July 9, 2025 • 41 mins
Bradley Jay Fills in On NightSide
Michael Coyne, a trial attorney and the Dean of the Massachusetts School of Law, joined Bradley Jay to discuss some recent high-profile cases. Coyne remarked on some of the recent U.S. Supreme Court final decisions as well as Karen Read’s pending wrongful death lawsuit.
Michael Coyne, a trial attorney and the Dean of the Massachusetts School of Law, joined Bradley Jay to discuss some recent high-profile cases. Coyne remarked on some of the recent U.S. Supreme Court final decisions as well as Karen Read’s pending wrongful death lawsuit.
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Episode Transcript
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Speaker 1 (00:00):
It's Nice Eyes with Dan Ray. I'm going Easy Bondon's
News Radio.
Speaker 2 (00:06):
NI with Dan Ray.
Speaker 3 (00:07):
I'm Bradley Jay and for Dan, and our guest is
Michael Coin, dean of the Massachusetts School of Law. And
people have been just so thrilled that you're coming back.
So am I too. By the way, my brother is
a huge fan. He's listening.
Speaker 2 (00:21):
I don't know if you call Colin, but thanks for
coming in. I really appreciate it.
Speaker 4 (00:24):
I love being here. I love radio.
Speaker 2 (00:25):
So folks, here's what we're gonna do.
Speaker 3 (00:27):
We're gonna cover Karen Reid and the the civil suits
because it's it ain't over by a long shot. And
I have a lot of questions about that. Maybe you
do too. There's the Brian Walch case. Get into that,
the public Defenders strike and the effects that might have
on things. There's a person named Brian Coburger out in
(00:48):
Idaho who pled guilty to pleaded guilty to four council
first degree murder. And I'll ask Dean Coyner, why would
you do that? Why would the state go for that deal,
and why would you agree to spend the rest of
your life in a supermax prison? And Dean con and
(01:11):
I were talking about this earlier, and this is how
we're going to involve you.
Speaker 2 (01:15):
We were talking about son.
Speaker 3 (01:16):
Iev and the marathon bombing and what would be the
fate of son Iev and we started to wonder, you know,
which is worse the death penalty or life in a
supermax prison. You know that's it's a terrible place to be.
You're in isolation, as I understand it, for twenty three
(01:36):
hours a day, and then you get one hour in
a dirty cage, shoes untied, then you go back in.
Is that any kind of life? Isn't that turns the
amount to torture? So I agree with all of you.
I want the very worst thing for a person, But
wouldn't that really be worse than the death penalty? So
(01:57):
death penalty, folks, I don't mean if you will, they
want the worst for a perpetrator. You might want to
think about life in prisonment, and there are other things
to consider there. So which would you prefer? Well, which
do you think is worse? Life in prison or the
death penalty? And just kind of out of the blue,
a little bit non secretorially, Dean Coin pose this question.
(02:22):
Why don't you go ahead and pose the question to them.
Speaker 5 (02:24):
Well, the question is, and I ask my students sometimes
because a lot of criminal cases end in plea deals
and the like, is would you plead guilty to a
crime you did not commit in order to avoid a
prison sentence, and let's say a prison sentence of five years,
ten years, or even fifteen years.
Speaker 2 (02:43):
Pick one. So I can decide, let's say.
Speaker 5 (02:46):
Ten years old, and you have a chance of being
convicted on that even though you believe that you didn't
commit the crime. Would you plead guilty to that and
not then have to serve a in prison but be
on probation for some periods.
Speaker 3 (03:02):
No, Todd, I would know that I didn't do it.
I wouldn't just believe it. I would know that I
didn't do it. And I'm looking at, like, say, a
fifty percent chance of ten years and a fifty percent
chance of getting off, or they say take door number
two and you can walk. All you have to do
is admit it, and it'll be on your record forever
and you'll be on probation for a long time.
Speaker 4 (03:20):
Yes.
Speaker 5 (03:20):
And the reason I ask is that in some ways
it relates to Karen Reid's case, because many people believe
myself included that she was overcharged by charging her with
second degree murder and with the expectation that, like many
criminal defendants, you would plead out to a lesser offense
in order to avoid fifteen to twenty years of a
(03:43):
life sentence in prison.
Speaker 3 (03:45):
Well, so it boils down to basically my reputation versus
ten years in jail. Yes, I will say goodbye to
my reputation. My reputation is not that great anyway.
Speaker 5 (03:56):
I think most people are likely to make that choice.
I want under whether we talked about this a little
bit on vacation, my sister in law said that no,
she would go to trial even if and then ultimately
serve the sentence. Now that's my sister in law who
has never served a day in prison, or probably likely
even visited a prison. I think the reality is it's
(04:17):
a very dangerous, difficult place, and even if you were
there just for hours, you would.
Speaker 4 (04:22):
Not want to be there longer.
Speaker 6 (04:24):
There.
Speaker 2 (04:24):
Maybe she just watches TV sitcom prisons.
Speaker 5 (04:29):
No, I think the reality of prison for most people
is a pretty harsh.
Speaker 3 (04:35):
I i'd have to I would plead guilty then for
one hundred percent chance of not going.
Speaker 4 (04:38):
To jail, and I think a lot of people would.
Speaker 2 (04:41):
Yeah. So uh.
Speaker 3 (04:43):
Now that I have given out those two questions, the
number six one seven two five four ten thirty, if
you'd like to chat with Dean coyn, do not be shy.
Chat with me. Do not be shy. Six one seven
two five for ten thirty. Now we go back to
the top. Well, as you, you of all people know,
Karen Reid case was all the rage. It was all
the rage for me. I was glued to every detail.
(05:05):
I watched two or three versions of the coverage. I
was completely into it and I'm still completely into it.
So now we get to the civil suit portion of
the event. Who is suing Read so far?
Speaker 5 (05:22):
Well, it's not just Read, it's the bars that were
involved as well. But it would be John O'Keeffe's ears, So,
in essence, the estate of John O'Keeffe, the formal estate
as well as his immediate ears, which in this case
would be his mother and father, a suing for the
loss of John's life, the value, the economic value of
(05:46):
that as we would look at it through lost wages
and companionship and all the rest.
Speaker 4 (05:53):
When we look at wrongful.
Speaker 5 (05:54):
Death cases that the survivors are entitled to try and
recover this must be.
Speaker 3 (06:01):
Difficult to assign. For one thing, we don't know how
much John would have made. We don't know how much
he would have given them, and we don't know And
how do they assign a value to companionship?
Speaker 2 (06:12):
Is there a like a table.
Speaker 5 (06:15):
No, there's no formula like that. With the economic losses,
that's relatively straightforward. We know what he's compensation was as
a police officer. We can project what the raises would be,
we can project what his life expectancy is, the part
of it with respect to dollars and cents that are
(06:35):
loss as a result of his life being cut short.
That's a pretty straight formula that we would approach. It's
the companionship, it's the emotional loss. Those are much harder
to put a financial value on. But ultimately they will
try to do that, and the lawyers will offer evidence
to the jury of what his life was like and
(06:58):
what he was like the value of that to the
family members that are left now without him.
Speaker 3 (07:05):
I don't know if the word standing is appropriate in
this in this way, but who is standing? Who has
a right to sue? How close do you have to be?
Speaker 4 (07:15):
No standing? Is standing? Is right?
Speaker 5 (07:17):
The standing is the question about who has the legal
basis to provide to bring suit for the loss of
a loved one. For instance, Usually obviously it's the partner,
whether it's the husband or the wife to the person.
Speaker 4 (07:34):
That's been lost.
Speaker 5 (07:35):
In some cases it would be the children. But that's
the question that in this case, he doesn't have children,
He didn't have a partner, they weren't formally married, So
who would have the rights. The rights would be in
his estate and more likely in this case, not the
niece and nephew that he was supporting and that lived
(07:56):
with him, but his mom and dad would be his
immediate survivors, who would likely be the people pushing the
lawsuit to try and a to recover for his financial losses,
but also to try and determine what actually happened to
them him that night.
Speaker 3 (08:17):
So the amounts decided solely on say, income that these
folks would have gotten, or is there a punitive aspect
to it as well?
Speaker 5 (08:25):
Now you can recover punitive damages for wrongful death cases,
and that's what this really is at the end of
the day, so you can, but remember punitive damages under
the Supreme Court rules always have to bear some actual
relationship to his actual damages in order to be constitutionally permissible.
(08:47):
So they still have to provide evidence of the financial
losses here.
Speaker 2 (08:51):
And this is decided by a jury.
Speaker 5 (08:53):
If the plaintiffs selected jury, if the defendants requested jury,
the likelihood is this is in fact another jury case
that the jury will be impaneled, and it will be
a slog obviously to get a jury that is impartial
or sufficiently unbiased as a result of all of the
(09:15):
attendant publicity in this case to be able to judge
it solely on the evidence presented at trial. And what
you've got The interesting aspect to it here as well,
is the difference in the standards of proof between a
criminal and a civil case.
