Civics lessons from Karen Read's retrial

The team delves into some of the many civics lessons the public got while watching Karen Read’s retrial, which ended with her acquittal on all major charges in June. Topics include the First Amendment, judicial discretion, courtroom tactics, and more. Our expert for this episode is Colin Miller, blogger, podcaster, and professor at University of South Carolina School of Law. Read Vanity Fair's extensive reporting on this case. CLICK HERE: Visit our website to see all of our episodes, donate to the podcast, sign up for our newsletter, get free educational materials, and more! To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. Check out our other weekly NHPR podcast, Outside/In - we think you'll love it! Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:05Speaker 00

  I'm Rebecca Lavoy.

• 0:06Hannah McCarthy?

  I'm Hannah McCarthy.

• 0:07Nick Capodice?

  I'm Nick Capodice.

• 0:08Speaker 00

  And this is Civics 101.

• 0:13Speaker 03

  I'm Vinnie Palitan. The subject of my investigation is the death of Boston Police Officer John O'Keefe and the dramatic retrial of his girlfriend Karen Reed.

• 0:23Speaker 00

  So today, we're going to be talking about a high-profile trial.

• 0:27Speaker 04

  The defendant, not guilty or guilty? Should I say you, Mr. criminal? Should I say you all?

• 0:34Speaker 00

  Apologize in advance for listeners who might be tired of hearing about this topic, but I promise it will be relevant to this show. Nick?

• 0:42Nick Capodice?

  Yeah.

• 0:42Speaker 00

  What do you know about the Karen Reed trial?

• 0:46Nick Capodice?

  Rebecca, I know so little about the Karen Reed trial. I do know it involves the police.

• 0:51Speaker 00

  Uh huh.

• 0:52Nick Capodice?

  And it happened in Massachusetts.

• 0:54Speaker 00

  Uh huh.

• 0:54Nick Capodice?

  And it's kind of bonkers, like stuff just all over the place.

• 0:59Speaker 00

  Yes.

• 1:00Nick Capodice?

  And it just kind of happened, didn't it?

• 1:01Speaker 00

  It just kind of happened, yes. Karen Reed was just acquitted on most of the charges against her just a couple of weeks ago in June. What do you know, Hannah?

• 1:10Hannah McCarthy?

  I know more.

• 1:11Speaker 00

  Okay.

• 1:11Hannah McCarthy?

  I know that Karen Reed was accused of killing, perhaps inadvertently, perhaps not, I don't, I don't know the details of that, her boyfriend, John O'Keefe, by hitting him with her car. I know that he was found outside in the snow, that her taillight had been broken.

• 1:31Speaker 00

  Mm-hmm.

• 1:32Hannah McCarthy?

  And I also know that her defense claims that this was a police cover-up, that she was framed, and that he was actually either wounded or killed in a fight at a party with other police officers and was bitten by a dog and left outside in a snowstorm to die.

• 1:53Speaker 00

  Okay, you're actually pretty close. So I feel like first I should give a little bit of a disclaimer about me, Rebecca Lavoy. So I work on Civics 101 by day here at NHPR, but outside of work, I also host a true crime media review podcast where we look at the journalism around true crime. And I became really interested in the Karen Reed case a little more than a year ago, and I have since become like a commentator on the case, on like Court TV and stuff. So I do have a point of view about this. And I'm not going to get too much into my point of view. You might get a hint of it, but it's part of why I find this case interesting. So do you want to hear the story?

• 2:29Speaker 05

  Yes.

• 2:31Nick Capodice?

  Absolutely.

• 2:32Speaker 00

  Okay, so the reason this case is important is, first of all, this was a retrial. Her first trial ended with a mistrial in 2024. Second, the Karen Reed case drew outsized public attention for reasons that we will talk about, and maybe the first highly publicized trial in a very long time where the majority of the public was rooting for the accused.

• 2:52Speaker 05

  Karen Reed's second trial tapping into a common thread beyond the utter conviction by the Free Karen Reed movement that she is innocent.

• 3:01Speaker 00

  Also, this trial, in my opinion, has imparted more civics lessons than any criminal case I can think of in recent years. And we will talk about some of those, but not all of them in this episode.

• 3:13Speaker 00

  I want to acknowledge something really important. We're going to be talking about a case, and at the center of that is a woman, a woman defendant, Karen Reed. But the reason the case happened was because a human being died really tragically. Everybody agrees that this was a tragedy. No matter what you might think about the trial, about the outcome, Officer John O'Keefe is the victim at the center of this. But today, we're not going to be talking about O'Keefe, and I just wanted to acknowledge that. We're going to be talking about the trial itself, the person who was accused of killing John O'Keefe, the person who was later acquitted of killing John O'Keefe, and some of the things that happened during these high-profile trials around this person, Karen Reed.

• 3:59Speaker 00

  So here is the story. In the early morning of January 29th, 2022, Karen Reed's boyfriend, Boston Police Officer John O'Keefe, was found on the front lawn of 34 Fairview Road in Canton, Massachusetts. That home was owned by a police officer who had been hosting a post-night-out party. Reed was arrested on February 2nd, 2022, just a couple of days later, and was arraigned. And after that arraignment, her lawyer got a tip, and the tipster said that John O'Keefe had actually been killed inside the home where he was found and then put outside. Karen Reed was eventually indicted and tried for a lot of charges, but the main ones were second-degree murder, manslaughter, and leaving the scene of a death.

• 4:44Speaker 00

  And those charges had some sub-charges. And in trial two, the defense successfully argued to allow the jury to vote on one particular charge, operating under the influence of alcohol, which did not affect other charges. And that is the only charge she was convicted of this past June.

• 5:00Speaker 06

  Wow.

• 5:01Speaker 00

  So over time, public sentiment swayed, where most people believe now, if you poll them, that John O'Keefe was not killed the way the police say he was killed in Karen Reed's case. This is fed by the fact, in part, that his right arm does appear to be covered with wounds from a dog attack. And people believe a lot of the evidence in the scene, including pieces of the taillight, as you mentioned, were planted by a police officer, who was, by the way, later fired for ethical misconduct around this very case.

