LIVE HEARING: Boyfriend Cop Murder Trial – MA v. Karen Read (Part 1)

e for e for Happ [Music] you want me to spell it for you um I can put today good morning [Music] yes EX this is the list in case okay we need to reference [Applause] f spe yeah that's ch they there I mean where are the jws right there [Applause] [Music] it's better than bch actually for [Music] oh oh my goodness can't make that mistake again [Music] I'm your M was aot reporter mic you're fine okay you turn them off turn off okay yeah you're not using it or transcribing it we we're turning we we were concerned nice to meet you will you be here for the whole Tom knock on wood in case you're Wonder she's Hi how are you okay Adam llin MC l a g h l thank you what's your name two e cellon need to sets silent secets c take all the on numbers one through six no you said that you are unmuted the judge yes rise all having anything to do before The Honorable first Justice County be heard judge 22 c117 the Commonwealth versus Karen Reed can I have councel identify themselves starting with the Commonwealth Adam L for the Comm good morning good morning Mr L good morning laa mlin for the Comm good morning Miss mlin good morning RoR Alan Jackson on behalf of Miss Reed good morning Mr Jackson good morning Elizabeth little also on behalf of Miss Reed good morning Miss little good morning your honor David yti for Karen Reed good morning Mr yti good morning Miss Reed all right so to begin and I have all the Motions in lemon um I'll talk about how exactly we'll go through them in a minute um but first so reviewing the Motions in lmon a I mean clearly the defendant has an absolute right a constitutional right to present a third party culprit defense but council is well aware that that is not without limit right from the case law now defendant has stood here defense Council has stood in this court repeatedly um stood here and in other venues and in their pleadings espousing various third-party culprit um theories or scenarios um but now that it's time to actually try the case in the courtroom I don't have a motion from the defense to admit third party culprit uh testimony so and as you're well aware I have to make findings before any third part any mention of any third- party culprit evidence or even an opening goes before the jurors um you know in order to admit it and given that I have no information at all I mean I don't know who the third party culprit is even after reading 4500 pages of Discovery I don't know what motive a a third-party culprit might have I don't know how it's relevant I don't know if it's remote or if it's current I don't know if it's speculative um or if it's relevant I don't know if it will Prejudice or confuse the jury and if it's here say I have a whole other series of factors I have to consider so Mr yannetti are you pursuing a third party culprit defense uh we are your honor and I'm prepared to address that the Commonwealth has raised the issue and I am prepared to address that today so you filed your motions first and you did not raise it so if the Commonwealth had not raised it you did not move to introduce it correct I have no motion from no I understand I I understand your honor um if you'd like something in right waiting for us we can do that I have a full argument prepared all right so who is the third party culprit we we are under no obligation to name any specific third-party culprit how am I you're prepared to argue all this I'm prepared to argue it Jud all right so we will get to that when we get to the Commonwealth's motion that's fine now the the second thing I want to address because again it's it's very important at this point um the motion regarding the DNA regarding um excluding the DNA Mr L why should I not allow that motion uh for a couple reasons joh um number one uh what I can uh provide to the court by way of update is um that most of the testing uh with regard to that item is complete uh so first and foremost uh the item is is hair uh that was confirmed by the the bod um testing uh prior to them conducting any sort of mitochondrial testing the mitochondrial profile uh the partial profile that was generated in regard to the hair sample uh is complete the mitochondrial DNA profile in regard to Mr o'keef sample is complete uh the preliminary analysis uh that I received uh by way of email from bod yesterday uh indicated that they were consistent with each other uh I asked for some sort of preliminary report or something that I could share with councel uh based on their uh Labs accreditation uh that does not permit them to release anything by way of a report prior to it going through a full review process my understanding is that not only that process but the entire uh lab file uh should be produced uh by Tuesday on top of that uh what I would uh State as far as any sort of prejudice uh the defendant of years that they've suffered as a result of that uh there is still zero reciprocal discovery that I've received uh in regard to anything from Council and then part of the delay at least a portion of of the delay in this specific testing as the court is aware uh as you've had a chance to review uh bod Technology's uh observance policy as far as outside experts there was a significant delay in hearing from councel and uh for the defendant in regard to whether or not they wish to have someone present prior how long a delay uh believe it was at least several weeks if not a month I me we spoke about it in person in December uh and I don't believe that I my order was in November correct so when we received uh the it would took a your order was in November what took a little time on our part was to get uh the samples taken from the Troopers in regard to the other testing and in order to get all of those items shipped and transported from the mscl to Lorton Virginia to Bod when was that done uh late November go ahead then there was uh a evidence viewing uh which both Council uh attended we spoke about it there I think that was December 1st uh and then waited a few weeks never heard back followed up on it and eventually heard uh back with regard to them not wishing to have anybody present for that when was that I I don't have a specific date off hand but I need you to find it I [Music] can all right so I didn't know that the defendant decided not to have somebody there right and that prolonged it they weren't able to go forward right yes how long will it take you to find that information um shouldn't take too long I just I I would need to check my email all right I'm going to take a 5 minute recess thank you [Music] you are muted that person this is it's just beautiful e what [Music] you e [Music] you for spe bees stand e e always you are unmuted session what are you handing me Mr L know it's an email uh from Mr yti on December 22nd uh confirming that they uh do not wish to have observation for testing in the hair sample of bod all right so that was about a month after my order correct all right and the defendant's asking me to exclude this in part because of the late disclosure of the information yes all right uh I'll hear from the defense on this and then I'll give you an opportunity to address it Mr L all right thank you honor I'd first like to address the timeline that Mr L has just explained to the court first of all we were not made aware that we were allowed to test based on bod's protocols and procedures until December 1st we were given a letter saying it would cost $21,000 for expert to sit in on that testing we we reviewed that letter we told L that Mr La that it was most likely we were not going to have someone independently watch the testing because of the price when was that 1st when December 1 December 1st we confirmed that in writing when he emailed us again on December 22nd and I would note for the court that bod did not receive the hair from the Commonwealth until January 11th Okay so there was no delay on our part as the court knows today we have received no reports from the Commonwealth regarding bod Technology's analysis of the DNA the Commonwealth has engaged in repeated and inexcusable delays regarding the testing of this particular item of evidence which at this point is sanctionable the hair has been in law enforcement custody for more than two years your honor on February 1st 202 2 2 Massachusetts State Police criminalist Marine hartnet purportedly recovered a hair from the bumper of M Reed's vehicle for a full year the Commonwealth did nothing finally on March 6 2023 criminalist Marine hartnet got around for the first time sorry criminalist Department was that what you said criminalist maren hartnet okay yes got around to conducting a visual inspection of that hair for the very first time on March 6 2023 she opined that it appeared to be human however subsequent Discovery produced by the Commonwealth revealed that she had failed her proficiency test in that precise subject matter only one month prior then on August 25th 2023 the Commonwealth submitted that hair to the Massachusetts State Police lab for DNA testing and it was forensically determined that no human DNA was detected almost 6 months later the Commonwealth made their third attempt to find evidence establishing that the hair was somehow probative in this case it is now four days before trial and we were told that we're going to receive this on the day trial is set to begin pursuant to Massachusetts rule of criminal procedure 14c subdivisions 1 and2 the court has the discretion to exclude evidence based on the common mol's failure to comply with its discovery obligations there's no excuse for a 2-year delay we immediately conferred with Council when he notified us as to what the requirements were going to be if we decided to have an expert present for testing we got back to him the day that he emailed us following up about that and they didn't even bother sending the hair to the lab until weeks later so I don't think it's fair to blame the defense for a 2-year delay in this regard as the court may know from the notices of Discovery we've received an overwhelming amount of evidence this week last week the week before that we're on the eve of trial it is not fair to throw at us yet another item of evidence that we have to retain an expert to assess we have to review we have to make tactical decisions that's not a fair position to put the defense in we've been asking for a continuance I think the only fair thing if the court is going to force us to go to trial is to exclude this evidence okay thank you very much thank you honor Mr L yes your H again um not fating Council for any sort of two-year delay period but there was a period of time uh given sort of the close nature of of when the Commonwealth is receiving this information uh that a couple weeks or few weeks in this case uh do matter uh the other point uh I would make as far as uh again as far as the defendant being prejudiced this is an evidence that I anticipate introducing in in the first day the first week or probably not even the first month of of trial so uh whatever time Council needs uh in order to uh retain an expert run that by an expert run that by one of their experts they already have uh I I don't know that whether or not they have any experts because again I don't have anything from them um so as far as uh ample time uh I I would submit uh that there's more than sufficient time uh once the report is received uh for Council to make use of it in whichever way they deem appropriate uh and for that reason and I'm certainly not asking the court to continue the trial date uh but for that reason I would ask that the motion to exclude be denied um absent any Prejudice to the defendant all right so I I'm going to take this under advisement um and I may as well tell you that the best way I think for us to proceed with the rest of these motions is since because they were filed so late which I understand they were filed just to be clear I know they were filed by the deadlines but uh so close to trial uh I don't have written oppositions really unless you both raised uh independently the same issue so what I will do this morning is my intention is to hear um from Council to hear at least from the other side if um if the motion itself is clear enough but to hear from councel um then we'll take a break and at 2:00 we'll come back and anything I can decide because I know you're preparing this weekend to go to trial on Tuesday anything I can decide by this afternoon I will anything that I cannot I will let you know um and then um then we'll do housekeeping which I cons um including though it's certainly a very important part of the case jury varder in that so that will come at the end of that will come this afternoon so uh starting with the view um you're I was just going to notify the court to your discretion there are a number of motions that will be unopposed I don't know if so what I'm going to do with that is the KL filed a very helpful list of what their um numbers we have of course the the paper number the docketed number uh so when I get to that we'll just go through those quickly all right I appreciate that so so you well I'm probably starting with one you could have saved yourselves time in writing the motion regarding the view because you both want a view I will conduct a view um you need to talk because you have different locations yeah and you know we've uh upon consideration your honor the Commonwealth has asked for a view of 34 Fair viw Road um we would be satisfied with a view of so you don't need to go to the waterfall we I I think