Speaker 3 (09:31):
What's the liability of the bar from what does it stem?
And is how much could they.
Speaker 4 (09:36):
Be on the hook for?
Speaker 5 (09:37):
Well a lot, Because the argument on the tavern owners,
and that's what it's historically been called, is called the
dram shop case, is that you overserved them beyond the
point where it was safe for them to leave the establishment.
You also, at least the evidence indicates that they let
(09:59):
them leave the establishment with alcoholic drinks, which is not
permissible either in Massachusetts, and so then you're going to
have to establish that in essence, they were negligent in
allowing them to drink so much and then allowing them
to leave here.
Speaker 4 (10:16):
And what's interesting.
Speaker 5 (10:17):
About that part of it, and I expect that this
will be developed through both discovery and ultimately the trial,
is it doesn't necessarily take the plaintiffs to prove that
she hit him with the vehicle to show that the
tavern was negligent and serving so much alcohol and allowing
(10:40):
him to then leave. That could be and we see
it all the time. Is that's a negligence case in
and of itself, even if there's no accident. Yeah, even
if she doesn't strike him. But you know, remember, I
don't know how many years ago it was. I fell
on my way to the studio one night, broke half
the ribs in my body in January in the snow,
in an icy condition. Suppose he just slips, but he's
(11:03):
consumed enough alcohol that that affects his ability to be
able to recover or to be able to walk sufficiently.
You know, the evidence indicated during the first and the
second trial that they both had really high levels of
alcohol within their system. Him at the time of his
death her the next morning, and that will be problematic
(11:25):
for the tavern owners that are being sued in this case.
Speaker 2 (11:29):
Can I sue a bar for overserving me?
Speaker 5 (11:33):
Yes, And that's what happens. And sometimes that is precisely
what happens. The problem with it that is selling the
jury on the notion that you're not responsible yourself here
for what you've done. I know, normally it's a third
party who is injured as a result of the patron
having consumed too much alcohol and then causing another's injury.
(11:57):
But there are cases whether patron themselves sues because they've
been injured as a result of their inability to drive
safely after having been served too much alcohol.
Speaker 3 (12:08):
After the break, I'll get an answer to this question.
And the question is, since she was found not guilty
in a criminal trial, it's assumed that there was no
contact between the vehicle and the officer.
Speaker 2 (12:24):
Correct.
Speaker 4 (12:25):
That's and so.
Speaker 3 (12:27):
I guess you don't carry that finding forward to a
civil case. You have to go through it, oh again
to decide if there was contact before you can sue.
Speaker 5 (12:36):
Well, the problem is it's not before you can sue,
before you could recover, for you the suit has already
been filed. But the problem is here is that the
different standards approved really complicate this. A guilty finding in
the last case would have made the civil suit easy
because you've satisfied the civil standard of preponderance of evidence.
(12:59):
But when you don't satisfy the beyond a reasonable doubt,
we don't really know how short that they were approving.
Speaker 4 (13:08):
There was a collision in that she caused it.
Speaker 3 (13:10):
All right, let's say we're going to talk to Ed
when we come back from the break and continue with
Dean Michael Coin on WBZ.
Speaker 1 (13:17):
You're on Night Side with Dan Ray on WBZ Boston's
News Radio.
Speaker 2 (13:23):
Bradley J.
Speaker 3 (13:24):
Beck, I'm in for Dan and we're with Dean Michael
Coyn talking about civil suits. Karen reaid civil suits and
my question to do Dean Well, I gave him a
question before the break, promised to get to Ed first
before we answered that question.
Speaker 2 (13:38):
So it's Ed in Worcester. Hello, Ed, you're on WBZ.
Speaker 6 (13:42):
Hi, Bradley, great to hear you back on the year.
You have been sorely missed.
Speaker 7 (13:46):
I just wanted to say that.
Speaker 2 (13:48):
Coin.
Speaker 6 (13:50):
Yes, Dean, I had a kind of two part question,
not for her to get a financial recovery, but just
to be able to do discovery and get you know,
the mccabs and the Alberts and Brian Higgins under oath.
Were you surprised that Karenry did not file a defamation
suit against them? I think she's missed the statute of
(14:13):
limitations for that now. And on the same lines, would
you expect her or think she would have success if
she filed a nineteen eighty three lawsuit against the police
and the investigators?
Speaker 4 (14:24):
Well, I think.
Speaker 5 (14:25):
The investigators did a horrible job here, and I think
that's what made it so difficult to overcome those early
mistakes and the mistakes in both the collection and preservation
of evidence. I don't know whether that amounts to a
nineteen eighty three Ye. Well, in nineteen eighty three, I
have to ask, it's a violation of her.
Speaker 4 (14:43):
Civil rights, okay. And the problem with that is, and
the problem likely with.
Speaker 5 (14:48):
The defamation potential suits in all, is that was there
enough evidence to move forward with charging her? What other
evidence is out there that may not have been admissible
in court during the criminal case. And I think when
you look at if you're attempting to sue the government.
You're attempting to sue the District attorney's office. There a
(15:11):
lot of that involves questions of immunity because they're in
their official capacity and they believe that the evidence supported
the bringing of the charges.
Speaker 4 (15:21):
So that becomes a problematic case on the.
Speaker 5 (15:25):
Defamation aspect as to the private individuals that she might
have claims against. Again, you've got to look at the
information that we have with respect to what statements they
made that were untrue that obviously the damage part of
it she could show caused her some damage in that capacity.
(15:49):
I don't know whether you'd want to continue to litigate
this back and forth if you were Karen Reid with
respect to those parties, because simply to what extent would
you likely spend a fortune trying to retire to obtain
a judgment, and then what's the chance of recovering a judgment?
And that deals on a whole bunch of different aspects here,
(16:10):
because people have talked about perhaps some of those same
people should be suing Turtle Boy and suing others. And
the problem at the end of the day is you're
going to spend a fortune on lawyers with a real
questionable chance of ever recovering any type of substantial money,
certainly substantial over what you would expend trying to obtain
(16:34):
such a judgment.
Speaker 4 (16:35):
Right right, Thank you very much.
Speaker 6 (16:38):
Ed.
Speaker 3 (16:39):
Okay, now back to the question, found not guilty in
the criminal trial, you go to a civil trial. Since
she was found not guilty, I guess of making contact
tell me if I'm wrong, or making contact with the
vehicle to the officer moving forward. Doesn't that make a
(17:01):
civil suit more difficult? But I know what you're going
to say. With the burden of proof is less instead
of reasonable doubt, it's more likely than not.
Speaker 5 (17:10):
And right, But let's just understand what the jury said.
They said that there was reasonable doubt with respect to
second degree murder, reasonable doubt with respect to vehicular manslaughter,
and reasonable doubt with respect to leaving him to die
in the snow as a result of being under the
influence of alcohol. That they they have said publicly, those
(17:35):
were the formal decisions they have said. Some jurors have
said publicly they don't believe the Commonwealth proved that the
vehicle ever collided with him, And clearly, I think there's
a lot of folks that believe that that evidence was
lacking that there was some type of impact with the
vehicle and John O'Keefe, But that's not a formal fine
(18:00):
of this jury, so it doesn't affect the second case.
And the second case, all they would have to show,
at least from that standpoint, is more likely than not
she contributed to his death, and at least at the
start of it, it would be by impacting him with
the vehicle. But you know what, you know a lot
(18:20):
of folks, you owe to your partner a reasonable standard
of care. They weren't married, so it's a slightly different question.
But the question could still be if you knew he
was so intoxicated and you let him out in the
in frigid weather in a T shirt type of shirt,
is is that negligent regardless of how he then ends
(18:43):
up meeting his death? And that's a there is a
question with respect to that. The question, ultimately, though, from
a legal standpoint, is does a partner.
Speaker 4 (18:53):
Or a legal duty to their partner.
Speaker 5 (18:56):
When they're not married and they're not have a legal
relationship that the law recognizes?
Speaker 2 (19:03):
Interesting and do you figure this will come up?
Speaker 5 (19:06):
I think it will come up because it makes the
plaintiff's burden even easier to be able to establish that
she's liable for the death of John O'Keefe, at least civilly.
From that standpoint, Remember, oj was found civilly liable for
the death of Ronald Nicole Simpson Brown and ron Goldman,
(19:30):
even though he was found not guilty in the criminal case.
So it's not uncommon that you'd have conflicting verdicts because
of that standard of proof.
Speaker 3 (19:37):
All right, now, let's get into the why bother part?
Because how much money is there? Where does it come from?
You have Karen Read owing her lawyers millions of dollars probably,
and yes, you have a book deal to generate money,
but from what I see, it's not going to come
anywhere near close to paying off even the lawyers. So
(20:01):
how much, even if you win a civil suit, are
you actually going to be able to collect and of
course you're going to have to pay for lawyers. Is
it worthwhile? Is it worthwhile?
Speaker 2 (20:12):
Well?