• 5:33Speaker 06

  And in the case, a major blow, in fact, the prosecution in the case of Karen Reed and the retrial. The jury will hear that lead investigator trooper Michael Proctor has been fired following a three-day police trial board review over three months stemming from testimony about drinking on the job and sending inappropriate messages about defendant Karen Reed.

• 5:56Speaker 00

  Wow. Yeah.

• 5:58Nick Capodice?

  Can I ask a quick question?

• 5:59Speaker 00

  Sure.

• 6:00Nick Capodice?

  Do you know, how can somebody be charged with manslaughter and second-degree murder?

• 6:04Speaker 00

  That's a very interesting question, and that's a good civics lesson. So prosecutors very often up-charge people. A common way to get people to plea out, if people believe they are guilty or they want to quit conviction, is to pile charges on top of charges. But you can absolutely charge people with both things, and the jury can then decide whether they're guilty of both, one, or neither.

• 6:32Speaker 00

  By the way, I'm not the only person who was deeply interested in this case. Millions of people are, obviously. But one person who was tweeting and blogging about the case was somebody I really admired. His name's Colin Miller.

• 6:43Nick Capodice?

  Ah, he was our guest on the episode determining whether or not Santa Claus is a criminal.

• 6:49Speaker 00

  That's right. I love Colin.

• 6:50Nick Capodice?

  He's great.

• 6:50Speaker 00

  Yeah. He's incredible. He's a law professor at the University of South Carolina School of Law. He's a blogger. He's a podcaster who's helped a lot of people get out of prison after wrongful convictions or overcharging and so forth. And I asked him why he was so interested in Karen Reed's retrial.

• 7:05Speaker 07

  I think the main reason is that I've done a lot of research about retrials. And the research all points toward the prosecution faring better at a retrial than the defense. And the reasoning is usually the defense knows a lot more about the state's case at trial one, and the prosecution knows less about the defense case, which then helps the prosecution in trial two. What we've seen in this case, though, is I think the defense, to me at least, seems to have learned more from trial one than the prosecution. Namely, it seemed the jurors at trial one weren't willing to accept the third-party liability that the people at Fairview might have been responsible.

• 7:46Speaker 07

  And so at trial two, the defense has focused much more on, A, they're claiming there was no collision, but B, this was shoddy police work, rather than pointing the finger at any particular alternate suspect.

• 7:58Speaker 08

  But the story you'll hear is about an investigation that was riddled with errors from the beginning, a rush to judgment, conflicted and corrupted from the start. Corrupted by bias, corrupted by incompetence, and corrupted by deceit.

• 8:14Speaker 00

  So here's why I got interested in this case. It was long before the second trial. It was just before the first trial in 2024. I learned that in spring of 2023, the FBI Working under orders from the DOJ, the Department of Justice, were conducting their own investigation into the circumstances of John O'Keefe's death.

• 8:35Hannah McCarthy?

  Rebecca, what triggers a federal jurisdiction in the case? I know that like going over state lines is one example.

• 8:41Speaker 00

  Yes.

• 8:42Hannah McCarthy?

  And that being somehow involved with a federal agent or anything like that is another. But how, how is this case within federal jurisdiction?

• 8:53Speaker 00

  That's a very interesting question, and the answer to that isn't completely clear. However, federal jurisdiction applies to civil rights, any matters concerning federal law, the Constitution, disputes between states, et cetera. The Department of Justice has a public integrity unit and a civil rights jurisdiction. So there is a theory, and I think it's actually not a bad one, that the FBI and DOJ were looking into a pattern of misconduct around police who were involved in this investigation or in the Norfolk County District Attorney's Office, run by Michael Morrissey, who's held that office for like 36 years. There's a theory that that is why they're involved.

• 9:35Speaker 00

  Now, it's important to note that in February of 2025, President Trump ordered the DOJ to stop investigations into civil rights cases and subsequently to stop investigations into cases involving police. In March of 2025, the prosecutor prosecuting the Karen Reed case announced that he had been told the federal investigation was, quote, "over." But that is actually unclear. And what interested me in the case was that the DOJ, in August of 2023, sent the district attorney, Michael Morrissey in Norfolk County, a letter saying that they had come to a very different conclusion about John O'Keefe's death, in essence that he was not hit by a car.

• 10:18Speaker 00

  And you would think that that would prompt the DA to take a second look, but no. They doubled down and went forward with trial one despite the fact that they knew the FBI had looked at the case and come to a different conclusion.

• 10:37Speaker 00

  So, as I mentioned, Karen Reed's first trial in 2024 ended with a hung jury on all the charges. But interestingly, in a stunning turn, several jurors proactively contacted both the DA and Karen Reed's defense team after the trial, saying that they had actually all agreed on two of the charges, two of the major charges, and they were only hung on one of them. This happened, they said, because of a confusing jury form and because the judge in the case never polled the jury when they announced the deadlock, nor did she give the defense the chance to object and ask for a poll of the jury.

• 11:13Speaker 09

  To continue to deliberate would be futile and only serve to force us to compromise these deeply held beliefs. I'm not going to do that to you folks. Your service is complete. I'm declaring a mistrial in this case.

• 11:26Hannah McCarthy?

  So, like, multiple members of the jury say, "We had reached a decision. Your form was just confusing."

• 11:33Speaker 00

  That's right. And the Reed defense actually took this to the courts, including federal courts. It went all the way up to the Supreme Court after judges kept ruling in the judge in Karen Reed's case favor, saying she hadn't done anything improper. And then the Supreme Court declined to take up the case. Whoa.

• 11:50Nick Capodice?

  The Supreme Supreme Court?

• 11:51Speaker 00

  Yes, yes.

• 11:52Nick Capodice?

  They filed a petition for a writ of certiorari to be like, "Here the Karen Reed."

• 11:56Speaker 00

  Yes.

• 11:57Nick Capodice?

  I didn't know about that.

• 12:00Nick Capodice?

  I have a question, Rebecca.

• 12:01Speaker 00

  Yes.

• 12:02Nick Capodice?

  If a jury can't make up its mind, if it's a hung jury, is that a mistrial?

• 12:07Speaker 00

  Yes. And then the prosecutor has the choice to either let it go, drop the charges, not retry, or to have a second trial, which is what happened in this case. So, how does a judge actually decide if a jury is deadlocked or not?

