Speaker 1: It's night Side with Dan Ray. I'm w Besy Costin's radio.
Speaker 2: All right, welcome back for interesting guests last hour. I
Speaker 2: hope you had a chance to listen to Alive. If
Speaker 2: you missed it, you can go to Nightside on demand
Speaker 2: anytime tomorrow morning. What time, Dan, will you get those
Speaker 2: four those four hours posted from tonight sometime before you
Speaker 2: leave your shift tomorrow for I'm mistaken, correct me, mister producer?
Speaker 2: All right, that's a what that's the hope? Okay, Well,
Speaker 2: he's gonna he'll do whatever. He's a good man. He'll
Speaker 2: get it done. And got noheh there with him. We'll
Speaker 2: get them all pulled it up. Rob gets him up
Speaker 2: around two o'clock or so. I'm sure Dan, one of
Speaker 2: our producers tonight, will along with Noah, get them posted tomorrow.
Speaker 2: So if you missed any of the topics in the
Speaker 2: first hour, that will be available certainly by time you
Speaker 2: get up in the morning. We're talking about the Red
Speaker 2: Sox reversing the curse twenty years ago, believe it or not, unbelievable.
Speaker 2: Talk with a bu neurologist about young people having memory
Speaker 2: loss that should not happen. Talk with a Washington Post
Speaker 2: reporter about eight shoulder seasoned destinations not only in this
Speaker 2: country at Nantucket, Martha's Vineyard, Cape cod were mentioned prominently,
Speaker 2: but also Myrtle Beach out west up in Canada Banff,
Speaker 2: and then up in Canada and Western Canada and down
Speaker 2: in South America as well, and talked about food borne
Speaker 2: illnesses with doctor Julia Gatza. So you can check out
Speaker 2: all of that information this hour. What I'd like to
Speaker 2: do is like to open up a conversation. Because of
Speaker 2: all the politics that we have been covering last oh
Speaker 2: couple of weeks, we haven't had a chance really to
Speaker 2: spend much time talking about the effort which will occur
Speaker 2: on November sixth in front of the Massachusetts State Supreme
Speaker 2: Judicial Court, when Karen Read's lawyers are arguing that she
Speaker 2: should not be retried on all three of the indictments
Speaker 2: that she faced during the trial last spring, which basically
Speaker 2: ended in a hung verdict on July first. Now, I
Speaker 2: want to get all really deep in the legal issues,
Speaker 2: but I think everyone in my audience understands that there's
Speaker 2: a concept called double jeopardy, and double jeopardy essentially means
Speaker 2: that if you were tried by the government for some
Speaker 2: alleged crime and a jury acquitted you of that crime.
Speaker 2: Even if the government came upon some more information at
Speaker 2: a subsequent point, maybe better inculpatory information, the government doesn't
Speaker 2: have a right to reinstate the indictments once you are
Speaker 2: acquitted that acquittal, even an acquittal that you might think
Speaker 2: the jury got it wrong. That's our system of justice.
Speaker 2: It's as simple as that. If you are convicted of
Speaker 2: a crime. If you're convicted, your lawyers always have the
Speaker 2: right to appeal that conviction, either on substantive or procedural grounds,
Speaker 2: primarily on procedural grounds that a judge made a mistake,
Speaker 2: or the jury was not charged properly, or there was
Speaker 2: evidence introduced that the trial which should not have been
Speaker 2: should have been suppressed. I think all of us understand
Speaker 2: that the Karen Read case is kind of one that's
Speaker 2: in the middle. And the reason the Karen Read case
Speaker 2: is in the middle is there was technically no verdict
Speaker 2: that was rendered in the courtroom because the jury kept
Speaker 2: coming back or at least on two occasions, came back
Speaker 2: to the judge and said that they were deadlocked. They
Speaker 2: were a hung jury. Now, jurors do not have to
Speaker 2: tell a judge, per se, well we're deadlocked eleven to
Speaker 2: one or we're deadlocked six to six. That's beyond the
Speaker 2: specific purview that the jury will disclose to the judge.