that we can just agree to go to that one location all right so you all figure out the view I am going to take under advisor MIT your request um of the defendant coming with us you know that there are all sorts of things I have to consider before deciding that thank you okay so that part is under advisement um before the end of today figure out exactly what you want to do with the view um Mr L your office will provide state police escort for that view yes sir okay all right now Court officers Chief Rose usually gets the bus so all right so for that so the defendants motion it's our paper 283 defendants motion eliminate to exclude irrelevant inadmissible and prejudicial prior bad character and propensity evidence so I'll hear whoever is arguing that for the Comm the Aruba incident if you will I mean I'm sorry who who's arguing for the defense that's what I'll hear from I am your honor okay thank you did you say 282 283 282 D oh this is all backwards Pauline did this for me all right thank you thank you thank you honor the commonweal seeks to admit irrelevant inadmissible and prejudicial prior bad character and propensity evidence against Miss Reed by admitting inflammatory evidence of an event that reportedly transpired in Aruba on December 31st 2021 as the court knows this type of propensity evidence is extraordinarily prejudicial and serves no purpose other than to assassinate Miss Reed's character and the eyes of the jury the Commonwealth has put forth no reliable evidence to suggest that the incident that occurred in Aruba on New Year's Eve has anything whatsoever to do with O'Keefe's death or that this remote and isolated incident was even a point of contention in their relationship at the time in question and we aren't left guessing your honor all of the witnesses who are present at the waterfall Bar and Grill on January 29th 2022 along with highquality video surveillance footage from that night established that M Reed and Mr O'Keefe were happy they were in good spirits they were getting along there is no evidence to suggest that this incident had anything to do with the facts that issue in this case the Commonwealth points to purported angry voicemails left on the defendant the decedent's voicemail to suggest that there was some sort of hostile relationship between M Reed and Mr O'Keefe that night however these voicemails were left after Miss Reed dropped O'Keefe off at Brian Albert's residence and after he failed back to come back outside to meet her there is no logical relationship between the prior bad acts evidence in this case that the Commonwealth seeks to admit and the crime charged here and therefore this evidence must be excluded okay come yes J so this also relates to Cal motion eliminate number 20 um so in regard to that your honor this is a highly relevant evidence as it pertains to motive and as it pertains to the nature of the relationship between Mr o'keith Miss Reeds uh which uh goes to motive it goes to absence of accident goes to motive uh excuse me absence of mistake uh and this is not a um as the defendant seems to uh continuously try to pose it as as some sort of temporary or isolated uh incident this isn't just the argument uh or the yelling uh of swears between uh the defendant and U Miss Sullivan and the lobby in Aruba this then leads to an argument with uh both children in and their statements uh continued inside the room in front of them for about 20 minutes after it happened this is also not a fleeting reference in the sense that the defendant continuously brings it up on her own um specifically in text Communications uh with Mr Higgins uh when she's talking about uh the nature of their relationship and it's not just the voicemails that the defendant leaves on Mr oi's phone after uh the murder occurs in front of 34 Fairview it's also uh text messages exchang between the two of them in the days leading up to that uh in which they discuss the nature of their relationship you also have statements from the children which indicate that the victim had tried to break up with the defendant multiple times in front of them asked her to leave the home and she refused you also have a text communication from Mr O'Keefe to miss Reed in which he indicates that he thinks that their relationship is essentially what was the date of that one I believe that was the 28th uh then there's other text messages uh from the defendant to Mr Mr O'Keefe uh referring to their relationship uh as between themselves and with the children as toxic um these are further statements regarding infidelity which continue on to the morning of uh in in which statements that she makes uh in the backseat of the vehicle with Miss McCabe and Miss Roberts as they're looking uh for Mr O'Keefe uh just prior to uh to locating his body on the front lawn of 34 vew um these are statements regarding uh her belief uh of Mr o'i infidelity that she repeats again when she's uh having her recorded interview with Miss Voss from Boston magazine um these are not isolated statements these are not uh just one time four weeks prior it's not too remote in time and it does show sort of the nature of the relationship and as it's evolving over the course of that month from the date of of the incident in Aruba all the way through until the date uh that Mr o'keef uh is killed in furtherance of that also there are statements that the defendant makes to paramedics when she's being treated on scene uh that the last time that she saw Mr O'Keefe they got into a fight or an argument and she's upset because that's the last time that they spoke was during the course of a fight or an argument in front of the house on Fairview Road uh so it literally continues from the Aruba incident all the way through uh to the murder's occurrence uh so for those reasons the calth would submit uh that it is relevant as to motive it is relevant as to absence of accident and it is relevant as to absence of mistake thank you all right um what I will need is exactly what the Commonwealth intends to introduce I think you've outlined it and I'm familiar with it um if if I admit it it would certainly be accompanied by very strong Curative instructions which you know is my right uh I've heard argument now I'm going to think about this and maybe decided by this afternoon but okay thank you okay all right so you were both in agreement on what the defendant's motion to exclude irrelevant and prejudicial evidence regarding alleged harassment Andor intimidation of a witness and the commonwealths for different grounds in different scope actually motion to exclude mention of Aiden Kierney AKA turtle boy and his pending criminal charges for witness intimidation so though you both agree it's out that doesn't necessarily mean that I agree with you that it should be out um I understand that the nature of the harassment um mindful of the grand jury minutes that I've read that in response to some of the questions osed by um those at the US attorney's office the answers explained away some conduct as a result of the extraordinary harassment Witnesses were undergoing so I'm not sure I agree with you so go ahead and and try and persuade me but um what I'm inclined to do is keep it out in the case in Chief but uh K said you you know told your Witnesses not to discuss it so I'll I'll hear the [Music] defendant I guess I would start Yona by saying that um in order for evidence to come in it has to be elicited by a party it has to be offered by a party um you're being told that the Commonwealth does not intend to elicit this evidence and that the defense does not intend to elicit this evidence so I guess the question that I would direct to the court is do you intend to follow up with questions I'm not questioning the jury it's clear that it may be a response a natural response by a witness that neither one of you intended to get as a reason for something that I'm not going to sanction the witness because I allowed the Commonwealth's motion sure uh so so Mr yti so it's clearly you try your case the way you want to try your case and the Commonwealth decides how they want to do it but I am not tying the hands of witnesses to Natural responses to questions so I'm taking this under advisement if you open the door it comes in oh completely understand that your honor um I I I will say that I think probably I don't want to speak for Mr L but I so so don't speak for Mr L I'll him I'll speak for myself if the court will allow me uh which is that uh if if a a witness opens the door to uh you know a further explanation of this um that could give rise to both sides exploring that which you know I I suppose uh we'll deal with that when it comes comes to it the way the motion's written it would be prohibited and Witnesses you know I'm not tying the hands of witnesses to Natural answers that are the result of questions asked by Council right understood okay do you understand that Mr L well absolutely and and that was not my intent as is if if question the motion reads Mr your motion reads Mr L I understand uh but it it was more of a notice that that the colal doesn't seek to introduce any evidence of that but at the same time obviously if the the truthful and honest answer to a question that's posed of a witness references that then then I think it it comes in all right so I think we're all on the same page neither of you intends to introduce this in your cases but if you open the door or if it's a natural response from a witness it comes in you okay all right so Jim is 289 defendants motion elimination to exclude the plasma serum plasma the blood the alcohol testing or my numbers all off that's 289 corre all right and the Commonwealth has a a a paragraph or two responding in one of your other motions so I will hear the defendant on the motion regarding the testing of the blood from the hospital for the alcohol levels thank your honor I'll be addressing this uh with the court with the Court's permission um this is number just so we keep it clear in my head I I had named this number 17 dealing with the retrograde extrapolation okay we don't have it as 17 anywhere I thought that was the the list that the The Helpful list that the Commonwealth oh okay so it's so the I our number is 289 right okay so and the commonwealths one paragraph response is 17 but you filed the motion so why don't we hear from you as the moving party thank you um so the Commonwealth wishes to have Miss Reed's retrograde extrapolation records admitted over naturally a hearsay objection because the Commonwealth their position is that they are medical records the Commonwealth misapprehends the definition the base definition of what a medical record is a medical record as the court well knows holds a very special place in the evidence code and that's because it's not compiled in anticipation of litigation and for that reason and that reason only um they're deemed non- testimonial and and not subject to craw uh Crawford and the defendant's right to confront and cross-examine Witnesses or the experts behind the reports medical records are different than what we have here the extrapolation records we have here are not medical records that were generated for treatment or Miss Reed's medical history they're the opposite those records were generated specifically in anticipation of litigation and in association with this criminal investigation thus they are rank hearsay the Commonwealth claims that the records are not produced in anticipation of litigation stating basically uh that during our hospitalization law enforcement was at the quote beginning stages of their investigation um but what the Commonwealth fails to mention or address is that at approximately 6:30 a.m. on a dash cam video an officer officer good as a matter of fact a Canton police officer states to detective lank that he is going to quote unquote section her which the court knows what that phrase means he's going to place a hold on her medically thus the clear intent of law enforcement hours before the blood draw was actually taken was to keep her under law enforcement's thumb as she was an immediate suspect but there's a bigger issue your honor and that is that the parties lack the essential both and by the way this goes to the Commonwealth as well the Commonwealth but more importantly the defense we all lack the essential information on how the blood was actually drawn and tested those standardized protocols that we all get used to in the average oi case drunk driving case uh they don't exist here uh the standardized protocols for Reliable testing they're tried and true and every one of those protocols is missing or are missing and that leaves the defense having to sort of guess at the validity of the underlying test and the validity of the underlying test is the foundation on which the extrapolation is made which is the only thing the Commonwealth really cares about they don't care about the underlying test they care about extrapolating backward several hours but that this sort of goes along the the the theme of garbage in garbage out if the underlying test was not valid or it can't be proven to be valid then of course the extrapolation is also invalid uh the question question remaining is was the testing done by gas chromatography was it enzimatic testing we don't know and we'll never find out we don't have reports to suggest that uh or exactly what the validity of those tests were so the initial result is suspect and by extension the extrapolation is also suspect it it Bears pointing out your honor and this is the only sort of granular detail