It's night Side with Dan Ray. I'm w Besy Costin's radio.
All right, welcome back for interesting guests last hour. I hope you had a chance to listen to Alive. If you missed it, you can go to Nightside on demand anytime tomorrow morning. What time, Dan, will you get those four those four hours posted from tonight sometime before you leave your shift tomorrow for I'm mistaken, correct me, mister producer? All right, that's a what that's the hope? Okay, Well, he's gonna he'll do whatever. He's a good man. He'll
get it done. And got noheh there with him. We'll get them all pulled it up. Rob gets him up around two o'clock or so. I'm sure Dan, one of our producers tonight, will along with Noah, get them posted tomorrow. So if you missed any of the topics in the first hour, that will be available certainly by time you get up in the morning. We're talking about the Red Sox reversing the curse twenty years ago, believe it or not, unbelievable. Talk with a bu neurologist about young people having memory
loss that should not happen. Talk with a Washington Post reporter about eight shoulder seasoned destinations not only in this country at Nantucket, Martha's Vineyard, Cape cod were mentioned prominently, but also Myrtle Beach out west up in Canada Banff, and then up in Canada and Western Canada and down in South America as well, and talked about food borne illnesses with doctor Julia Gatza. So you can check out all of that information this hour. What I'd like to
do is like to open up a conversation. Because of all the politics that we have been covering last oh couple of weeks, we haven't had a chance really to spend much time talking about the effort which will occur on November sixth in front of the Massachusetts State Supreme Judicial Court, when Karen Read's lawyers are arguing that she should not be retried on all three of the indictments that she faced during the trial last spring, which basically
ended in a hung verdict on July first. Now, I want to get all really deep in the legal issues, but I think everyone in my audience understands that there's a concept called double jeopardy, and double jeopardy essentially means that if you were tried by the government for some alleged crime and a jury acquitted you of that crime.
Even if the government came upon some more information at a subsequent point, maybe better inculpatory information, the government doesn't have a right to reinstate the indictments once you are acquitted that acquittal, even an acquittal that you might think the jury got it wrong. That's our system of justice. It's as simple as that. If you are convicted of
a crime. If you're convicted, your lawyers always have the right to appeal that conviction, either on substantive or procedural grounds, primarily on procedural grounds that a judge made a mistake, or the jury was not charged properly, or there was evidence introduced that the trial which should not have been should have been suppressed. I think all of us understand that the Karen Read case is kind of one that's
in the middle. And the reason the Karen Read case is in the middle is there was technically no verdict that was rendered in the courtroom because the jury kept coming back or at least on two occasions, came back to the judge and said that they were deadlocked. They were a hung jury. Now, jurors do not have to tell a judge, per se, well we're deadlocked eleven to one or we're deadlocked six to six. That's beyond the specific purview that the jury will disclose to the judge.
And the reason is, obviously, the jury deliberations supposed are supposed to be you know, you know, very private, and the verdicts are only reached when the twelve members of the jury sitting as that jury sort of like almost like a magic moment, similar to when a pope is elected he needs a certain number of cardinals. Same way here in a criminal trial in Massachusetts, you need a unanimous verdict, particularly in superior court when you talk about
a jury of twelve. So what happened here, the facts of the case are pretty important. What happened was that the jury, as most juries, will send back a question or two, and then at one point they apparently told the judge in the case that they were deadlocked. Now, the judge does not have, in my opinion, the authority to say to them, well is it eleven to one, or is it six to six, or is it seven to five. No, And at that point, in most cases in Massachusetts, the judge will give a charge in which
the jury is told. It's called a lot of different things, but it's called in different states, different things. It's essentially the judge says to the jury, Hey, you've listened to all the you've listened to the case. You've listened to all the witnesses, you've heard the opening arguments, you've heard
the closing arguments. There are no better group of twelve people to render a verdict in this case than you, And I want you to go back and work hard, try to reconcile your differences, please, you know, don't take positions that you are just going to not listen to the other side, and you know, basically have an honest and open deliberations. Fine, well, they came back a second time, and at that point the judge ask them, and I'm just trying to give you the quick version here for
those of you who might forget. She said, are you hopelessly deadlocked? In other words, and the foreman four person of the jury actually sent back a handwritten note which was remarkably well written. By the way, most court observers agreed, it was a really remarkably well written note for someone who's a layperson, not a member of the bar or a trained lawyer essentially saying that the differences were irreconcilable.
