(98 Redocheo COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CRIMINAL ACTION 2200117 COMMONWEALTH KAREN READ MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS FOR EXTRAORDINARY GOVERNMENTAL MISCONDUCT On June 9, 2022, a Norfolk County grand jury indicted defendant Karen Read on charges of murder in the second degree, manslaughter while operating under the influence of alcohol, and leaving the scene of personal injury and death following the death of her boyfriend, John O'Keefe, on January 29, 2022. The Commonwealth's theory of the case is that the defendant, while intoxicated, struck and killed O'Keefe while operating her vehicle in reverse and left the scene, Trial on the matter began in April 2024 and concluded on July 1, 2024 with a mistrial. ‘The matter is set for retrial April 2025, Ahead of the retrial, the defendant has filed a Motion to Dismiss for Extraordinary Government Misconduct. Such a drastic sanction is justified only in response to the most egregious and truly harmful conduct. In all but the worst cases, the appropriate remedy is at best, a new trial, such as the one that is scheduled to begin soon. Because the claimed violations here do not rise to a level that would justify the most draconian sanction of dismissal, and because the defendant's constitutional rights can be fully protected in the coming trial, her motion to dismiss is DENIED.DISCUSS! “Dismissal of criminal charges with prejudice is the most severe sanction that the court can impose in a criminal case to remedy misconduct on the part of the Commonwealth.” Commonwealth v. Mason, 453 Mass. 873, 877 (2009). “The dismissal of a criminal case is a remedy of last resort because it precludes a public trial and terminates criminal proceedings.” Commonwealth v. Cronk, 396 Mass. 194, 198 (1985). “Absent egregious misconduct or at least a serious threat of prejudice, the remedy of dismissal infringes too severely on the public interest in bringing guilty persons to justice.” Commonwealth v. Cinelli, 389 Mass. 197, 210, cert. denied, 464 U.S. 860 (1983). See Bridgeman v. District Auorney for Suffolk Dist., 476 Mass. 298, 322-323 (2017) (“A dismissal with prejudice for government misconduct is very strong medicine, and it should be prescribed only when the government misconduct is so intentional and so egregious that a new trial is not an adequate remedy.”) “Two parallel legal principles govem the resolution of cases involving prosecutorial misconduct where dismissal is contemplated.” Cronk, 396 Mass. at 198. See Committee for Pub, Couns, Servs. v. Attorney Gen., 480 Mass. 700, 724 (2018) (“CPCS v. AG"). First, “[w]here the prosecutor fails to disclose evidence the defendant is entitled to receive and the defendant is prejudiced by the failure to disclose, a motion to dismiss should not be allowed absent a showing of irremediable harm to the defendant’s opportunity to obtain a fair trial.” Cronk, 396 Mass. at 198. See Commonwealth v. Lam Hue To, 391 Mass. 301, 314 (1984) (“Such a drastic remedy would be appropriate where failure to comply with discovery procedures results in imemediable harmn to a defendant that prevents the possibility of a fair trial”), Alternatively, in rare circumstances, “prosecutorial misconduct that is egregious, deliberate, and intentional, or that results in a violation of constitutional rights may give rise topresumptive prejudice . . . and the ‘drastic remedy’ of dismissal of charges may become an appropriate remedy.” See Cronk, 396 Mass. at 198-199. “The latter theory should be narrowly applied, and confined to situations where the misconduct has cast such doubt ... as fo poison the centire investigation, and a stronger deterrent is warranted to prevent repetition of such misconduct® (quotations and citations omitted). CPCS v. AG, 480 Mass. at 724. The defendant here argues that the Commonwealth committed egregious discovery violations by destroying and/or withholding exculpatory evidence and that a Massachusetts State ‘Trooper interfered with the jury during the first trial warranting dismissal of the charges. As discussed below, the defendant has not demonstrated that she suffered any prejudice as a result of discovery violations that cannot be cured by her new trial and has not substantiated her claims regarding interference with the jury, which, as discussed in detail below, are baseless. L ‘Commonwealth’s Discovery Violations A. Discovery Obligations “The due process clauses of the Federal Constitution and the Massachusetts Declaration of Rights require that the Commonwealth disclose to a defendant material, exculpatory evidence in its possession or control.” CPCS v. AG, 480 Mass. at 731. See Brady v. Maryland, 373 US. 83, 87 (1963) (prosecutor may not withhold evidence that “would tend to exculpate [a defendant] or reduce the penalty”), Evidence is exculpatory if it “provides some significant aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story, calls into question a material, although not indispensable, element of the prosecution’s version of the events, or challenges the credibility ofa key prosecution witness” (citations omitted). Commonwealth v. Pope, 489 Mass. 790, 800 (2022). Exculpatory material is subject to automatic disclosure. Graham . District Att'y for Hampden Dist., 493 Mass. 348, 361 (2024),‘The Commonwealth’s duty to disclose exculpatory evidence to critinal defendants is further reflected in the Massachusetts Rules of Criminal Procedure and rules of professional conduct. See CPCS v. AG, 480 Mass. at 730-731. See also Mass, R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004) (governing discovery procedures); Mass. R. Prof. C. 3.8 (d), as appearing in 473 Mass. 1301 (2016) (mandating that prosecutor “make timely disclosure” of all evidence that “tends to negate the guilt of the accused”). “This duty to disclose derives from the core responsibility of a prosecutor ‘to administer justice fairly.”” Graham, 493 Mass. at 361, quoting CPCS v. AG, 480 Mass. at 730. Rule 14 of the Massachusetts Rules of Criminal Procedure pertains to the prosecutor's discovery obligations and the materials subject to automatic discovery. The rule in effect at the time of the discovery issues here provides that the prosecution shall automatically disclose to the defense certain evidence “relevant to the case and . .. in the possession, custody or control of the prosecutor, persons under the prosecutor’s direction and control, or persons who have participated in investigating or evaluating the case.” Mass. R. Civ. P. 14 (a)(1)(A) (2004). ‘This includes “TaJny facts of an exculpatory nature” and “[mJaterial and relevant police reports, photographs, tangible objects, all intended exhibits, reports of physical examinations of any person or of scientific tests or experiments, and statements of persons the party intends to call as witnesses.” Mass. R. Civ. P. 14 (a)(1)(A)(iii) and (vii). Rule 14 farther provides that when a party has provided all the discovery required by Rule 14 or a court order, it shall file with the court a Certificate of Compliance stating to “the best of its knowledge and after reasonable inquiry, the party has disclosed and made available all items subject to discovery.” Mass. R. Civ. P. 14 (a3)! * The Standing Advisory Committe on the rules of criminal procedure recently propased revisions of Rule 14 in response othe Supreme Judicial Court's requests in CPCS v. AG for elarification on the definition of exculpatory 4B. Canton Police Department Surveillance Footage i Factual Background On January 29, 2022, after O’Keefe was found dead in the snow outside the Albert residence in Canton, MA, police towed the defendant’s vehicle to the Canton Police Department CPD"). There were multiple surveillance cameras in use at the CPD that captured the defendant's vehicle on a flatbed tow truck as it entered the sallyport at approximately 5:30 p.m. ‘There were also cameras inside the garage where the vehicle thereafter remained. According to the Commonwealth, surveillance footage from these cameras is automatically overwritten on a regular basis; footage from the night in question was not lost however, because CPD Sergeant DiGiampietro followed his customary practice of downloading the recording to a hard drive in six-hour segments. On February 2, 2022, the defendant was charged with manslaughter, motor vehicle homicide, and leaving the scene of personal injury and death in Stoughton District Court. That day, the defendant filed an Emergency Motion for Preservation of Evidence pertaining to certain specific evidence in connection with the charges, which was granted (“Preservation Order”). ‘The Preservation Order sought to preserve, infer alia, “All physical evidence, including anything nce and the development of a checklist of exculpatory evidence to provide guidance o practitioners. 480 Mass, at 732-733. In drafting the proposed revised rules, the Committee sought to eliminate the withholding of evidence based on a prosecutor's “estimated or perceived effet on the litigation.” See Reporter's Notes to Mass. R Crim, P. 14 (Mar. 1, 2025). The Supreme Judicial Court adopted the proposed revisions thus, the new rue “usles} the simpler description of materials “favorable to the defense’ in lieu of “facts of an exculpatory nature.) (see) Rule 14(b)(2\(A) . .., ereate[s] a functional definition of eight specific ways in which items or information can be “tavorable to the defense{]' [see] Rule 14(6)(2XB) ... [end]... provide(s] a non-exhaustive list of examples of items and information favorable tothe defense. [See] Rule 14(b)(2)(C).” See Reporter's Notes to Mass. R. Crim. P 14. In addition to “Items and Information favorable to the Defense” being subject to automatic discovery, see Rule 14(b)2), "Investigative Materals"—items and information other than exculpatory material that ae “relevant to the case and in the possession, custody, or control of the prosecutor the prosecuting office, or any member of the prosccution team”—are subject to mandatory automatic discovery under the revised rule. See Rule 14(0\1) (2025) 2 The following facis are taken from the parties* oral and written submissions, accompanying exhibits, and the court docket. Unless otherwise indicated, the facts stated are not in dispute. Any description of surveillance footage is bbased on the Court’s review of the footage, not the parties’ descriptions. 