But Read was not testifying herself. Rather, her statements that day in court came from one of the myriad of media interviews she’s given over the past several years. And it was played right there on a courtroom monitor, before jurors who will decide her fate in a re-trial, as prosecutors sought to show her animosity toward one of the key witnesses in the case.
”Either I’m going down, Jen, or you are," Read huffed in the interview, seemingly suggesting one or the other of them must be at fault for O’Keefe death.
It’s part of a clear strategy new to the second trial, after jurors in her initial prosecution last year failed to reach a verdict: Special prosecutor Hank Brennan plays clips of Read’s interviews during transitions between witnesses or as punctuation at the end of the day‘s testimony. Sometimes, the statements seem intended to raise questions about Read’s character. Others seem to show discrepancies in the stories she tells. All seem to have a unified narrative purpose: to tie together complex evidence to try to prove Read hit O’Keefe, with her SUV, left him out in the cold to die, and that she’s been calculated in her statements since.
“He does it more like a Netflix series, which would be more apropos,” said retired state Superior Court judge Jack Lu, who watches the trial every day and takes notes. He said Brennan has been “innovative in his use of video,” using clips to stitch the complicated trial together.
It’s the ultimate example, Lu and other analysts said, of the concept that public statements by a defendant can be used against them in court.
Read is not expected to testify in the trial, so Brennan would have no way to cross-examine her under oath. Instead, Brennan’s strategy, according to analysts, is to hold Read’s words against her by carefully selecting clips from the hours of interviews she’s given.
“Overall, he wants the jury to be left with the inference that there’s a calculating nature here that might undercut the image that the defense is trying to portray,” said Brad Bailey, a veteran defense attorney and former prosecutor. “This is his way of trying to damage Ms. Read in a way he probably will not be able to do on cross.”
The case has gained intense national attention and drawn local protests, amid defense claims of a police coverup: Read’s legal team contends that she had dropped O’Keefe off at the Canton home of another Boston police officer for an afterparty after a night of drinking. And they claim that O’Keefe was actually beaten to death by people in the home — and mauled by the family’s German shepherd, Chloe — before they dumped him on the front lawn. (McCabe was also at the home that night)
Read’s trial last year lasted three months, but the jury was ultimately unable to come to a verdict, leading Judge Beverly Cannone to declare a mistrial. Norfolk District Attorney Michael Morrissey’s office vowed to try her again, and the second trial on the same charges began in April.
The first trial unfolded through a complicated, meandering prosecution that several times led Cannone to request that prosecutors stop asking so many repetitive questions. The strategy by then-lead prosecutor Assistant District Attorney Adam Lally, it appeared, was to preempt the defense allegations of the coverup — for instance by calling people to the stand who the defense said could have been involved, including the three men who the defense accused of killing O’Keefe.
The strategy appeared to have backfired.
“The first time around things exploded in the prosecution’s face,” said Suffolk Law professor Rosanna Cavallaro. Now, she said, they’ve had more time to adjust with a new strategy.
After the mistrial, Morrissey, who had been under fire for his handling of this case and others, tapped Brennan to lead the prosecution going forward. Brennan served as an assistant district attorney earlier in his career, but is best known for his legal defense of notorious gangster James “Whitey” Bulger a decade ago.
Brennan has been more aggressive in challenging defense tactics and he’s sought to streamline the government’s case. The government has called about three dozen witnesses through these first five weeks of the trial. In the first trial, prosecutors called 68 witnesses over eight weeks.
In other ways, the trial has looked the same. The same cramped, wood-paneled room in Norfolk Superior Court in Dedham. Cannone is still presiding, and Read’s colorful lawyers Alan Jackson and David Yannetti have returned to aggressively cross examine many of the same witnesses.
One key change on the defense side: The legal team has also brought on New York-based litigator Robert Alessi, whose cross-examinations of forensic and medical experts have been so exacting they have even drawn praise from Cannone, who recently said he has a “great facility for cross-examining” witnesses.
One factor missing so far is the testimony of Michael Proctor, the former state trooper and lead investigator on the case. Defense attorneys had introduced at the first trial inappropriate text messages that Proctor sent to colleagues about Read, calling her insulting names and making crude comments about her appearance and health.
He also made statements claiming that the owner of the Canton home, Brian Albert, had no reason to worry about the investigation, noting “he’s a Boston cop too.”
Defense attorneys used the text messages to raise questions about Proctor‘s bias and credibility and to fuel their claim of a police coverup, and Proctor was ultimately fired. It’s not clear if Brennan will still call Proctor to the stand.
But still, prosecutors will have to reckon with his work on the case and his text messages: The defense referred to them in their opening statement, and witnesses have already testified about them in the second trial.
“It’s not clear that you can damage control this,” said Cavallaro, the Suffolk Law professor.
But in Proctor‘s absence so far, the videos of Read’s media interviews have taken center stage.
Among the clips recently played in court was one where she tells an interviewer, “we think he died right around 12:25, 12:30.”
A forensic expert had just told jurors that the estimated time for Read’s SUV backing in reverse at the Canton home was from 12:32:04 a.m. to 12:32:12 a.m. That was when the SUV synced up with the clock on O’Keefe’s iPhone, which showed his device locking at 12:32:09 a.m. The expert said Read’s Lexus clock and O’Keefe’s phone clock had a discrepancy of “21 to 29 seconds.”
The expert had faced a bruising cross examination from the defense about misrepresented educational credentials and a supplemental report he’d filed mid-trial on the clock issue, so Read’s statements were introduced in an apparent effort to blunt any scrutiny of the witness.
Another clip played for jurors was intended to poke holes in one defense theory that Brian Higgins, an ATF agent who’d swapped flirtatious texts with Read but who was “ghosted” by her in the days leading up to O’Keefe’s death, may have brawled with O’Keefe inside the Canton home.
“I don’t see how John would have known about my texts with Brian,” Read says in the clip. “And I’m not sure if he knew [that] he would have reacted very strongly. I think we would have broken up, but I don’t think John would have lost it.”
Sean Cotter can be reached at sean.cotter@globe.com. Follow him @cotterreporter. Travis Andersen can be reached at travis.andersen@globe.com.
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