I want to get into the extrapolation according to the Commonwealth's expert is somewhere between .13 and 2 9 blood alcohol concentration that is a swing of more than 123% in other words the swing of the extrapolation is larger than any one of the numbers themselves which means um it can't be it simply cannot be reliable it illustrates the invalidity of the underlying serum plasma test and for those reasons the defense objects to the admission of both the blood test the underlying test as well as the in comminate extrapolation okay thank you come you so what the commo would submit is this may have been a valate basis for a motion to suppress but it was a motion to suppress that was never filed and one that the defendant specifically waved uh the Mr un any wave all uh motions to suppress as it pertains to uh Mr Roberts from the office of alcohol testing's testimony regarding the serum conversion and the retrograde extrapolation the reason for the range is because it's math and essentially taking into account a number of uh different variables uh that is why the range is as it is as it pertains to the um the specific item that would be introduced into evidence meaning the defendant's medical records that's what the commm is referring to as the records uh coming in Mr Roberts would come in and testify as to his own uh analysis mathematical calculations and the results based on his training and experience which the defendant has had for over two years as Mr Roberts testified at the Grand Jury to that exact uh set of scenarios as it pertains to the testing itself the Commonwealth uh is indicated on its proposed final pre-trial memorandum has summoned in not only uh the doctor who ordered the testing the registered nurse uh the nurse practitioner uh who would both have been involved in the uh taking of the sample from the defendant pursuant to her medical treatment and medical diagnosis as well as the Director of the lab uh at Good Samaritan Medical Center who would testify as to what kind of testing is done in the nature of that testing and everything else as it pertains to those Witnesses if the defendant wishes to conduct some sort of wer prior to the testimony in front of the jury I certainly have no objection to that uh but any sort of wader of Mr Roberts or exclusion of his testimony uh would be inappropriate based on the fact that uh the defendant has had more than ample notice as to what the parameters of that testimony would be uh so as far as what would be coming in as an exhibit uh it would be the medical records with that uh amount in it and there would be testimony from essentially anyone and everyone involved uh in the ordering taking and analyzing uh of that particular sample which then provides the basis for Mr Roberts's testimony okay so I have like one small paragraph from the Commonwealth on this I want a memo on this sure all right so I'll take this under advisement and 17 there 17 yeah um there're 17 we still need to address some up all right so that's all of the defendants motions and eliminated correct Mr yti I me just have a moment Mr Jackson it's all of them isn't it we we no we we filed a motion for attorney conducted panel White yeah that's a joint motion and that's I already said we're going to talk about in panel this afternoon just being complete in answer to the Court's question that was one that was not addressed but that's fine all right oh the the request just to have panel your motion was a little bit confusing right so you just you want panel VOA panel voer correct I'm not going to do panel voer in this case so we'll talk about the particulars of it um later this afternoon all right so on the Commonwealth's list of motions you said that there are some that you may agree with what besides the view are there any of these numbers who's yes your honor um the defense does not object to the Commonwealth motions in limitting numbers 1 through six um number eight 1 through six yes number eight number nine number 11 we obviously joined in that request yes um let's see number 14 we do not object to number 15 we have no objection in principle but we we do reserve the right to object to just individual exhibits as they they come yeah number 18 we have no objection number 19 we have no objection number 23 no objection number 26 no objection I I believe the that's the one we addressed [Music] yeah and number 32 we have no objection all right thank you all right Mr L I will hear you on our paper 297 your number seven so y this is the Cal motion to preclude reference and redact the manner of death contained on the victim's death certificate uh this is a routine motion uh the commo files in in really respect to any case uh manner of death that's not persuasive so go ahead no no no no and I'm just manner of death uh as as uh elucidated in the motion is not something um that is typically something uh that is permissible to be testified to uh from anybody to the jury because that's sort of the question of of liability uh ultimately that is left to their uh discretion um as far as how they find the facts but cause of death obviously is something that is a medical determination manner of death as a court is well aware is uh there are essentially three or four different uh selections and they fall into different categories they don't necessarily mean in the medical context uh what they might meet in the legal context uh so for that just sort of simple differentiation of of meaning between the two uh manner of death is not something that the colell feels is appropriate for the court uh for any witness to be uh testifying to uh as far as the jury is concerned as that's a question for them ultimately to determine for those reasons the Comm would ask that this motion be allowed all right who's responding to this thank you your honor the medical examiner who completed the death certificate in this case concluded that the manner of death was undetermined the Commonwealth now seeks to have that portion of the death certificate redacted because it is quite clearly exculpatory all of the cases cited by the Commonwealth deal with the issue of whether it was error for the Commonwealth to admit a death certificate listing the manner of death as a homicide because it violates a defendant's right to due process and a fair trial under the fifth 16th and 14th amendments to the United States constitutions none of the cases cited by the Commonwealth stand for the proposition that a medical examiner's determination that the manner of death is undetermined should be redacted in fact the Commonwealth sites Commonwealth versus Ellis at 373 Mass one it's a 1977 case for the proposition that excluding the word undetermined is the better and safer course but that's a misstatement of the law and I would urge the court to read the Supreme Judicial Court's opinion in that case what it actually says is this quote nothing contained in the record of a death which has reference to the question of liability for causing death shall be admissible in evidence the better and safer course is to exclude from a death certificate the words homicide suicide or accident in a criminal trial notably missing from that list of words that the Supreme Judicial Court warned about is the word undetermined that is what the Commonwealth seeks to have redacted here the Commonwealth Bears the burden of proof in this case they have to prove Beyond a reasonable doubt that a homicide occurred and their own medical examiner has opined that she was unable to make that determination that finding is relevant it's exculpatory and there's no Authority that supports its reduction thank you all right Mr L the medical examiner will be on your witness list right I haven't seen either of your witness list okay so I I'll take this under advisement all right Mr L your number 10 our number 300 yes r on this motion the Comal is uh simply seeking to uh obtain Corey information or records of potential jur I'm not looking for uh information pertaining to uh jurors that as they come in or some voluminous amount uh of every possible potential juror but only seated jurors um and essentially what the Commonwealth is requesting uh is to uh simply have some sort of verification that the answers that are provided by the jurors are true and accurate um this is something that is permitted by the case law it's permitted by the statute uh and it's obviously something that the calth would share with the defense as required to um but the timing of it of of what I'm asking for and the limited scope uh that I'm asking for in relation to uh just seated jurors once we have a full sort of uh set of jurors whether that be 12 16 whatever the whatever the court uh chooses as far as the number I'm I'm assuming approximately 16 or so um but once those are seated the commonweal is just asking for some time to uh to run those quaries and provide those uh to councel and then make any further objections uh for cause prior to the jury being sworn okay so I I know you're not in agreement are you opposing this yes your honor you we object for several reasons uh first uh the jurors are given a questioner which specifically asks this question um they self-report we rely on self-reporting from jurors with regard to all questions the Commonwealth has Cherry Picked this one question to verify whether or not they're telling the truth without dealing with any of the other questions that the jurors are asked um this proceeding right now like many of these proceedings is being broadcast widely publicly there are potential jurors out now uh listening to this I'm sure uh waiting for an answer from the court as to whether or not they will undergo that further invasion of privacy uh and they are also I would submit aware that in this unusual case the Commonwealth uh through their special prosecutor has sought to charge uh picketers protesters in a very unusual uh manner uh we would claim a harassing manner uh and our position is that this is just another method of harassment we believe it's unfair we ask the court to deny this motion do you have any case law to support your argument Mr yti um you're h i the the the the case law is is simply the constitutional rights to uh privacy that the jurors have I mean this is it's an issue of of fairness judge so that's what we're relying on all right so the motion is allowed Mr clerk number 300 thank you all right Mr L you're coming into number 12 with me quite skeptical number 12 leading questions for 13 and 16 year olds and again your um let me just first start by saying I don't think that this is something that's going to be absolutely necessary um given what I know of of the two uh child Witnesses in this case um only filing under abundance of caution um more so should um the need arise based on less so the age of the child but the age of the child taken in conjunction or in the context of sort of the atmosphere of testifying specifically in this case in this courtroom um with different things uh going on as far as the amount of people and things of that nature um so I again I don't foresee this being an issue uh but just an issue that I wanted to flag for the court uh should it become an issue uh and seek sort of the Court's ruling or permission in regard to it uh prior to any sort of incident arising okay given that caveat is there any objection no objection at this point your honor we can address it as it arises okay Mr L keep in mind the jurors would much rather hear from the witnesses than from the common law of course all right Mr clerk on on that we're just going to withhold ruling withhold ruling till a later time um Commonwealth you'll raise this again if need be yes sure all right all right so on your next motion your number 13 um huh I had it I don't I don't have it in order just give me a minute so I'm curious do you happen to have oh we don't have the screen up Do you happen I'd like to see exactly what it is that you intend to introduce so this is your motion eliminated to admit evidence that the defendant was in custody for a period of time after her arrest Jim is it possible for you to print that for me um 13 yes please thank you okay all right I'll I'll hear you on this Mr L and remind me the date that this body cam footage was taken so y this is in reference to uh the defendants arrest post indictment uh by the grand jury in this case so it's June 9th 2022 so that's why I have not seen the video itself correct and that's certainly something that the Commonwealth uh can can provide for the court but uh essentially when she's arrested and uh during the booking process at the Milton State Police Barracks um the Troopers who uh conducted that arrest were wearing a body warn camera um pursuant to their their BWC policy uh with the state police um Council has a copy of the policy Council has a copy of the video and essentially there are a number of different statements which provide sort of um third fourth fifth sixth I'm not sure what number we're up to at this point of of sort of varying accounts that the defendant has provided to numerous can you give me an idea now do do you know the substance of these particular statements uh is uh the defendant Miss Reed uh continuously uh is told by it Sergeant banic uh to essentially stop talking he's advised her of Miranda and advised her to to stop making statements uh and repeatedly states that to her during the course of her making statements uh but the summon substance of it uh is she says something to the effect of you know are you in on the joke uh and then make some