So the judge basically at that point agreed that it was a hung jury and thanked them for their service and dismissed them. Now subsequent to the now the prosecution said immediately, we're going to go back and we're going to retry the case. The defense lawyer said, we we
will defend it even more strongly. The belief is that there's always an advantage to a defense a defendant because the prosecution has laid their cards, and when in the case of a hung jury, unless it's an eleven to one hung jury for guilt, if there's really some significant doubt, it gives the defense something to work on and figure
out what arguments work, what arguments did well. Anyway, subsequent to the dismissal of the jury, several of the jurors, apparently according to people who covered the trial and reporters
and newspaper reporters who covered the trial. According to Well I'm quoting here from an article from Sean Carter The Boston Globe of last week October sixteenth, multiple jurors contacted both the prosecution and defense team's post trial saying they were actually only deadlocked on one charge, me andslaughter by
operating under the influence. And these jurors told the lawyers for the for the you know, the prosecutors and the defense lawyers that they had come to a unanimous verdict on two of the charges, one which was a charge of murder in the second degree and leaving the scene of a crash causing injuries. So now the defense lawyers
have filed an appeal. They of course filed emotions with the judge in this case, the judge who oversaw the trial, and the judge said, nope, in her opinion, she did nothing wrong and that the jury did not render a verdict because they did not announce a verdict. Well, the bottom line is, should the judge have inquired when the jury four person said we're deadlock? Should have judge KATONI should have judged katone I should say, I believe it
is a correct pronunciation. Should she have said to them, you're telling me you're deadlocked. Are you deadlocked on each of the three issues, or are you only deadlocked on one or two of the issues, something like that, And at that point the jury could have easily said, if they told the truth, and there's no reason why they wouldn't. No, we're deadlocked on one issue. We have reached the verdict on two issues, and those two issues could have been
disposed of. Now it turned out that the jurors are saying we agreed to acquit Karen Reid on one of the very serious issues. Well, they're both serious issues, but the murder and second degree and leaving the scene of a crash causing injuries. So that is now an issue that is going to be heard in front of the
State Supreme Court on November sixth. My question to you is the American Civil Liberties Union has filed an A Meekus brief, and you know, I give the America Civil Liberity And probably more criticism than they deserve, but they're an August organization and on this one we agree as
far as I'm concerned. As far as I'm concerned, this case should set a new standard of practice in the courts in Massachusetts that any judge in a multiple count indictment, if a jury comes back and says we are deadlocked, the judge should say, are you deadlocked on all the counts or on some of the counts? And if they said well, we're deadlocked on most of the accounts or some of the accounts, then there should be a question, have you reached a verdict on any of the accounts? Yes,
which counts? Have you reached a unanimous verdict on counts in this case counts one and three. Well, that would have disposed of those two cases. The judge at that point could have said, I'd like you to go back to the jury room and fill out that verdict slips. Obviously there was there was a misunderstanding, a lack of communication, not involving the defendant, but involving the judge and the jurors. And I'm going to be fascinated to see how the
Supreme Court decides this case. Karen Reid is supposed to face retrial on three of the counts, all three of the counts murder, leaving, leaving the scene and manslaughter. Those those she still would be facing a manslaughter operating under the influence. So I'm in agreement or the ACIU is an agreement with me on this one. And I just think it's unfair to Karen Reid. Whether you like Karen
Reid or not, whether you like her style or not. Okay, I just think it's a matter of fairness that her lawyers and she should not be put through a second trial on the issues that the first jury decided on. It's as simple as that. I'd love to hear from you on this one. The case will be argued oral arguments on November sixth, the day after the presidential election. So assuming we do get a judgment on who's going to be our next president. Once that is settled, we'll
be refocusing on the Karen Reid case. Uh, it's a
fascinating case. Something bad happened. I don't know the truth. However, if the jury did come to a verdict on two of the three charges and the judge who's in charge of the courtroom did not think about saying to the jury, four, person, are you deadlocked on all three counts or on just some of the counts, the answer would have been instructed the judge as to what should be done next six seven, two, five, four ten thirty, six seven, nine, three thirty, triple eight
nine two, nine, ten thirty were come on right back on Nightside.