Speaker 5 (20:12):
Part of the answer to that question would require us
to have additional information that they will obtain through discovery.
For a prime example would be how much insurance did
she have on the motor vehicle and does she also
have a balloon policy? That would protect her from liability
beyond those limits. So to a large extent, the question is,
(20:35):
and it often is in a lot of cases, what
insurance is available to potentially satisfy this judgment. Now we
know she sold her house, we know that likely those
proceeds went to the lawyers. She's likely, as you pointed out,
deeply in debt to the lawyers for representing her in
these two massive trials. I think Alan Jackson was quoted
(20:57):
the other day as saying his firm would have charged
Dudley on an hourly basis, they would be owed close
to ten million dollars for the representation of miss read
So if there's a bill that goes into the part
as well. So the real question I think is, ultimately
right now, how much insurance is available from her, how
(21:17):
much insurance is available from the tavern owners, and are
there any other sources of insurance potentially available to satisfy
the potential judgments. But again, as you're pointing out, the
lawyers are going to charge a fortune. Some of it
will be covered by the insurance that you have. The
(21:38):
insurance companies are obligated to provide the representation under the
terms of the policy. But you're going to spend a
fortune to fight this case. We need to know what
assets potentially are available to satisfy it. And at some
point when you look at that information, if it's not there,
(21:58):
people may decide to move on or settle, more likely
settle for a relatively low amount, because at the end
of the day, it's a wrongful death case.
Speaker 2 (22:08):
Can they garnish her wages forever?
Speaker 5 (22:11):
Your wages can be garnished as a result of obtaining
a judgment, and they're garnished until the amount of the
judgment is satisfied, and you have a small amount of
your wages that are exempt from garnishment. But you know
this is a while. But the last I looked, it's
like one hundred and twenty five bucks a week.
Speaker 4 (22:30):
So anything you make over.
Speaker 5 (22:32):
And above that potentially can be garnished under a court order.
But again, that's an expensive and time consuming process if
you're trying to satisfy hundreds of thousands of dollars.
Speaker 2 (22:46):
Judgment six month, seven, five thirty.
Speaker 3 (22:49):
It was great to hear from ED, And if you'd
like that you heard how easy it was for ED.
Give a call in here so I feel free to
ask a question of Mike. Now, for me, the most
interesting question is what is the pecking order and who
gets the money first? How if there's a x amount
(23:09):
of money, there's not enough for everybody if she loses
her civil case, so she's gonna owe money tech more
than one person. Is it set up ahead of time?
Who gets first dibbs?
Speaker 5 (23:23):
No, it's whoever gets there first and tries to seize
whatever assets there are. They would have first call on
those assets. There isn't it's not a situation where she
owns real estate and you can place a lean against
that real estate.
Speaker 4 (23:40):
You do have a.
Speaker 5 (23:41):
Problem here with a number of people looking to try
and get something out of that same part. So it's
first in time first. The first person that gets there
with that judgment is going to be able to try
and get some money out of it.
Speaker 4 (23:56):
Others may well end up completely empty handed.
Speaker 3 (23:59):
So if the lawyers have been billing her all along,
that's first, right.
Speaker 5 (24:04):
No, Now, the fact that you've billed, the fact that
you owe a number of different creditors, doesn't give those
creditors any priority.
Speaker 2 (24:13):
Has to be another step here to suit.
Speaker 4 (24:15):
You have to have a.
Speaker 5 (24:15):
Lean, you have to have an attachment, you know, at
the end of the day, some of this could be
end up being resolved if assuming there's sizeable judgments that
come as a result of this against her, or she
brings suits where there are sizeable judgment against others. It
could all end up in the bankruptcy court for them
to be able to resolve the competing claims of creditors.
(24:37):
That's where you do get into some of that fight
is where the court then has to determine who's got
the priority and how should they be paid. But this
is not likely that situation simply because you have a
number of potentially competing claimants here.
Speaker 3 (24:54):
All right, I know it's very serious topic. I don't
lighter angle on it. If they do do a movie,
you you know, you should try to be in the
movie because you were you know, you're on television all
around being a spokesperson.
Speaker 2 (25:09):
No people do that. They have news people in movies.
You know, you might, you might. You never know.
Speaker 3 (25:15):
Brian Walsh, I know, you know I studied up on
Brian Walsh, But you know more a lot about this
case more than I do. Can you give us an
overview in the Brian waltsh case?
Speaker 4 (25:26):
Sure?
Speaker 5 (25:27):
I think this is the next big case that we're
going to see televised here and likely nationally will pick
it up as well, because it's a very interesting murder
case and again involve some of the same players as
Karen Reid. Trooper Proctor was involved, bu Kennick was involved.
He already has testified at one of the other hearings.
(25:49):
So you've got this crossover where you've got some questions
of the will the police misconduct in Karen Reid's case
affect this case and the ability to have a trial
that we can respect the results here and already we've
seen some of the same issues being raised. But what
(26:11):
he's charged with is killing and dismembering his wife. And
the easiest part of most murder cases is to prove
that death occurred because we have a body.
Speaker 4 (26:22):
We don't have a body here. We don't have.
Speaker 5 (26:26):
The ability to simply show the jury from the medical
examiner's standpoint or photographs what her body look like when
it was found, or what the medical examiner determined to
be the cause of death. Now that's not an insurmountable problem.
We have other cases where there's a woodchipper case out
(26:46):
of Connecticut where they prove death. There's many cases we
have in Massachusetts when Robin Benedict was killed a number
of years ago, professor from Tufts was accused of murder,
and he said that she was going to show up
and testify. Now, they never found the body, but they
did find a microscopic piece of her brain in his closet,
(27:09):
and ultimately that was sufficient for them to be able
to prove it, and he accepted a plea and was
released ultimately twenty years later. So you can prove death
without a body, but it usually is the easiest thing,
and we don't have that here. We also have a
lot of problems with respect to the discovery and how
(27:34):
it was discovered, with respect to the electronic evidence in
this case, a wood Shiper case in Connecticut. Yeah, how gruesome.
I was very gruesome. Doctor Henry Lee. He's like they
call him the Carnets of the stars. He's the one
that was able to discover it and testify and prove
that death occurred.
Speaker 3 (27:51):
You got to ask yourself, how do you get to
the point where you could do that? That is so
far removed from where my heads.
Speaker 4 (28:00):
Well, and I hope I think most people.
Speaker 2 (28:03):
How do you sink down to that situation?
Speaker 5 (28:07):
Well, what was sort of a fascinating angle on that
case is he set up the wood chipper near a
streams put her body through the wood chipper. There was
microscopic pieces left it hit the stream and carried god
knows where.
Speaker 2 (28:22):
Uh.
Speaker 5 (28:23):
It wasn't an easy case to prove that that he
murdered her, but ultimately the forensic information and testimony was
strong enough that that he was able to be convicted.
Speaker 2 (28:35):
Wow. Six one seven.
Speaker 3 (28:37):
If you want to give Nightside a shout, Doctor Dean
Mike Corn at Massachusetts School of Law, all right, we
kind of got to this, but if you could more
formally address what factors besides not having a body yep,
does the defense have going for it? What factors does
the prosecution have going for it?
Speaker 2 (28:54):
Yeah?
Speaker 5 (28:54):
This and this is the key here is it is
a heavily circumstantial evident case. And what that means is
it's not direct evidence someone saying I saw Brian Walsh
kill his wife. What we have, though, is a number
of Internet searchers where he is on a device asking
(29:15):
how long does it take to have a body start
to smell? What's the best way to dispose of a body?
A number of searches of that nature that are found
on his devices. There's also a video from home depot
where he is assembling material so that he could dispose
(29:40):
of at least something big and problematic, and it's right
around the time where she goes missing. And they also
have information from his GPS showing him making various stops
from the south shore to the north shore where they
ultimately look for the body and couldn't find. The problem is,
(30:01):
and so that's all strong evidence for the Commonwealth to
be able to try and convict him. He's never admitted it.
He's never suggested that he had any involvement with her.
He in fact says she might have left him because
she had a lover or whatever and she decided to
abandon him. The problem from the government's standpoint is that
(30:28):
some of the searchers may have exceeded either the permission
that he granted or exceeded the scope of.
Speaker 4 (30:39):
The search warrant.
Speaker 5 (30:41):
If that evidence is tainted as a result of the
illegal search, then the government doesn't have much other evidence
that would support it. And that's really going to be
the question that we're going to have to examine, and
the court will examine.
Speaker 3 (30:55):
Closely so I guess one of the nuances on illegal
search is that the defense is saying, look, he gave
you verbal permission to look for one thing, but you
went further than that and you found other things. And
the prosecution says, yes, but it's okay, and they use
(31:16):
the plane sight plane view law, just like back in
the day, if some kid had weed in the front
seat and he was pulled over for a tail light.
I mean in Louis, right there in the front seat,
you could be on the hook for that. You don't
need to warrant because it was right there in the
(31:36):
front seat in plane.
