Brian Walshe pushes to dismiss murder case over Karen Read federal investigation evidence
Lawyers for Brian Walshe filed a motion to dismiss his murder case on Tuesday, arguing that prosecutors' inability or unwillingness to go through materials turned over by the federal government for information beneficial to Walshe was a violation of his rights.
It's the second motion to dismiss that Walshe's lawyers have filed in recent weeks. The first was the subject of a hearing last month and has not been ruled on. The motion filed Tuesday has yet to be heard before a judge.
Walshe is charged with murder in connection with the death of his wife, Ana, who he is accused of killing in the Cohasset home where they lived with their children. Prosecutors say Walshe dismembered his wife's body in the home's basement, then disposed of her remains in dumpsters.
The Norfolk district attorney's office has said it is barred from going through the materials generated in the federal investigation of the Karen Read case for information concerning any other defendant. Yet, prosecutors are required by law to turn over any information they have that could be beneficial to a defendant.
Further complicating the issue is a federal order that required the materials to be returned or destroyed 30 days after the resolution of the Read case. Read was acquitted on June 18, making the deadline July 18. Prosecutors got a 30-day extension from a federal judge, which is set to expire on Monday.
The Walshe motion claims that failure to dismiss the indictments or to order the district attorney's office to review the materials would rob him of his rights to a fair trial, due process, and to have effective assistance of counsel.
"The commonwealth has failed to inform this court or any court what the exact basis is that they're relying on that says they can't review the documents in their possession and custody," Larry Tipton, a lawyer representing Walshe, said at a hearing Tuesday afternoon.
Walshe's case is unlike many others confronting the same issue because one of the prosecutors from the Read case, Laura McLaughlin, is assigned to his case.
In her review of the federal materials, McLaughlin identified information she deemed could be beneficial to a defendant in an unrelated case, according to court filings. But she has said she was not allowed to turn over the evidence.
Norfolk Superior Court Judge Peter Krupp has not taken any action on the federal materials issue, repeatedly saying he did not want to enter an order that contradicted the federal court. But he warned prosecutors that they could face sanctions if they didn't comply with their obligations.
"There would be consequences on you and your prosecution of these cases if you did not comply with your state constitutional requirements or your Rule 14 requirements with respect to the material that's in your possession and custody," he said.
The federal court judge who set forth the orders, Denise Casper, could remedy the issue by amending her order to allow state prosecutors to review the materials.
The district attorney's office, through a lawyer hired to represent it, has asked her to do just that, and to give prosecutors six months to hold on to the materials. But federal prosecutors opposed the district attorney's office's effort to intervene in the federal case.
In a letter to First Assistant Norfolk District Attorney Lisa Beatty, federal prosecutors "stated in relevant part that [they] would not agree to or request an extension of the destruction date."
Beatty said she does not believe the U.S. Attorney's office for Massachusetts is trying to prevent local prosecutors from complying with either a state or federal order.
"These are important issues for the defendants. These are important issues to the commonwealth, to the victims and to our whole process," she said. "And this office is committed to and is continuing to work through these issues."
Walshe's case, and four others , will be back before Krupp at 2 p.m. on Thursday.
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