Now back to Dan Way live from the Window World to night Side Studios on WBZ News Radio.
All right, we're back here on Nightside, and we're going to go to phone calls. We're talking about the Karen Reid double jeopardy appeal to the State Supreme Court. Now, I am fairly familiar with this court, not as familiar with this court as I have been with other state Supreme courts. There's been a lot of changes in the last few years, both under Governor Baker and now under
Governor Healy. But I would say this court instinctively is a fairly progressive court, as you would expect, and I would think that they, if they follow their instincts, they would like to basically use this case to set an example for proper practice in Massachusetts court system. That's what I think we're looking at here, And let's see what you think. Let me go to Larry down on the Cape and Dennis Larry you in next on Nightsiger, right, hit.
Sir.
Dan, very interesting wellness guest that you had in that segment before.
Yeah, we are gonna have a different, different, interesting guest in that first hour. Absolutely.
Yeah, she was excellent, especially with the gut health which could possibly help me with my inflammation. Okay, Now getting to the case. At the time of the mistrial, the judge did not ask the jury those questions about the all three charges?
Correct? Correct? I think that she assumed. I think that she assumed that they were.
Hung on all three Okay, now, don't you feel that Karen Reid's lawyers were also negligent in not asking the judge because they accepted the finding. Shouldn't they have asked the judge at the time? Can you ask if all three charges were mistrials?
I think that's an argument that could be made. I think that's a good argument. But I would counter that argument by saying, the person who is in charge of the courtroom is not the prosecutor, is not the defense lawyers, It's the judge. And you would think for a lot of reasons, the judge in this case could have asked that simple question if she had asked the question on her own, without emotion from either prosecution or defense? Are you hung? Am I to understand that you are irreconcilably hung?
There's no hope for getting to a verdict on any of the three counts? Is that what you're telling me? That simple question? If the jury four person understood it, and he answered it, and I'm sure that they would have understood it and answered it was posed that way. They would have then said, no, we're hung on one count. They were under the impression that they had to come back with all three verdicts, you know, whether it's all guilty or not guilty, or combination thereof. And the judge
is the person on whom rests the responsibility. Now, if if let us say, the Supreme Court in Massachusetts were to say agree that read would should not be subject to a retrial on the two areas, and first of all, you got to bring the juris back and you got to ask the jurors, did you you they are the only people in the in the jury room, did all of you reach a verdict on the first count, which was the murder in second degrade? And if they all come in and the court knows who they are, and
they all say, yes, we did. And did you reach a verdict on the third count, which was you know, leaving the scene of an accident where a serious bodily injury it occurred, they say, yes, we did. And am I to understand that you did not reach a verdict on the second count. And there have been reports that the second count was really hung seven five or six six. If the judge had done that, they could have now moved. They would try her again on the second issue, but
it would be a more streamlined trial. Uh, it would. It would save the Commonwealth money, it would it would you remove from her the possibility of having to go through two trials and get either two separate acquittals on each of those the first charge of the in the third charge. Well, what happens if she gets a conflicting charge and the second trialger she gets so guilty on
one of those two charges. It's a mess. It's a mess, and I think the way that the court should deal with it is let her go to trial on the manslaughter which is which is a very serious charge, and disposed of the first of the first and third indictments. That's mine and the American Civil Liberty so you get Dan Ray and the A C l U on the same side of the argument.
That's right, Okay, So right, So one last question when it goes to the Supreme Court, and like you said, you are hoping that they set a precedent so for future trials. Yeah, right, going back to this trial, will they have the power of the rights to recall the jury and say what were your findings for the other two cases?
No, because I think that what has gone on here is I think that even though several jury members have gone to both the defense and the prosecution and said, hey, we we were in agreement on one in three, I think the court has an obligation to bring them back, assuming that they're still alive and they're still available, or bring back as many as possible. I mean, I'm sure they could find them and if necessary, send the bailiffs out to bring them in and ask them that question.
With Dan Ray on Boston's news radio.
