of cogent arguments on the merits of the motion on that time period. And I'm sure that the court respects that.
MR. BRADO: I'm trying to address it as best I can, but I think that the procedural issues here should control. And here's the procedural situation, your Honor: the government filed this six-page motion — there's a footnote two that refers to them serving this motion on May 8th to the Associated Press. Why they couldn't just pull up my email and serve me is an open question that I'd like an answer to in open court. So they can serve the AP two days ago, but they can wait and not even serve me with the motion when I get here to court today on a completely unrelated matter — I might add. So there's some — there's some funny business going on here, and you know there's been nothing but funny business, from where I sit, from the Commonwealth on Mr. Kearney's matters. And here we go again.
MR. BRADO: So I don't appreciate that from counsel, from the Norfolk County DA's office. Number one. Number two, your — Honor, Mr. Kearney has covered this case and written about 350 news articles on this case. He has developed evidentiary scoops on this case that have added to the quantum of evidence in the matter. He's never caused a problem. He wishes to be in the gallery of journalists like everyone else and cover the case. There's never been a problem whatsoever. This is more personalized retaliation from the Norfolk County DA's office against Mr. Kearney. Another point, your Honor, is that this matter, as far as the Commonwealth is concerned, is res judicata — times two. Judge Krupp? in this very court addressed this exact issue about Mr.
MR. BRADO: Kearney covering this matter, being in the courtroom with witnesses that had a stay-away order — all the same people that the government is trying to have another bite at the apple with here. All these people. This was adjudicated fully with the special assistant DA before Judge Krupp?, and Judge Krupp? ruled against the Commonwealth. Judge Krupp? said that Mr. Kearney was able to be in the courthouse covering this case regardless of any of these witnesses in the stay-away order. The stay-away order was — Mr. Kearney's presence in the courtroom, rather, was excepted from the stay-away order. Okay, so this is done. This has been adjudicated. It's been adjudicated again, your Honor — — by Judge Pomerol? across the street in the district court.
MR. BRADO: One of these — one of these people associated with Mr. Kearney's detractors — Ms. Katani? — has taken up with the Commonwealth and sought charges and sought a restraining order against my client. And Judge Pomerol? — recently — as recently, I think it was a couple of weeks ago — we were across the street, your Honor, seeking to vacate the order under the doctrine of unclean hands, because this plaintiff keeps trying to contact my client while under a restraining order. Putting that aside, the ruling in that matter, Judge, was another — another ruling in support of Mr. Kearney's First Amendment rights. It was another ruling that said Mr. Kearney was not subject to the restraining order in any court of the Commonwealth.
MR. BRADO: And the reason we brought that motion, your Honor, was because these same witnesses that the government is again trying to advocate for — for their own personal issues — those same witnesses somehow took up with this plaintiff across the street. Ms. Katani? brought her to court here in prior Read proceedings to kick out Mr. Kearney, because at the time she had an operative order against him. And Mr. Kearney, to his credit, got up, left, and got out of here. And that situation was what we addressed across the street with Judge Pomerol?. He — — agreed with us and said you can go to court, you can cover this case. So — number two — litigation number two — this has been established. Mr. Kearney followed all proper channels. We worked with the SJC media office. He has a press pass.
MR. BRADO: He's doing everything in accordance with all of the rules and regulations that are in place. He's been harassed — and we have it on video — by other so-called journalists in this case, at the steps of the courthouse. And he just wants to be here. He doesn't want to be an issue in this case. He wants to sit here and cover the case. He's done his job. He — — wants to watch the trial unfold, and he has an absolute, fundamental First Amendment right to do so — within the confines of this courtroom and within the confines of time, place, and manner restrictions. He's followed everything, and he's here. We've gone through all of these hurdles, your Honor, and Mr. Kearney triumphed — as he should — because it's the First Amendment that needs to triumph here, not any particular person.
MR. BRADO: And that's what he's doing. And there's absolutely no reason for the government to sneak behind my back to interfere with his First Amendment rights. It's outrageous. And on procedural grounds, I ask you to deny the — — motion for all of those reasons. And if the court has some hesitancy to do so with respect to these procedural issues, I ask that you set a date and give me seven days or so, so that I can properly respond to this motion on the merits of whatever is in these six pages of the motion that I haven't been able to look at. So thank you for hearing me, your Honor.
JUDGE CANNONE: All right. Sure. And you wanted a response to your question from Mr. Lally on why you were not served but the Associated Press was served?
MR. BRADO: That's correct.
JUDGE CANNONE: So if you'd talk about that in the procedural part of this?
MR. LALLY: Yes. Simply put, Mr. Brad — neither Mr. Brad nor Mr. Kearney are — — parties to the case. I can't presume that Mr. Brad's representation on one criminal case is going to extend to a motion of which he would be at best a third party on a separate criminal case. We are required under the SJC rules to serve it upon the Associated Press, which we did.
JUDGE CANNONE: Okay. So I think that's your record now, Mr. Brad. Thank you. Okay, on the procedural issue — we have a jury out. I do want to address the merits of this as best we can. And Mr. Brad, at the end of this hearing, whatever I end up doing — if you want to come back and re-address it when there's more time — depending on how I rule, I'll give you — the opportunity to do so, but I have to get this trial moving at this point, one way or the other. So I'm going to hear the Commonwealth on their motion, then I'll hear you, Mr. Brad, to the extent that you can respond. Okay. All right. Mr. Lally, I'll hear you on your motion.