• 12:21Speaker 07

  So, the answer is, this actually originated in Massachusetts before it went to the Supreme Court. We have what's known as an "Allen Charge." And so if the jury sends the judge a note saying we're deadlocked, the judge is allowed to give what's known as an "Allen Charge" or an "Allen Instruction." And that tells the jurors, "The goal of our justice system is consensus. Please consider the opinion."

• 12:45Speaker 07

  ...of opposing jurors and see if you can reach consensus. If the jury comes back again and says we're still deadlocked, the judge can give a second Allen charge or Allen instruction. Under Massachusetts law, beyond that second instruction, if the jury says they're deadlocked, pretty much that's going to be a hung jury and a mistrial. There's some possibility we could have the judge instructing them to continue deliberating, but usually if there is a deadlock after that second Allen charge, that would be grounds for a hung jury and a mistrial.

• 13:16Speaker 00

  Interestingly, that Allen charge is sometimes called the dynamite charge, basically saying, "Kids, get back there."

• 13:22Nick Capodice?

  And figure this out.

• 13:24Speaker 00

  And figure this out. So another reason I became super interested in this case is because it's somewhat of a whodunit, right? And thanks to a very controversial but extremely popular blogger known as Turtle Boy, his real name is Aiden Carney, and he's named Turtle Boy after a statue in his hometown in Worcester, Massachusetts, thanks to his reporting, getting tips from the defense team, et cetera, the public learned about potential alternate suspects and theories and really began to pay attention to the story. It went like a little bit viral in Massachusetts. Now, I know you're familiar with Turtle Boy, right? He uses very unconventional and sometimes unpopular methods.

• 14:02Nick Capodice?

  Sure, I hear him a lot on sort of like, he's on the radio all the time.

• 14:06Speaker 00

  On Howie Carr.

• 14:06Nick Capodice?

  On Howie Carr, yeah. We got Turtle Boy on this afternoon.

• 14:10Speaker 04

  Turtle Boy, thanks for being with us, first of all. Thanks for having me, Howie.

• 14:13Nick Capodice?

  But yeah, I know Turtle Boy. Also, I know Turtle Boy because he reports on what's going on here in New Hampshire, like in Concord. I follow what he writes because it's real local, local, local news.

• 14:23Speaker 00

  It is, and it definitely got me intrigued about the state of journalism, what I, who I saw not covering this case and who I saw covering this case, and the power and freedom of the press. So Carney, Aiden Carney, may not have used all the traditional methods of reporting. He doesn't have an editor. He does do some fact checking, but maybe not the same process as everyone else. And he for sure seemed to be on to something in this case, and people paid attention.

• 14:50Nick Capodice?

  One thing I want to know, Rebecca, how is it determined if someone is a member of the press?

• 14:55Speaker 00

  Well, that used to be a much more narrow definition before the internet, Nick.

• 14:59Nick Capodice?

  Do you have to have credentials? Do we have credentials?

• 15:03Speaker 00

  We can get credentials if we want to get into a specific event. Like when I went to the Supreme Court,

• 15:08Nick Capodice?

  Right, you got credentials for that.

• 15:09Speaker 00

  I had to apply for credentials. And I had to prove that I worked for a media outlet. Yes. That is not the case everywhere. For instance, in this trial, Aiden Carney slash Turtle Boy and other bloggers did apply for press credentials to get into this very tiny courtroom, and they got them. And they got them in large part because they were doing most of the coverage of this case for a very long time. So this talk about journalism, it reminds me of a certain amendment that we've discussed a bunch on this show, an amendment of the Constitution. And we'll talk about that, I know you know what it is, when we return after a quick break.

• 15:50Nick Capodice?

  Have any of you out there ever Googled your own name? Like, actually done it? You'll find your address, your phone number, maybe even that police report from the time you went to see Rain Man in the movie theater, but you were underage? Maybe that one's just me. But here's the thing. There are companies called data brokers, whose entire business model is collecting your personal information and selling it to advertisers, to strangers, sometimes to people running scams. And once your data's out there, it just keeps circulating. That is where Incogni comes in. Incogni contacts data brokers on your behalf and sends them removal requests over and over, so your info doesn't just pop right back up. You set it up once, and they keep working in the background.

• 16:35Nick Capodice?

  You can even track the progress on a dashboard. And for our listeners, we have an exclusive 60% off an annual Incogni plan. Just go to incogni.com/civics, or use the code CIVICS at checkout. There's a link in the episode description. Remember, they can't harm you if they can't find you.

• 17:00Speaker 00

  We're back. This is Civics 101, and I'm Rebecca Lavoie, the EP of this show and our resident true crime expert. I think that's fair to say. And I'm here with Hannah McCarthy and Nick Capodice.

• 17:10Nick Capodice?

  Hello.

• 17:10Speaker 00

  Hi.

• 17:11Nick Capodice?

  Hi.

• 17:12Speaker 00

  So before the break, I mentioned we'd be talking about the ways the Karen Reed case raised issues around a certain constitutional amendment. And since we're talking about journalism, any guesses as to which constitutional amendment I'm talking about?

• 17:23Nick Capodice?

  The First.

• 17:25Speaker 00

  That's right. Who wants to tell me what the First Amendment says?

• 17:29Nick Capodice?

  I have this one.

• 17:30Speaker 00

  All right.

• 17:30Nick Capodice?

  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances."

• 17:48Speaker 00

  All right. There have been so many First Amendment-related issues in the Karen Reed case. I'm going to tell you about just a few of them, because we could be here all day if we talked about all of them. The blogger we were talking about before the break, Turtle Boy, he didn't just cover the Karen Reed case. He has written literally more than 500 stories about it. Wow. Plus, broadcast on his regular nightly YouTube show, he's very active social media. He was in court for both trials, reporting on it. But he also played other roles, and he admits this: He is somewhat of an entertainer, and he's very much an activist. He convened rallies for the so-called Free Karen Reed Movement, for instance.

• 18:30Speaker 10

  What's going on, everyone? So we're here to peacefully protest. So this is the home somewhere here. Hey, what's happening?

• 18:38Speaker 00

  So you'd think that all of this, while not the sort of straight journalism that we're used to consuming and making, that this would all be protected by the First Amendment, right?

• 18:49Nick Capodice?

  Sure.