Speaker 4 (31:37):
View, right right plane.
Speaker 5 (31:39):
There's two principles that they're arguing there. I don't care
as much for plane view in as an argument to
support what they did here, because I'm not so sure
when I give you my device and I limit the
permission that that means you can just scroll wherever you want.
(32:00):
Because it was relatively clear based on the affidavits that
have been filed with the CORD and the information we
presently have, that he said you could search for communications
except for communications with my wife, which would be privileged,
or lawyers, which would be privileged. But the key to
me was communications. The communications I don't see is including
(32:23):
Google Search.
Speaker 2 (32:24):
No, communications, is your email right?
Speaker 3 (32:26):
And communications, Facebook, instant Messenger stuff like that.
Speaker 5 (32:31):
Yes, and communications would not include your GPS activity.
Speaker 2 (32:35):
Would include would not include a search history.
Speaker 5 (32:38):
So what they're saying is, well, okay, if we exceeded it,
it's plain view.
Speaker 2 (32:44):
I don't think it is plain view.
Speaker 3 (32:46):
You had to take an action and click on a
button to search for that actively. It's not plain view
unless it was unless one of the pages where he
was searching for how long does it take about it
decomposed was still open in it tab or something. But
I'm guessing they had to go and search for.
Speaker 4 (33:05):
It, and and that's the problem I have. And add
to that problem, we've.
Speaker 5 (33:12):
Got some of the same officers who we know cut
corners and did things improperly in Karen Reid, the principal
investigators here as well.
Speaker 4 (33:22):
It does give you real pause.
Speaker 5 (33:24):
Whether law enforcement may have messed up portions of this investigation,
just like they messed up read.
Speaker 3 (33:30):
Okay, So regarding that, is there any direct way, any
procedural way where the fact that super Proctor was involved
in both of these cases is affected or is it
only just affect the perception perhaps of a jury.
Speaker 5 (33:48):
I think it's the perception part of the jury, because
the judge has been careful here not to allow them
the expansive examination of Proctor's personal devices. Here they they
the court was looking for a much stronger showing that
some of the same things were present, and at least
on the basis of the information we have now, they
(34:09):
didn't show it. The government's better argument on the search
is being permissible, and what they obtained is permissible is
what we call in what they called the inevitable discovery rule.
Sooner or later we would have obtained this information anyway.
So since that's the case, it's still admissible. And if
(34:32):
you think about it from this perspective, the partner is
always the prime suspect when their spouse is dead.
Speaker 4 (34:38):
Always. I mean that's usually because numbers bear that out.
Speaker 5 (34:44):
So sooner or later they would have gotten search warrants
for a phone and GPS.
Speaker 2 (34:48):
Judge, I'm saying sooner or later does not cut.
Speaker 5 (34:51):
It well, not when you're potentially going away for the
rest of your life without the benefit of parole.
Speaker 3 (34:58):
Perhaps or later is not a good enough reason to
search without a Warren No, I would have come back
to the House sooner or later. So I'm just going
to go in now without a warrant.
Speaker 4 (35:10):
Well, and that's the problem.
Speaker 5 (35:11):
There's a reason we have the Fourth Amendment. There's a
reason we have these constitutional correct protections.
Speaker 4 (35:17):
And especially in Massachusetts, we do.
Speaker 5 (35:20):
The Supreme Court has made clear that we hold police
in law enforcement to very high standards about upholding their
constitutional rights of defendants and that it's a real problem
if some of this evidence starts getting tossed out because
the case is not strong from the standpoint of lots
(35:41):
of direct evidence. Anyway, it's a circumstantial case. Any pieces
you lose potentially impact the ability to prove guilt beyond
a reasonable doubt.
Speaker 3 (35:51):
Looks like it's time for a quick break, and I
have another question on this Brian Waltch's case. So we'll
continue and do not be sure I six one, seven
to two, four, ten thirty.
Speaker 2 (36:00):
We would love to hear from me. I know it's
kind of nerve racking.
Speaker 3 (36:03):
To call the radio station and talk on the air,
but we'll make sure. It's a fun experience for you
and you'll be glad you did. It's WBZ.
Speaker 1 (36:11):
It's Night Side with Dan ray On Boston's news Radio Real.
Speaker 3 (36:16):
Day for Dan tonight with Michael Coloin, dean of the
Massachusetts School of Law, and we have switched to talk
about the Brian Waltz case, charged with Well, I won't
go into the gruesome details, but murder, I guess be
the charge. What is the exact charge?
Speaker 4 (36:32):
Yeah, I think it is in fact first degree murder.
Speaker 3 (36:35):
So before we go to Jim and Phah River, I
have a question. There are certain elements that are good
to have if you're going to make a charge. You
mentioned earlier that having a body was helpful to a prosecution.
Speaker 2 (36:48):
Usually and.
Speaker 3 (36:51):
Also I would think a motive would be important. One
of those elements means motive.
Speaker 5 (36:57):
Whatever jury looks for a motive, but it's not necessary
to prove it as.
Speaker 3 (37:02):
Part of a But if you don't have one, you're
going to battle with you know not all.
Speaker 5 (37:06):
You Well, people want to know what the story is,
what actually happened, and the motive.
Speaker 4 (37:10):
Provides the the the reason why this all took place.
Speaker 2 (37:13):
So is there a legit motive or is there a motive?
Speaker 5 (37:15):
What's what's the motive is the most at least the
argument on the motive is that there was discord in
their marriage. She may have wanted to leave, and if
she was going to leave and take the kids, that
he was going to strike first. At least that's the
suggestion as to why this went down.
Speaker 4 (37:31):
Is that that's.
Speaker 2 (37:33):
A stretch for me. I'm on the Jerry.
Speaker 3 (37:35):
I think, Wow, people break up all the time. You know,
every day, hundreds of people break up. It's seldom they
results in murder.
Speaker 4 (37:45):
Correct.
Speaker 2 (37:46):
Well, okay, let's go to Jim and Fall River.
Speaker 1 (37:49):
There you go.
Speaker 2 (37:50):
Hello, Jim, you're on WBZ, Hi Jim.
Speaker 7 (37:54):
Yeah, Hi. My question is involves the Tarnic case. Can
I ask it?
Speaker 2 (38:00):
Yes?
Speaker 7 (38:00):
Quick question to tourney Coin. You hear that you've heard
that the Karen Reid supporters think that the judge was
biased towards the defense towards the prosecution. What is your
take on that?
Speaker 2 (38:20):
Yeah, good question.
Speaker 5 (38:21):
My take is that Judge Canoni did a very good
job balancing both sides interest.
Speaker 4 (38:28):
In getting a fair trial.
Speaker 5 (38:30):
I think it's easy to blame the judge and say, well,
she should have done this and she should have done that.
But from an evidentiary standpoint, I teach evidence as one
of the courses at mascul of law. Most of the
decisions one would have little quarrel with as a lawyer.
And so I've tried cases before judges that were really
harsh and brutal and not always very good at making
(38:53):
some difficult decisions. I think she did a good job,
and I'll bet in time David and Eddie and others
would say that they believe that she treated them fairly
harshly at times. But good judges will treat litigants harshly,
especially the lawyers, if she thinks that they're doing things
that they.
Speaker 4 (39:14):
Should be more careful about.
Speaker 3 (39:15):
And it's pretty easy to be an armshair judge. It's
another thing to be up there under the spotlight. Must
be very difficult. Well, thank you, Jim, Thank you Jim,
and far Okay, look at that. We have time for
Sky in California.
Speaker 2 (39:28):
Hello, Sky, Hello.
Speaker 8 (39:32):
Thank you for taking my call. So this is a
very open ended question, and that's going to be a
lot of controversy or controversy. So who do you really
really think killed John? Okay, Okay, So I don't know.
Speaker 2 (39:47):
I'm not going to answer that.
Speaker 4 (39:48):
Well, I'm not sure where.
Speaker 8 (39:49):
Well you couldn't answer that, you cannot, but.
Speaker 2 (39:51):
Thank you could answer it.
Speaker 6 (39:54):
But I'm not going well.
Speaker 8 (39:57):
You cannot for sure someone upstairs knows how to aunt
for that, but I think I have a good feeling
who really really does Vaca and the other thirteen people
that were in the house that day on you No.
Speaker 2 (40:12):
Thank you very much. I don't want to go there.
Speaker 4 (40:15):
The problem with.
Speaker 5 (40:15):
The I've always had with the thirteen people in the
house is that you know, we also did and covered
the Whitey Bulger trial. His cohorts were some of the cruelest,
most horrible people in the world. They all ended up
testifying against whiteiat trial, oftentimes for next to nothing. It's
(40:39):
impossible for twelve people to keep a secret, and some
of them, in view of a federal investigation and view
of the couple of grand jurys and panels, some of
them would have said, no, it was Bradley who did this,
and that never happened in any of this. So I
think that's a tough sell, right, Okay.