sort of reference uh to having witnessed Brian Albert and Colin Albert essentially smashed John oi's head into the tail light indicating that that's how her tail light was broken um doesn't make any sort of further statements about why she would then leave the scene after that occurred or anything like that uh but these are again uh different accounts uh that have been made uh in direct variance to Prior statements that she made January 29th uh to the Troopers to paramedics to treating medical professionals to Miss Roberts to miss McCabe to uh the niece of Mr ke to a whole other sort of slew and variety of of people with a different sort of uh variation on what transpired uh each time uh so it's sort of inextricably intertwined uh with the fact that she's in custody I how so is she in handcuffs is she in a Cell she seated at the uh the booking desk or the booking rail in the state police barracks uh so I I mean I don't need to make direct reference to it I it's just again it's something out an abundance of caution based on sort of where it is and when it is that the statements are made uh that it may naturally sort of come out as far as it if the court wishes I I think it's something that the court can can cure uh by issuing a Curative instruction uh if there's any Prejudice to be suffered by the defendant uh but again um it is a statement by the defendant which is admissible as the court is well aware uh and then it is sort of in the confines or in the context of her being in custody when she makes that statement I certainly wouldn't be trying to elicit testimony that she was in custody but it it's it is kind of apparent that she is can you have that here for this afternoon uh yes I I can arrange for that so we can see it sure all right what's the defendant's position here we object your honor uh we're in a situation now where uh the Commonwealth arrested M Reed twice when they didn't have to uh I I made the argument to you at arraignment uh back in June of 20122 that after John O'Keefe was found dead on the lawn of Brian Albert uh Brian Albert's home um I immediately got a letter out to the state police saying represent her I will surrender her no need to arrest her just call me and I'll bring her in they ignored that and they arrested her uh to get her into custody um I would assert ultimately to make the arguments that Mr L is making today uh then uh astonishingly to me uh after the grand jury issued indictments based on basically no new evidence uh they uh upcharged her and once again did not contact me despite the fact that she was completely in compliance with the terms of her release and had made every court appearance they arrested her again uh and so again I would assert to be in the position that there are they are in today um with regard to the case that they cited your honor uh hofford does not stand for the proposition that they claim that it does uh in fact uh the issue of uh that defendant being taken into custody was strict by the court uh the testimony in that case uh that was allowed or sanctioned by the SJC was uh evidence that uh the defendant had been living uh with his girlfriend but had unexplained absences he didn't get along with her son she was afraid of him and that he associated with a conduct a convict that made her uh nervous there was nothing about him being in custody that was ad in that case um to the extent that these statements are or the court deems these statements to be relevant and admissible um there are other ways to do it uh I do urge the court to watch the video I I think we'll put it on the screen because I want to see how the jury would look at it okay that's fine uh but I will suggest your honor that there are other ways to accomplish that uh you know either to have testimony about what it was or failing that uh to have the audio of my client making whatever statements they seek to introduce without the video uh an image of my client uh you know in handcuffs at a police station is what this court uh generally tries to avoid given the fact that as she sits here and as this trial is ongoing she's presumed to be innocent we wouldn't bring her up here in in an orange jumpsuit and then ask the jury to make decisions about her nor should we uh display her uh you know after the after a per walk at the police station in handcuffs uh making these statements all right so I need the Commonwealth to do you have um your media person available Miss Gilman or Miss Crawford or whomever all right we're seeking to make arrangements for that all right we'll put it on the screen just so I can see how the jury would see it all right thank you so that's we'll look at that this afternoon all right so I'll hear you on the celebrate motion the your motion number 16 Mr L thank you H so in this motion what the call authors requesting uh is uh for permission uh for the uh celebri expert Mr whiffin uh to uh conduct a demonstration in the courtroom during the course of his testimony in regard to uh the um examination that he did in regard to miss McCabe's extraction report and specifically uh the alleged search uh which the defendant reports uh occurred at 227 in the morning and the Comm wealth maintains occurred at 623 and 624 I'm going to stop you because one question is how long will this take if we allow it how long will the demonstration take so um really what I'm seeking to do ideally uh would be for sort of a live demonstration uh which I had uh Mr whiff and do and record and provided a copy of of that to uh to council as well uh so that recording that I that I provided uh has no audio to it but there was also a PowerPoint presentation that Mr wiffin prepared in relation to uh the same issue uh that he uh produced and then I provided that to uh to council as well which essentially goes through what did um and it also you're not looking to do a PowerPoint presentation are you no no no the PowerPoint presentation would not be something I'd be looking to admit the reason I did the video is in the event that technology is not our friend on that particular day and and the live demonstration doesn't work uh I would then be seeking to uh introduce the video and have him talk about it uh while it's playing um it mirrors uh essentially or exactly uh what Mr wiffin had uh included in his report uh which was done back in uh almost a year ago at this point and has been provided to councel uh is essentially the same thing uh as what's contained in his report but just uh as far as a a visual uh Aid and demonstration uh for the jury um I just think it's a bit with when particularly talking about sort of the technical aspects uh of his particular analysis uh the Comm uh would submit that it would be uh helpful and assistive to the jury in order for them to have that sort of visual uh demonstration to go along with uh obviously the oral testimony of of the witness as well all right who's arguing this for the defendant thank you honor we received from the Commonwealth the video that Mr L just described um about 48 hours ago so we have not had an opportunity to confer with our expert about that particular issue okay um however just from sort of a cursory review it does appear that a submission is improper um as the Commonwealth acknowledge is in its motion in order for the court to allow a courtroom experiment or reenactment there are very strict rules concerning that experiment it has to replicate with exactitude the actual event so that it is fair and informative for the jury otherwise it's prejudicial and would serve only to confuse the jurors here just based on a cursory review it does not appear that Mr wiffin in court experiment replicates all of the factors that we know were in existence at the time in question does it does it replicate the factors that he says he considered so I'll I'll need to have a little additional time if the court doesn't mind to conf with my expert yes so I will give you time to confer with your expert and file a written response but that that's one of the factors that I'm asking you to look into understood and then just if the court does intend after written briefing to consider admitting that evidence we would ask to be able to take their expert on V deer as to that particular issue okay thank you all right how much time is little do you think you'd need to confer with your expert and put something in writing um I believe about a week should be sufficient your honor okay thank you and I'm sorry I neglected an answer the Court's question as far as timing the video uh demonstration which is essentially what I'd be asking him to do is about 19 20 minutes okay all right so Mr clerk that's under advisement so what remains on commonwalls motion 17 the statement so so I know this also this went to the the blood draw but there were statements that's what separates this from the defense motion to exclude the testing so I'll hear you on that sure is the defense objecting to that portion of the Common's motion thank you for for uh that opportunity not particularly no it's the it's the blood draw and the exra yeah so the motion had both so that's why all right so I guess we don't need to hear so the the part of your motion that concerns the statements made by the defendant the defense is not objecting to no very obviously they're Admissions and everybody knows what the rules are dealing with admissions so I'm not concerned about that okay all right so Jim on 307 it's a split um the Commonwealth is permitted to introduce statements made for purposes of medical treatment and the certified medical records but there's an objection as to what we've heard regarding the alcohol testing the blood testing for alcohol okay okay all right your number 20 Mr L our number 20 y I believe uh refers back to the the same argument that the Kwal had made in opposition to the defendants motion to exclude anything about the nature of the relationship okay uh things of that that's why I don't have it right here okay 21 the out of court statements regarding the victim state of mind so 21 uh sort of pertains to that same issue as 20 uh so it's essentially it's it's the same argument you're on the same facts underlying it as far as statements uh that the uh victim is o'keef made to but were you making statements regarding like bins in in those cases Commonwealth versus bins the the State of Mind of the defendant the defendant I mean State of Mind of the victim the defendant knowing it the defendant being able to act as a result specifically so on that sort of specific application of and that's that's why we file two separate motions in relation to it but as it applies to that the Commonwealth would submitted is clearly met its burden under the case law as it applies to that because of the nature of some of those Communications uh so it's not just Communications that are observed uh by other parties as far as what uh the victim Mr o'keef uh indicated uh to miss Reed or these aren't situations like in some of the case law where it's an indication to a third party and the defendant wasn't present and then there's sort of an inference that can be made that well if they're saying it to this friend of theirs then they must have communicated that to the person with whom they were in the relationship with in this instance your honor we have direct communication between Mr O'Keefe and Miss Reed uh via text Communications from each of their phones uh indicating that that communication about ending the relationship was made just prior to uh the date of his death in this particular case uh so it not only uh enhances but what I would submit is corroborates uh that testimony from from other sources or from other family members and and other Witnesses uh so for those reasons the com that would ask that its motion be allowed all right ronner on this motion our position is that uh we'd like more specificity about which statements the Commonwealth is indicating they seek to admit um I imagine that that's the same thing I said to you Mr L and the other one that was right uh in connection with this so the Commonwealth will do that yes okay and I think then at that point we can evaluate it your certainly some of these statements are are going to come in uh but we'd like the opportunity to be able to object if they no I agree so it has to be clearer so you know as far as the your notice to the defense you can even point to Grand Jury minutes or whatever but I need to know this the statements you intend to introduce understood your H and and what I can do and what I'm I aim to do to sort of and a Anil everything is um I'd like to uh if the court is amendable and council is amendable to to pre-mark as many exhibits as possible um just to make the situation easier for both sides as far as referencing documents photographs videos things of that nature um so when it comes to uh I'm not seeking to introduce uh when it comes to any sort of the the cell phone extractions um I'm certainly not opposed to uh admitting the entire extraction dump essentially from from anybody's individual phone uh but what I'd like to do uh as far as exhibits are concerned is to print out or create sort of uh extraction reports uh from those cell phones as far as different Communications between person a person B just to make it more simple for the jury to to digest it and more simple for I think everyone involved to understand sort of the the exact Communications that we uh intend to talk about uh so in that vein as well what I can do is is provid uh a supplemental memorandum in regard to 20 and 21 referencing sort