Speaker 2: And the reason is, obviously, the jury deliberations supposed are
Speaker 2: supposed to be you know, you know, very private, and
Speaker 2: the verdicts are only reached when the twelve members of
Speaker 2: the jury sitting as that jury sort of like almost
Speaker 2: like a magic moment, similar to when a pope is
Speaker 2: elected he needs a certain number of cardinals. Same way
Speaker 2: here in a criminal trial in Massachusetts, you need a
Speaker 2: unanimous verdict, particularly in superior court when you talk about
Speaker 2: a jury of twelve. So what happened here, the facts
Speaker 2: of the case are pretty important. What happened was that
Speaker 2: the jury, as most juries, will send back a question
Speaker 2: or two, and then at one point they apparently told
Speaker 2: the judge in the case that they were deadlocked. Now,
Speaker 2: the judge does not have, in my opinion, the authority
Speaker 2: to say to them, well is it eleven to one,
Speaker 2: or is it six to six, or is it seven
Speaker 2: to five. No, And at that point, in most cases
Speaker 2: in Massachusetts, the judge will give a charge in which
Speaker 2: the jury is told. It's called a lot of different things,
Speaker 2: but it's called in different states, different things. It's essentially
Speaker 2: the judge says to the jury, Hey, you've listened to
Speaker 2: all the you've listened to the case. You've listened to
Speaker 2: all the witnesses, you've heard the opening arguments, you've heard
Speaker 2: the closing arguments. There are no better group of twelve
Speaker 2: people to render a verdict in this case than you,
Speaker 2: And I want you to go back and work hard,
Speaker 2: try to reconcile your differences, please, you know, don't take
Speaker 2: positions that you are just going to not listen to
Speaker 2: the other side, and you know, basically have an honest
Speaker 2: and open deliberations. Fine, well, they came back a second time,
Speaker 2: and at that point the judge ask them, and I'm
Speaker 2: just trying to give you the quick version here for
Speaker 2: those of you who might forget. She said, are you
Speaker 2: hopelessly deadlocked? In other words, and the foreman four person
Speaker 2: of the jury actually sent back a handwritten note which
Speaker 2: was remarkably well written. By the way, most court observers agreed,
Speaker 2: it was a really remarkably well written note for someone
Speaker 2: who's a layperson, not a member of the bar or
Speaker 2: a trained lawyer essentially saying that the differences were irreconcilable.
Speaker 2: So the judge basically at that point agreed that it
Speaker 2: was a hung jury and thanked them for their service
Speaker 2: and dismissed them. Now subsequent to the now the prosecution
Speaker 2: said immediately, we're going to go back and we're going
Speaker 2: to retry the case. The defense lawyer said, we we
Speaker 2: will defend it even more strongly. The belief is that
Speaker 2: there's always an advantage to a defense a defendant because
Speaker 2: the prosecution has laid their cards, and when in the
Speaker 2: case of a hung jury, unless it's an eleven to
Speaker 2: one hung jury for guilt, if there's really some significant doubt,
Speaker 2: it gives the defense something to work on and figure
Speaker 2: out what arguments work, what arguments did well. Anyway, subsequent
Speaker 2: to the dismissal of the jury, several of the jurors,
Speaker 2: apparently according to people who covered the trial and reporters
Speaker 2: and newspaper reporters who covered the trial. According to Well
Speaker 2: I'm quoting here from an article from Sean Carter The
Speaker 2: Boston Globe of last week October sixteenth, multiple jurors contacted
Speaker 2: both the prosecution and defense team's post trial saying they
Speaker 2: were actually only deadlocked on one charge, me andslaughter by
Speaker 2: operating under the influence. And these jurors told the lawyers
Speaker 2: for the for the you know, the prosecutors and the
Speaker 2: defense lawyers that they had come to a unanimous verdict
Speaker 2: on two of the charges, one which was a charge
Speaker 2: of murder in the second degree and leaving the scene
Speaker 2: of a crash causing injuries. So now the defense lawyers
Speaker 2: have filed an appeal. They of course filed emotions with
Speaker 2: the judge in this case, the judge who oversaw the trial,
Speaker 2: and the judge said, nope, in her opinion, she did
Speaker 2: nothing wrong and that the jury did not render a
Speaker 2: verdict because they did not announce a verdict. Well, the
Speaker 2: bottom line is, should the judge have inquired when the
Speaker 2: jury four person said we're deadlock? Should have judge KATONI
Speaker 2: should have judged katone I should say, I believe it
Speaker 2: is a correct pronunciation. Should she have said to them,
Speaker 2: you're telling me you're deadlocked. Are you deadlocked on each
Speaker 2: of the three issues, or are you only deadlocked on