• 18:50Speaker 00

  Yeah. Yeah. We'll get a load of this. Aidan Carney, Turtle Boy, and several of the people who protested about what they believed to be the truth, Karen Reed's innocence, they became targets for law enforcement during this case. What happened was, they began to protest in various ways, including rallies, holding signs, and based on something that Karen Reed's defense attorney said, "If it walks like a duck and talks like a duck, it's a duck," they started leaving these little rubber duckies around Canton, Massachusetts. Okay?

• 19:19Nick Capodice?

  Were they busted for littering?

• 19:21Speaker 00

  Some of them were, and some of them were arrested and charged with felonies under the Massachusetts Witness Intimidation Statute.

• 19:29Hannah McCarthy?

  I remember reading that at least Turtle Boy had been accused, I didn't know it was formally, of witness intimidation.

• 19:37Speaker 00

  That's right. He was facing several felonies for this. The concept being that the Witness Intimidation Statute in Massachusetts says it includes this provision of not trying to influence the testimony of witnesses or intimidating witnesses. And the police and prosecution were arguing in Aiden Kearney's case that because he was covering the case and talking about these alternate suspects on YouTube and creating this sort of movement on social media, that he was actually harassing these witnesses.

• 20:03Speaker 11

  The man behind the online blog known as Turtle Boy, Aiden Kearney, outside the Stoughton Courthouse, where he had faced a judge moments earlier, arraigned on nine charges of intimidating witnesses in a different case, the Dedham murder trial of Karen Reed. This latest twist had him shouting.

• 20:23Speaker 10

  And I will not be intimidated. I will not be silenced. And we will continue on our journey for justice, for John O'Keefe, and for Karen Reed.

• 20:34Speaker 00

  One of the people who was arrested was this local Canton business owner, a guy named Richard Schiffer. He used the sign outside of his company Canton Fence to display a pro Karen Reed message. And he had been leaving little rubber duckies with stickers on them that he had made around town. Schiffer became the target of a six-month police investigation. It included things like, the investigation, pulling the location data from his car, pulling his trash and going through his trash, reviewing surveillance footage, et cetera. He was charged with felony witness intimidation and littering, and the judge in these cases dismissed all of them, citing the First Amendment.

• 21:19Speaker 00

  So, the First Amendment, let's stay on that for a minute. The judge, by the way, is named Beverly Canoni in this case. She presided over both trials. But for trial two, she instituted a strict and broad buffer zone outside the courthouse in order to keep protesters and Karen Reed supporters away from the building. And the order included things like not being allowed to wear certain attire. Well, is it like a shirt with Karen Reed's face on it? That kind of thing? Anything sort of directing court officials, witnesses, jurors to do a specific thing she banned people from being able to wear in this buffer zone.

• 21:56Nick Capodice?

  Quick question.

• 21:56Speaker 00

  Yep.

• 21:57Nick Capodice?

  What's the zone of the buffer we're talking about?

• 22:00Speaker 00

  It is surprisingly large. How familiar are you with Dedham, Massachusetts? A little bit. All right. So I drove to Dedham, Massachusetts while the jury had the case in their hands and I drove to the courthouse. And as you're approaching the downtown, after you pass the "Welcome to Dedham" sign is the beginning of the buffer zone. Whoa. Before you've approached the courthouse, before you've turned the street to the courthouse. That's huge. It's really big.

• 22:25Nick Capodice?

  So I know there are restrictions on the First Amendment, specifically when it comes to protest, using something called time, place, and manner.

• 22:31Speaker 00

  Mm-hmm.

• 22:32Nick Capodice?

  And I think because it's a courthouse, there's kind of a... You can be pretty loosey-goosey about how far around the courthouse can someone be restricted or allowed to protest. But like, the whole town? That seems a little...

• 22:44Speaker 00

  It was pretty much the whole downtown, sort of surrounding the courthouse, yes. It is notable that a couple of people were actually arrested for violating this buffer zone. And they went to court. And a federal judge almost immediately deemed Judge Beverly Canoni's buffer zone at least partially unconstitutional. Wow.

• 23:05Speaker 00

  All of this stuff, it raised a question for me. Judges. Especially like district court judges overseeing murder cases. How much discretion do they have?

• 23:14Speaker 07

  The judge has to comply with the Constitution. The judge has to comply with the rules of evidence or the guide to evidence that exists in Massachusetts. And so that reins in the judge a good deal. On the other hand, Rule of Evidence 611 says, "The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to make those procedures effective for determining the truth." And so Rule 611 really gives a good deal of discretion to the judge within the confines of the Constitution and the rules of evidence to kind of do what they want in conducting a trial. And so that gives pretty broad discretion to the judge in how the trial is actually conducted.

• 23:55Speaker 00

  So judges can do...

• 23:56Nick Capodice?

  Whatever they want.

• 23:57Speaker 00

  Yeah. Given how proliferated this case was in the media, how many people know so much about it, have so many opinions, how do you select a jury? You can't select an impartial jury. You can't be guaranteed that you can, at least.

• 24:15Nick Capodice?

  I think it's really hard. I mean, I just think of that Saturday Night Live skit about them trying to find jurors for the O.J. Simpson trial and just like, there's nobody in the nation who hasn't heard of it.

• 24:24Speaker 00

  That's such a good comparison.

• 24:26Speaker 06

  Juror number one, how is it possible that you've never heard of O.J. Simpson? Well, as I explained, I just awoke from a 22-year coma and was driven directly from the hospital to this courthouse. Very well.

• 24:40Speaker 00

  There's actually a legal answer to this question of whether or not it's possible to get a fair trial when your community or your whole country is paying attention to it.

• 24:50Speaker 07

  Yes. According to the Supreme Court, in 1961, in Irwin versus Dab, the Supreme Court says, "Even if members of the jury had pre-existing knowledge of the facts of the case, generally, as long as they say they can put aside that pre-existing knowledge, be unbiased, decide the case based upon the facts, they are qualified to be fair and impartial jurors." Now, back in 1961, we're primarily talking about people hearing things in the community, getting little snippets of information. The question is, in 2025, when we have the 24/7 news cycle, we have social media,

• 25:32Speaker 07

  we have so much information and misinformation out there about the case, does that precedent still hold, or should the Supreme Court reexamine that ruling in 2025?

• 25:43Speaker 00

  What do you think?

