The defense lawyers in the Karen Read case are looking for third party records to prove that Ms. Read is being framed for murder.  The Commonwealth has refused to produce those records.  In the interest of open disclosure, the prosecution should provide the records.

What is Rule 17 in Massachusetts and why is it a bar for the defense to gather evidence?

The trial of Karen Read involves a bold defense that the police got the investigation wrong, are covering up for their own officers and tried to pin a murder on Ms. Read that she did not commit.  The defense has asked for cell phone records to prove their theory of the case and to establish the defense that a cover up is going on to hide the true manner in which Officer John O’Keefe was killed. 

To obtain evidence from third parties a Massachusetts criminal defense lawyer has to comply with Rule 17.  In this case, the defense is seeking access to the cell phone records of everyone at the party.  Before we get into the legal issue of what standard a defense lawyer needs to meet to access those records, the bigger question is why won’t the Commonwealth agree to provide the records.  If there is nothing on the phones, why not disclose it and undermine the defense theory.  A prosecutor represents all of the people and job of a prosecutor is to seek justice in the case, not a conviction.  I have had cases with the prosecutor in the case and find him to be an outstanding prosecutor, but I question why not just disclose the text messages to the defense.  

While a prosecutor cannot consent to provide third party records, in this case the Commonwealth is objecting.  If the Commonwealth agreed the records should be provided, the judge would likely allow the motion.  Or the Commonwealth could ask its witnesses to provide the cell phone data and turn it over to the defense.  The prosecutor should obtain these records and review them to see if there is anything exculpatory.  

The Read defense team think she is being set up and is trying to prove that as part of their defense.  While a defendant has no burden of proof, a defendant will have a stronger case for reasonable doubt if the defense can present a strong alternative theory of what happened.  That is what the defense is trying to do.  

Rule 17 is the process where a lawyer can ask the Court for a summons for third party records.  To make a showing to acquire third party records a defendant must establish the following:  

1. A party moving to summons documents pursuant to Mass. R. Crim. P. 17(a)(2) prior to trial must establish good cause by showing (i) that the documents are evidentiary and relevant; (ii) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (iii) that the party cannot properly prepare for trial without such production and inspection in advance of trial, and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (iv) that the application is made in good faith and is not intended as a general fishing expedition.

The standard for a defense lawyer to obtain third party records is very difficult to meet.  The Court has repeatedly stated that a defense attorney must make a showing that the documents are relevant and evidentiary.  This is a standard that can be difficult when a defendant does not have access to the records, but the Court requires the defendant to presented detailed information in an affidavit setting forth the basis of the request.  The Court has stated that Rule 17 does not allow a defendant to get access to records on the idea that a defendant suspects there might be relevant information in the records.  This often comes up in the context of sexual assault cases where a defendant wants to assert that there is relevant information in counseling records.  However, courts routinely deny requests for records without a detailed showing that the records are relevant.  

Reads lawyers are having a hard time convincing the judge that there requests meets the Rule 17 standard to obtain the records.  It appears the trial judge is making the bar which is high too high as the defendants appeared to make a proper showing for the records.  

After the motion hearing, Ms. Read spoke to the press which is very unusual in a criminal case.  It appears that the defense is trying to get the public on their side prior to jury selection.  Having a defendant speak at a press conference can be very risky as it is recorded and potentially could be used as evidence.  

What is the Commonwealth’s Theory?

The prosecution in the Read case argued that the defendant and the victim were going through a difficult time in their relationship.  The defendant is alleged to have been drinking with the victim and then backed into him and left him to die in a snow bank.  The defendant is alleged to have stated that she hit the defendant when she arrived back on the scene were his body was found.  The strongest evidence against Ms. Read is her statement made to the police.  

While the prosecution may be able to convince the Judge to take a narrow view of Rule 17, the prosecution should be concerned that the jury may question why the Commonwealth will not disclose the evidence of text messages sent by those at the party. What is being kept from the jury?  The prosecution should make this information public to diffuse the defense of the Read team.  In my view, the Commonwealth has an obligation to investigate this and should have done so prior to charging Read. The Commonwealth should not hide behind Rule 17 but should present the case as if every alternative explanation was explored as it is there burden to rule out every reasonable doubt.  Without investigating the defense theory, I would not expect a jury to be able to convict Read based on the evidence and lack of a complete investigation.