In February, the Massachusetts Supreme Judicial Court (SJC) found that Karen Read, the Mansfield, Mass., woman accused of killing Boston police officer John O’Keefe, was not entitled to the double jeopardy protections of the Fifth Amendment. This means that despite jurors saying they voted unanimously to acquit her on two of three charges, Read now faces a retrial on all three.
With the U.S. Supreme Court declining in April to add this case to the mere 70-80 it chooses to hear each year, the state ruling stands, and Read’s retrial will go forward on even the two reportedly acquitted charges.
Massachusetts’ criminal prosecution of this case has become an area of national concern. It has spawned FBI investigations that refuted the state’s theory of the case, an HBO series, and a massive and impassioned public following of the proceedings.
It has also put a spotlight on breathtaking levels of corruption on the part of the state.
The story’s most significant twist occurred after Read’s trial last summer ended with a hung jury, when jurors came forward to inform the defense and prosecution that they had voted unanimously to acquit Read on two of three charges, but erroneously believed they were required to be unanimous on all three.
This plot twist was not only the stuff of “Perry Mason” but a complicated matter of criminal procedure and constitutional law.
The protections afforded to criminal defendants in the United States by the Fifth Amendment are among the most ironclad guarantees of the Constitution. High among these is protection from double jeopardy: being retried by the state on criminal charges of which you have already been acquitted.
As more jurors came forward to corroborate the two-of-three count acquittal, it now seems to be treated as a fact by all, even the SJC, that this is what happened.
You’d think the alarm bells of constitutional law would be ringing and that a retrial on those charges would pose grave constitutional concerns.
Not in Massachusetts.
The SJC, apparently unalarmed by that prospect, spent 25 pages of its 35-page opinion perusing the events leading up to the mistrial, rather than the clear constitutional problem at issue. No one disputes a mistrial had to be declared — the jury was deadlocked, after all — but only on one charge, not three.
What of the two charges the jury decided to unanimously acquit her of, but simply did not know how to communicate to the judge? What Massachusetts statute or procedural rule is so powerful as to abrogate the Fifth Amendment and make acquittals irrelevant?
The SJC points to one: Massachusetts Rule of Criminal Procedure 27(a). Rule 27(a) is very short. It says, “The verdict shall be unanimous. It shall be a general verdict returned by the jury to the judge in open court. The jury shall file a verdict slip with the clerk upon the return of the verdict.”
How does that rule satisfactorily address the complicated fact pattern at hand? Are notes from juries expected to include the sort of NFL RedZone live score update to the judge on the status of each charge as the SJC knocks the jury for not having provided?
The SJC puts much stock into the jury’s missives, in particular that they spoke of being hung on “the charges,” which the SJC somehow takes to mean jurors were irreconcilably divided across all three charges. Fortunately, we have actual knowledge that this is not true.
Armed with that knowledge, instead of seeking to correct a mistake and prevent a violation of the defendant’s constitutional rights, the SJC has elected to be willfully blind to a reality so plainly unjust that the jurors themselves felt the need to come forward in the interest of justice to make their verdict clear.
The federal courts understandably declined to wade into this Frankenstein of a state criminal procedure problem. The case law in this area is indeed the “wilderness,” as Judge F. Dennis Saylor said in the March hearing before him on Read’s appeal seeking federal intervention. How would a federal court commandeer the state courts to intervene? It’s a legal quagmire.
Courts are built to run on precedent, rules and case law. They are not designed to fly blind into uncharted procedural waters that bend the lines of federalism in precarious ways.
The responsibility to stand for the Constitution and patch a glitch in a state court rests squarely on the shoulders of the Supreme Judicial Court. In declining to do so, Massachusetts once again shows it is unwilling to check itself. The overwhelming misconduct on the part of the state and investigators uncovered at Read’s trial for the world to see is sadly unsurprising to many. Instead, it’s further evidence of Massachusetts’ chronic inability to police itself.