Speaker 3 (40:57):
So it's looking like we have a few seconds to
go before we get to the break the news at
the top of the hour. Dean corn has agreed to
stay another hour, which is which is fantastic because we
do have much more to cover, like the public defenders
strike for one thing that's that really is local and
that affects us. A great deal that's coming up on
(41:17):
WBZ News Radio ten thirty
It's Nice Eyes with Dan Ray. I'm going Easy Bondon's
News Radio.
Speaker 2 (00:06):
NI with Dan Ray.
Speaker 3 (00:07):
I'm Bradley Jay and for Dan, and our guest is
Michael Coin, dean of the Massachusetts School of Law. And
people have been just so thrilled that you're coming back.
So am I too. By the way, my brother is
a huge fan. He's listening.
Speaker 2 (00:21):
I don't know if you call Colin, but thanks for
coming in. I really appreciate it.
Speaker 4 (00:24):
I love being here. I love radio.
Speaker 2 (00:25):
So folks, here's what we're gonna do.
Speaker 3 (00:27):
We're gonna cover Karen Reid and the the civil suits
because it's it ain't over by a long shot. And
I have a lot of questions about that. Maybe you
do too. There's the Brian Walch case. Get into that,
the public Defenders strike and the effects that might have
on things. There's a person named Brian Coburger out in
(00:48):
Idaho who pled guilty to pleaded guilty to four council
first degree murder. And I'll ask Dean Coyner, why would
you do that? Why would the state go for that deal,
and why would you agree to spend the rest of
your life in a supermax prison? And Dean con and
(01:11):
I were talking about this earlier, and this is how
we're going to involve you.
Speaker 2 (01:15):
We were talking about son.
Speaker 3 (01:16):
Iev and the marathon bombing and what would be the
fate of son Iev and we started to wonder, you know,
which is worse the death penalty or life in a
supermax prison. You know that's it's a terrible place to be.
You're in isolation, as I understand it, for twenty three
(01:36):
hours a day, and then you get one hour in
a dirty cage, shoes untied, then you go back in.
Is that any kind of life? Isn't that turns the
amount to torture? So I agree with all of you.
I want the very worst thing for a person, But
wouldn't that really be worse than the death penalty? So
(01:57):
death penalty, folks, I don't mean if you will, they
want the worst for a perpetrator. You might want to
think about life in prisonment, and there are other things
to consider there. So which would you prefer? Well, which
do you think is worse? Life in prison or the
death penalty? And just kind of out of the blue,
a little bit non secretorially, Dean Coin pose this question.
(02:22):
Why don't you go ahead and pose the question to them.
Speaker 5 (02:24):
Well, the question is, and I ask my students sometimes
because a lot of criminal cases end in plea deals
and the like, is would you plead guilty to a
crime you did not commit in order to avoid a
prison sentence, and let's say a prison sentence of five years,
ten years, or even fifteen years.
Speaker 2 (02:43):
Pick one. So I can decide, let's say.
Speaker 5 (02:46):
Ten years old, and you have a chance of being
convicted on that even though you believe that you didn't
commit the crime. Would you plead guilty to that and
not then have to serve a in prison but be
on probation for some periods.
Speaker 3 (03:02):
No, Todd, I would know that I didn't do it.
I wouldn't just believe it. I would know that I
didn't do it. And I'm looking at, like, say, a
fifty percent chance of ten years and a fifty percent
chance of getting off, or they say take door number
two and you can walk. All you have to do
is admit it, and it'll be on your record forever
and you'll be on probation for a long time.
Speaker 4 (03:20):
Yes.
Speaker 5 (03:20):
And the reason I ask is that in some ways
it relates to Karen Reid's case, because many people believe
myself included that she was overcharged by charging her with
second degree murder and with the expectation that, like many
criminal defendants, you would plead out to a lesser offense
in order to avoid fifteen to twenty years of a
(03:43):
life sentence in prison.
Speaker 3 (03:45):
Well, so it boils down to basically my reputation versus
ten years in jail. Yes, I will say goodbye to
my reputation. My reputation is not that great anyway.
Speaker 5 (03:56):
I think most people are likely to make that choice.
I want under whether we talked about this a little
bit on vacation, my sister in law said that no,
she would go to trial even if and then ultimately
serve the sentence. Now that's my sister in law who
has never served a day in prison, or probably likely
even visited a prison. I think the reality is it's
(04:17):
a very dangerous, difficult place, and even if you were
there just for hours, you would.
Speaker 4 (04:22):
Not want to be there longer.
Speaker 6 (04:24):
There.
Speaker 2 (04:24):
Maybe she just watches TV sitcom prisons.
Speaker 5 (04:29):
No, I think the reality of prison for most people
is a pretty harsh.
Speaker 3 (04:35):
I i'd have to I would plead guilty then for
one hundred percent chance of not going.
Speaker 4 (04:38):
To jail, and I think a lot of people would.
Speaker 2 (04:41):
Yeah. So uh.
Speaker 3 (04:43):
Now that I have given out those two questions, the
number six one seven two five four ten thirty, if
you'd like to chat with Dean coyn, do not be shy.
Chat with me. Do not be shy. Six one seven
two five for ten thirty. Now we go back to
the top. Well, as you, you of all people know,
Karen Reid case was all the rage. It was all
the rage for me. I was glued to every detail.
(05:05):
I watched two or three versions of the coverage. I
was completely into it and I'm still completely into it.
So now we get to the civil suit portion of
the event. Who is suing Read so far?
Speaker 5 (05:22):
Well, it's not just Read, it's the bars that were
involved as well. But it would be John O'Keeffe's ears, So,
in essence, the estate of John O'Keeffe, the formal estate
as well as his immediate ears, which in this case
would be his mother and father, a suing for the
loss of John's life, the value, the economic value of
(05:46):
that as we would look at it through lost wages
and companionship and all the rest.
Speaker 4 (05:53):
When we look at wrongful.
Speaker 5 (05:54):
Death cases that the survivors are entitled to try and
recover this must be.
Speaker 3 (06:01):
Difficult to assign. For one thing, we don't know how
much John would have made. We don't know how much
he would have given them, and we don't know And
how do they assign a value to companionship?
Speaker 2 (06:12):
Is there a like a table.
Speaker 5 (06:15):
No, there's no formula like that. With the economic losses,
that's relatively straightforward. We know what he's compensation was as
a police officer. We can project what the raises would be,
we can project what his life expectancy is, the part
of it with respect to dollars and cents that are
(06:35):
loss as a result of his life being cut short.
That's a pretty straight formula that we would approach. It's
the companionship, it's the emotional loss. Those are much harder
to put a financial value on. But ultimately they will
try to do that, and the lawyers will offer evidence
to the jury of what his life was like and
(06:58):
what he was like the value of that to the
family members that are left now without him.
Speaker 3 (07:05):
I don't know if the word standing is appropriate in
this in this way, but who is standing? Who has
a right to sue? How close do you have to be?
Speaker 4 (07:15):
No standing? Is standing? Is right?
Speaker 5 (07:17):
The standing is the question about who has the legal
basis to provide to bring suit for the loss of
a loved one. For instance, Usually obviously it's the partner,
whether it's the husband or the wife to the person.
Speaker 4 (07:34):
That's been lost.
Speaker 5 (07:35):
In some cases it would be the children. But that's
the question that in this case, he doesn't have children,
He didn't have a partner, they weren't formally married, So
who would have the rights. The rights would be in
his estate and more likely in this case, not the
niece and nephew that he was supporting and that lived
(07:56):
with him, but his mom and dad would be his
immediate survivors, who would likely be the people pushing the
lawsuit to try and a to recover for his financial losses,
but also to try and determine what actually happened to
them him that night.
Speaker 3 (08:17):
So the amounts decided solely on say, income that these
folks would have gotten, or is there a punitive aspect
to it as well?
Speaker 5 (08:25):
Now you can recover punitive damages for wrongful death cases,
and that's what this really is at the end of
the day, so you can, but remember punitive damages under
the Supreme Court rules always have to bear some actual
relationship to his actual damages in order to be constitutionally permissible.
(08:47):
So they still have to provide evidence of the financial
losses here.
Speaker 2 (08:51):
And this is decided by a jury.
Speaker 5 (08:53):
If the plaintiffs selected jury, if the defendants requested jury,
the likelihood is this is in fact another jury case
that the jury will be impaneled, and it will be
a slog obviously to get a jury that is impartial
or sufficiently unbiased as a result of all of the
(09:15):
attendant publicity in this case to be able to judge
it solely on the evidence presented at trial. And what
you've got The interesting aspect to it here as well,
is the difference in the standards of proof between a
criminal and a civil case.
Speaker 3 (09:31):
What's the liability of the bar from what does it stem?
And is how much could they.
Speaker 4 (09:36):
Be on the hook for?
Speaker 5 (09:37):
Well a lot, Because the argument on the tavern owners,
and that's what it's historically been called, is called the
dram shop case, is that you overserved them beyond the
point where it was safe for them to leave the establishment.