5present on or near the decedent at the time his body was discovered, anything found at the alleged crime scene.” See Defendant's Exh. A at par. 6. The lead investigator in the matter, Massachusetts State Police Trooper Michael Proctor, took possession of requested CPD video of the sallyport in February 2022, but did not tum it over to the prosecutors. Instead, for reasons unclear on the record, he kept the material in his case file On June 9, 2022, a Norfolk County grand jury indicted the defendant on charges of murder in the second degree, manslaughter while operating under the influence of alcohol, and leaving the scene of personal injury and death. On October 5, 2022, this Court issued an order directing the Commonwealth to provide the defense with, inter alia, “All crime scene photographs and/or videos taken in connection with this case, including but not limited to photographs documenting the purported recovery of pieces of white and red plastic outside the residence located at 34 Fairview Road on January 29, 2022, and February 4, 2022, including the metadata associated with these photographs and videos.” See Defendant’s Exh. B at par. 4. Several months later, in June 2023, Proctor asked CPD whether it had in its possession any exterior sallyport video showing the defendant's vehicle on the flatbed of the tow truck on January 29, 2022. In response, CPD gave State Police the video from the Main Driveway Side Exterior Sallyport camera. Proctor took possession of this video but, again, for reasons unexplained, did not tum it over to the prosecutors. Instead, he placed it in his case file, This footage shows the exterior of the sallyport when the defendant’s vehicle was brought into the CPD garage. The recording is dark, bluny, and grainy and the condition of the passenger-side taillight, a significant issue in dispute in the case, cannot be discerned. tts unclear to the Court why Trooper Proctor requested the footage at this time, 6On February 1, 2024, Proctor testified before a federal grand jury investigating the investigation ito O'Keefe’ ‘Three months later, on April 4, 2024, ADA. Adam Lally received Proctor’s federal grand jury testimony. After reading Proctor’s testimony, Lally asked the trooper if he was in possession of the video footage referenced therei In response, Proctor gave Lally the Sallyport Front Wall Camera footage provided to Proctor in February 2022 but not the Main Driveway Side Exterior Sallyport footage provided to Proctor in June 2023, Lally immediately turned over the Sallyport Front Wall Camera footage to the defense along with footage from the CPD Main Driveway showing the SUV on the flatbed.’ None of this footage contained a view of the back of the defendant's SUV. On April 10, 2024, Lally filed a Certificate of Compliance indicating that to the best of the Commonwealth's knowledge and after reasonable inguity, it had disclosed and made available all items subject to discovery pursuant to Mass. R. Crim. P. 14(a)(1)(A) or court order. When defense counsel reviewed the Sallyport Front Wall Camera footage, they saw that forty-two minutes of footage was missing. The defense raised the issue to the Court at a hearing ‘on April 12, 2024, days before the trial was set to begin, arguing that the missing footage was critical to the defense’s theory. The Commonwealth explained that the footage was intermittent because the camera was motion-activated. “Iris unclear tothe Court where the CPD Main Driveway footage came from. The CPD Main Driveway camera appears to show a different view than the Main Driveway Side Exterior camera, The recording from that camera remained in Trooper Proctor’s file.Trial began on April 16, 2024, with the first day of evidence on April 29, 2024. On April 17, 2024, Lally received footage of the Sallyport Interior Back Wall camera from the CPD which had been looking for continuous camera footage of the sallyport on the relevant date, On April 23, 2024, Lally provided the Sallyport Interior Back Wall footage to the defense. The images contained in this footage were inverted. State Police Sergeant Bukhenik testified on June 5 and 6, 2024, During his direct examination, Lally showed the inverted Sallyport Interior Back Wall footage in open court. Because the video was inverted, what appeared on screen as the right side of the vebicle was in