of those specific conversations okay that'd be great and if you can work together and this will be part of the housekeeping we talk about this afternoon um work together to prear exhibits that would be great all right so 22 so again with 20 with respect to 22 uh and I think the same can probably be said uh for 23 uh and 24 and 25 uh is that essentially uh as I've stated earlier the Commonwealth is somewhat operating in the dark and that I don't have any Discovery I don't have a witness list I don't have any investigator reports or notes or notice of an expert or notice of any sort of expert reports curriculum V really anything um so out of an abundance ACC caution the colal filed uh motion eliminate numbered is 22 which is in reference to any alleged bad character or any prior misconduct uh of the victim or any witness uh that the defendant alleges uh to uh seek to elicit through whatever Witnesses uh they may or may not have uh but essentially what I would state in regard to this specific issue uh is that as the core is well aware it has to be uh something that uh is first of all relevant uh to anything and it also has to be relevant uh to a reputation and not just an anecdotal uh something that that's brought up from one witness again who I I don't even know who those Witnesses would be at this time so um I don't know that the court can rule on it without any sort of notice uh as to whether or not the defendant intends to seek to introduce such evidence or has any such evidence or who those Witnesses would be or what their level of of knowledge would be but it's it's something that I at least wanted to uh to flag uh for the court in regard to um if it comes up as we go along who's responding that would be me your thank you okay um this will be very brief um the Commonwealth in their at least in their moving papers uh Mr Lai I think has gently stepped back from the moving papers a little bit the moving paper suggests that they seek to preclude the defense from presenting any evidence to the jury that uh one or more of their Witnesses lied or gave false information in in this case in any particular they call this they they do this under the rubric of bad character but that misunderstands or mis apprehends what bad or what character evidence actually is character evidence or bad character evidence refers to using past behaviors or past traits of a person to prove a propensity to act in a certain way in the future um conversely proving that someone lied or gave false or misleading information regards to in in regards to a a specific matter that's relevant and material to the case at hand that's called impeachment and that's allowed in every single courtroom so impeachments certainly allow but do you intend to put on Witnesses regarding challenging character evidence no we're not intending to that that's exactly what I was going to summarize by saying the bad character focuses on General character traits uh whereas impeachment deals with people who lied or un truthful we hold on Mr L you're not objecting to impeachment prior inconsistent statements things like that no of course so you you um Council you mentioned that there is a distinction between character evidence and straight impeachment character evidence is not permissible because you're not going to introduce it you said right we're not seeking to introduce it at this point and we wouldn't I mean obviously the trial has to play out and it's going to be several weeks and by the way Mr La has mentioned over and over and over about how he has no reports and no statements Etc he's got more than 7,000 reports and statements both from his own investigation and from the federal investigation that in in no small part encapsulates a lot of what we intend to impeach with however as I stand here today I can report to the court that we don't intend at this juncture to put on bad character evidence we we don't know what that might look like but if we did obviously I know the rules I would give the common weal do notice and and the court notice before we went that direction all right so 312 Mr clerk is allowed if you need to readdress that uh defense councel um you need to file a motion okay so 3 312 Jim is allowed uh same thing do you intend to put on character evidence uh difficult standard or potentially problematic but uh do you intend to do it your honor we at this juncture do not have intend to put on character evidence but we will give the court notice as well as Mr L notice if we do change our mind all right so 313 Jim is allowed and defendants can renew it I'm sorry was the second part defendants can renew it yeah by written motion how about 24 is there an objection to that believe that was 24 no that was no it's 23 oh I apologize 23 we had said we had no objection oh okay I didn't have and 24 is the opinion or character okay so 24s all right I'm sorry 24 is allow Jim 23 and 24 are allowed all right there's an objection to 25 miss little just yes or no all right so I'm going to hear from Mr on the motion I just wanted to know if there was an objection your honor I could probably if I don't I don't mean to step on Mr L toes if he wants to talk he can talk uh we don't anticipate asking any of our experts to read from a tretis if that's what his concern is and that's how I read the motion we didn't anticipate going there that my short C this so no Treatise no studies they will refer to studies and not to read from studies on the witness stand at this point at this juncture certainly their their studies are the foundation of every experts um testimony okay but but what he saying is he he has no discovery of and who your experts are so how's he going to read all these articles understand I understand that as the court knows and and we anticipate and I think Mr yed is going to address this with the court soon enough he will be getting our expert reports we now have finally uh their uh their final notice of what their Discovery is certificate of compliance and we are anticipating by the the beginning of trial by Tuesday to have something in response to that but no we're not going to we're not going to elicit uh an expert to sit there and read from a study or read from a Trea if that's what their concern is anything you wanted to add to this it looks a little broader than that to me it is a little bit broader than that um as far as it also refers to anecdotal experiences or or things of that nature which obviously wouldn't be contained within a study or wouldn't be contained within certain materials uh so I I'm sure council is well aware and I'm I'm not certainly saying that they're not as as far as what an expert can testify to and what an expert cannot testify to um but essentially what an expert can testify to is is facts that they personally observe based on testing or things that they do uh themselves um facts uh in regard to uh things that are in evidence or things that the council reasonably expects will be put into evidence but the studies themselves any sort of anecdotal uh experiences that they may have had uh or any sort of um scientific literature uh is not something that is permissible to be admitted as as an exhibit so if that is something that they seek to uh to talk about uh the Commonwealth would submit that that's improper you know what they did in this particular case sort of what their Baseline of experience is what their Baseline as far as their educational background in order to form some sort of opinion based on on the facts as the C as the jury finds them uh is certainly fine but making any reference uh to because it happened in this study it must be true in this case is is something that's simply not permitted okay if I may just briefly sure Mr L uses the phrase anecdotal experience that's the first time I've ever heard that in in this context I don't know what he means by that but if what he means by that is bringing into court something that the expert has done or experienced or has experience with and then relating that back to his opinion or her her conclusion isn't that what he's suggesting Mr wiffin do with his in court experiment that sounds like an anecdotal experience but that's just me I think we have to take this on a caseby Case basis um and and and figure out what the experts are going to say I I don't know what an anecdotal experience means so I can't really defend against that because I've put hundreds if not thousands of experts on the stand I don't know that I've ever asked can you tell the jury what your anecdotal experience is with fill in the blank so I'm not sure what he and I'm not being glib I just don't know what that means so I I don't know that the court can adequately rule on it I think this may be something that we wait until so let's get the list of the experts take a look at the Commonwealth discover I mean the uh defendants expert Discovery to you and you can raise it again thank you H thank you honor so um Jim let's say no action taken all right 27 I'll hear you Mr L yes so your honor this Motion eliminat in reference to uh prohibiting uh reference to any federal investigations conducted by the US attorney's office or and or the Federal Bureau of Investigations uh so to this point um the US attorney attorney's office has publicly confirmed that at no time has the US attorney's office named any person or entity uh as a Target uh so any sort of reference uh to in and essentially what they've uh stated uh throughout the course of and I know the court has had a chance to review those materials but what they state is essentially their investigation into some unnamed uh uh criminal activity or some named crime or some there there's nothing specific uh to to any specific person or entity uh that is contained within those materials so what the commo is submitting is that any reference to the fact that those things occurred uh is therefore uh unfair you know essentially biases uh against uh one side of the other based on uh based on that and it really has no relevancy as far as making reference to uh you know if council at some point either side wants to make reference to uh testimony or uh statements reports things of that nature that were provided uh in the course of of that Discovery uh pursuant to the Tui uh obviously that's perfectly permissible but it also can be done without making reference to where that item came from as far as you you know testified previously in relation to some investigation on such and such a date uh you know uh you spoke to uh a law enforcement agent on such and such a date and you said this um so if it's needed for those kinds of reasons as far as impeachment and whatever that's obviously perfectly permissible but any reference uh to that in front of the jury uh your honor uh is something that the Comm wealth would submit uh is simply impermissible and irrelevant uh to the facts uh as they pertain to this case uh so for those reasons the Comm would ask that this motion be allowed is there an objection to this there is you're honor the Commonwealth's position can be basically summed up in their moving papers with the following sentence that they drafted the proceeding would be unfairly pre if the if the defendant is permitted to rely on the mere appearance or existence of a federal investigation especially where the investigation was shaped and influenced by the defense first of all the defense does not and did not shape or influence any federal investigation the federal government is more than capable your honor and I think the Commonwealth knows this of making its own decisions and about its own investigations second and just as importantly the Commonwealth CES No Authority whatsoever that stand stands for the proposition that the mere mention of a federal investigation prejudices State Court proceedings in any way shape form or fashion and that's because there is no Authority that Authority does not exist but most importantly and this is critical it is going to be critical to give the trior fact this jury the proper context in which everyone of the statements or every bit of the evidence is presented and how it came to light it's essential for theur how are you going to do that how do you propose you is somebody from the US attorney's office on your witness list to come in and talk about it there are federal agents no no no no we don't anticipate presenting the fact that there's a federal investigation that's isn't that what this does if you mention it explain to me why that's not so the that's what I'm doing as the as not yet you haven't so please explain that as the court knows it's essential the jury is given the context in which every single statement whatever the statement might be is brought to light does that mean do we say in the prior trial that resulted in a mistrial you said this no but you would say when you were speaking with officer Smith or officer Jones from the Canton Police Department at the Canton police station in this particular context did you say this when you were uh when you were questioned by the Comm Commonwealth Attorney in this proceeding did you say this when you were questioned by the United States Attorney in this hearing did you say that that's what we do otherwise it's perpetrating a fraud in the jury the information that's gleaned during the federal investigation was revealed your honor importantly by a neutral third party a neutral body that's not connected in any way to this case the Commonwealth has a stake in this case very obviously the defense certainly has a stake in this case but the federal authorities