Speaker 2: one or two of the issues, something like that, And
Speaker 2: at that point the jury could have easily said, if
Speaker 2: they told the truth, and there's no reason why they wouldn't. No,
Speaker 2: we're deadlocked on one issue. We have reached the verdict
Speaker 2: on two issues, and those two issues could have been
Speaker 2: disposed of. Now it turned out that the jurors are
Speaker 2: saying we agreed to acquit Karen Reid on one of
Speaker 2: the very serious issues. Well, they're both serious issues, but
Speaker 2: the murder and second degree and leaving the scene of
Speaker 2: a crash causing injuries. So that is now an issue
Speaker 2: that is going to be heard in front of the
Speaker 2: State Supreme Court on November sixth. My question to you
Speaker 2: is the American Civil Liberties Union has filed an A
Speaker 2: Meekus brief, and you know, I give the America Civil
Speaker 2: Liberity And probably more criticism than they deserve, but they're
Speaker 2: an August organization and on this one we agree as
Speaker 2: far as I'm concerned. As far as I'm concerned, this
Speaker 2: case should set a new standard of practice in the
Speaker 2: courts in Massachusetts that any judge in a multiple count indictment,
Speaker 2: if a jury comes back and says we are deadlocked,
Speaker 2: the judge should say, are you deadlocked on all the
Speaker 2: counts or on some of the counts? And if they
Speaker 2: said well, we're deadlocked on most of the accounts or
Speaker 2: some of the accounts, then there should be a question,
Speaker 2: have you reached a verdict on any of the accounts? Yes,
Speaker 2: which counts? Have you reached a unanimous verdict on counts
Speaker 2: in this case counts one and three. Well, that would
Speaker 2: have disposed of those two cases. The judge at that
Speaker 2: point could have said, I'd like you to go back
Speaker 2: to the jury room and fill out that verdict slips.
Speaker 2: Obviously there was there was a misunderstanding, a lack of communication,
Speaker 2: not involving the defendant, but involving the judge and the jurors.
Speaker 2: And I'm going to be fascinated to see how the
Speaker 2: Supreme Court decides this case. Karen Reid is supposed to
Speaker 2: face retrial on three of the counts, all three of
Speaker 2: the counts murder, leaving, leaving the scene and manslaughter. Those
Speaker 2: those she still would be facing a manslaughter operating under
Speaker 2: the influence. So I'm in agreement or the ACIU is
Speaker 2: an agreement with me on this one. And I just
Speaker 2: think it's unfair to Karen Reid. Whether you like Karen
Speaker 2: Reid or not, whether you like her style or not. Okay,
Speaker 2: I just think it's a matter of fairness that her
Speaker 2: lawyers and she should not be put through a second
Speaker 2: trial on the issues that the first jury decided on.
Speaker 2: It's as simple as that. I'd love to hear from
Speaker 2: you on this one. The case will be argued oral
Speaker 2: arguments on November sixth, the day after the presidential election.
Speaker 2: So assuming we do get a judgment on who's going
Speaker 2: to be our next president. Once that is settled, we'll
Speaker 2: be refocusing on the Karen Reid case. Uh, it's a
Speaker 2: fascinating case. Something bad happened. I don't know the truth. However,
Speaker 2: if the jury did come to a verdict on two
Speaker 2: of the three charges and the judge who's in charge
Speaker 2: of the courtroom did not think about saying to the jury, four, person,
Speaker 2: are you deadlocked on all three counts or on just
Speaker 2: some of the counts, the answer would have been instructed
Speaker 2: the judge as to what should be done next six seven, two, five,
Speaker 2: four ten thirty, six seven, nine, three thirty, triple eight
Speaker 2: nine two, nine, ten thirty were come on right back
Speaker 2: on Nightside.
Speaker 1: Now back to Dan Way live from the Window World
Speaker 1: to night Side Studios on WBZ News Radio.
Speaker 2: All right, we're back here on Nightside, and we're going
Speaker 2: to go to phone calls. We're talking about the Karen
Speaker 2: Reid double jeopardy appeal to the State Supreme Court. Now,
Speaker 2: I am fairly familiar with this court, not as familiar
Speaker 2: with this court as I have been with other state
Speaker 2: Supreme courts. There's been a lot of changes in the
Speaker 2: last few years, both under Governor Baker and now under
Speaker 2: Governor Healy. But I would say this court instinctively is
Speaker 2: a fairly progressive court, as you would expect, and I
Speaker 2: would think that they, if they follow their instincts, they
Speaker 2: would like to basically use this case to set an
Speaker 2: example for proper practice in Massachusetts court system. That's what
Speaker 2: I think we're looking at here, And let's see what
Speaker 2: you think. Let me go to Larry down on the
Speaker 2: Cape and Dennis Larry you in next on Nightsiger, right, hit.