• 25:44Hannah McCarthy?

  I would have to guess that reexamining it is not something a court would want to do, because you need to have a jury. That's part of the procedure. What are you going to do except come to the same conclusion, which is, we just gotta take them at their word?

• 26:04Speaker 00

  Right.

• 26:05Hannah McCarthy?

  Because you have to have them, like...

• 26:06Speaker 07

  Yeah, and I don't know if I would... Let's say it was a super high-profile case, like, it was really big. Do you want jurors who don't know anything about the news? You know, like, who just don't know a single thing?

• 26:17Speaker 00

  That's an interesting question. In this case in particular, they had a pool of more than 2,000 people to choose from, and you know how a jury is selected, right?

• 26:25Speaker 07

  Voir dire.

• 26:26Speaker 00

  Correct. So there were voir dire questions that both sides agreed to. And whether or not you've heard of the case was certainly one of them, but that was not a disqualifying question. It was all about, have you formed an opinion about this case? That became the qualifying question. And remember, both sides have strikes. They're allowed to say no to certain jurors for reasons, and they're allowed to say no to a limited number of jurors for no reason. You know what those kinds of strikes are called? They're called preemptory strikes.

• 26:55Speaker 07

  Preemptory strikes.

• 26:56Speaker 00

  Yeah. This leads me to a larger question. You know, we're talking about fair trial around juries, but there actually is a definition of what a fair trial is. Want to hear it?

• 27:12Speaker 07

  Yeah.

• 27:13Hannah McCarthy?

  Yeah?

• 27:14Speaker 07

  First, we have the right to a competent and impartial judge. Second, the right to a competent and impartial jury that is drawn from a fair cross-section of the community, of which the defendant is a member. The defendant has the right to be there in the courtroom for all critical elements of the trial. The defendant has the right to a public trial where members of the press, the public, the media are able to attend. A defendant has the absolute right to confront the witnesses against them. That is the confrontation clause. They have the right to cross-examine and probe the testimony of the witnesses against them. A defendant has the constitutional right to testify.

• 27:57Speaker 07

  Most defendants do not testify in their own defense, but they have that absolute right. A defendant, as might be pertinent here, has the protection of double jeopardy. Once jeopardy is triggered by a jury being impaneled in their trial, if that jury finds them not guilty of a particular crime, they can't be prosecuted for that crime again.

• 28:23Hannah McCarthy?

  The public trial element of that?

• 28:25Speaker 00

  Mm-hmm.

• 28:26Hannah McCarthy?

  Was the judge's giant barrier around the courthouse in any way a violation of that public trial element?

• 28:33Speaker 00

  The public trial element actually refers more to the courtroom itself. Who is allowed to come in? Are you going to bar any members of the public from coming in? Now, that would be a big deal. So, in this case, interestingly, the Karen Reed trial courtroom was tiny.

• 28:49Nick Capodice?

  By design.

• 28:51Speaker 00

  Well, it's a question as to whether or not it's a by design or whether or not this is the courtroom that this judge prefers. It was a tiny, tiny courtroom. It had room for Karen Reed's family, close friends. It had room for John O'Keefe's family, friends, and room for 10 members of the media, and then like a couple more spots, and that was it. It was a tiny, tiny courtroom.

• 29:11Nick Capodice?

  Just to shout out, Hannah and I never tire of saying this on our show. You, listener, are allowed to go watch any trials you want. You can just go down to the courthouse.

• 29:20Speaker 00

  You can try.

• 29:21Nick Capodice?

  But they'll let you in.

• 29:22Hannah McCarthy?

  They'll let you in if there's space.

• 29:23Nick Capodice?

  Yeah, yeah, they'll let you in if there's space.

• 29:24Hannah McCarthy?

  Including the Supreme Court, by the way. You can try.

• 29:26Nick Capodice?

  You can try.

• 29:30Speaker 00

  We just heard Colin talk about witnesses, confronting witnesses, questioning witnesses, cross-examining witnesses. In this case, witnesses were very important. There were witnesses who were first responders at the scene, who said they saw and heard certain things. There were expert witnesses. And the judge issued some pretty broad discretion about what witnesses and what experts she would allow in and what specifically she would allow certain experts to say and not say.

• 30:05Speaker 09

  So the defense needs to provide, I'd suggest you listen, the defense needs to provide what chronological data Mr. Vanny relied upon and exactly what his opinion is. All right? By the close of business tomorrow. That's fine.

• 30:21Speaker 00

  So this raised a question for me. What are witnesses actually allowed to do? Because if I only watched this case, I would think, well, that's up to the judge. But that's not necessarily true.

• 30:30Speaker 07

  So we have two types of witnesses. We have lay witnesses, your regular, average Jane or Joe, and we have expert witnesses. We have your doctors. We have your scientists, et cetera. In terms of lay witnesses, we have Rule of Evidence 602, which says a witness needs to have personal knowledge. If my friend tells me about a murder, I can't testify. If I saw the murder, I can testify. Rule of Evidence 701 says, if I'm offering opinions, I need to be basing my opinions on things that I observed, and my conclusions have to be rational. If I'm in a cafe and there's a blurry window and I see people opening umbrellas, I could offer my opinion. I think it was raining outside.

• 31:15Speaker 07

  That would make sense. If I were to offer the conclusion, I think it was sunny and not raining, that wouldn't make sense, and my opinion would be inadmissible. In terms of experts, we have Rule of Evidence 702. The expert, first of all, has to be qualified based upon some combination of their experience, their training, their education, et cetera. And then in terms of the methodology of the expert, this is tested by, at the federal level and in Massachusetts, the Supreme Court case called Daubert. Daubert is essentially asking, has this expert reliably applied a reliable technique or technology to the case at hand? In this case, did an accident reconstructionist reliably apply

• 31:58Speaker 07

  principles accepted in their field to the case at hand?

• 32:05Speaker 07

  And then in terms of that expert and their conclusions, Rule of Evidence 704 says, "An expert is allowed to testify about ultimate factual issues, but cannot offer ultimate legal conclusions that force-feed an answer to the jury." So we could have an accident reconstructionist saying, "In my conclusion, this Honda Accord was following too closely when it rams this Toyota Camry at the red light. The expert would not be able to conclude this driver was acting negligently. That would speak to the ultimate legal issue in the case."