have no stake in the case of the Commonwealth versus Karen Reed thus the evidence procured by that neutral agency which is independent of the case is subject to a different and completely a completely different level of scrutiny a completely different level of assessment by the jurors that is an important fact there is no other way to truthfully and honestly present this evidence to the jury think think about some of the questions that the court just posed what were the circumstances in which you changed your testimony sir he's going to say well I changed my testimony potentially when I was called before a Federal grand jury and I was asked questions under penalty of perjury why did you finally admit certain things when you were confronted with additional evidence ma'am and where did that evidence come from well I was called before a grand jury and I was asked or I was investig uh I'm sorry I was interviewed by a federal agent and I was asked or confronted with additional information text messages phone calls Etc or the third example where did that additional evidence come from officer text messages uh phone calls private Communications oh it came from uh a hearing in which I was questioned by the United States Attorney under penalty of perjury in front of a grand jury the jury's entitled to those answers in that context if we were to do what Mr Lai suggests if we were to take that invitation oh well you were asked by a prosecutor at a former hearing U XYZ that would leave the jurors with the imprimer of the idea that the Commonwealth elicited those questions that the Commonwealth did their job when we know in fact it didn't the answers to those questions directly go to miss Reed's Bowden defense Bowden talks about the inadequacy of an investigation obviously Mr L I'm sorry Mr Genetti can talk more about that in just a second we have information that a different agency was able to uncover information that the state investigation ignored that's important and it's important for the jurors to be able to weigh and balance that information and how the information came to light if the truth is actually hidden from the jury which is what the Commonwealth is asking the court to do that the evidence was produced by a was the product of a third party the truth being that the evidence was the product of a third party inquiry unconnected to the state court case then that jury is left with a false impression false information and it'll be unable to unable to properly assess the true facts which is what we're trying to get to the true facts why is the Commonwealth so intent on hiding the truth from this jury I'll submit okay I'll likely rule on that today so number 28 Mr L thank you so again similar to the the motion previous to it um the Commonwealth is not seeking to hide anything from uh the jury uh what the Commonwealth is simply seeking to do is ensure that whatever information that's provided to the jury is actual admissible and relevant information and not uh the the product of uh rank speculation so this motion uh is seeking to prohibit reference to any pending Internal Affairs investigation or uh unfounded allegations of misconduct and really primarily what we're talking about here uh is any sort of uh Internal Affairs investigation related to uh Trooper Proctor and uh the 20s something year old uh uh civil case which resulted in no findings of liability uh that was referenced uh by Council in their motion to dismiss with ref to Sergeant lank at the Canon Police Department uh under the case law uh including McFarland uh and uh Graham the most recent case law uh what they essentially uh attribute is that those uh types of information when there is no finding of liability there is no sustained finding of his conduct there is no uh uh findings of liability uh by uh the party at question uh that that is simply not admissible uh and so for those reasons uh the submits that this motion should also be allowed all right who's arguing this for the defense and miss little what I I need to know is what exactly you intend to introduce and how you intend to introduce it thank you your honor um I think it's it's somewhat premature for the court to to rule on this issue obviously the testimony of both of these Witnesses is going to be highly relevant as to whether this particular information is relevant um we are still actually receiving information with regards to the internal affairs investigation as recently as yesterday um so I'm happy to like kind of defer ruling to the court and then address this as it comes up I think the court will be in a much better position to rule on this issue once the witness testifies all right so what would be helpful to me once you know what it is you think you're going to try and introduce um to tell me how that complies with the Holdings in both McFarland and Graham there are independent reasons why that is admed ible outside of McFarland and okay so I need to know all of that sure okay thank you so um I'll take this under advisement and how much time do you need to give me at least a general response now can you have it by Tuesday we can do that your honor okay all right so I'll hold off on that Mr Clark yes Rob all right so number 29 Mr L so this motion your honor uh is essentially entitled uh motion eliminate for advanced notice if defendant intends to cross-examine any witness about alleged bias uh and request for a pre-trial ruling on whether proposed evidence demonstrates plausible showing uh of alleged bias uh so the Commonwealth is not uh stating that there are uh no statements uh as the court is well aware uh that could uh be interpreted to reflect uh bias and could be used uh by Council on cross-examination uh so what the Commonwealth is not suggesting uh and bless you is uh for any prohibition on any statements whatsoever what the Commonwealth is seeking here is uh a ruling as to what precise uh statements the defendant seeks to introduce uh in regard to that uh so that the court can make a rule ruling prior uh to uh the witness testifying before the jury as to exactly what's in play and what is going to be admissible and what's going to be allowed uh as far as um obviously it's not a perfect world and and if uh a witness were to answer something in a way uh that uh would then um open the door for for further material to come in that's understandable but at least a preliminary showing as to exactly what uh the defendant submits are the statements they wish to introduce in relation to this issue isn't the defendant given broad range and cross-examination is to bias yes U and and that's why I I indicated early on uh that I understand that there is a some um that there certainly is uh some areas uh that under the law whether or not they're true or not are are able to be explored as far as cross-examination is concerned uh but what this motion simply seeks to address uh is there are restrictions to that it's it's not unfettered it's not you know just anything and everything that they could possibly think of or say as far as accusations go is there any particular type of testimony you're concerned about I mean is is there anything in particular that you say they should not be permitted to go into based on what we've heard throughout the pendency of this case is there anything and I'm reluctant to tie the defendant's hands in any way on cross-examination without knowing exactly what it is you think is improper okay and what I would do your honor what I would uh suggest is uh similar to the other motions that we spoke of before I can provide I can provide a supplemental with more specifics as to what the colo's concerns are okay uh if the court would find that helpful yes I can't rule on this as is so is there any objection to that Mr yed you're nodding well no I I think that makes okay it was M Little's motion oh I'm sorry I sorry you know I want to step on her toes no objection to that you're okay all right so why don't you do that so Mr clerk will hold off on ruling on this until we get something from the commw okay so so Commonwealth will clarify right and then no action taken all right so as you know third party culprit and Bowden are often argued together often presented together why don't we just deal with the two motions together so commwell F your you're number 30 and 31 um Mr L um Mr yed are you arguing both does it make sense to sort of keep them together I agree that they should be kept together yeah all right so why don't I hear you as to your concerns on both and and as you know sometimes third party culprate as it goes to Bowden is different than just straight third party culprit and actually it might save us a lot of time is that what you intend to do miss tetti third party culprit is it goes to Bowden or straight third party culprit as well definitely third party culprit as it goes to Bowden that's for sure um and then depending on how the evidence develops at trial um there may be uh you know an an offer to offer third-party culprit evidence with regard to thirdparty culprits but I think I can speak further to that in response Mr go ahead you can argue these however you want to argue them no and and I I would argue them sort of in that V your honor so understanding that um based on the state of the evidence uh as I ipated to be uh and in any case regardless uh I think a defendant in any criminal case has a much better um um shot essentially of getting evidence in regarding to Boden as sort of a back door through uh excuse me as to third party culprit as sort of a back door through uh a Boden defense uh so what I'm primarily concerned with your honor is is uh motion eliminate number 30 uh because as the court is well aware uh there have been a number of of theories of uh sort of speculation ranks speculation uh opinions uh without any evidentiary support uh names of certain people that have been dropped at this microphone by council at different uh pre-trial hearings uh who are not Witnesses who have nothing to do with this case who don't know anything about this case uh who Council when they said those names and sort of dropped those whatever they supported to be facts uh knew that they had nothing to say and nothing to do with this case um what I'm uh concerned about is whatever is acceptable as far as uh uh believability when it comes to arguing things in pre-trial motions shouting things from Courthouse steps or you know bandying about on Twitter is is not what we do here um and so now it is a time where uh council is going to be relegated to what is actual admissible relevant evidence uh and what I uh asking uh for in this motion is for the defendant through her councel to actually provide any admissible or relevant evidence that pertains to third party culprit which to this point they have not done uh so if this is something that's going to be raised as an issue on its own uh as the court is well aware what the uh case law indicates is that the acts of the other person are so closely connected in point of time and method of operation as the cast out upon the identification of the defendant as a person who committed the crime it has to be specific um it has to be uh to at least a specific Realm of person uh or a specifically identified person uh who would have motive opportunity uh to commit uh the act with which the defendant is charged and up until this point I have not seen anything uh specific as to that as it pertains uh to uh the Bowden uh motion that the Commonwealth filed what the Commonwealth is asking for there is is notice and and Vader in relation uh to a Bowden defense so if there is uh again going to be some you know it's I don't think the evidence comes anywhere close uh to a Boden instruction uh but certainly uh what the courts have said uh over time uh is that uh bod and defense is something that uh if the evidence warrants it uh Council can uh elicit testimony in regard to it uh or attempt to uh and make arguments and reference to it so I'm not seeking to preclude uh Council from from making arguments or from Council asking questions what I'm uh seeking clarification on is is what uh exactly uh and again this is from a position of of operating without any information whatsoever as as to what uh a defense may be and understanding uh that uh Council was not required uh to provide any information until the Comm filed its certificate of compliance uh but there's been regardless of whether they required to or not I I'm I'm going into trial on Tuesday without any information whatsoever as to as to who they've spoken to what their IND uh what statements they might be who their Witnesses are or anything of that nature uh so for those reasons the Commonwealth uh feels it appropriate to at least file a motion to be given notice as to exactly uh what the defendant intends to do um this trial by Ambush is simply not something that's permitted uh uh by the case law uh and that's what the commo is seeking to uh to prohibit in that second motion thank you okay all right mred I'll hear you thank you and though they're argued together I do want you to also start with the third- party culprit alone not third party culprit as it goes to Bowden but third party culate alone because of all those factors that I told you as you well know the case law is clear that I have to consider and if I had to do it now and you know I can do a pre-trial right you know that I can today I can just exclude it I'm not inclined to do that but I need to be able to make those decisions to in to weigh those factors because right now I have zero