Speaker 3: Sir.
Speaker 4: Dan, very interesting wellness guest that you had in that
Speaker 4: segment before.
Speaker 2: Yeah, we are gonna have a different, different, interesting guest
Speaker 2: in that first hour. Absolutely.
Speaker 4: Yeah, she was excellent, especially with the gut health which
Speaker 4: could possibly help me with my inflammation. Okay, Now getting
Speaker 4: to the case. At the time of the mistrial, the
Speaker 4: judge did not ask the jury those questions about the
Speaker 4: all three charges?
Speaker 2: Correct? Correct? I think that she assumed. I think that
Speaker 2: she assumed that they were.
Speaker 4: Hung on all three Okay, now, don't you feel that
Speaker 4: Karen Reid's lawyers were also negligent in not asking the
Speaker 4: judge because they accepted the finding. Shouldn't they have asked
Speaker 4: the judge at the time? Can you ask if all
Speaker 4: three charges were mistrials?
Speaker 2: I think that's an argument that could be made. I
Speaker 2: think that's a good argument. But I would counter that
Speaker 2: argument by saying, the person who is in charge of
Speaker 2: the courtroom is not the prosecutor, is not the defense lawyers,
Speaker 2: It's the judge. And you would think for a lot
Speaker 2: of reasons, the judge in this case could have asked
Speaker 2: that simple question if she had asked the question on
Speaker 2: her own, without emotion from either prosecution or defense? Are
Speaker 2: you hung? Am I to understand that you are irreconcilably hung?
Speaker 2: There's no hope for getting to a verdict on any
Speaker 2: of the three counts? Is that what you're telling me?
Speaker 2: That simple question? If the jury four person understood it,
Speaker 2: and he answered it, and I'm sure that they would
Speaker 2: have understood it and answered it was posed that way.
Speaker 2: They would have then said, no, we're hung on one count.
Speaker 2: They were under the impression that they had to come
Speaker 2: back with all three verdicts, you know, whether it's all
Speaker 2: guilty or not guilty, or combination thereof. And the judge
Speaker 2: is the person on whom rests the responsibility. Now, if
Speaker 2: if let us say, the Supreme Court in Massachusetts were
Speaker 2: to say agree that read would should not be subject
Speaker 2: to a retrial on the two areas, and first of all,
Speaker 2: you got to bring the juris back and you got
Speaker 2: to ask the jurors, did you you they are the
Speaker 2: only people in the in the jury room, did all
Speaker 2: of you reach a verdict on the first count, which
Speaker 2: was the murder in second degrade? And if they all
Speaker 2: come in and the court knows who they are, and
Speaker 2: they all say, yes, we did. And did you reach
Speaker 2: a verdict on the third count, which was you know,
Speaker 2: leaving the scene of an accident where a serious bodily
Speaker 2: injury it occurred, they say, yes, we did. And am
Speaker 2: I to understand that you did not reach a verdict
Speaker 2: on the second count. And there have been reports that
Speaker 2: the second count was really hung seven five or six six.
Speaker 2: If the judge had done that, they could have now moved.
Speaker 2: They would try her again on the second issue, but
Speaker 2: it would be a more streamlined trial. Uh, it would.
Speaker 2: It would save the Commonwealth money, it would it would
Speaker 2: you remove from her the possibility of having to go
Speaker 2: through two trials and get either two separate acquittals on
Speaker 2: each of those the first charge of the in the
Speaker 2: third charge. Well, what happens if she gets a conflicting
Speaker 2: charge and the second trialger she gets so guilty on
Speaker 2: one of those two charges. It's a mess. It's a mess,
Speaker 2: and I think the way that the court should deal
Speaker 2: with it is let her go to trial on the
Speaker 2: manslaughter which is which is a very serious charge, and
Speaker 2: disposed of the first of the first and third indictments.
Speaker 2: That's mine and the American Civil Liberty so you get
Speaker 2: Dan Ray and the A C l U on the
Speaker 2: same side of the argument.
Speaker 4: That's right, Okay, So right, So one last question when
Speaker 4: it goes to the Supreme Court, and like you said,
Speaker 4: you are hoping that they set a precedent so for
Speaker 4: future trials. Yeah, right, going back to this trial, will
Speaker 4: they have the power of the rights to recall the
Speaker 4: jury and say what were your findings for the other
Speaker 4: two cases?