You also, at least the evidence indicates that they let
(09:59):
them leave the establishment with alcoholic drinks, which is not
permissible either in Massachusetts, and so then you're going to
have to establish that in essence, they were negligent in
allowing them to drink so much and then allowing them
to leave here.
Speaker 4 (10:16):
And what's interesting.
Speaker 5 (10:17):
About that part of it, and I expect that this
will be developed through both discovery and ultimately the trial,
is it doesn't necessarily take the plaintiffs to prove that
she hit him with the vehicle to show that the
tavern was negligent and serving so much alcohol and allowing
(10:40):
him to then leave. That could be and we see
it all the time. Is that's a negligence case in
and of itself, even if there's no accident. Yeah, even
if she doesn't strike him. But you know, remember, I
don't know how many years ago it was. I fell
on my way to the studio one night, broke half
the ribs in my body in January in the snow,
in an icy condition. Suppose he just slips, but he's
(11:03):
consumed enough alcohol that that affects his ability to be
able to recover or to be able to walk sufficiently.
You know, the evidence indicated during the first and the
second trial that they both had really high levels of
alcohol within their system. Him at the time of his
death her the next morning, and that will be problematic
(11:25):
for the tavern owners that are being sued in this case.
Speaker 2 (11:29):
Can I sue a bar for overserving me?
Speaker 5 (11:33):
Yes, And that's what happens. And sometimes that is precisely
what happens. The problem with it that is selling the
jury on the notion that you're not responsible yourself here
for what you've done. I know, normally it's a third
party who is injured as a result of the patron
having consumed too much alcohol and then causing another's injury.
(11:57):
But there are cases whether patron themselves sues because they've
been injured as a result of their inability to drive
safely after having been served too much alcohol.
Speaker 3 (12:08):
After the break, I'll get an answer to this question.
And the question is, since she was found not guilty
in a criminal trial, it's assumed that there was no
contact between the vehicle and the officer.
Speaker 2 (12:24):
Correct.
Speaker 4 (12:25):
That's and so.
Speaker 3 (12:27):
I guess you don't carry that finding forward to a
civil case. You have to go through it, oh again
to decide if there was contact before you can sue.
Speaker 5 (12:36):
Well, the problem is it's not before you can sue,
before you could recover, for you the suit has already
been filed. But the problem is here is that the
different standards approved really complicate this. A guilty finding in
the last case would have made the civil suit easy
because you've satisfied the civil standard of preponderance of evidence.
(12:59):
But when you don't satisfy the beyond a reasonable doubt,
we don't really know how short that they were approving.
Speaker 4 (13:08):
There was a collision in that she caused it.
Speaker 3 (13:10):
All right, let's say we're going to talk to Ed
when we come back from the break and continue with
Dean Michael Coin on WBZ.
Speaker 1 (13:17):
You're on Night Side with Dan Ray on WBZ Boston's
News Radio.
Speaker 2 (13:23):
Bradley J.
Speaker 3 (13:24):
Beck, I'm in for Dan and we're with Dean Michael
Coyn talking about civil suits. Karen reaid civil suits and
my question to do Dean Well, I gave him a
question before the break, promised to get to Ed first
before we answered that question.
Speaker 2 (13:38):
So it's Ed in Worcester. Hello, Ed, you're on WBZ.
Speaker 6 (13:42):
Hi, Bradley, great to hear you back on the year.
You have been sorely missed.
Speaker 7 (13:46):
I just wanted to say that.
Speaker 2 (13:48):
Coin.
Speaker 6 (13:50):
Yes, Dean, I had a kind of two part question,
not for her to get a financial recovery, but just
to be able to do discovery and get you know,
the mccabs and the Alberts and Brian Higgins under oath.
Were you surprised that Karenry did not file a defamation
suit against them? I think she's missed the statute of
(14:13):
limitations for that now. And on the same lines, would
you expect her or think she would have success if
she filed a nineteen eighty three lawsuit against the police
and the investigators?
Speaker 4 (14:24):
Well, I think.
Speaker 5 (14:25):
The investigators did a horrible job here, and I think
that's what made it so difficult to overcome those early
mistakes and the mistakes in both the collection and preservation
of evidence. I don't know whether that amounts to a
nineteen eighty three Ye. Well, in nineteen eighty three, I
have to ask, it's a violation of her.
Speaker 4 (14:43):
Civil rights, okay. And the problem with that is, and
the problem likely with.
Speaker 5 (14:48):
The defamation potential suits in all, is that was there
enough evidence to move forward with charging her? What other
evidence is out there that may not have been admissible
in court during the criminal case. And I think when
you look at if you're attempting to sue the government.
You're attempting to sue the District attorney's office. There a
(15:11):
lot of that involves questions of immunity because they're in
their official capacity and they believe that the evidence supported
the bringing of the charges.
Speaker 4 (15:21):
So that becomes a problematic case on the.
Speaker 5 (15:25):
Defamation aspect as to the private individuals that she might
have claims against. Again, you've got to look at the
information that we have with respect to what statements they
made that were untrue that obviously the damage part of
it she could show caused her some damage in that capacity.
(15:49):
I don't know whether you'd want to continue to litigate
this back and forth if you were Karen Reid with
respect to those parties, because simply to what extent would
you likely spend a fortune trying to retire to obtain
a judgment, and then what's the chance of recovering a judgment?
And that deals on a whole bunch of different aspects here,
(16:10):
because people have talked about perhaps some of those same
people should be suing Turtle Boy and suing others. And
the problem at the end of the day is you're
going to spend a fortune on lawyers with a real
questionable chance of ever recovering any type of substantial money,
certainly substantial over what you would expend trying to obtain
(16:34):
such a judgment.
Speaker 4 (16:35):
Right right, Thank you very much.
Speaker 6 (16:38):
Ed.
Speaker 3 (16:39):
Okay, now back to the question, found not guilty in
the criminal trial, you go to a civil trial. Since
she was found not guilty, I guess of making contact
tell me if I'm wrong, or making contact with the
vehicle to the officer moving forward. Doesn't that make a
(17:01):
civil suit more difficult? But I know what you're going
to say. With the burden of proof is less instead
of reasonable doubt, it's more likely than not.
Speaker 5 (17:10):
And right, But let's just understand what the jury said.
They said that there was reasonable doubt with respect to
second degree murder, reasonable doubt with respect to vehicular manslaughter,
and reasonable doubt with respect to leaving him to die
in the snow as a result of being under the
influence of alcohol. That they they have said publicly, those
(17:35):
were the formal decisions they have said. Some jurors have
said publicly they don't believe the Commonwealth proved that the
vehicle ever collided with him, And clearly, I think there's
a lot of folks that believe that that evidence was
lacking that there was some type of impact with the
vehicle and John O'Keefe, But that's not a formal fine
(18:00):
of this jury, so it doesn't affect the second case.
And the second case, all they would have to show,
at least from that standpoint, is more likely than not
she contributed to his death, and at least at the
start of it, it would be by impacting him with
the vehicle. But you know what, you know a lot
(18:20):
of folks, you owe to your partner a reasonable standard
of care. They weren't married, so it's a slightly different question.
But the question could still be if you knew he
was so intoxicated and you let him out in the
in frigid weather in a T shirt type of shirt,
is is that negligent regardless of how he then ends
(18:43):
up meeting his death? And that's a there is a
question with respect to that. The question, ultimately, though, from
a legal standpoint, is does a partner.
Speaker 4 (18:53):
Or a legal duty to their partner.
Speaker 5 (18:56):
When they're not married and they're not have a legal
relationship that the law recognizes?
Speaker 2 (19:03):
Interesting and do you figure this will come up?
Speaker 5 (19:06):
I think it will come up because it makes the
plaintiff's burden even easier to be able to establish that
she's liable for the death of John O'Keefe, at least civilly.
From that standpoint, Remember, oj was found civilly liable for
the death of Ronald Nicole Simpson Brown and ron Goldman,
(19:30):
even though he was found not guilty in the criminal case.
So it's not uncommon that you'd have conflicting verdicts because
of that standard of proof.
Speaker 3 (19:37):
All right, now, let's get into the why bother part?
Because how much money is there? Where does it come from?
You have Karen Read owing her lawyers millions of dollars probably,
and yes, you have a book deal to generate money,
but from what I see, it's not going to come
anywhere near close to paying off even the lawyers. So
(20:01):
how much, even if you win a civil suit, are
you actually going to be able to collect and of
course you're going to have to pay for lawyers. Is
it worthwhile? Is it worthwhile?
Speaker 2 (20:12):
Well?
Speaker 5 (20:12):
Part of the answer to that question would require us
to have additional information that they will obtain through discovery.