information on this right I understand that your honor and that was my plan going into today anyway uh so the the initial question is um why is there a thirdparty culprit defense why is it relevant um and we start your honor with the fact that our forensic medical examiner Frank Sheridan um you know a pathologist forensic pathologist who has uh performed himself thousands and thousands thousands of autopsies has already submitted a sworn affidavit to this court that John o'i injuries are consistent with having been in a fight and are not consistent with having been hit by a car uh since he submitted that affidavit the federal authorities have provided us with their reports whereby FBI experts also corroborate that John O'Keefe's injuries are not consistent with having been hit by a car they employed experts in biomechanics and kemetics who have reviewed the evidence in this case and they've confirmed that the physical evidence uh conf uh essentially shows and doesn't show what Dr Sheridan has opined so therefore if John O'Keefe was not hit by a car that means that Karen Reed did not kill him and we know that John O'Keefe did not die of natural causes this was not a heart attack or a stroke John O'Keefe was injured he was mortally injured if he was not hit by a car as both our expert and FBI confirmed then he was attacked and if if he was not hit by a car then there is a third-party culprit or culprits so by asking this court to prohibit the defense from introducing evidence that others had the motive opportunity and the means to attack John O'Keefe the Comm is essentially asking this court to prohibit Karen Reed from being able to defend herself so I I don't think they're asking that you be prohibited from doing that they're asking first to have you tell them what that is right well this is you know your honor I'm I'm getting to that in terms of go go ahead you that we're either required to give them or not um you know it is not our job to solve this case for the prosecution it's our contention they had the opportunity to do that but they failed it is not our job to name a specific third-party culprit we do not have to prove that Brian Albert or Colin Albert or Brian Higgins or some combination of them intended to kill John O'Keefe we don't have to prove that any of them attacked John O'Keefe such that he eventually died they have to prove Beyond a reasonable doubt that they didn't but the fact of the matter is there is evidence that all three of them had a motive had they the opportunity and the means to attack John O'Keefe now the the KL sites KL versus coni in their motion and as this court started the discussion on this issue when you first took the bench coni makes clear that a defendant has a constitutional right to argue that somebody else may have committed the crime and certainly no the acts of that person can't be too attenuated in time or method of operation as Mr L mentions but in terms of being the right time period your honor you can't get any closer than their presence at the scene at the very time that John O'Keefe was killed and in terms of the method of operation given that we have evidence that he was not hit by a car and that he was attacked all three of these men either alone or in combination possess the ability to attack him with or without a weapon I mean that's a very low standard here the Commonwealth acknowledges that it's a low standard of simple relevance and the evidence here establishes relevance now I would note your honor the Commonwealth sites Commonwealth versus finny I don't know if they realized this but that was my case I represented Roland Douglas phy before The Supreme Judicial Court and I represented him at his motion for new trial and at his retrial and that case the finny case provides strong support for the introduction of third party culprit evidence here on irrespective of ab bodden defense um in fact the reason that Mr finny's conviction was overturned was that his trial Council failed to puru pursue a thirdparty culprit defense and you honor the third party culprit defense in finny was weaker far weaker than the third party culprit defense we have here the evidence of motive in that case was that the third party culprit made derogatory statements about the victim after she was murdered no witness in that case put the two of them together no witness in that case put the third party culprit at the scene of the murder where the victim was murdered there was some consciousness of guilt evidence similar to what we have in this case but in Finny the SJC ruled that Not only was that enough for a defense attorney to present uh a third party culprit defense but he was ineffective for not doing so and as the court has also uh touched upon uh the SJC found that on the basis of that third party culprit evidence which is weaker than what we have here there were substantial connecting links between that third party culprit that justified the admission of hearsay in that case and I want to make it clear we're not looking to introduce any hearsay statements so we don't need substantial connecting links here now your honor I could go through with the court the specific evidence we have with regard to motive opportunity and means with regard to the three Commonwealth witnesses that I've named so go ahead happy to do it uh starting with Brian Higgins he was present at 34 Fairview Road on January 28th to 29th he was close friends with the homeowner Brian Albert he had a prior romantic interest in Karen Reed he did not expect Karen and John O'Keefe to be at the waterfall that bar on January 28th Karen Reed did not greet Higgins despite the fact that they had previously exchanged flirtatious texts and that she had uh been at his apartment one evening although there was nothing that took place between them any more than a peck of a kiss at the waterfall Higgins does not engage with John O'Keefe he does not say goodbye to John O'Keefe and Karen when he leaves but before he leaves he texts Karen and that text was something to the effect of umw with a lot of M uh we know that there was a preservation order from this court your predecessor judge crup to preserve his cell phone and that Trooper Proctor gave an uh him an edict um um to to you know an order to serve uh on Brian Higgins and he left it at the front desk of the Canton Police Station forum and that Higgins we learned through the Federal investig ation Higgins became angry demanded that Proctor uh come back and he essentially upgraded him and read him the riot act which shows a little bit about Higgin personality um at the end of the night everyone discussed going back to 34th Fairview and when he gets back to 34 Fairview he texts not Karen he texts John o'keef at 12:20 a.m. he testified before the Federal grand jury that he had no knowledge that they had been involved invited to 34 Fairview but that is contradicted by this text message and the inference is that he was coaxing John to come to that house and you know we're not saying this gives him a motive to kill John but we don't have to show that uh any motive to feel hostility or animosity towards John O'Keefe um goes to his motive and your honor when Brian Higgins and Brian Albert are in that house they're the only two people who were unaccounted for when the rest of the group was in the kitchen and they claimed that they were looking at photographs together and we have evidence that they were in the basement we believe that Brian Albert made a mistake before the state grand jury by testifying they went upstairs to look at photos Brian Higgins says unequivocally that the only place the two went was into the living room to look at photos and military ribbons whatever they were looking at Brian Higgins did not know that Brian Albert had said they went upstairs and he also testified he had never been upstairs at Brian Albert's house in his life that means that if Brian Albert said they went upstairs they're coming up from the basement and before leaving 34 Fair Brian Higgins testified he was parked right in front of the mailbox he would have had to have walked by where John O'Keefe's body was his headlights when he got in his vehicle would have been Illuminating where John O'Keefe's body would have been in the yard if it were actually there so how does he not see it he then goes back to the Canton police station at 1:30 in the morning after leaving 34 Fairview he claimed to do some administrative work but then he admitted to the Federal grand jury that he was there to move his car because of the upcoming snowstorm this suggests that he was fabricating a reason for going back to Canton Police to establish an alibi for himself um he was asked several times at the Federal grand jury if he had any conversations with anyone before he went to bed uh and when was he notified that John O'Keefe was dead in the morning he said he testified under the pains and penalties of perjury that he had absolutely no contact with any person that night for any reason whatsoever but he apparently was surprised that the federal authorities had subpoenaed his phone records and he had to admit and he did admit under oath he made that 2:22 a.m. phone call around the S about uh you know 5 minutes before Jennifer mccab is Googling how long to die in the cold about 8 minutes before Brian laughren the plow driver first drives by the house and sees nobody at all and the next morning Brian Higgins the first thing first person he spoke to was Brian Albert I'm going to stop you for a minute I think we need a break Madam court reporter do you need a break can you go how much longer do you think you have with this Mr yti how many more pages or how long you think yeah I've got about uh in terms of my recitation of the facts uh I've done about a page and a half and I've got three left Madam court reporter would you like to take a little break it's hot in here and you've been going Non-Stop okay let's take a 10-minute break [Music] you are muted MI ish e for for for you are unmuted for for got this isn't on to catch for you are muted the host would like you to unmute your microphone you can press star six to unmute the host would like you to unmute your microphone you can press star six to un you are unmuted you are muted you are unmuted I'll s you yeah what all right all right Mr yti go right ahead thank you your I left off with the uh morning of January 29th the first person that Brian hiin spoke to was Brian Albert um he had missed a call from Chief Kenneth burkowitz earlier um immediately after getting off the phone with Brian Albert Brian Higgins drives back to 34 Fairview where he has a meeting with uh just about all the witnesses in this case Brian Albert Julie Albert Jennifer McCabe Matthew McCabe and immediately after that friends and family meeting on his day off which is a Saturday he returns to the Canton Police Department where he speaks with all of the first responding officers who had anything to do with this case so this is a quote unquote witness accessing and communicating with all the first responding officers we would argue monitoring what they're doing in regard to the investigation according to Brian Higgins he admitted that Chief burkwitz is one of his best friends and that's why he had access to all these people we have a law enforcement witness who will testify to seeing Chief Kenneth burkowitz and Brian Higgins alone with Karen Reed's vehicle on the afternoon of January 29th of 2022 for quote a wildly long time so is this a name that's been in the materials is this is this a name known to the Comm is this somebody know okay we and we've now received video surveillance from the Canton Police Department that shows that there is an interior camera in the sallyport garage where the car was H housed but in during the exact time that that thirdparty officer indicates that burkwitz and Higgins were in the sally port together the video mysteriously cuts out for 42 minutes between 508 between 58 and 550 p.m. and just to be clear here we never get to see the condition of the tail light when it's brought into the garage when we do see the car we see it after Brian Higgins Chief burwitz Michael proct and Yuri bunik have all had access to it at 5:36 p.m. the car pings that it's arrived in the sallyport that's during the missing video Trooper Proctor Trooper bunik never sees Brian Higgins phone they speak with him and he takes it upon himself to use his own resources Brian Higgins within the federal government to ask a friend Special Agent M Kelch to download only the text messages in his phone between Karen and him and him and John and that's it we have to take his word for it that we got all of them and we certainly don't have any Communications between him and Brian Albert for instance on February 10th when he shows up to his interview with Troopers bunik and Proctor he brings with them copies of the text that he has deemed relevant in their murder investigation and he hands them the copies of the extraction that he had his friend do he then calls Matt the weekend uh of this uh uh incident uh to do the limited instraction he never tells uh Trooper bunck or Trooper pner how he extracted the tests uh despite the fact that it was done by a friend of his in the federal government um during the federal profer Brian Higgins admits that he had been served with the preservation order and the Commonwealth told him he could destroy his phone despite the order he then drives to a milit base on Cape Cod opens his phone breaks the SIM card and throws the phone away and