The power of government to accuse someone of a crime, and obviously with a conviction to i've them of their liberty, there's no greater power that a government could have. And we in this country have always had checks, and sometimes they were checks that were not popular. And obviously, if you're invested in this case, either as a supporter of Karen Reid or as a supporter of the O'Keefe family, which I certainly do understand he lost his life. You
want to get to the truth. Sometimes you have to look at the big picture, and I'm looking at the big picture. I think the ACLU is looking at the big picture. We'll have to see how it comes out. I've been told by lawyers who are better than me, more experienced lawyers than I am, then I'm wrong, I hope not. Where are we going to go next? Let me go next to Rob in South Boston. Rob, you are next on Nightside.
Welcome Dan, Thanks taking my call. I would definitely have to be agreeing with you. In the ACLU. I think the judge failed neglected in her responsibility to inquire with the jury. Did they come to any findings, Yeah, with any of the charges well.
To the best of my knowledge. And what the prosecution is going to argue is that there was no affirmative obligation on the judge. I'm not saying that the judge failed to do something that she had that she should
have known that she should do. But it seems to me that this case and the omission of the judge and the way this worked out, I mean, you know, if it had gone and it was you know, three indictments that got that were split nine to three or eight to four or whatever on all three, well you know you're going to have to go through a new trial. It's as simple as that. But I think that this could set a standard of practice for judges, which would be helpful going forward too.
I think I think if you were a judged there, I think you would have been quired.
Well, I don't know if I would have, and be honest with you when I say that, I could easily say, oh, yeah, I would have been smart. No, you know what, I think that the judge might have read the body language of the jury. She might. You know, she's more experienced in the courtroom as a judge than I would ever be because it never been a judge. I'm not in any way, shape or form indicting her. I'm just saying that this is an opportunity we could improve the law
practice here in Massachusetts. I mean, this is not Mississippi in nineteen fifty. This is Massachusetts in twenty twenty four. And that's what I think.
No, I totally agree.
I think.
I mean, we all feel for, you know, the terrible accident that happened, and we all want to get to the truth here. But I think the jury did come to a conclusion on two of the charges. But you know, the judge wasn't a wisitive enough to even ask that.
And by the way, it might have been that any judge in that county might have had that same lack of curiosity. Maybe they they're they're used to they see it. It just would have been going that extra step. Now if the going the extra step wasn't required, but if by not going an unrequired extra step, now the defendant is going to have to be retried on all three charges. I think that double jeopardy arguments is pretty strong argument.
Now again, you can you can rely on the technical and say, well, there was no verdict rendered because there was no verdict announced in the court room. That's the argument that the prosecutor is going to put forward. And I think that every once in a while a case comes along which which cries out for you know, a little bit of common sense, and all they could do is they make this case every judge in the future
when there's a multi case. I mean, if it's one in die men and the joy comes back and says we're hung, we're irreconcilably different on this situation, that's easy. She's not going to say, well, you've just told me that on the one verdict, on the one account, you can't reach a verdict. Are there any other counts that did you reach a verdict any of the counts? Obviously, in that situation, you know you you would have a terminology.
You know, you wouldn't have to ask that. But if there's two counts, you might say, are you telling me you're hung on both counts? Yes, your honor? Okay, fine, I declare a mistrial. Okay, But you ask the question.
Considering how you know how many charges were here? I think it would have been just you know, the interest is to ask the question, have you come to any conclusion on any charges?
Exactly? Exactly what we look for is fairness and clarity.
I mean, right, you know what I mean like you're talking in a sense, I'm talking to contens I mean something that is severe. This woman's facing right, yeah, I'd be like, what's what both families.
Have been through? Right?
Yeah, everybody's been through. But I mean, like, I think the jury came to a conclusion on two charges, and but somehow, because it wasn't brought up in the courtroom, she's going to be rechas on everything.
Yes, sir, got to be retried. She will be recharged. You'd be retried, Bob, Rob, Thank you, thank you for supporting me on this. One, my friend, I appreciate.
It, Okay, thank you.
Let me go to Steve and Cambridge. Steve might be a contrarian on this one. I'm not sure. What do you What do you say, Steve?
And when you talk the law, you're really not talking common sense. You're talking fundamental principles and precedent. They go back, uh, Jeroman law and so forth. And you're not supposed to speak peak. You're not supposed to speak of the big picture. You're supposed to speak of what are the legal principles. And I think no verdict was delivered. I think that's fundamental.
