Was killing of Brian Walshe’s wife ‘extreme cruelty?’ Judge weighs dismissing murder charge
Lawyers for Brian Walshe are moving to dismiss the murder case against him, telling a judge on Thursday that prosecutors failed to present sufficient evidence to a grand jury to support a first-degree murder indictment.
Walshe is charged in connection with killing his wife, Ana, sometime in early 2023. Prosecutors say Walshe, facing an order to repay $450,000 as part of a federal art fraud case, killed and dismembered his wife not long after learning she was having an affair to get access to a multimillion-dollar life insurance policy taken out on her.
Larry Tipton, a lawyer for Walshe, argued, essentially, that prosecutors did not present enough evidence to prosecute Walshe under a theory of first-degree murder as a murder committed with extreme atrocity and cruelty. As a result, he argued, the portion of the first-degree indictment against Walshe that accuses him of extreme atrocity and cruelty should be tossed out.
But Judge Diane Freniere said she was unsure the law allowed her to do so, and suggested the issue may be better raised ahead of trial, when lawyers for Walshe could seek to block prosecutors from arguing a particular theory of murder.
Freniere suggested prosecutors' "fastball" in the case was the theory of premeditation, and asked Tipton to convince her there wasn't enough evidence before the grand jury to support a theory that Walshe planned the killing of his wife.
While Tipton acknowledged there was evidence of a motive, he argued it did not support the idea of any premeditation.
"You can't just throw things against the wall and see what sticks and then walk away and say the grand jury heard sufficient evidence," he said.
Police continue looking for missing Cohasset woman Ana Walshe. Walshe and her husband, Brian, pose for a photo.
Tipton appeared to face an uphill battle with Freniere, who acknowledged the evidence of extreme atrocity or cruelty was "thin" but said it was up to prosecutors to decide what theory to move forward on.
"To me, you're seeking to limit the Commonwealth with regard to the theories it may pursue at trial based on ... your perceived failing of proof in the grand jury," she said. "It seems to me that's not a dismissal of the indictment for first-degree murder."
Assistant Norfolk District Attorney Tracey Cusick argued the motion for prosecutors, telling Freniere it was the state's position she should not dismiss any theory of first-degree murder.
Much of prosecutors' evidence supporting the theory of premeditated murder is in Walshe's conduct after the time he is accused of killing his wife, on Jan. 1, 2023, Cusick acknowledged. But she argued that evidence showed planning, not just consciousness of guilt.
Cusick pointed to Walshe looking up how to clean up a crime scene, buying cleaning supplies at various stores and going to dumpsters in multiple towns to dispose of evidence and possibly his wife's body as evidence of intent and motive to kill.
Still, Freniere said the "rearward-looking concept of premeditation is a little bit difficult for me to appreciate."
But Cusick also laid out evidence prosecutors believe shows Walshe's intent to kill his wife before she was dead.
Walshe's claim that his wife left their home around 6:30 a.m. on Jan. 1, 2023 shows he was "planning and premeditating and had the intent to kill her" because he knew she was not scheduled to return to Washington, D.C., where she worked, until days later.
That created a "block of time where no one at work would be looking for her." Prosecutors also claim Walshe plotted to create an illusion that he, his wife and their three children were "happy and jovial" when she invited a friend over to celebrate New Year's Eve.
When the guest asked Walshe if he and his wife had been fighting later on, he replied, "No, you saw us. Did it look like we were arguing?" Cusick said. He also told the guest his phone was misplaced, offering an explanation for why he was not responding to text messages.
Police continue looking for missing Cohasset woman Ana Walshe.
It is the state's belief, Cusick said, that Freniere does not have the authority to, as the judge put it, "slice the loaf of first degree murder, such that I could dismiss the indictment in as much as it charges cruel and atrocious."
"If the court finds that there was sufficient evidence of premeditation, this juncture is not the time to make any determination as to what the Commonwealth may or may not do with other theories," Cusick said.
Freniere did not immediately rule on the motion. She has also yet to rule on a request by lawyers for Walshe to suppress key Google searches .
During the hearing, the lawyers also addressed the issue of a federal court order requiring the district attorney's office to return or destroy materials uncovered during a federal investigation in the Karen Read case. The order initially set a deadline of July 18 to return or destroy the materials — 30 days after Read's retrial concluded with an acquittal.
Lawyers for Walshe were, for the first time, able to see a copy of the order itself on Thursday and prosecutors turned over a copy to Freniere. Assistant Norfolk District Attorney Laura McLaughlin, a prosecutor on the Read case, said she was the only person assigned to prosecute Walshe who had seen the order.
With a federal judge allowing the district attorney's office an extra 30 days to weed through the materials, Freniere suggested McLaughlin should go through it for any exculpatory information in the Walshe case.
McLaughlin, though, said the order only allowed her to review the materials for the state prosecution of Read.
Freniere set a status conference on the federal materials issue for Aug. 1. A number of other cases will be in Norfolk Superior Court on Friday for a similar hearing.
Walshe has pleaded not guilty. His trial is set for Oct. 20.
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