fact the left side, and vice versa. The direct testimony did not alert the jury that the video was inverted. On cross examination, however, defense counsel questioned Bukhenik extensively about the inverted image. ‘The CPD began a review of other video surveillance footage in an attempt to explain the inverted image and to respond to allegations that it had deliberately manipulated the recording. As part of this process, CPD Chief Rafferty reviewed surveillance footage from cameras in the hallways and the parking lot at the CPD in the early moming hours of January 29, 2022, prior to O'Keefe being discovered in the snow. The Rear Lot Cruiser Side camera had recorded ATF agent, Brian Higgins, a witness called by the Commonwealth at trial, walking across the parking lotat 1:34 am,, holding a phone near his face. In September 2024, Special Prosecutor Brennan joined the prosecution team. On October 10, 2024, he provided the Rear Lot Cruiser footage along with other surveillance videos (the CPD Interior Hallway, the Church Side Exterior Sallyport, the Rear Lot Main Side) to the defense.On November 8, 2024, the defense emailed Special Prosecutor Brennan requesting “[aJll raw video footage from the CPD, which shall include but is not limited to all cameras capturing the interior of the CPD and/or exterior of the CPD including all parking areas, entrances and exits, and garages between January 29, 2022 at 12 a.m. and January 29, 2022 at 11:59 p.m.” Special Prosecutor Brennan responded that he would request that the CPD collect and produce all footage responsive to the request. ‘Thereafter, Brennan asked all associated law enforcement to go through all files and databases to facilitate a review of any footage. During this process, Brennan came into possession of the Main Driveway Side Exterior Sallyport footage originally obtained by Proctor in June 2023 and not previously turned over to the defense. On January 28, 2025, the Commonwealth tumed over the Main Driveway Side Exterior Sallyport video to the defense. As noted above, the footage shows the exterior of the sallyport when the defendant's vehicle was brought into the CPD garage, but the quality of the recording, is, as noted, poor. Defendant's Arguments The defendant argues that the Commonwealth provided an untimely disclosure, withheld, or destroyed certain CPD surveillance video in violation of Rule 14, Brady, and the Court’s Preservation Order and October 5, 2022 Order on Motion to Compel Discovery. She further contends that the timing and quality of the video footage that has been produced demonstrates that the Commonwealth sought to intentionally deprive the defendant of exculpatory evidence. According to the defendant, the Commonwealth's conduct was so egregious that dismissal is warranted. This argument is flawed in several respects.First, contrary to the defendant's argument, there was no court order requiring the ‘Commonwealth to preserve or produce the CPD surveillance video before the first trial. The February 2, 2022, Preservation Order required the Commonwealth to preserve “[a)ll physical evidence, including anything present on or near the decedent at the time his body was discovered, anything found at the alleged crime scene.” See Defendant's Exh. A at par. 6. This Order did not extend to the surveillance footage from the CPD. Massachusetts case law reflects a clear distinction between “physical evidence” and video surveillance footage. See Commonwealth v. Vasquez, 495 Mass. 279, 280 (2025) (“As no physical evidence connected the defendant to the crime, the Commonwealth relied on the surveillance video to prove the defendant’s identity as the shooter.”); Commonwealth v. Harrison, 100 Mass. App. Ct. 376, 381 (2021) (characterizing evidence against the defendant as “[cJommunication, surveillance, and physical evidence”); Commonwealth v. Flavell, 104 Mass. App. Ct. 1122, 2024 WL 4259294 at *1 (Rule 23.0 decision), review denied, 495 Mass. 1101 (2024) (“The Commonwealth’s evidence included numerous witnesses, including the victim and expert witnesses, as well as physical evidence, surveillance video, and photographs.”); Commonwealth v. Lattimore, 89 Mass. App. Ct. 1127, 2016 WL 3172093 at *1 (2016) (Rule 1:28 decision) (“Based upon witness interviews, physical evidence, and video surveillance footage, police determined that two suspects had entered the store and opened fire.”). Moreover, where the “physical evidence” described in the Preservation Order was further defined as including “anything present on or near the decedent at the time his body was discovered, [and] anything found at the alleged crime scene,” the Order cannot reasonably be interpreted as including surveillance footage from the police station. ‘The October 5, 2022 Order on the Motion to Compel Discovery also did not require the Commonwealth to produce any CPD surveillance video to the defense. That Order required the 10