A jury does not deliver three verdicts. They find the defendant guilty of one count or guilty of all counts, but there's only one verdict, and no verdict was given.
Well, there was no verdict that was announced in the courtroom, there's no question about that, okay. But obviously a jury on a multi count indictment can't come back with a split verdict. They can come back and say not guilty on one and three guilty on two, as apparently was
the case here. I just think that case law that they're probably there's certainly going to be no statute in Massachusetts that said, upon being told by a juror by a jury that they're hung, there's an affirmative obligation in the is to inquire if they're hung on all verdicts are just part you know, all of the indictments. That doesn't exist. That's how you in effect codify through case law better court room practice. That's all.
Well, what is the precedent here? I mean this this has I don't need what's that?
I don't need a precedent here? If it was a president, it would be a Shutt and Coll's case. I mean, if if there was a case from nineteen forty five which was similar, and the judges had instructions that they always had to inquire on a multi count indictment if the hung, if the jury was hung on all verdicts, all all of the counts, that would be precedent.
I don't know right about.
What about there is precedent that generally judges do not inquire, and if a jury is hung on one count, the defendant can be tried on the whole bundle, and that is not double jeopardy.
I don't think. I don't think there's any case what makes this case unique, Steve uh Stephen is this is the only case that I think you could find where a jury, subsequent to being dismissed, went to the Apparently that's what the news reports say that multiple jurors have gone to both the prosecution and defense and said, hey, wait a second, we reached a verdict on count one
in count three and it was not guilty. Now the judge can bring these people back in and if these media reports are false, But what do you do if she brings.
Say the jury, no, I don't argue the facts. I mean, I understand, did go and try to, in essence reverse the judges hoped that the judge or whom ever would reverse the judge's decision.
But the judge didn't render a decision. The judge did not communicate and did not ask a question that now is a errent to me? And I think the A C l U. And when you have me and the A C l U in the same side.
Of the argument, right, well, that that should give you pause, right there, Dan.
Maybe you should give them pause. I don't know.
Okay for another so we have to you know, what the jurors want is really not material.
It's what is the jurists don't want anything. They're reporting factually what occurred in.
That courtroom, right, I mean, let.
Me ask you this question, Steve. Let's assume that there was one Let's take another case, and let's assume there's one juror that's a holdout for acquittal hypothetical. Okay, hypothetics hypothetical, yes, And when the when the verdict is announced and open court, they say guilt. The foreman says guilty.
Well, no, no, it has to be it has to be unanimous.
Well it does, I know it does. But let's let's assume that this happened, okay.
So that the foreman says kilty when there is a hung jury.
Well, not a hung jury.
There's one persony, isn't it Well.
It can be yes, yes, technically fine, okay. So then the judge dismisses the jury. The juror felt intimidated, hypothetically, and then the juror comes back and goes to the defense lawyers and says, look, I know you don't believe me, but I held out for an acquittal and they ran roughshot over me.
Right.
Well, that means that the foreman of the jury would be subject to criminal Uh, criminal.
I understand that. Okay, let's see what I got you in before the break here, my friend. Okay, uh and uh as always your You're always well. You agree to disagree? You're one of my best calls. You know that.
If not my Dan, you're too kind.
Thanks, buddy, Talk to you soon. Take a quick break, coming right back here on nights Side right after this.
Now back to Dan ra from the Window World night Side Studios on w b Z, the news radio.
Okay, we got to crank it a little bit here, folks. I've been letting people go on a little bit. I want to know whether you agree to disagree. Charlie isn't ever Charlie next on night Side? You have heard the arguments? What say you, my friend?
Oh, did you say Charlie Charlie?
Is it Charlie or Kelly? What's the name? I did say Charlie, Charlie from effort.
I'm sorry, I gotta ask a question. Sure, how did the judge instruct the jury before deliberation? The judge say you're deliberating on all three?
You have?
What did she say?
She would have given him a standard deduction, a standard instruction? Okay, and obviously they knew that they were deliberating on three separate indictments, and apparently they were confused. They thought that they had to come. I'm sure she said to them, you know, in order to convict, you need a unanimous verdict. Now she might have said a unanimous verdict on all three and.