• 32:39Hannah McCarthy?

  Okay, so I've always wondered about expert witnesses. They're paid, sometimes staggering sums, by law firms to come and offer their testimony. I presume that if a law firm hires an expert witness, they tell that expert witness, "This is our position in this case. Can you provide us essentially the scientific or academic or whatever evidence of that somehow?"

• 33:10Speaker 00

  Interestingly, you just accidentally, perhaps, hit on one of the core reasons why people were so engaged with, obsessed with, and angry while watching this trial. And we're going to talk about that after a quick break.

• 33:37Speaker 07

  Haven't you out there ever Googled your own name? Like, actually done it? You'll find your address, your phone number, maybe even that police report from the time you went to see Rain Man in the movie theater, but you were underage? Maybe that one's just me. But here's the thing. There are companies called data brokers whose entire business model is collecting your personal information and selling it to advertisers, to strangers, sometimes to people running scams.

• 34:03Nick Capodice?

  And once your data is out there, it just keeps circulating. That is where Incogni comes in. Incogni contacts data brokers on your behalf and sends them removal requests over and over. So your info doesn't just pop right back up. You set it up once and they keep working in the background. You can even track the progress on a dashboard. And for our listeners, we have an exclusive 60% off an annual Incogni plan. Just go to incogni.com/civics or use the code civics at checkout. There's a link in the episode description. Remember, they can't harm you if they can't find you.

• 34:42Speaker 00

  We're back and we're talking about the civics lessons within a high profile trial. And in this case, it's the Karen Reed case.

• 34:55Speaker 00

  So before the break, Hannah, you asked a question about expert witnesses. What they are allowed to say, whether or not they are just being paid to basically repeat what it is the prosecution or defense wants them to say. Now, a lot of interesting things happen in this case around expert witnesses. I cannot recap the whole trial in this episode. It included more than 30 days of testimony, which by the way, I did watch gavel to gavel. It was streamed on YouTube. Speaking of public access to the trials, many expert witnesses primarily offered up by the defense were excluded from being able to testify in this trial by Judge Canoni, including a former FBI agent who planned to talk about the deficits in the police investigation

• 35:40Speaker 00

  into the case. For instance, one of the first responders in the case after John O'Keefe's body was found, used a leaf blower to blow around the snow to look for evidence. They gathered evidence of snow and blood in solo cups and put them in grocery store bags, that kind of thing. They never looked for ring footage in the neighborhood, or they say they never looked for ring footage in the neighborhood that may or may not have captured something happening outside. That expert excluded by Judge Canoni.

• 36:07Hannah McCarthy?

  An expert witness, it's, I mean, as Colin said, does have to be qualified. And it sounds like this person was exceptionally qualified.

• 36:15Speaker 00

  Yes.

• 36:15Nick Capodice?

  What was the justification of the judge for not allowing this evidence, these witnesses?

• 36:20Speaker 00

  Well, the FBI guy who's going to testify about whether or not the investigation was proper. Judge Beverly Canoni said in a ruling, a controversial ruling, that the jury would just know, essentially, what a proper investigation was.

• 36:34Hannah McCarthy?

  What? I don't know what a proper investigation is.

• 36:38Speaker 00

  A lot of people don't, Hannah.

• 36:41Nick Capodice?

  Have you ever seen the wonderful Sidney Lo Met film, The Verdict with Paul Newman?

• 36:44Speaker 00

  Yes.

• 36:45Nick Capodice?

  There's a great sort of thing in there where an expert witness is called up and then James Mason is like, "Is it not true that you've been paid to appear here to give evidence? I just wanted to do my genes, Mason."

• 36:58Speaker 00

  I appreciate that.

• 37:02Speaker 00

  And by the way, there is nothing wrong with paying experts for their time.

• 37:06Nick Capodice?

  Yeah, it happens every day.

• 37:08Speaker 00

  To conduct testing, for travel, for their time in court, et cetera.

• 37:12Hannah McCarthy?

  My question is, is just, is that witness expected by the law firm to stick to a very narrow parameter?

• 37:24Speaker 00

  That's a very relevant question for this case. Because the defense will tell you that they sent their experts, basically the whole case file, and their experts were able to make of it what they want. The prosecution, by the way, says the same thing. But the defense had kind of an ace up their sleeve for this. Their accident reconstruction experts were actually hired by the FBI during the federal investigation before the first trial. So their experts in the crash reconstruction side, when they first got this information, it did not come from the defense at all.

• 37:58Hannah McCarthy?

  Okay. Is that allowed?

• 38:00Speaker 00

  Yes. In this case, it was allowed, although those witnesses were very heavily voir dire.

• 38:04Hannah McCarthy?

  Yes. God, I would imagine if you were involved in the prior investigation. But also, what a witness to get, right? If that's allowed, like, yeah, that's who you want.

• 38:14Speaker 00

  They're a firm called ARCA, and they're like the preeminent accident reconstruction and vehicle safety firm. And it was pretty clear the prosecution did not want them to be able to testify in this case. Yeah.

• 38:25Speaker 12

  I don't care about their opinions, but I care that it's unfair, imbalanced, and hidden.

• 38:32Speaker 00

  Now, on the prosecution's side, there were also some crash reconstruction and car data experts. And in a moment that became a landmark moment in this trial, one of the men from that accident reconstruction company, it came out in court that he had falsified his CV and LinkedIn page, claiming he had graduated from college when he had not.

• 38:53Speaker 13

  Oh. And in fact, as you sit here today, you do not possess any bachelor's degree.

• 39:01Speaker 06

  Correct.

• 39:05Speaker 00

  Other notable things that happened in this trial. There were two motions by the defense for a mistrial with prejudice.

• 39:13Speaker 13

  Your honor, the defense moves for a mistrial with prejudice based upon intentional misconduct that just occurred before the court and for the jury.

• 39:25Speaker 00

  A mistrial with prejudice is a mistrial is called by the judge, and it cannot be retried because it is so tainted by whatever it is the prosecution is alleged to have done. This happened notably in the Alec Baldwin case, when he was being prosecuted for that shooting that happened on the set of the film he was making. The prosecutor withheld very important, potentially exculpatory evidence from the defense, and that came out mid-trial.

• 39:55Hannah McCarthy?

