If Karen Read is convicted, will it stick on appeal?

I looked into Judge Beverly Cannone's appeal record in published decisions. She doesn't always get it right, but that doesn't mean the reviewing courts will fix it.

From the pretrial rulings through the evidentiary decisions made in the course of the trial, there are a lot of legal issues that present ripe grounds for appeal in the (perhaps unlikely) event that Karen Read is convicted of a crime. Back in week 3, I mentioned on stream that I did some research into Judge Cannone’s appeal record and found some very intriguing nuggets in it. I’m going to share them in full now.

**This review is based on published appellate decisions in which Judge Cannone was the trial judge. The Court of Appeals publishes decisions when they want the decision to have precedential value, because it provides clarity on a new or complex issue of law or gives guidance to lower courts on how to apply the law in certain factual situations that are likely to recur. Most appellate decisions, however, are unpublished, because they involve the routine application of everyday law to everyday situations. Because I could not search unpublished Massachusetts appellate decisions with the tools I have, this review does not cover all of Judge Cannone’s decisions that were later reviewed, only the decisions that were considered important enough to be precedential.

Overview: Judge Cannone gets it right a little more than half the time.

I found 10 published appellate decisions of Judge Cannone’s rulings that were issued between 2017 and the present. They consisted of 3 civil cases and 7 criminal cases. Of those 10 cases, she was affirmed 6 times and reversed 4 times.

In 6 of those 7 criminal cases, she had originally ruled in favor of the defendant, and 3 of those decisions were later reversed. The one time she ruled in favor of the Commonwealth, she was affirmed on harmless error grounds.

This record intrigued me because it does not show a particularly prosecution-friendly judge. Historically, she has not ruled for the Commonwealth on a knee-jerk basis; in fact, she has often been reversed for being too receptive to defense arguments. This paints quite a different picture of her instincts than we might expect if we only saw her decisions in Karen Read’s trial.

Breaking down the decisions: She’s more influenced by facts than by law.

When it comes to parsing technical statutory language and deciding what it means, Judge Cannone doesn’t have a great record. She’s been reversed for incorrectly interpreting the requirements of the civil commitment statute, the mechanic’s lien statute, and the expungement statute. In cases where language establishes unambiguous requirements, such as the length of a probation term, the service requirements for a citation, or the forum selection clause in a contract, she does better.

The facts seem to influence her legal reasoning heavily, but not always in the right direction. When a defense lawyer failed without a good explanation to investigate a third-party culprit defense based on the eyewitness statement of a confidential informant produced on the eve of trial, Judge Cannone’s decision to grant a new trial was affirmed. But when an 80-year-old man in a wheelchair alleged to be a sexually violent person was confined pending a jury trial when jury trials could not be held during COVID-19, her decision to grant the man a bench trial was reversed. Similarly, her decision to grant an expungement to a petitioner who had been crime-free for 34 years and could not pursue his profession with the conviction on his record was reversed because her reasons did not satisfy the statutory requirements for expungement. However, Judge Cannone appears able to put aside her view of the facts and apply the law impartially at least some of the time. When a plaintiff sued an insurance company for deceptive settlement practices, Judge Cannone found that the plaintiff had exaggerated his injuries and lacked credibility but nevertheless agreed that the insurance company had behaved deceptively and awarded the plaintiff double damages. That decision was affirmed.

A notable case: Third-party culprits and taking the Commonwealth’s word for it.

One of the decisions stood out to me as especially noteworthy in light of the rulings she has made in Commonwealth v. Karen Read, so let’s look at it more closely.

Commonwealth v. Tavares, decided in 2023, was a capital murder case. The victim was an alleged drug dealer who was shot three times and killed. Mr. Tavares was the last person to call the victim, his phone pinged off the tower closest to the victim’s home at the time of the shooting, and his fingerprint was on the door. In a police interview, he admitted previously disputing with the victim over the price of marijuana he bought and texted a friend, “Yo, I got bagged.” However, two eyewitnesses present in the area did not identify Mr. Tavares as the shooter in a photo line-up, and police did not recover the murder weapon in a search of his home.

Mr. Tavares contended that he was not the shooter. Shortly before trial, prosecutors disclosed that a confidential informant had revealed, during a proffer, that two different men were responsible for the shooting; they had gone to the home to rob the victim and had shot him when he lunged for the gun. The proffer agreement was turned over to the defense lawyer the day before trial started and the alleged third-party culprit was ordered by the court to be available for trial. But the trial lawyer never interviewed the suspect or conducted any investigation into the information the confidential informant provided before proceeding to trial, and Mr. Tavares was convicted.

Judge Cannone found that Mr. Tavares’s trial attorney provided constitutionally ineffective assistance and granted him a new trial. She rejected the attorney’s explanation that he didn’t ask for a continuance to investigate the new information because he wasn’t sure if his other witnesses would be available later, pointing out that they weren’t good witnesses anyway because they didn’t provide Mr. Tavares with a strong alibi. And she concluded that the decision not to investigate deprived Mr. Tavares of a viable defense because the information would have supported both Bowden and conventional third-party culprit defenses. Her reasoning and conclusions were affirmed on appeal.