Speaker 2: No, because I think that what has gone on here
Speaker 2: is I think that even though several jury members have
Speaker 2: gone to both the defense and the prosecution and said, hey,
Speaker 2: we we were in agreement on one in three, I
Speaker 2: think the court has an obligation to bring them back,
Speaker 2: assuming that they're still alive and they're still available, or
Speaker 2: bring back as many as possible. I mean, I'm sure
Speaker 2: they could find them and if necessary, send the bailiffs
Speaker 2: out to bring them in and ask them that question.
Speaker 1: With Dan Ray on Boston's news radio.
Speaker 2: The power of government to accuse someone of a crime,
Speaker 2: and obviously with a conviction to i've them of their liberty,
Speaker 2: there's no greater power that a government could have. And
Speaker 2: we in this country have always had checks, and sometimes
Speaker 2: they were checks that were not popular. And obviously, if
Speaker 2: you're invested in this case, either as a supporter of
Speaker 2: Karen Reid or as a supporter of the O'Keefe family,
Speaker 2: which I certainly do understand he lost his life. You
Speaker 2: want to get to the truth. Sometimes you have to
Speaker 2: look at the big picture, and I'm looking at the
Speaker 2: big picture. I think the ACLU is looking at the
Speaker 2: big picture. We'll have to see how it comes out.
Speaker 2: I've been told by lawyers who are better than me,
Speaker 2: more experienced lawyers than I am, then I'm wrong, I
Speaker 2: hope not. Where are we going to go next? Let
Speaker 2: me go next to Rob in South Boston. Rob, you
Speaker 2: are next on Nightside.
Speaker 5: Welcome Dan, Thanks taking my call. I would definitely have
Speaker 5: to be agreeing with you. In the ACLU. I think
Speaker 5: the judge failed neglected in her responsibility to inquire with
Speaker 5: the jury. Did they come to any findings, Yeah, with
Speaker 5: any of the charges well.
Speaker 2: To the best of my knowledge. And what the prosecution
Speaker 2: is going to argue is that there was no affirmative
Speaker 2: obligation on the judge. I'm not saying that the judge
Speaker 2: failed to do something that she had that she should
Speaker 2: have known that she should do. But it seems to
Speaker 2: me that this case and the omission of the judge
Speaker 2: and the way this worked out, I mean, you know,
Speaker 2: if it had gone and it was you know, three
Speaker 2: indictments that got that were split nine to three or
Speaker 2: eight to four or whatever on all three, well you
Speaker 2: know you're going to have to go through a new trial.
Speaker 2: It's as simple as that. But I think that this
Speaker 2: could set a standard of practice for judges, which would
Speaker 2: be helpful going forward too.
Speaker 5: I think I think if you were a judged there,
Speaker 5: I think you would have been quired.
Speaker 2: Well, I don't know if I would have, and be
Speaker 2: honest with you when I say that, I could easily say, oh, yeah,
Speaker 2: I would have been smart. No, you know what, I
Speaker 2: think that the judge might have read the body language
Speaker 2: of the jury. She might. You know, she's more experienced
Speaker 2: in the courtroom as a judge than I would ever
Speaker 2: be because it never been a judge. I'm not in
Speaker 2: any way, shape or form indicting her. I'm just saying
Speaker 2: that this is an opportunity we could improve the law
Speaker 2: practice here in Massachusetts. I mean, this is not Mississippi
Speaker 2: in nineteen fifty. This is Massachusetts in twenty twenty four.
Speaker 2: And that's what I think.
Speaker 5: No, I totally agree.
Speaker 3: I think.
Speaker 5: I mean, we all feel for, you know, the terrible
Speaker 5: accident that happened, and we all want to get to
Speaker 5: the truth here. But I think the jury did come
Speaker 5: to a conclusion on two of the charges. But you know,
Speaker 5: the judge wasn't a wisitive enough to even ask that.
Speaker 2: And by the way, it might have been that any
Speaker 2: judge in that county might have had that same lack
Speaker 2: of curiosity. Maybe they they're they're used to they see it.
Speaker 2: It just would have been going that extra step. Now
Speaker 2: if the going the extra step wasn't required, but if
Speaker 2: by not going an unrequired extra step, now the defendant
Speaker 2: is going to have to be retried on all three charges.
Speaker 2: I think that double jeopardy arguments is pretty strong argument.
