Karen Learn’s attorneys might be allowed to attempt to argue that others killed Boston cop John O’Keefe after which framed their shopper for the Canton homicide, the Norfolk County choose dominated forward of the Learn retrial beginning Tuesday.
Decide Beverly Cannone on the eve of the trial dominated that Learn’s attorneys can increase a third-party wrongdoer protection throughout the retrial. However, she set some limits.
Learn’s protection staff has named three individuals who they consider might be concerned: Brian Albert, a retired BPD sergeant who owned the property that was the positioning of O’Keefe’s dying; Brian Higgins, an ATF agent and Albert’s buddy who was there that evening and has romantic curiosity in Learn; and Colin Albert, Brian Albert’s nephew, who the protection argues had beef with O’Keefe.
Learn’s staff will have the ability to increase the third-party wrongdoer protection involving Brian Albert and Brian Higgins, however not with Colin Albert.
“The defendant is not prohibited from raising a third-party culprit defense as to Brian Albert and Brian Higgins at this time,” Cannone wrote. “Counsel cannot mention potential third-party culprits in opening statements but will be given the opportunity to develop the theory through relevant, competent evidence at trial.”
Learn, 45, is accused of hanging O’Keefe, her boyfriend of two years and a 16-year Boston Police officer, together with her automobile and leaving him to die in a significant snowstorm on the entrance garden of 34 Fairview Highway in Canton.
Her protection staff has been arguing that others killed O’Keefe after which pinned his dying on Learn.
“As to Brian Albert and Brian Higgins, the defendant’s proffer is barely sufficient, and the history of the first trial casts doubt on the seriousness of the claim,” Cannone wrote.
“However, to protect the defendant’s right to a fair trial, and in recognition of the fact that the defendant has no burden to prove anything under our law, the court will take the same incremental approach as it did the first trial: defense counsel are ordered not to mention potential third-party culprits in opening statements, but counsel will be allowed to develop the evidence at trial if possible, and counsel may seek an appropriate instruction, if warranted, after the evidence is concluded,” the choose added.
However so far as Colin Albert, Cannone dominated that it’s “insufficient to support a preliminary finding” that he had the motive, intent, and alternative to commit the crime.
Proof on the first trial confirmed that Colin Albert had already been picked up by the point O’Keefe and Learn arrived at 34 Fairview, in keeping with Cannone.
The primary Learn trial resulted in a mistrial final 12 months. The retrial is about to start out on Tuesday.
Cannone on the eve of the retrial additionally ordered that the Learn juror checklist might be impounded, and reporters are banned from bodily describing jurors to the general public.
“This case has garnered significant and divisive attention in Massachusetts and across the country,” Cannone wrote within the order. “Individuals associated with this case have been charged with intimidation, which charges remain pending. At least one deliberating juror from the first trial submitted an affidavit to the court detailing reasonable fear for the safety of their family should the list of jurors be made available to the public.
“This court concludes that the fear expressed by that juror coupled with the inordinate amount of public attention to this trial and its outcome is good cause to impound the Clerk’s List of Jurors for Norfolk County Courthouse for the duration of empanelment,” the choose added.
Additionally, prosecutors have been pushing to not enable protection professional Michael Easter, a retired FBI agent, from testifying in regards to the police’s alleged failure to observe customary investigative insurance policies and protocols.
Cannone is permitting the prosecutors’ movement to ban Easter’s testimony.
“The court cannot find nor has defense counsel cited one Massachusetts case where an expert was permitted to opine on the general competency of a police investigation,” Cannone wrote in her order.
“Easter’s proposed testimony concerns basic aspects of a police investigation which are within the common knowledge of a layperson,” the choose added. “Through zealous cross-examination of police witnesses the defendant can cast doubt on the reliability of the investigation by demonstrating how it differed from standard practices and procedures and can raise the issue of potential bias by police action or inaction as counsel did effectively during the first trial.”
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