I found it intriguing that Judge Cannone had such recent, high-stakes experience with third-party culprit issues in light of their obvious implications in Karen Read’s case. Although the basis for her evidentiary rulings is often obscure (since she has instructed the attorneys not to state the basis for their objections on the record), she has sustained several Commonwealth objections on grounds that appear to me to be related to her pretrial determination that there is insufficient evidence of the involvement of Brian Albert, Brian Higgins, or Colin Albert in the death of John O’Keefe to permit questioning about it. This determination is perhaps a bit more understandable if the Tavares case is her standard - an eyewitness who directly implicates third-parties has not emerged in Karen Read’s case. But the Tavares case isn’t the legal standard, so it remains to be seen if the limits she has imposed on the defense’s ability to directly argue that Brian Albert, Brian Higgins, and/or Colin Albert caused John’s death and tried to cover it up will be seen as reasonable by a reviewing court, in light of Karen’s unquestionable constitutional rights to present a defense and to confront her accusers.

What does this mean for Karen Read’s case?

When it comes to discretionary decisions like evidentiary rulings, the appellate standards are very forgiving to the trial judge. However, even discretionary decisions can be reversed if they are based on an erroneous understanding of what the legal requirements are. And when it comes to interpreting the legal requirements, Judge Cannone’s record isn’t that great. To the extent any of her rulings can be criticized on grounds of legal misunderstanding, that ground is likely to be more fruitful than a straightforward challenge to the reasonableness of her decision given the correct legal standard.

That said, when Judge Cannone rules for the Commonwealth, it rarely goes wrong for her. On the one occasion when she was found to have committed error by admitting certain labels in the Commonwealth’s risk assessment tool in a sexually dangerous person commitment trial, the error was found to be harmless. Harmless error allows judges to make numerous errors in a case so long as the case against the defendant is so strong that she would have been convicted anyway if the error hadn’t been committed. I’m not sure the case against Karen Read reaches this level, at least not based on the evidence that has been presented so far. But harmless error also requires the challenger to prove the consequence of the ruling, and when the ruling is a decision to prohibit certain questions, that can be an impossible burden to meet because the answer is unknown.

The unfortunate lesson to be drawn from Judge Cannone’s record appears to be that ruling for the defense is more likely to get you reversed in Massachusetts. On many occasions, she has gone out on a limb in favor of a defendant and has drawn a slap on the wrist in return. It is only natural that a judge would begin to learn that the risk of ruling for a defendant is unlikely to bring a reward, while ruling for the Commonwealth, even erroneously, is likely to stand up on review. This may account for some of what is appearing more and more to be a judicial preference for the positions and practices of the Commonwealth in Judge Cannone’s decisions, and it does not paint an optimistic picture of Karen’s chances on appeal.

***

Sources:

Commonwealth v. George, 477 Mass. 331 (2017). Admitting risk categories of “moderate-high” and “high” in a sexually dangerous person commitment trial was error, but harmless when it was a minor factor in the testimony of experts about the defendant’s sexual dangerousness.

In re E.C., 479 Mass. 113 (2018). Declining to allow hospital petitioner to convert a petition to extend a period of competency restoration into a petition to civilly commit the defendant for mental health treatment after the criminal charges were dismissed was an abuse of discretion.

Commonwealth v. O’Leary, 480 Mass. 67 (2018). Because the statute requires issuance of a citation at the time and place of the violation and none of the statutory exceptions applied, a citation that was not issued until nine days later following investigation and submission of an accident report was properly dismissed.

City Electric Supply Co. v. Arch Insurance Co., 481 Mass. 784 (2019). Because a mechanic’s lien claimant is not required to record the lien foreclosure complaint as a precondition for action to enforce the lien, the order granting summary judgment against the lien claimant was reversed.

Empire Loan of Stoughton, Inc. v. Stanley Convergent Security Solutions, Inc., 94 Mass. Ct. App. 709 (2019). When the parties’ contract stated that any action on it must be brought in Hartford, Connecticut, dismissal of the contract case filed in Massachusetts was affirmed.

Commonwealth v. Pacheco, 96 Mass. Ct. App. 175 (2019). A probation term that ran from the defendant’s date of release on a specific criminal charge expired while he was subsequently detained and incarcerated for ten years as a sexually dangerous person, so dismissal of probation violation proceeding after his release was affirmed.

In re LeSage, 488 Mass. 175 (2021). The State’s statutory right to demand a jury trial in a sexually dangerous person commitment proceeding did not violate the defendant’s due process rights in light of COVID-19 restrictions on jury trials, and the decision to hold a bench trial on the matter was reversed.

Terry v. Hospitality Mutual Insurance Co., 101 Mass. Ct. App. 597 (2022). Despite finding that insurance claimant exaggerated his injuries and was not credible, there was sufficient evidence to support determination that insurance company engaged in deceptive settlement practices and award doubling claimant’s damages was affirmed.

In re Expungement, 489 Mass. 67 (2022). Where a statute sets out time-based and reason-based grounds for expunging a criminal conviction, a judge may not grant expungement under a catchall “interests of justice” provision without first finding that a specific reason for the conviction enumerated in the statute applied to the case.

Commonwealth v. Tavares, 491 Mass. 362 (2023). When a capital trial attorney was aware of a late-disclosed witness who had directly implicated two third-party culprits in the murder the defendant was accused of committing, the attorney’s performance was constitutionally inadequate and the deficiency prejudiced the defendant by depriving him of a viable third-party culprit defense.