Speaker 2: Now again, you can you can rely on the technical
Speaker 2: and say, well, there was no verdict rendered because there
Speaker 2: was no verdict announced in the court room. That's the
Speaker 2: argument that the prosecutor is going to put forward. And
Speaker 2: I think that every once in a while a case
Speaker 2: comes along which which cries out for you know, a
Speaker 2: little bit of common sense, and all they could do
Speaker 2: is they make this case every judge in the future
Speaker 2: when there's a multi case. I mean, if it's one
Speaker 2: in die men and the joy comes back and says
Speaker 2: we're hung, we're irreconcilably different on this situation, that's easy.
Speaker 2: She's not going to say, well, you've just told me
Speaker 2: that on the one verdict, on the one account, you
Speaker 2: can't reach a verdict. Are there any other counts that
Speaker 2: did you reach a verdict any of the counts? Obviously,
Speaker 2: in that situation, you know you you would have a terminology.
Speaker 2: You know, you wouldn't have to ask that. But if
Speaker 2: there's two counts, you might say, are you telling me
Speaker 2: you're hung on both counts? Yes, your honor? Okay, fine,
Speaker 2: I declare a mistrial. Okay, But you ask the question.
Speaker 5: Considering how you know how many charges were here? I
Speaker 5: think it would have been just you know, the interest
Speaker 5: is to ask the question, have you come to any
Speaker 5: conclusion on any charges?
Speaker 2: Exactly? Exactly what we look for is fairness and clarity.
Speaker 5: I mean, right, you know what I mean like you're
Speaker 5: talking in a sense, I'm talking to contens I mean
Speaker 5: something that is severe. This woman's facing right, yeah, I'd
Speaker 5: be like, what's what both families.
Speaker 3: Have been through? Right?
Speaker 5: Yeah, everybody's been through. But I mean, like, I think
Speaker 5: the jury came to a conclusion on two charges, and
Speaker 5: but somehow, because it wasn't brought up in the courtroom,
Speaker 5: she's going to be rechas on everything.
Speaker 2: Yes, sir, got to be retried. She will be recharged.
Speaker 2: You'd be retried, Bob, Rob, Thank you, thank you for
Speaker 2: supporting me on this. One, my friend, I appreciate.
Speaker 6: It, Okay, thank you.
Speaker 2: Let me go to Steve and Cambridge. Steve might be
Speaker 2: a contrarian on this one. I'm not sure. What do
Speaker 2: you What do you say, Steve?
Speaker 7: And when you talk the law, you're really not talking
Speaker 7: common sense. You're talking fundamental principles and precedent. They go back, uh,
Speaker 7: Jeroman law and so forth. And you're not supposed to
Speaker 7: speak peak. You're not supposed to speak of the big picture.
Speaker 7: You're supposed to speak of what are the legal principles.
Speaker 7: And I think no verdict was delivered. I think that's fundamental.
Speaker 7: A jury does not deliver three verdicts. They find the
Speaker 7: defendant guilty of one count or guilty of all counts,
Speaker 7: but there's only one verdict, and no verdict was given.
Speaker 2: Well, there was no verdict that was announced in the courtroom,
Speaker 2: there's no question about that, okay. But obviously a jury
Speaker 2: on a multi count indictment can't come back with a
Speaker 2: split verdict. They can come back and say not guilty
Speaker 2: on one and three guilty on two, as apparently was
Speaker 2: the case here. I just think that case law that
Speaker 2: they're probably there's certainly going to be no statute in
Speaker 2: Massachusetts that said, upon being told by a juror by
Speaker 2: a jury that they're hung, there's an affirmative obligation in
Speaker 2: the is to inquire if they're hung on all verdicts
Speaker 2: are just part you know, all of the indictments. That
Speaker 2: doesn't exist. That's how you in effect codify through case
Speaker 2: law better court room practice. That's all.
Speaker 7: Well, what is the precedent here? I mean this this
Speaker 7: has I don't need what's that?
Speaker 2: I don't need a precedent here? If it was a president,
Speaker 2: it would be a Shutt and Coll's case. I mean,
Speaker 2: if if there was a case from nineteen forty five
Speaker 2: which was similar, and the judges had instructions that they
Speaker 2: always had to inquire on a multi count indictment if
Speaker 2: the hung, if the jury was hung on all verdicts,
Speaker 2: all all of the counts, that would be precedent.
Speaker 8: I don't know right about.