  That sounds like prosecutorial misconduct.

• 39:57Speaker 00

  Interestingly, in that case, the judge actually allowed the defense to question the prosecutor on the stand about when she had learned a thing, how she got the information, and that was when the mistrial was called.

• 40:08Hannah McCarthy?

  Wow, that is so dramatic. I mean, I know it's like the law and all that, but that's so dramatic.

• 40:12Speaker 00

  Yeah.

• 40:20Speaker 00

  So at the end of all of this, there were closing arguments. Are closing arguments evidence?

• 40:27Nick Capodice?

  No.

• 40:27Speaker 00

  No.

• 40:28Nick Capodice?

  They are a summation by the attorneys present. This is what we've talked about. And of course, it's, you know, putting their side in the best light. Just like a recap.

• 40:37Hannah McCarthy?

  Yeah, isn't it, it's sort of also like, and so I urge you, ladies and gentlemen of the jury, to assert what you know to be true, which is that my client is not guilty.

• 40:46Speaker 00

  Right. In most cases, the closing argument is designed so that the lawyer who's giving it can tell a story to the jury about the circumstances, about the evidence. This is what we think happened, or this is what didn't happen. And in this case, the defense kept it very simple. They had experts who they say proved there was no collision.

• 41:07Speaker 08

  There was no collision. There was no collision. There was no collision.

• 41:14Speaker 00

  They also did a chart of reasonable doubt. Do you know what reasonable doubt is?

• 41:20Hannah McCarthy?

  They have to be guilty beyond reasonable doubt. That's what the jury is told.

• 41:23Speaker 00

  Right, but what is reasonable doubt?

• 41:25Hannah McCarthy?

  I would say that many public radio listeners were introduced to that notion with the first season of Serial, where at the end Sarah Keenig says, I don't know if Adnan Seh had committed a crime here. However, he cannot be proven guilty beyond a reasonable doubt. So Sarah essentially says this was a miscarriage of justice.

• 41:44Nick Capodice?

  One thing I think is interesting about reasonable doubt is that it's personal and subjective. There can be different reasonable doubts in a room of 12 people.

• 41:52Speaker 00

  Reasonable doubt includes all the way up to, if I think they probably did it, that's reasonable doubt.

• 41:58Hannah McCarthy?

  Mm-hmm.

• 41:59Speaker 00

  If I think they might have done it, that's reasonable doubt. I think that they did it, but I don't see any evidence for it here, that's reasonable doubt. What the defense did was they had a chart, which was like a piece of paper, and they had these graphics of Post-it notes going onto the piece of paper. And during their hour and 20-minute-long closing, they talked about all the issues with the investigation, all the evidence that they had presented. And every time they presented an issue, such as... The cop who was later fired for misconduct, they would have a Post-It sticky note graphically fly up and stick to that piece of paper. And at the end of the closing, he was allowed to say, "Look at that giant pile of notes. There's your pile of reasonable doubt right there."

• 42:40Speaker 08

  As you mentally sift through those cards, realize that every one of them is a massive hole in the Commonwealth's case. Every single one of the note cards represents a hole in the Commonwealth's case. If you're holding mentally even one of those cards, you're holding reasonable doubt, folks.

• 42:57Speaker 00

  That's a smart thing to do. Yeah, it's very actually common in murder trials especially, for defense attorneys to do what's like the tree or the chart of reasonable doubt. Because you really do have to explain it to a jury. A lot of people have been convicted based on things like their affect in court, based on gut feeling, based on a better story being told by the prosecution.

• 43:24Speaker 00

  Who bears like the burden of most of the work in a trial? We obviously know that defense attorneys get paid a lot of money. They can hire their own experts. But who bears the burden to do the heavy lifting? Do you mean the prosecution because you're trying to prove something? Yeah. So the state bears the entire burden. You're correct. And it is very important for a jury to understand that. Jurors are given instructions before they deliberate. In this case, the instructions took between an hour and two hours to read. They're very lengthy. They're about how to consider and weigh each charge, what needs to be proven, and how they are supposed to deliberate. And then the judge can offer suggestions. In this case, Judge Canoni said, "I urge you to not take an immediate poll and see where you all are." Now, I served on a jury once. I was the foreman.

• 44:08Speaker 00

  That was exactly what I did.

• 44:10Nick Capodice?

  Yeah, that's what we did. It's like in the movies, it's what you're supposed to do.

• 44:13Speaker 00

  Right. And in my case, on my jury, we were all not guilty. So I was like, "Ugh, they just sent in sandwiches. Should we eat these and then go back?" Anyway. Karen Reed was eventually acquitted of almost everything, except for the operating under the influence charge. And the prosecutor had shown a clip of her in an interview that she gave to a television reporter, saying, "I had had a few drinks, and then I drove."

• 44:36Speaker 04

  The 45-year-old says she's not guilty of hitting her boyfriend with her SUV and leaving him to die in the snow after a night of drinking.

• 44:45Speaker 14

  I said, "John, this trip, he said, it has no body in it." He said, "Just get shot and mix it yourself."

• 44:52Speaker 04

  The prosecution showed jurors a serious...

• 44:54Speaker 00

  So she did incriminate herself? She kinda did. Also, the two jurors who have come forward to talk, what they say they did was that they weighed every single charge on that slip. They went through every bit of 31 days of evidence and tried to find evidence to support each of those charges pointing to guilt, and they couldn't find any. Does it surprise you that this jury would be only influenced by what they saw in court? Yes. You're not alone in saying that, by the way. A lot of people have called this a rare jury, especially smart jury, and a very literal jury, that they took the judge's instructions and followed them to the letter, which is not what happens all the time.

• 45:38Nick Capodice?

  Yeah, but I will say, there is something about, I don't want to call it the wisdom of crowds.

• 45:43Speaker 00

  Yep.

• 45:44Nick Capodice?

  But one person can be really thorough in a jury and can make everybody be like, "Hey, everybody, let's do it this way." And that person can be very effective at controlling how it is done in those deliberation chambers.

• 45:56Hannah McCarthy?

  I think the foreman, if the foreman is like, they're put in a position of power relative to the other members of the jury.

• 46:02Speaker 00

  How to deliberate, etc.

• 46:04Hannah McCarthy?