For a prime example would be how much insurance did
she have on the motor vehicle and does she also
have a balloon policy? That would protect her from liability
beyond those limits. So to a large extent, the question is,
(20:35):
and it often is in a lot of cases, what
insurance is available to potentially satisfy this judgment. Now we
know she sold her house, we know that likely those
proceeds went to the lawyers. She's likely, as you pointed out,
deeply in debt to the lawyers for representing her in
these two massive trials. I think Alan Jackson was quoted
(20:57):
the other day as saying his firm would have charged
Dudley on an hourly basis, they would be owed close
to ten million dollars for the representation of miss read
So if there's a bill that goes into the part
as well. So the real question I think is, ultimately
right now, how much insurance is available from her, how
(21:17):
much insurance is available from the tavern owners, and are
there any other sources of insurance potentially available to satisfy
the potential judgments. But again, as you're pointing out, the
lawyers are going to charge a fortune. Some of it
will be covered by the insurance that you have. The
(21:38):
insurance companies are obligated to provide the representation under the
terms of the policy. But you're going to spend a
fortune to fight this case. We need to know what
assets potentially are available to satisfy it. And at some
point when you look at that information, if it's not there,
(21:58):
people may decide to move on or settle, more likely
settle for a relatively low amount, because at the end
of the day, it's a wrongful death case.
Speaker 2 (22:08):
Can they garnish her wages forever?
Speaker 5 (22:11):
Your wages can be garnished as a result of obtaining
a judgment, and they're garnished until the amount of the
judgment is satisfied, and you have a small amount of
your wages that are exempt from garnishment. But you know
this is a while. But the last I looked, it's
like one hundred and twenty five bucks a week.
Speaker 4 (22:30):
So anything you make over.
Speaker 5 (22:32):
And above that potentially can be garnished under a court order.
But again, that's an expensive and time consuming process if
you're trying to satisfy hundreds of thousands of dollars.
Speaker 2 (22:46):
Judgment six month, seven, five thirty.
Speaker 3 (22:49):
It was great to hear from ED, And if you'd
like that you heard how easy it was for ED.
Give a call in here so I feel free to
ask a question of Mike. Now, for me, the most
interesting question is what is the pecking order and who
gets the money first? How if there's a x amount
(23:09):
of money, there's not enough for everybody if she loses
her civil case, so she's gonna owe money tech more
than one person. Is it set up ahead of time?
Who gets first dibbs?
Speaker 5 (23:23):
No, it's whoever gets there first and tries to seize
whatever assets there are. They would have first call on
those assets. There isn't it's not a situation where she
owns real estate and you can place a lean against
that real estate.
Speaker 4 (23:40):
You do have a.
Speaker 5 (23:41):
Problem here with a number of people looking to try
and get something out of that same part. So it's
first in time first. The first person that gets there
with that judgment is going to be able to try
and get some money out of it.
Speaker 4 (23:56):
Others may well end up completely empty handed.
Speaker 3 (23:59):
So if the lawyers have been billing her all along,
that's first, right.
Speaker 5 (24:04):
No, Now, the fact that you've billed, the fact that
you owe a number of different creditors, doesn't give those
creditors any priority.
Speaker 2 (24:13):
Has to be another step here to suit.
Speaker 4 (24:15):
You have to have a.
Speaker 5 (24:15):
Lean, you have to have an attachment, you know, at
the end of the day, some of this could be
end up being resolved if assuming there's sizeable judgments that
come as a result of this against her, or she
brings suits where there are sizeable judgment against others. It
could all end up in the bankruptcy court for them
to be able to resolve the competing claims of creditors.
(24:37):
That's where you do get into some of that fight
is where the court then has to determine who's got
the priority and how should they be paid. But this
is not likely that situation simply because you have a
number of potentially competing claimants here.
Speaker 3 (24:54):
All right, I know it's very serious topic. I don't
lighter angle on it. If they do do a movie,
you you know, you should try to be in the
movie because you were you know, you're on television all
around being a spokesperson.
Speaker 2 (25:09):
No people do that. They have news people in movies.
You know, you might, you might. You never know.
Speaker 3 (25:15):
Brian Walsh, I know, you know I studied up on
Brian Walsh, But you know more a lot about this
case more than I do. Can you give us an
overview in the Brian waltsh case?
Speaker 4 (25:26):
Sure?
Speaker 5 (25:27):
I think this is the next big case that we're
going to see televised here and likely nationally will pick
it up as well, because it's a very interesting murder
case and again involve some of the same players as
Karen Reid. Trooper Proctor was involved, bu Kennick was involved.
He already has testified at one of the other hearings.
(25:49):
So you've got this crossover where you've got some questions
of the will the police misconduct in Karen Reid's case
affect this case and the ability to have a trial
that we can respect the results here and already we've
seen some of the same issues being raised. But what
(26:11):
he's charged with is killing and dismembering his wife. And
the easiest part of most murder cases is to prove
that death occurred because we have a body.
Speaker 4 (26:22):
We don't have a body here. We don't have.
Speaker 5 (26:26):
The ability to simply show the jury from the medical
examiner's standpoint or photographs what her body look like when
it was found, or what the medical examiner determined to
be the cause of death. Now that's not an insurmountable problem.
We have other cases where there's a woodchipper case out
(26:46):
of Connecticut where they prove death. There's many cases we
have in Massachusetts when Robin Benedict was killed a number
of years ago, professor from Tufts was accused of murder,
and he said that she was going to show up
and testify. Now, they never found the body, but they
did find a microscopic piece of her brain in his closet,
(27:09):
and ultimately that was sufficient for them to be able
to prove it, and he accepted a plea and was
released ultimately twenty years later. So you can prove death
without a body, but it usually is the easiest thing,
and we don't have that here. We also have a
lot of problems with respect to the discovery and how
(27:34):
it was discovered, with respect to the electronic evidence in
this case, a wood Shiper case in Connecticut. Yeah, how gruesome.
I was very gruesome. Doctor Henry Lee. He's like they
call him the Carnets of the stars. He's the one
that was able to discover it and testify and prove
that death occurred.
Speaker 3 (27:51):
You got to ask yourself, how do you get to
the point where you could do that? That is so
far removed from where my heads.
Speaker 4 (28:00):
Well, and I hope I think most people.
Speaker 2 (28:03):
How do you sink down to that situation?
Speaker 5 (28:07):
Well, what was sort of a fascinating angle on that
case is he set up the wood chipper near a
streams put her body through the wood chipper. There was
microscopic pieces left it hit the stream and carried god
knows where.
Speaker 2 (28:22):
Uh.
Speaker 5 (28:23):
It wasn't an easy case to prove that that he
murdered her, but ultimately the forensic information and testimony was
strong enough that that he was able to be convicted.
Speaker 2 (28:35):
Wow. Six one seven.
Speaker 3 (28:37):
If you want to give Nightside a shout, Doctor Dean
Mike Corn at Massachusetts School of Law, all right, we
kind of got to this, but if you could more
formally address what factors besides not having a body yep,
does the defense have going for it? What factors does
the prosecution have going for it?
Speaker 2 (28:54):
Yeah?
Speaker 5 (28:54):
This and this is the key here is it is
a heavily circumstantial evident case. And what that means is
it's not direct evidence someone saying I saw Brian Walsh
kill his wife. What we have, though, is a number
of Internet searchers where he is on a device asking
(29:15):
how long does it take to have a body start
to smell? What's the best way to dispose of a body?
A number of searches of that nature that are found
on his devices. There's also a video from home depot
where he is assembling material so that he could dispose
(29:40):
of at least something big and problematic, and it's right
around the time where she goes missing. And they also
have information from his GPS showing him making various stops
from the south shore to the north shore where they
ultimately look for the body and couldn't find. The problem is,
(30:01):
and so that's all strong evidence for the Commonwealth to
be able to try and convict him. He's never admitted it.
He's never suggested that he had any involvement with her.
He in fact says she might have left him because
she had a lover or whatever and she decided to
abandon him. The problem from the government's standpoint is that
(30:28):
some of the searchers may have exceeded either the permission
that he granted or exceeded the scope of.
Speaker 4 (30:39):
The search warrant.
Speaker 5 (30:41):
If that evidence is tainted as a result of the
illegal search, then the government doesn't have much other evidence
that would support it. And that's really going to be
the question that we're going to have to examine, and
the court will examine.
Speaker 3 (30:55):
Closely so I guess one of the nuances on illegal
search is that the defense is saying, look, he gave
you verbal permission to look for one thing, but you
went further than that and you found other things. And
the prosecution says, yes, but it's okay, and they use
(31:16):
the plane sight plane view law, just like back in
the day, if some kid had weed in the front
seat and he was pulled over for a tail light.
I mean in Louis, right there in the front seat,
you could be on the hook for that. You don't
need to warrant because it was right there in the
(31:36):
front seat in plane.
Speaker 4 (31:37):
View, right right plane.
Speaker 5 (31:39):
There's two principles that they're arguing there. I don't care
as much for plane view in as an argument to
support what they did here, because I'm not so sure
when I give you my device and I limit the
permission that that means you can just scroll wherever you want.