MR. LALLY: Very shortly, very simply put — this is an instance in which the Commonwealth is not asking that Mr. Kearney not be allowed to cover the case, or that he not be allowed to watch the trial. What we're requesting is a partial closure of one individual, and the legal standard for that is essentially a substantial reason — substantial reason, Your Honor, being that Mr. Kearney has been indicted and has open cases for intimidating witnesses — specifically witnesses in this case. He has confirmed statements indicating publicly that his actions that he's taken in regard to those indictments were to prevent the case from ever going to trial, and to intimidate those witnesses.
MR. LALLY: Those witnesses will be called to testify in this case, and what the Commonwealth is simply requesting is that he be excluded physically from the courtroom — not excluded from watching the trial, not excluded from covering the trial — but excluded physically from the courtroom while those witnesses are testifying from the stand.
JUDGE CANNONE: And the witnesses you told me have expressed concern — what do you say about that?
MR. LALLY: Yes, the witnesses have expressed concern. The Commonwealth is concerned as to his presence affecting their testimony or their ability to recall. And for all of those reasons, the Commonwealth would submit the administration of justice and the witnesses being able to testify, as well as the witnesses' own concerns, are more than meet the test of the substantial reason for Mr. Kearney's exclusion during the course of their testimony.
JUDGE CANNONE: Okay. Mr. Brad?
MR. BRADO: Your Honor, the witness's concern has no legal materiality under the law. So the answer that I have is: So what? The witness's concern — where does that fit into the law here, Your Honor? This matter has been adjudicated twice. Mr. Kearney has the right to speak on the case. He's gone through all the proper channels to be here. He is not in any way wanting to or trying to make any issue of his presence here. He's just trying to cover the case as best he can. And this is just a personal vendetta that's been carried out by the Norfolk County DA's office against Mr. Kearney. And you know, this is where the court needs to hold the line on the First Amendment. This witness intimidation statute, Your Honor, is an absolute abomination. It is going to be struck down — it's just a matter of time.
MR. BRADO: And this is just a continuation of everything the special counsel's been doing to Mr. Kearney. Now the office itself is doing it. There's no reason for this motion to be allowed, Your Honor. There's no "discomfort exception" to the First Amendment, Your Honor. There's been absolutely nothing advanced, especially on an emergency basis — which is, I assume, why this is being done with no notice. There's been no establishment of any emergency. There's been no conduct whatsoever on the part of Mr. Kearney to justify this motion. And I did happen to see some reference to the Chesna trial about publishing something to the effect of doxing a seated juror. That is false. Mr. Kearney wrote a story on a juror after the jury was discharged.
MR. BRADO: There's absolutely no prohibition or problem or issue with that, and it is absolutely protected conduct by the First Amendment. And it is not in any way grounds for this court or the Commonwealth to assert any wrongdoing against him.
JUDGE CANNONE: So I can assure you I am not considering that incident in this. You all know I was the judge. I am not considering that experience in this motion. Thank you. Anything further, Mr. Brad? All right. So, Mr. Brad, I agree with you that Mr. Kearney is certified by the Office of Public Information pursuant to SJC Rule 119, and that he has a right to be here today. He arrived timely and he is registered. I have honored that 119 registration today and I will continue to honor that. However, my role in this case, Commonwealth versus Karen Read, is to assure that the defendant's constitutional right to a fair trial are honored and upheld. And because of the chilling effect that Mr.
JUDGE CANNONE: Kearney's presence — I find — will have on the witnesses' testimony, I'm going to excuse him while the named witnesses in the Commonwealth's motion: Julie Nagel, Christopher Albert, Colin Albert, Michael Proctor, Jennifer McCabe, Matthew McCabe, Brian Albert, and Yuri Bukhenik. And the Commonwealth also today requested Nicole Albert because of the incidents that have reportedly been held at her home. I'm going to excuse him during all of that testimony. Now, in my media order — if you have it — I'm sure your client has it, because they're handed out to the press. Under number one, I say that anyone leaving the courtroom to the media during the trial proceedings may lose their seat and may not be permitted re-entry unless there is available seating. That will not happen to Mr. Kearney.
JUDGE CANNONE: I will not take away his seat today. For other witnesses who are not subject to this order, that seat will remain empty. No other person of the media will be able to take that seat in his absence.
MR. BRADO: Okay, Your Honor, one last thing if I may. Just came to me as I was standing here — in the same regard as Nicole Albert, for the address, would be Brian Albert Jr., son of Brian and Nicole Albert. It's for the same reason.
JUDGE CANNONE: So Brian Albert Jr.? All right. So those are my findings, Mr. Brad. It should give you enough to seek appellate action if you wish. Okay. All right. Thank you for being here. All right. So I'll take a short recess. We can bring counsel back in and Ms. Read back in, and we'll proceed with the trial.
COURT OFFICER: All rise. You are unmuted.
PARENTHETICAL: [recess]
JUDGE CANNONE: All right. Jurors, once again, thank you very much for your patience. Your next witness, Mr. Lally.
MR. LALLY: Yes. The Commonwealth calls Nicole Albert to the stand.