  Yeah. If that person says, "This is the way I think we should do it," you're looking for guidance, you're gonna go with the person who appears to be the voice of reason, right?

• 46:11Speaker 00

  That's right. That's right. So, Nick.

• 46:14Nick Capodice?

  Yeah, hey.

• 46:15Speaker 00

  Do you regret not following this story at all?

• 46:17Nick Capodice?

  I really do. I also regret that I have to make an episode this afternoon and I can't just binge read every single thing on the internet about this trial.

• 46:26Speaker 00

  Yeah, I will post some links to some really good reporting on this trial from outlets like Vanity Fair. I'll put those in the show notes if folks want to learn more. There is an epilogue here. Karen Reed was acquitted of all the major charges. She's not spending any time in prison. She got probation for the OUI charge, which is the standard punishment for the first offense in Massachusetts. However, the O'Keefe family, John O'Keefe's family, is suing Karen Reed in civil court along with the two restaurants that served all these people before whatever may or may not have happened that night. So, civil case, legal experts also watching that one very carefully.

• 47:07Hannah McCarthy?

  What are they suing her for?

• 47:09Speaker 00

  They're suing her for a wrongful death, and that is separate from the criminal proceeding. In the OJ Simpson case, the family sued him after he was acquitted in court, and they won.

• 47:23Speaker 00

  So, legal experts are watching this in large part because the rules of civil cases and how you can collect evidence and interviews are very different than in criminal cases. There are many fewer limits for the kinds of evidence you can bring in, and generally civil cases are a lot easier to win than criminal cases. But a lot of people are watching this because they know what was left out of the criminal proceeding that would have benefited Karen Reed, and they want to see if it's going to come out in the civil case.

• 47:52Hannah McCarthy?

  Wow. I have a question about this because you have laid out a lot of really interesting civics elements here. So, we're talking about a white woman who can hire a high-powered, obviously highly competent-

• 48:07Speaker 00

  Four high-powered, highly competent lawyers. Go ahead.

• 48:09Hannah McCarthy?

  Okay, so that requires an immense amount of money.

• 48:12Speaker 00

  Yes.

• 48:13Hannah McCarthy?

  She's a white woman of means.

• 48:14Speaker 00

  Right.

• 48:14Hannah McCarthy?

  And so, we see that and we're like, well, what's going on here? And we're going to be curious about that in a way that we are often not curious about cases that do not involve a white woman of means, right?

• 48:26Speaker 00

  Yes.

• 48:26Hannah McCarthy?

  My question is- Like, would a lawyer say, "Stuff like this is going on all the time. We are just only paying attention to this one because of that element." Or is this an exceptional case?

• 48:39Speaker 00

  This is an exceptional case. And it's also an important case for exactly the reason that you mentioned. One of the things that fascinates me about the Karen Reed case is the crossing of political lines of protesters and pro-Karen Reed people. You see people saying in interviews, "I have never believed that the police could do anything like this before, but I believe it now, and I'll believe it in the future." So what this case has actually done, yes, this happens to marginalized people, people of color, people without means, all the time. But what this case has done, I believe, is opened the eyes of people who weren't necessarily

• 49:22Speaker 00

  looking at that, and now they are. So here, the so-called "thin blue line" is being questioned, you know, the backing of the police, non-questioning their authority. So is the criminal legal system in the state of Massachusetts. And that's pretty new. It's pretty new for this community, and I think that a lot of people are going to be looking at this system with a new view because of this case. And I think that benefits all defendants.

• 49:52Nick Capodice?

  The word "conspiracy," when used, it has a real derogatory nature, so I hesitate to say it. But please, when you hear me say it, know that I don't mean it that way. I sometimes wonder, is our conspiracy theories against state or government institutions, is that going to be the answer to civil discourse? Is that how we're all going to be able to speak again? Is that what's going to end ultimate polarization? Is conspiracy against the man?

• 50:16Speaker 00

  You know what's interesting? I actually interviewed Turtle Boy a few days ago. Along with my podcast partner, Mel Barrett. And she talked to him about this very thing. She said, I am very different from you, meaning Turtle Boy. However, we have a thing in common, which is we both are now afraid of this institution. I've always been afraid of it. It seems like you have because of your reporting. Can we build on this? And the answer was a resounding, resounding yes. That we don't have to agree on aspects of what's going on in the world, on politics, on discourse, but we can agree that we should all be looking at and being critical of the same system.

• 51:00Speaker 00

  And I believe that is a very big place to start.

• 51:04Hannah McCarthy?

  I agree with that. I've, for a long time, I guess I call it a common enemy, but what I really mean is a common concern and like a deep concern that you share with someone else, regardless of your vast differences, is absolutely vital to coming together and making change if that is something that is important for a community.

• 51:22Nick Capodice?

  There's that expression, only connect. And that goes back a long time, which is that is, that is the solution. And it's been staring us in the face the whole time is what can we find that is a connection between us to care about together? We're going to both stave off this guy with a sword over there.

• 51:38Speaker 00

  Yeah, yeah. We're going to gather in groups of thousands and protest outside a courthouse together.

• 51:43Nick Capodice?

  Fascinating. The things these people must have learned about each other that they didn't know.

• 51:47Speaker 00

  About each other, about the government, about how our legal system works. Lot of civics lessons in the Karen Reed case.

• 52:04Speaker 00

  This episode of Civics 101 was written and produced by me, Rebecca Lavoy, with a lot of help from our hosts, Nick Capparicci and Hannah McCarthy. Our team also includes our senior producer, Christina Phillips. Music in this episode is from Epidemic Sound and by Chris Sabriski. For more reading on the Karen Reed case and all of the issues around it, check out the links in the show notes. Civics 101 is a production of NHPR, New Hampshire Public Radio.

• 52:40Speaker 15

  Did you know that if your spouse goes missing and you don't tell anyone, that's not necessarily a crime? That surprising fact is at the heart of the brand new season of Bear Brook, the critically acclaimed true crime podcast from New Hampshire Public Radio. I'm your host, Jason Moon. In this season, Bear Brook investigates another New Hampshire mystery. A Christmas tree farmer with dementia vanishes. His wife never reports him missing. Can he still be found? Don't miss it. Follow Bear Brook wherever you get your podcasts.

• 53:10Speaker 14

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