(32:00):
Because it was relatively clear based on the affidavits that
have been filed with the CORD and the information we
presently have, that he said you could search for communications
except for communications with my wife, which would be privileged,
or lawyers, which would be privileged. But the key to
me was communications. The communications I don't see is including
(32:23):
Google Search.
Speaker 2 (32:24):
No, communications, is your email right?
Speaker 3 (32:26):
And communications, Facebook, instant Messenger stuff like that.
Speaker 5 (32:31):
Yes, and communications would not include your GPS activity.
Speaker 2 (32:35):
Would include would not include a search history.
Speaker 5 (32:38):
So what they're saying is, well, okay, if we exceeded it,
it's plain view.
Speaker 2 (32:44):
I don't think it is plain view.
Speaker 3 (32:46):
You had to take an action and click on a
button to search for that actively. It's not plain view
unless it was unless one of the pages where he
was searching for how long does it take about it
decomposed was still open in it tab or something. But
I'm guessing they had to go and search for.
Speaker 4 (33:05):
It, and and that's the problem I have. And add
to that problem, we've.
Speaker 5 (33:12):
Got some of the same officers who we know cut
corners and did things improperly in Karen Reid, the principal
investigators here as well.
Speaker 4 (33:22):
It does give you real pause.
Speaker 5 (33:24):
Whether law enforcement may have messed up portions of this investigation,
just like they messed up read.
Speaker 3 (33:30):
Okay, So regarding that, is there any direct way, any
procedural way where the fact that super Proctor was involved
in both of these cases is affected or is it
only just affect the perception perhaps of a jury.
Speaker 5 (33:48):
I think it's the perception part of the jury, because
the judge has been careful here not to allow them
the expansive examination of Proctor's personal devices. Here they they
the court was looking for a much stronger showing that
some of the same things were present, and at least
on the basis of the information we have now, they
(34:09):
didn't show it. The government's better argument on the search
is being permissible, and what they obtained is permissible is
what we call in what they called the inevitable discovery rule.
Sooner or later we would have obtained this information anyway.
So since that's the case, it's still admissible. And if
(34:32):
you think about it from this perspective, the partner is
always the prime suspect when their spouse is dead.
Speaker 4 (34:38):
Always. I mean that's usually because numbers bear that out.
Speaker 5 (34:44):
So sooner or later they would have gotten search warrants
for a phone and GPS.
Speaker 2 (34:48):
Judge, I'm saying sooner or later does not cut.
Speaker 5 (34:51):
It well, not when you're potentially going away for the
rest of your life without the benefit of parole.
Speaker 3 (34:58):
Perhaps or later is not a good enough reason to
search without a Warren No, I would have come back
to the House sooner or later. So I'm just going
to go in now without a warrant.
Speaker 4 (35:10):
Well, and that's the problem.
Speaker 5 (35:11):
There's a reason we have the Fourth Amendment. There's a
reason we have these constitutional correct protections.
Speaker 4 (35:17):
And especially in Massachusetts, we do.
Speaker 5 (35:20):
The Supreme Court has made clear that we hold police
in law enforcement to very high standards about upholding their
constitutional rights of defendants and that it's a real problem
if some of this evidence starts getting tossed out because
the case is not strong from the standpoint of lots
(35:41):
of direct evidence. Anyway, it's a circumstantial case. Any pieces
you lose potentially impact the ability to prove guilt beyond
a reasonable doubt.
Speaker 3 (35:51):
Looks like it's time for a quick break, and I
have another question on this Brian Waltch's case. So we'll
continue and do not be sure I six one, seven
to two, four, ten thirty.
Speaker 2 (36:00):
We would love to hear from me. I know it's
kind of nerve racking.
Speaker 3 (36:03):
To call the radio station and talk on the air,
but we'll make sure. It's a fun experience for you
and you'll be glad you did. It's WBZ.
Speaker 1 (36:11):
It's Night Side with Dan ray On Boston's news Radio Real.
Speaker 3 (36:16):
Day for Dan tonight with Michael Coloin, dean of the
Massachusetts School of Law, and we have switched to talk
about the Brian Waltz case, charged with Well, I won't
go into the gruesome details, but murder, I guess be
the charge. What is the exact charge?
Speaker 4 (36:32):
Yeah, I think it is in fact first degree murder.
Speaker 3 (36:35):
So before we go to Jim and Phah River, I
have a question. There are certain elements that are good
to have if you're going to make a charge. You
mentioned earlier that having a body was helpful to a prosecution.
Speaker 2 (36:48):
Usually and.
Speaker 3 (36:51):
Also I would think a motive would be important. One
of those elements means motive.
Speaker 5 (36:57):
Whatever jury looks for a motive, but it's not necessary
to prove it as.
Speaker 3 (37:02):
Part of a But if you don't have one, you're
going to battle with you know not all.
Speaker 5 (37:06):
You Well, people want to know what the story is,
what actually happened, and the motive.
Speaker 4 (37:10):
Provides the the the reason why this all took place.
Speaker 2 (37:13):
So is there a legit motive or is there a motive?
Speaker 5 (37:15):
What's what's the motive is the most at least the
argument on the motive is that there was discord in
their marriage. She may have wanted to leave, and if
she was going to leave and take the kids, that
he was going to strike first. At least that's the
suggestion as to why this went down.
Speaker 4 (37:31):
Is that that's.
Speaker 2 (37:33):
A stretch for me. I'm on the Jerry.
Speaker 3 (37:35):
I think, Wow, people break up all the time. You know,
every day, hundreds of people break up. It's seldom they
results in murder.
Speaker 4 (37:45):
Correct.
Speaker 2 (37:46):
Well, okay, let's go to Jim and Fall River.
Speaker 1 (37:49):
There you go.
Speaker 2 (37:50):
Hello, Jim, you're on WBZ, Hi Jim.
Speaker 7 (37:54):
Yeah, Hi. My question is involves the Tarnic case. Can
I ask it?
Speaker 2 (38:00):
Yes?
Speaker 7 (38:00):
Quick question to tourney Coin. You hear that you've heard
that the Karen Reid supporters think that the judge was
biased towards the defense towards the prosecution. What is your
take on that?
Speaker 2 (38:20):
Yeah, good question.
Speaker 5 (38:21):
My take is that Judge Canoni did a very good
job balancing both sides interest.
Speaker 4 (38:28):
In getting a fair trial.
Speaker 5 (38:30):
I think it's easy to blame the judge and say, well,
she should have done this and she should have done that.
But from an evidentiary standpoint, I teach evidence as one
of the courses at mascul of law. Most of the
decisions one would have little quarrel with as a lawyer.
And so I've tried cases before judges that were really
harsh and brutal and not always very good at making
(38:53):
some difficult decisions. I think she did a good job,
and I'll bet in time David and Eddie and others
would say that they believe that she treated them fairly
harshly at times. But good judges will treat litigants harshly,
especially the lawyers, if she thinks that they're doing things
that they.
Speaker 4 (39:14):
Should be more careful about.
Speaker 3 (39:15):
And it's pretty easy to be an armshair judge. It's
another thing to be up there under the spotlight. Must
be very difficult. Well, thank you, Jim, Thank you Jim,
and far Okay, look at that. We have time for
Sky in California.
Speaker 2 (39:28):
Hello, Sky, Hello.
Speaker 8 (39:32):
Thank you for taking my call. So this is a
very open ended question, and that's going to be a
lot of controversy or controversy. So who do you really
really think killed John? Okay, Okay, So I don't know.
Speaker 2 (39:47):
I'm not going to answer that.
Speaker 4 (39:48):
Well, I'm not sure where.
Speaker 8 (39:49):
Well you couldn't answer that, you cannot, but.
Speaker 2 (39:51):
Thank you could answer it.
Speaker 6 (39:54):
But I'm not going well.
Speaker 8 (39:57):
You cannot for sure someone upstairs knows how to aunt
for that, but I think I have a good feeling
who really really does Vaca and the other thirteen people
that were in the house that day on you No.
Speaker 2 (40:12):
Thank you very much. I don't want to go there.
Speaker 4 (40:15):
The problem with.
Speaker 5 (40:15):
The I've always had with the thirteen people in the
house is that you know, we also did and covered
the Whitey Bulger trial. His cohorts were some of the cruelest,
most horrible people in the world. They all ended up
testifying against whiteiat trial, oftentimes for next to nothing. It's
(40:39):
impossible for twelve people to keep a secret, and some
of them, in view of a federal investigation and view
of the couple of grand jurys and panels, some of
them would have said, no, it was Bradley who did this,
and that never happened in any of this. So I
think that's a tough sell, right, Okay.
Speaker 3 (40:57):
So it's looking like we have a few seconds to
go before we get to the break the news at
the top of the hour. Dean corn has agreed to
stay another hour, which is which is fantastic because we
do have much more to cover, like the public defenders
strike for one thing that's that really is local and
that affects us. A great deal that's coming up on
(41:17):
WBZ News Radio ten thirty
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