What the jury instructions reveal about the Commonwealth's lack of a theory

We've been waiting for nearly two months for the Commonwealth to tell us how and why Karen Read killed John O'Keefe with her car, but now it's clear that they don't know either.

Friday afternoon, the Commonwealth filed its proposed jury instructions in the case against Karen Read. If you’re interested in reading those instructions, you can find them at this link.

First, some background about how jury instructions work and some anticipated objections.

Massachusetts, like many jurisdictions, has adopted model jury instructions to use in trial. The purpose of these model instructions is to establish a template that provides what, at a minimum, the jury needs to be told about the law in a criminal case. The parties can then propose additional instructions that are unique to the facts of that case, either from the model instructions or drafted independently based on other legal authority, usually language from case law. Proposed instructions should be given if they are legally accurate and supported by the evidence that’s been presented.

It’s important to note here that the instructions the Commonwealth is proposing are not the full set of instructions the jury would be read after both parties rest. Massachusetts instead uses a form script that contains instructions defining concepts like the burden of proof, proof beyond a reasonable doubt, direct vs. circumstantial evidence, evaluating the credibility of witnesses, and describing the deliberation process. What the Commonwealth is requesting in this filing are instructions to be given in addition to the basic script.

It also appears from my review that nearly every instruction the Commonwealth is requesting is a form instruction. The exception appears to be the Commonwealth’s proposed jury instruction on “Witness Pretrial Preparation,” at pages 17-18, which relates to several times the defense has elicited testimony about prep sessions with ADA Adam Lally. I expect the defense to object to this instruction since (1) Mr. Lally cites no case law in support of giving such an instruction at all or the accuracy of its content; and (2) Adverse inferences can be drawn from prep sessions, including the witness’s opportunity to tailor their testimony to the evidence that will be presented or the witness’s general credibility and veracity (such as Colin Albert initially saying he only spoke with his attorney to prep but then conceding that he also met with Mr. Lally to prepare but didn’t remember any details).

I anticipate other objections as well. For example, in the second-degree murder instruction, the State is asking to instruct on all three ways the law allows a second-degree murder to be committed - by intending to kill the person, by intending to inflict grievous bodily harm on the person, or by intending to commit an act that, under the circumstances, a reasonable would have known created a plain and strong likelihood of death. But the indictment pretty clearly charges Karen Read only with intending to murder him:

It is not at all clear to me that the Commonwealth is entitled to have the jury consider alternative ways of committing the crime for which the grand jury did not indict. The Fifth Amendment prohibits a person from being held to answer for an unindicted crime and the Sixth Amendment requires that the defendant be informed of the nature and cause of the crime charged. Under several U.S. Supreme Court cases, effectively modifying the indictment in the jury instructions by presenting broader bases to convict than the grand jury indicted on can constitute a constructive amendment, which is prejudicial per se, or a variance, which is prejudicial if it affects the defendant’s substantial rights. One of the leading cases on this issue, Stirone v. U.S., has this to say on the subject:

Since the language of the indictment explicitly only addresses the intentional murder means of committing second degree murder, I’d expect the defense to argue that instructing on additional, uncharged means violates the Fifth and Sixth Amendment.

What’s especially telling about these proposed instructions is the lesser-included offenses requested.

So let’s get into the real story of these proposed instructions, which is the Commonwealth’s lack of confidence in its ability to prove how or why Karen Read killed John O’Keefe.

The indictment charged Karen with three crimes: Second degree murder, manslaughter while operating a motor vehicle under the influence, and leaving the scene of an accident causing death. Each of these is in independent, standalone crime with separate elements, meaning that she could be convicted of all three of them without violating double jeopardy. Lesser-included offenses have all of the same elements as the greater offense, so you can’t be convicted of both the greater offense and the lesser-included offense without creating a double jeopardy problem. The jury will be instructed to convict on the greatest crime that the evidence can prove and to consider lesser offenses only if they acquit or cannot agree on the greater offense.

Read together, the charges in the indictment set forth a theory in which Karen drove drunk and recklessly maneuvered her car with the intent to kill John, causing his death. But now that the Commonwealth’s evidence has nearly all been presented, the problems in the proof are becoming evident. The evidence - video, receipts, witness accounts - don’t substantiate the amount of alcohol the Commonwealth claims she drank. The retrograde extrapolation depends upon multiple assumptions that the scientist testified may not apply in any individual case. The proof of intent is muddled - the Commonwealth seems to contend that John and Karen fought in Aruba and then Karen flirted with Brian Higgins over text for a couple of weeks but then reconciled with John … and then murdered him for completely undetermined reasons. The DNA from the bloodstains on John’s clothes includes multiple unidentified contributors. The witness statements have evolved over time, the accounts are inconsistent (why did Julie Nagel suddenly recall seeing a six-foot long black blob on the lawn only when she testified at trial and why did nobody else see it?), and even the timeline is a struggle - on the one hand, the Commonwealth is implying that Karen drove back to 34 Fairview the next morning before she went to Jen McCabe’s house, but the vehicle data it argues shows her hitting John at high speed in reverse depends upon her not going back in the morning and taking the most direct route of travel to all of her known destinations for the mileage to work. In short, the evidence the Commonwealth has presented is so convoluted and contradictory that it is impossible to tell what, exactly, it wants the jury to believe happened.

This incoherence in theory is reflected in the Commonwealth’s decision to request lesser-included instructions for the crimes of involuntary manslaughter and motor vehicle homicide. Involuntary manslaughter allows conviction on a finding that Karen did something negligent that caused John’s death. Motor vehicle homicide, likewise, requires proof that Karen was drunkenly operating her car and negligently caused John’s death. Negligence is the least culpable mental state for a criminal conviction and is proven when a person fails to act with reasonable care in a situation - failing to check your mirrors, driving too fast for conditions, things of that nature.

What a downgrade from intentional murder! While the law certainly allows both parties to request lesser-included instructions, they are usually proposed by the defense when a full acquittal is unlikely, but the evidence suggests the defendant has been overcharged. It’s less common for the prosecution to seek them, simply because the prosecution has considerable control over what gets charged. So, if the prosecution questions whether it can prove Karen intentionally killed John … maybe don’t charge that in the first place?

So it appears that not only does the Commonwealth lack confidence that the jury understands how this happened, they also aren’t convinced they’ve sold the jury on why. Consistent with how they’ve tried to have it both ways with the evidence - Karen is guilty if she went back to 34 Fairview before going to Jen McCabe’s and she’s guilty if she didn’t - they’re now trying to have it both ways with the law as well - she’s guilty if she meant to kill him and guilty if she didn’t.

The problem with this strategy from the Commonwealth, of course, is that it is their entire job to prove to the jury beyond a reasonable doubt how and why the crime occurred. Throwing every contradictory fact and every conceivable charge at the jury and expecting them to sort it out is not the playbook of a winning case. These jury instructions are a major tell from the Commonwealth that they don’t know what’s going on here any more than the rest of us and have spent the last two months hoping to figure it out along the way. Banking on the jury to solve the case you couldn’t is a bold strategy, so let’s see if it pays off.