May I'm saying she may have said, but what did he want?
I don't know. I don't know.
That's a question.
I can tell you one more three. I was on the jury three or four times in nineteen seventy five, atter with thirty days. Three One case I was on, the judge changed our decision. You know what the jury did. They all nodded their heads, and they know what the death of the gloriousness. They jumped up and they said, Judge, I want this to note it. The jury is all nodding me ahead.
Yeah. Well that's what that's called. That's called judgment n Olvian, a judgment entered by a judge notwithstanding the verdict.
I play bar with. That's why I time I go do okay, eight years old? Eighty years old is the temper?
Buddy, Happy birthday, Happy birthday, Get easy. Let me go to Bruce and how Bruce, you gotta be quick for me. There's a couple more behind you.
Go ahead, Bruce, Yeah, Dan Ali, I will make it fast. Steve hit the nail on the head with his precedent's comments. My concern is they should rule that those charges are dismissed and set a precedence for the future.
Exactly. That's my argument.
Or if there if it isn't appropriate to dismiss those charges, great retryer on three chargers, but write a law that says, let's not have this happen again.
Well, here's the problem for taking thank you, but one you got to rely upon the legislature. The Supreme Court can act on their own. It's called case law. They can establish a practice in Massachusetts if they ruled the way that I suggested the aco you suggested this case. If it goes to he can hill to the legislature. Good luck with that. Thanks Bruce, good night, Bye bye. Okay, real quick Steve and Merrimack, and then we'll get Kristen and Franklin.
Go ahead, Steve, Hey, Dan, thanks for taking my call.
You welcome.
You know I have to disagree with you on this one because the way I look at it, this is a collective action by the prosecution on one event. The event was what happened to O'Keefe, you know, as a result of what happened with that vehicle, and you know her motive and intent. So my my way I look at it. You know, if you have ambiguity on one of the charges, that it's not for the jury to decide. It's the judge to decide whether they're going to retry it.
And I think the jury is trying to overstep the judges authority.
Judge. Judge doesn't have any authority here. But the case now is out of the judge's hand. The case is in the hand of the State Supreme Court, and the State Supreme Court has the has the opportunity now to set a new standard of practice in Massachusetts. That's all that's really.
The question is will they allow the retrial or are they going to throw out the other two charges? But I'm not sure.
Well that's that's that'll be the decision that they'll make. They'll either say no, there is no verdict rendered and she's got to go to trial in all three, or they'll say yes. You know, again, there's a little bit of work to be done here. But I think it'll be better better practice, better better practice going forward. I gotta grab one more, Steve, I thank you much. I appreciate that call very much.
Thank you.
Last one is Kristin and Franklin. Kristin, what say you on this year? The last caller?
Dan, I disagree. I feel like the judge got a lot of intel from the jurors from their letters about them being in a standing or I'm not using the right word.
Yeah, they're they're they're hung there, Yeah.
They're yeah, they're hung yep.
But at the end of the court, I don't know if you saw, the defense ran out. They were very happy for the mistrial and ran out and made a big statement on the steps.
Yeah, that's that's what a defense lawyer is going to do in that situation. They're going to say that they that it was a hunger and that their client was not convicted, and in fact they were correct because on one issue, one indictment was hung and the other two of the juris. What we're hearing from the juris is they came to one acquittal.
Yeah, but I am. My question is that I was going to ask, how valid do we know that they are really hearing from the jurors.
Real simple, real simple, simple Christian. They know who the jurors are. They bring the juris back in and they questioned the jurors under oath, and if one juris is no, no, no, that's not true. Were we were hung on all three?
Then they're not doing that.
Are you saying that that's what they should do.
I think that's what the the Prime State Supreme Court should should instruct Judge Catoni to do.
Yes, okay, because right now, so far, all this hullabaloo is by the defense telling us what they're hearing from the jurors.
Apparently the jurors have gone to the prosecution as well, according to the Boston Globe. And I will accept that as truth up against it. You gotta call earlier. I gotta go here because the ten oclock News, and I got a guess coming up on the other side. Other than that, I keep you with us, Thanks, Kristin. Here comes the ten o'clock news. We're going to talk about space weather on the other side.