Speaker 7: What about there is precedent that generally judges do not inquire,
Speaker 7: and if a jury is hung on one count, the
Speaker 7: defendant can be tried on the whole bundle, and that
Speaker 7: is not double jeopardy.
Speaker 2: I don't think. I don't think there's any case what
Speaker 2: makes this case unique, Steve uh Stephen is this is
Speaker 2: the only case that I think you could find where
Speaker 2: a jury, subsequent to being dismissed, went to the Apparently
Speaker 2: that's what the news reports say that multiple jurors have
Speaker 2: gone to both the prosecution and defense and said, hey,
Speaker 2: wait a second, we reached a verdict on count one
Speaker 2: in count three and it was not guilty. Now the
Speaker 2: judge can bring these people back in and if these
Speaker 2: media reports are false, But what do you do if
Speaker 2: she brings.
Speaker 7: Say the jury, no, I don't argue the facts. I mean,
Speaker 7: I understand, did go and try to, in essence reverse
Speaker 7: the judges hoped that the judge or whom ever would
Speaker 7: reverse the judge's decision.
Speaker 2: But the judge didn't render a decision. The judge did
Speaker 2: not communicate and did not ask a question that now
Speaker 2: is a errent to me? And I think the A
Speaker 2: C l U. And when you have me and the
Speaker 2: A C l U in the same side.
Speaker 7: Of the argument, right, well, that that should give you pause,
Speaker 7: right there, Dan.
Speaker 2: Maybe you should give them pause. I don't know.
Speaker 7: Okay for another so we have to you know, what
Speaker 7: the jurors want is really not material.
Speaker 2: It's what is the jurists don't want anything. They're reporting
Speaker 2: factually what occurred in.
Speaker 7: That courtroom, right, I mean, let.
Speaker 2: Me ask you this question, Steve. Let's assume that there
Speaker 2: was one Let's take another case, and let's assume there's
Speaker 2: one juror that's a holdout for acquittal hypothetical. Okay, hypothetics hypothetical, yes,
Speaker 2: And when the when the verdict is announced and open court,
Speaker 2: they say guilt. The foreman says guilty.
Speaker 7: Well, no, no, it has to be it has to
Speaker 7: be unanimous.
Speaker 2: Well it does, I know it does. But let's let's
Speaker 2: assume that this happened, okay.
Speaker 7: So that the foreman says kilty when there is a
Speaker 7: hung jury.
Speaker 2: Well, not a hung jury.
Speaker 7: There's one persony, isn't it Well.
Speaker 2: It can be yes, yes, technically fine, okay. So then
Speaker 2: the judge dismisses the jury. The juror felt intimidated, hypothetically,
Speaker 2: and then the juror comes back and goes to the
Speaker 2: defense lawyers and says, look, I know you don't believe me,
Speaker 2: but I held out for an acquittal and they ran
Speaker 2: roughshot over me.
Speaker 8: Right.
Speaker 7: Well, that means that the foreman of the jury would
Speaker 7: be subject to criminal Uh, criminal.
Speaker 2: I understand that. Okay, let's see what I got you
Speaker 2: in before the break here, my friend. Okay, uh and
Speaker 2: uh as always your You're always well. You agree to disagree?
Speaker 2: You're one of my best calls. You know that.
Speaker 7: If not my Dan, you're too kind.
Speaker 2: Thanks, buddy, Talk to you soon. Take a quick break,
Speaker 2: coming right back here on nights Side right after this.
Speaker 1: Now back to Dan ra from the Window World night
Speaker 1: Side Studios on w b Z, the news radio.
Speaker 2: Okay, we got to crank it a little bit here, folks.
Speaker 2: I've been letting people go on a little bit. I
Speaker 2: want to know whether you agree to disagree. Charlie isn't
Speaker 2: ever Charlie next on night Side? You have heard the arguments?
Speaker 2: What say you, my friend?
Speaker 8: Oh, did you say Charlie Charlie?
Speaker 2: Is it Charlie or Kelly? What's the name? I did
Speaker 2: say Charlie, Charlie from effort.
Speaker 8: I'm sorry, I gotta ask a question. Sure, how did
Speaker 8: the judge instruct the jury before deliberation? The judge say
Speaker 8: you're deliberating on all three?
Speaker 3: You have?
Speaker 8: What did she say?
Speaker 2: She would have given him a standard deduction, a standard instruction? Okay,
Speaker 2: and obviously they knew that they were deliberating on three
Speaker 2: separate indictments, and apparently they were confused. They thought that
Speaker 2: they had to come. I'm sure she said to them,
Speaker 2: you know, in order to convict, you need a unanimous verdict.
