Massachusetts Statehouse. Photo (cc) 2015 by Upstateherd.
The murder trial of Karen Read is, without question, one of the strangest spectacles we’ve seen in Massachusetts for a long time.
Read has been charged with driving over her boyfriend, former Boston police officer John O’Keefe, and leaving him to die in a snowbank. Read counters that she’s being framed — that, in fact, O’Keefe was beaten up, bitten by a dog and dragged outside. Adding to all of this is a murky federal investigation of the Norfolk County district attorney’s office and the involvement of Aiden Kearney, the Turtleboy blogger who has taken up Read’s cause and who’s been charged with witness intimidation and illegal wiretapping.
In one sense, though, it’s a very familiar story. Crucially important evidence is being withheld from the public because of our state’s restrictive public records laws. As Sean Cotter reports in The Boston Globe, autopsy reports are not considered public records in Massachusetts. We’re not unique in that regard. Citing information from the Reporters Committee for Freedom of the Press, Cotter writes that among the very few states where autopsy records are considered public are Alabama, Colorado, California and Florida.
“If the public cannot see the documents that judges rely on in the course of making decisions, the public cannot make decisions on whether the judge’s decisions are correct,” First Amendment lawyer Jeffrey Pyle told the Globe.
The Norfolk DA’s office turned down the Globe’s public records request, with spokesman David Traub telling the paper, “The examination and cross-examination of the medical examiner will be where you get your answers.”
Massachusetts has long had a reputation for being among the worst states with regard to open government. About a decade ago, the Center for Public Integrity gave the state a D-plus in an overall accountability score as well as an F for public access to information. The state’s public records law was strengthened in 2016, but it remains woefully inadequate.
So let’s give a New England Muzzle Award to the Massachusetts legislature for failing to take any meaningful action to ensure that the public’s business will be conducted in public. The autopsy report on Officer O’Keefe’s death should be made public — and that’s just a small part of the much larger problem that our elected officials would rather operate in the dark than let the light shine in.
An important press freedom case is playing out in a Dedham courtroom, where a prosecutor has asked a judge to force a reporter for Boston magazine to turn over her interview notes.
The magazine reporter, Gretchen Voss, wrote a lengthy article last September about Karen Read, a Mansfield woman who’s been charged with second-degree murder in the 2022 death of her boyfriend, Boston Police Officer John O’Keefe. The case is massively complicated and has become emotionally fraught, as supporters of Read have accused authorities of staging an elaborate coverup. Essentially, though, Read has been charged with running over O’Keefe with her SUV while under the influence of alcohol and leaving him to die in a snowbank. Read and her supporters counter that O’Keefe was severely beaten inside the Canton home of a fellow officer and dragged outside, where he died.
Ironically, a hearing into whether Voss would be compelled to turn over the notes of her interviews with Read was held on the same day that Congress took a rare bipartisan step toward granting journalists the right to protect their sources. More about that below.
According to an account by Ivy Scott and Travis Andersen in The Boston Globe, Norfolk District Attorney Michael Morrissey has asked Superior Court Judge Beverly Cannone to demand that Voss cooperate with the prosecution by producing her notes of what Read told her off the record. Voss replied that she would be willing to testify about the article that Boston published, but that going beyond that would be a violation of her First Amendment right to protect her sources. The magazine’s attorney, First Amendment lawyer Robert Bertsche, said the prosecution was demanding that Voss help them compile evidence to help with their case, “which was outside the scope of the law,” as the Globe summarized Bertsche’s argument.
“You can be sure if Karen Read confessed in her interview with Gretchen Voss,” Bertsche added, “that would have made it into the article.”
The Globe also quoted Assistant District Attorney Adam Lally as saying that there is “no reporter privilege in the Commonwealth of Massachusetts.” That’s true, but it’s also complicated.
Massachusetts is one of 49 states that offer some protection to journalists to protect their sources, either through a shield law or rulings by their state’s courts. (Wyoming, by the way, is the sole exception.) There is no shield law in Massachusetts, nor has the state’s Supreme Judicial Court ever ruled that there is a reporter’s privilege. But according to an overview compiled by the Reporters Committee for Freedom of the Press (RCFP), the courts in Massachusetts have recognized that journalists may have a limited right to protect their sources. The overview begins:
Massachusetts does not have a shield law, and the Supreme Judicial Court of Massachusetts has not been willing to recognize a reporter’s privilege under either the Massachusetts or U.S. Constitution. Nevertheless, Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters’ confidential sources in some circumstances.
That balancing test is about as good as it gets in any state, since the reporter’s privilege is not absolute. Way back in 1972, the U.S. Supreme Court ruled in Branzburg v. Hayes that the First Amendment provides no such protection, although the convoluted ruling suggested that judges should balance concerns about press freedom with the need to compel testimony. What will happen in the Karen Read prosecution is that Judge Cannone will decide whether the information Voss has is so important to the case, and unobtainable from any other non-journalistic source, that she should be compelled to turn it over.
A complicating factor is that no journalist would cooperate with such a demand, leading to the possibility that Voss could be held in contempt of court. One of the more notable Massachusetts examples of that took place in 1985, when WCVB-TV (Channel 5) reporter Susan Wornick narrowly avoided a three-month jail sentence when the source she was protecting in a police corruption case came forward and agreed to cooperate with the prosecution.
As anyone who’s been following the Karen Read case knows, I’m only chipping away at a tiny piece of it. Also on Thursday, Read’s lawyers argued that correspondence between District Attorney Morrissey and the U.S. attorney’s office should be made public and that Morrissey should be disqualified. Federal authorities are investigating how the district attorney’s office has handled the case, although the nature of their investigation has not been made public.
Finally, blogger Aidan Kearney, who goes by Turtleboy, and who has taken Read’s side, is currently being held in custody on charges of witness intimidation and domestic assault and battery. Kearney and his supporters claim those charges were filed in retaliation for his crusade on Read’s behalf.
As I wrote up top, all of this is playing out against the background of a positive step taken by Congress. Despite the existence of some shield protections in 49 states, there is no shield law at the federal level. On Thursday, though, the House unanimously passed the PRESS Act, which the the RCFP describes as “a bipartisan federal reporter’s shield law that would protect journalists from being forced to name their sources in federal court and would stop the federal government from spying on journalists through their technology providers.” The sole exceptions, according to a summary of the bill, would be in “limited circumstances such as to prevent terrorism or imminent violence.”
Given that the Republican House was able to act for all its dysfunction, there would appear to be reason for optimism that the Senate will approve the measure as well.
In one sense, though, it’s a very familiar story. Crucially important evidence is being withheld from the public because of our state’s restrictive public records laws. As Sean Cotter reports in The Boston Globe, autopsy reports are not considered public records in Massachusetts. We’re not unique in that regard. Citing information from the Reporters Committee for Freedom of the Press, Cotter writes that among the very few states where autopsy records are considered public are Alabama, Colorado, California and Florida.
