BOSTON — A federal judge expressed skepticism Tuesday afternoon about some of the claims Karen Read brought in a sweeping civil rights lawsuit she filed last fall. The suit names five witnesses who testified against her at trial and three State Police investigators who worked on her case.
Chief U.S. District Judge Denise Casper convened the hearing to address motions to dismiss the suit filed by the witnesses and the retired State Police lieutenant who oversaw the criminal investigation.
Read’s complaint includes seven claims against Lt. Brian Tully and five claims against the witnesses — Brian Albert and his wife, Nicole Albert; Jennifer McCabe and her husband, Matt McCabe; and Brian Higgins, an agent with the Bureau of Alcohol, Tobacco and Firearms.
She accuses them of conspiring to frame her for the death of her boyfriend, Boston police Officer John O’Keefe, and wrongfully initiating her criminal prosecution.
Tully and the witnesses are moving to dismiss the case under different legal theories.
In his motion, Tully argues that the complaint fails to state a claim against him and that Read can’t provide factual support for lumping him in with the claimed wrongdoing of two of his subordinates.
The witnesses, too, claim Read fails to state a claim, but spend most of their motion arguing that her lawsuit targets them for “petitioning activity” — namely, speaking to police and testifying at Read’s trial.
During the hearing, Casper said she struggled to understand Read’s claim that the witnesses, who are dubbed the “house defendants” in the complaint, were responsible for the “commencement or initiation” of Read’s prosecution.
“I want to understand better what your argument is that it’s been plausibly alleged that the house defendants initiated or induced the prosecution,” Casper said from the bench in the Boston federal courthouse. “Isn’t a necessary element that they initiated or induced the prosecution?”
Read attorney Charles Waters told the judge that false statements from the witnesses — specifically the claim that O’Keefe never entered Brian Albert’s Canton home on the night he died — cast Read as a suspect before the investigation began. Waters noted the complaint also accuses the witnesses of planting O’Keefe’s body on their front lawn and destroying evidence that could have indicated their own guilt.
As a result of their misconduct, Massachusetts State Police focused solely on Read.
“That’s the basis for malicious prosecution,” Waters said.
In her analysis of the motions to dismiss, Casper must assume all the claims made in Read’s complaint are true. But even doing that, she said she struggled to see the facts underlying the claim that the witnesses conspired with police to deprive Read of her Fourth Amendment Rights and that Read was maliciously prosecuted.
Waters reiterated to the judge that the complaint has “dozens and dozens of allegations laying out how this was commenced and initiated by house defendants.”
Attorney James Tuxbury, who represents the witnesses, told Casper that the malicious prosecution claim was at the heart of Read’s lawsuit. He argued that the complaint does not point to a single instance where any of the five witnesses directed the investigation or prosecution of Read.
“Nowhere in the complaint is it alleged that one of them said Ms. Read did it,” he said. “Not one of them said Ms. Read killed John O’Keefe. Not one of them said arrest her. Not one of them said prosecute her.”
Tuxbury painted the witnesses as simply innocent observers who did nothing more than tell police investigating O’Keefe’s death what they saw on the night he died. He described the suit as “retaliation.”
To prevail on their motion to dismiss under what’s known as the “Strategic Litigation Against Public Participation (SLAPP) law,” which bars “strategic lawsuits against public participation,” the witnesses must show that the lawsuit targets only their protected petitioning activity. Casper noted that Read “certainly alleges more than testimony or interviews.”
Tuxbury agreed, but said the accusations made by Read are not linked to the specific counts she brought against the witnesses.
In his rebuttal, Waters pointed to a U.S. Supreme Court decision handed down earlier this year that he claimed prevented the witnesses from filing a motion to dismiss under the anti-SLAPP law. Even if the law allowed them to do so, Waters argued, Read’s complaint lays out conduct that wouldn’t be protected.
The complaint “alleges a simple plan executed by all house defendants to exonerate themselves and implicate Ms. Read,” Waters said.
As it relates to Tully, Waters argued that the complaint accusing him of knowing about misconduct during the investigation into Read by his two subordinates, Sgt. Yuriy Bukhenik and then-Trooper Michael Proctor, was enough to overcome dismissal.
Tully, according to Waters, allowed Bukhenik and Proctor to conceal their connections to the Alberts and McCabes, then didn’t do anything to stop them from conducting a “conflicted and biased investigation.”
But attorney Timothy Burke, who represents Tully, argued he was in the dark.
“The fact of the matter is, there’s nothing that indicates Tully was aware of anything until almost two years after the grand jury indicted (Read),” he said. Burke claimed that to support a claim of supervisor liability, Read has to show Tully knew her constitutional rights were being violated and did nothing to stop it.
It’s not enough to claim Tully was negligent, he said. Instead, Read has to show he made an intentional choice.
Casper did not rule on either motion from the bench and said she would “give it some more thought” before issuing a decision.
Both Tuxbury and Burke expressed confidence following the hearing.
“We thought the judge asked all the right questions,” Tuxbury told reporters.
The hearing before Casper marked the second in a matter of hours on a motion to dismiss a lawsuit involving Read.
Earlier this Tuesday, Plymouth Superior Court Judge Mark Gildea heard arguments from Read and the blogger Aidan Kearney, known as “Turtleboy,” as they push to have a defamation suit they face from many of the witnesses Read has sued in federal court dismissed.
Karen Read lawsuits
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