he says that he discussed destroying his phone with Brian Albert Brian Albert also destroyed his phone and Brian Albert uh said that he had uh received some text that concerns him as an explanation and after that Brian Higgins changes his phone number and changes his cell carrier in short he was present that night he had a motive and there is plenty of consciousness of guilt cover up evidence with regard to Mr Higgins moving on to Colin Albert shortly before January 29th of 2022 Colin Albert lived with his parents Christopher Albert and Julie Albert on John O'Keefe's Street just two doors down we have evidence of Bad Blood between Colin Albert and John O'Keefe we have evidence old how old was Colin Albert at that time believe he was 16 at that time okay we have evidence that Colin Albert and John O'Keefe used to get in confrontations because Colin Albert used to cut through his yard without permission and John O'Keefe was not happy about that we have evidence that Colin Albert used to throw beer cans intentionally into John O'Keefe's bushes and John O'Keefe was not happy happy about that we have evidence that Christopher and Julie Albert knew of this conflict we have evidence that they referred to Jon o John O'Keefe as neber cracker that's a character from a I think a kids movie uh who was known as the get off my lawn guy when John O'Keefe and Karen Reed were vacationing in Aruba over New Year's Eve 2022 the Alberts Christopher and Julie taunted him they went to his porch and they had photos taken of themselves drinking on Jon's property when he wasn't there to do anything about it evidencing they knew how upset he was at what Colin Albert had been doing now the investigators in this case your honor including Michael Proctor kept Colin Albert's name completely out of the police report when this case began I had no idea who Colin Albert was um I received a tip right from the jump that Brian Albert and his nephew had beaten up John O'Keefe I didn't even know Brian Albert had a nephew at that time but after receiving the tip learned of the conflict that Colin Albert had with John O'Keefe so I sent a letter to Mr La I Believe by certified mail I knew that the DA's office was planning to present evidence or witnesses to a grand jury and at that early juncture before anybody uh had been had asked them to indict um I notified the da of three potential suspects the ones that I'm talking about now Brian Higgins Brian Albert and Colin Albert um after he received that letter at our next court appearance I'm sure Mr laally can confirm this um he acknowledged that both Brian Albert and Brian Higgins would be testifying or had testified before the grand jury but he questioned why I included Colin Albert in my letter he told me at the time that he had no evidence that Colin Albert was there that night however after receiving my letter lo and behold multiple Witnesses testified that Colin Albert was at 34 Fairview the night of January 28th to 29th and and now the da will argue I'm sure at trial that he left before Jon O'Keefe arrived we don't find their evidence compelling we don't accept it we are not required to accept their theory of the case we're entitled to present a defense his presence at 34 Fairview gave him the opportunity along with the motive to harm John o'keef with regard to Brian Albert your honor um this is a well-connected well-known powerful family in the town of Canton Massachusetts Brian Albert was present at that home when Colin Albert was there Colin Albert is a member of the Albert family he's nephew of Brian Albert we have evidence that Brian Albert had expressed hostility toward John O'Keefe as well and we know that he initiated a phone call with Brian Higgins at 2:22 in the morning he reached out to Brian Higgins and then he picked up the phone when Brian Higgins came back and they spoke for 22 seconds and they never revealed any of that to investigators again consciousness of guilt and perhaps most of all Brian Albert is a first responder he is Duty bound to help somebody who's in trouble he was notified that John O'Keefe was in trouble Brian Albert stayed in his home he knew what was going on outside his sister-in-law was out there civilians medical personnel eventually arrived he did nothing that is also consciousness of guilt now uran with regard to all of that third party culprit evidence to admit it substantively which I would assert to the court is is both overwhelming and Powerful with regard to the Bowden argument here the police investigated none of that that didn't come from the Commonwealth they had a complete lack of curiosity as to what was going on in that house that night they didn't care investigators never went in the feds investig and that's where we got a majority of this evidence so you know to to the extent that the Commonwealth now claims that they didn't have notice of this um I I beg to defer they they got notice of this when we got notice of this uh you know the finny case your honor again I'm I'm well familiar with it it stood for the proposition that you know if if you want to point the finger at a third party culprit you've got a constitutional right to do that and if you want to point out inadequacies in a police investigation you have a constitutional right to do that right it's for those reasons that I ask you to deny the Commonwealth's motions okay thank you any response Mr L brief um just first uh again what what the case law requires is evidence and not just mere speculation or saying that you have evidence is not actually evidence um I do find it somewhat interesting that Mr yanet uh wrote apparently four and a half pages of notes but didn't have time to write a motion uh to admit uh the evidence uh that he claims that he has um he references in regard to third party colporate uh Dr Sheridan uh who indicated that the injuries are consistent with the fight he's the same Doctor Who indicated that the injuries on Mr ''s arm were consistent with a dog bite which was then refuted by the DNA findings from UC Davis as well as the fact that the injuries are only on one side of the arm and last time I checked uh dogs have teeth on the top and the bottom and there's no injuries to the bottom of Mr oi's arm uh furthermore the council references the Federal grand jury materials in which uh I would say uh as has been done numerous times previously is is severely miscar IED as to what they actually contain uh so what uh and it's not a crash Reconstructionist as it's been alleged here before it's a biomechanical engineer and essentially what they did was take painstaking lengths uh to go to uh to determine that uh the defendant's vehicle did not strike uh Mr O'Keefe in the back of the head which is simply something that no one has ever said intimated at any point ever um there is also a medical examiner uh in the federal materials who concurs uh completely with Dr scy Bellow's uh findings as it pertains uh to the cause and manner of death so with regard to each of these the other thing that I would point out is if Council was a council record with the finny case the finny case relates to third party culprit under the bden event so it's not applicable to what council uh was arguing um it is a low standard but it's also one that the defendant here has not met it's not one Without Limits uh as it pertains to much of of the material uh that was uh summarized uh as far as uh speculation as to what different things uh Council feels mean uh from from various uh things regarding Mr Higgins Colin Albert and Brian Albert just starting with Colin Alber because that's frankly the easiest he wasn't at the house and that's what the federal materials confirm with each of every single the witnesses that were spoken to by uh the District Attorney's office or the Troopers or testify to the state grand jury they testified to the exact same things in the Federal grand jury that Colin Albert had left the house prior to uh the defendant and the victim arriving there and there's absolutely nothing uh to combat that whatsoever uh other than again just rank speculation so opportunity would be a little bit a Miss uh if he's not even there at the same time uh as Mr o'keef regardless of of the invalidity of any sort of uh you know ill feelings or ongoing Feud uh that's reported uh from whatever unknown evidence uh Council Claims to have in regard to Mr Higgins that that was a fanciful story but again there's actually no actual evidence of of most of those things uh or at least the the imputations or the connotations uh the council wants to put uh behind uh that um whatever he feels uh things were observed um so again I'm not sure where the evidence from this is coming from um what I'm also a little confused in regard to is that if council is merely relying on materials within the Federal grand jury um and just learned of them at that same time as as we learned of them when uh materials were provided pursuant to Tui uh then it's a little peculiar that the exact same arguments uh were being made throughout the pendency of the cas Cas well well well before uh Council was provided with any of those uh Federal materials um what council just went through is essentially a list of rank speculation and not actual evidence um as far as the mysterious uh portion that's missing uh from the the sally port there's a number of different it's it's a motion activated camera for the most part the other thing that I would uh direct the course attention to as it was contained within the state grand jury proceedings uh is there is Cruiser camera video from the Canton police cruisers specifically there is Cruiser camera video from Cruiser 682 specifically there is Cruiser camera video from Cruiser 682 at 822 in the morning uh when a lieutenant and sergeant from the Canton police on their own go over to one Meadows a which is the the residence of Mr O'Keefe to do a well-being check because they had not received any information as to how the children were or if they were are being attended to and they pull into the driveway at 8:22 in the morning directly behind the defendant's vehicle which is exactly where Miss McCay parked it when they stopped there to see if Mr O'Keefe was there before then piling into Miss Roberts's vehicle and proceeding to 34 fair viiew and what you can see within that Cruiser camera video at 8:22 in the morning is the damage to the right rear tailight of the defendant's vehicle well before the defendant had then come back to the house house after the hospital and then gotten in three separate cars with her family and driven in a blizzard all the way back to her parents house in Dion and then the vehicle had then been to from dayon Back to the Canon police station uh by the state police with the assistance of the dayon police do you know what exhibit number that is before the grand jury I believe it's 56 but I I I maybe I I can certainly locate that information and again as far as Brian Albert is concerned I I heard nothing other than he's apparently in a well-connected family in Canton and Colin is his nephew who wasn't present at the house when Mr O'Keefe and Miss Reed were present at the house so again I think it's a stronger argument certainly if if we're trying to bootstrap onto a boat in defense uh and Council will probably likely be allowed to uh at least investigate that as far as impeachment cross-examination things of that nature but there is absolutely nothing Beyond just a a fertile imagination and rank speculation as it applies to a third party culprit defense and for that reason uh the colal motion to exclude it should be allowed the only thing I'd like to correct your honor is well or at least point out is that um you know the car pinged at 53 so hold on until you get to the microphone yeah I'm sorry I'm sorry U the car pinged at 536 p.m. indicating that it was in the sallyport um there is an outdoor camera where you can see the car about to enter the uh the Sally put at 531 of course you can't see the tail light in that outdoor um you know camera but Mr L just argued before you well the reason why there's no uh you know video of the car uh between 508 and 550 is that it's motion activated and I just ask the court to use common sense here that if the car is entering and by the way the car is there at 550 with a couple of people around it when the the camera comes back on you see the car so unless it was teleported in a split second so that the the the interior camera would not pick up motion it drove into the sally port I believe that's the definition of motion and it should have been picked up according to Mr L's own words okay so when you walk away from the microphone it's harder for the court reporter to hear you Mr yti and I apologize judge it it's um you know according to Mr L's own words it should have picked up the movement okay all right so I believe that's the last motion so why don't we recess until 2:00 and I'll see you back here at 2 Mr L will you have um Miss Gilman who I did see walk in here at one point set up the screen where we normally keep it yes sir thank you you are muted sure [Applause] [Music] to [Music] your wh [Music] with o it's a e not a d oh I do it all the time yeah car yeah got a lot of tricky spelling for you I don't have [Music] a yeah that might be I heard say she was talking um fins I think b i n oh b n all right thank you thank you yeah at least by 2K I'll get you for

Channel: Law&Crime Network

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Length: 171min 34sec (10294 seconds)

Published: Fri Apr 12 2024