With jury selection underway for her second murder trial in the death of Boston Police Officer John O’Keefe, attorneys for Karen Read are appealing a lower court’s ruling that she is not facing double jeopardy to the U.S. Supreme Court.

Read’s first trial ended with a mistrial last year, but her lawyers have argued that the jury agreed unanimously that she was not guilty of two of the three charges, including the most serious of murder, and that keeping those on the books for her second trial is unconstitutionally placing her on trial twice for the same crime.

This agreement was unannounced at trial, however.

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According to the 149-page filing, Read’s lawyers are presenting the high court with two questions:

1. Whether a final and unanimous, but unannounced, decision by a jury following trial that the prosecution failed to prove a defendant guilty of a charged offense constitutes an acquittal precluding retrial under the Double Jeopardy Clause. 
2. Whether a defendant who produces credible evidence of such a final, unanimous, and unannounced acquittal is entitled to a post-trial hearing to substantiate the fact of such acquittal.

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The Fifth Amendment guarantees constitutional protection from facing double jeopardy – trial or punishment for the same offense twice.

After a mistrial, a retrial can normally proceed – but Read’s lawyers argue the unique circumstances in her case place her under double jeopardy on the two charges jurors agreed on but did not announce.

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Over days of stalled deliberations, jurors repeatedly sent notes to the court explaining they were at an impasse, and Judge Beverly Cannone instructed them to keep trying. Deliberations began on June 25, 2024. By July 1, with jurors still deadlocked, the judge declared a mistrial.

In their appeal, Read’s lawyers said the judge did not give counsel for either side the opportunity to speak and dismissed the jury without asking them if they were locked on all charges or any charges individually. 

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The next day, a juror identified as Juror A contacted Read’s attorney, Alan Jackson, and told him that the panel had “unanimously agreed that Karen Read is not guilty of Count 1 (second-degree murder),” according to the lawsuit.

Text messages purportedly sent from Juror B expressed similar claims, according to the lawsuit. Jurors C and D also reached out to Read’s team with similar versions of events, according to the filing. 

Additionally, at least one juror said it in a voicemail for prosecutors.

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“It was not guilty on second degree,” Juror B wrote in a text shared with another Read attorney, David Yannetti. “And split in half for the second charge…I thought the prosecution didn’t prove the case. No one thought she hit him on purpose or even thought she hit him on purpose.”

In a phone conversation, Read’s lawyers claim Juror B clarified the second sentence of that text, saying it should have read, “No one thought she hit him on purpose or even knew that she had hit him.”

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The murder charge was “off the table,” according to the filing, and Juror A also said jurors agreed that Read was not guilty of leaving the scene.

Read was arrested on charges of drunken driving, manslaughter and leaving the scene of an accident, and later indicted for the additional charge of second-degree murder after she allegedly backed into O’Keefe outside a party and drove away, leaving him to die on the ground in a snowstorm.

If her appeal is successful, she would just face the manslaughter charge.

Appellate courts in Massachusetts have already denied her request, finding that because no verdict had been read in court, she was not acquitted of any charges and is not facing double jeopardy. Her legal team turned to the nation’s highest court this week, asking them to review a lower court’s decision and for a post-trial hearing on the matter. 

Read could face life in prison if convicted of second-degree murder at her second trial, which began Tuesday. She has pleaded not guilty and denied involvement in O’Keefe’s death, with her defense presenting her as a scapegoat being framed by the alleged true killers.