Norfolk DA on verge of resolving Karen Read federal investigation evidence issues
A prosecutor with the Norfolk County District Attorney's office said Thursday afternoon that she sees a "path forward" to resolving the issue of the disclosure of evidence turned up by a federal investigation in the Karen Read case in other pending cases.
Thursday's hearing came as prosecutors stare down an October deadline to return or destroy the investigative materials found by the federal government. And prosecutors are also up against the clock in the Brian Walshe case, with a trial scheduled for Oct. 20.
First Assistant Norfolk District Attorney Lisa Beatty said she was "very optimistic that we are going to reach a resolution, which is satisfactory to our office and to the U.S. Attorney's Office."
"We do see a path forward," she said, noting that path will likely require authorization from the federal judge overseeing the potential disclosure of the materials and a protective order in state court. "I can't promise that this is resolved, but I'm very optimistic about it."
The issue of the federal materials cropped up in July, when prosecutors filed notice in several cases, including that of Walshe, that they faced a July 18 deadline to return or destroy everything the government turned over in connection with the Read case. The July 18 deadline coincided with 30 days after the conclusion of the Read case — she was acquitted on June 18.
Eventually, U.S. District Court Chief Judge Denise Casper delayed that deadline, as defense attorneys scrambled to ensure the materials wouldn't be destroyed before they were reviewed for evidence that could benefit their clients.
Thus far, the U.S. Attorney's office has permitted only the disclosure of the communications uncovered on former Massachusetts State Police Trooper Michael Proctor 's personal phone.
Local prosecutors have been able to review the other materials and have determined that there is information relevant to other pending cases in them.
But none of that information has yet been disclosed .
Attorney Rosemary Scapicchio, who represents two clients whose cases involve Proctor, said there are three different categories of information she and other lawyers want access to. Those are: searches performed on Proctor's work phone, searches on his personal phone and whatever else the government turned up during its investigation in the Read case.
She and other lawyers were ordered to turn over search terms they wanted prosecutors to look for during their review of the materials.
But Scapicchio wants to know who, exactly, is doing the searching. All the district attorney's office has said is that only lawyers who signed the initial protective order in the Read case are allowed to go through the materials.
"If it's somebody who doesn't have any idea what's going on in the [cases] ... then how can they be sure that the evidence that they're looking at is not exculpatory?" Scapicchio told reporters outside Norfolk Superior Court in Dedham.
It is the constitutional right of any defendant for prosecutors to turn over any information that could benefit them ahead of a trial.
During the hearing, Attorney Kelli Porges, who represents Walshe, said she was concerned about the timing of the disclosure given the rapidly approaching trial date.
Anything prosecutors turn over could require further litigation, she noted.
"Time really is of the essence, and if the government knows about the information and where it is, I don't understand the delay in simply getting in front of a federal judge in the next couple of days to address this," Porges said.
Beatty, for her part, said there was little the district attorney's office could do to speed up the process.
"I'm not in control of this situation, as we've discussed ad nauseam," Beatty said in court.
It would be difficult to prepare for trial with the potential for new evidence to be turned over at any moment, Scapicchio said.
"I don't know how you get a fair trial," she said. "There's a lot of information and a lot of work that goes into every piece of late discovery that you get. And in this case, on the eve of trial, for Mr. Walshe, it's going to be difficult for his attorneys to play catch-up, and that way the Commonwealth gets an advantage."
Krupp set two further hearings on the issue, though he noted they may be unnecessary if the situation is resolved ahead of time. Walshe's case will be back in court on Oct. 7 at 9 a.m. for both an update on the federal materials and a final pre-trial conference.
The remaining cases, of Shawn Johnson, Myles King , Jovani Delossantos and Bianca Chionchio, will be heard at 2 p.m. that day.
The exact contours of the federal investigation in the Read case remain unclear. But its existence was revealed in court filings and hearings ahead of Read's first trial.
Federal prosecutors convened a grand jury to hear evidence during their investigation of the Read case, and several key witnesses, including Proctor , testified before it.
The investigation ended this year , according to Hank Brennan, the special prosecutor assigned to the Read case. A letter sent to Beatty in connection with the federal materials issue appears to confirm Brennan's representations.
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