Speaker 2: Now she might have said a unanimous verdict on all
Speaker 2: three and.
Speaker 8: May I'm saying she may have said, but what did
Speaker 8: he want?
Speaker 2: I don't know. I don't know.
Speaker 5: That's a question.
Speaker 8: I can tell you one more three. I was on
Speaker 8: the jury three or four times in nineteen seventy five,
Speaker 8: atter with thirty days. Three One case I was on,
Speaker 8: the judge changed our decision. You know what the jury did.
Speaker 8: They all nodded their heads, and they know what the
Speaker 8: death of the gloriousness. They jumped up and they said, Judge,
Speaker 8: I want this to note it. The jury is all
Speaker 8: nodding me ahead.
Speaker 2: Yeah. Well that's what that's called. That's called judgment n Olvian,
Speaker 2: a judgment entered by a judge notwithstanding the verdict.
Speaker 8: I play bar with. That's why I time I go
Speaker 8: do okay, eight years old? Eighty years old is the temper?
Speaker 2: Buddy, Happy birthday, Happy birthday, Get easy. Let me go
Speaker 2: to Bruce and how Bruce, you gotta be quick for me.
Speaker 2: There's a couple more behind you.
Speaker 3: Go ahead, Bruce, Yeah, Dan Ali, I will make it fast.
Speaker 3: Steve hit the nail on the head with his precedent's comments.
Speaker 3: My concern is they should rule that those charges are
Speaker 3: dismissed and set a precedence for the future.
Speaker 2: Exactly. That's my argument.
Speaker 3: Or if there if it isn't appropriate to dismiss those charges,
Speaker 3: great retryer on three chargers, but write a law that says,
Speaker 3: let's not have this happen again.
Speaker 2: Well, here's the problem for taking thank you, but one
Speaker 2: you got to rely upon the legislature. The Supreme Court
Speaker 2: can act on their own. It's called case law. They
Speaker 2: can establish a practice in Massachusetts if they ruled the
Speaker 2: way that I suggested the aco you suggested this case.
Speaker 2: If it goes to he can hill to the legislature.
Speaker 2: Good luck with that. Thanks Bruce, good night, Bye bye. Okay,
Speaker 2: real quick Steve and Merrimack, and then we'll get Kristen
Speaker 2: and Franklin.
Speaker 6: Go ahead, Steve, Hey, Dan, thanks for taking my call.
Speaker 2: You welcome.
Speaker 6: You know I have to disagree with you on this
Speaker 6: one because the way I look at it, this is
Speaker 6: a collective action by the prosecution on one event. The
Speaker 6: event was what happened to O'Keefe, you know, as a
Speaker 6: result of what happened with that vehicle, and you know
Speaker 6: her motive and intent. So my my way I look
Speaker 6: at it. You know, if you have ambiguity on one
Speaker 6: of the charges, that it's not for the jury to decide.
Speaker 6: It's the judge to decide whether they're going to retry it.
Speaker 6: And I think the jury is trying to overstep the
Speaker 6: judges authority.
Speaker 2: Judge. Judge doesn't have any authority here. But the case
Speaker 2: now is out of the judge's hand. The case is
Speaker 2: in the hand of the State Supreme Court, and the
Speaker 2: State Supreme Court has the has the opportunity now to
Speaker 2: set a new standard of practice in Massachusetts. That's all
Speaker 2: that's really.
Speaker 6: The question is will they allow the retrial or are
Speaker 6: they going to throw out the other two charges? But
Speaker 6: I'm not sure.
Speaker 2: Well that's that's that'll be the decision that they'll make.
Speaker 2: They'll either say no, there is no verdict rendered and
Speaker 2: she's got to go to trial in all three, or
Speaker 2: they'll say yes. You know, again, there's a little bit
Speaker 2: of work to be done here. But I think it'll
Speaker 2: be better better practice, better better practice going forward. I
Speaker 2: gotta grab one more, Steve, I thank you much. I
Speaker 2: appreciate that call very much.
Speaker 6: Thank you.
Speaker 2: Last one is Kristin and Franklin. Kristin, what say you
Speaker 2: on this year? The last caller?
Speaker 9: Dan, I disagree. I feel like the judge got a
Speaker 9: lot of intel from the jurors from their letters about
Speaker 9: them being in a standing or I'm not using the
Speaker 9: right word.
Speaker 2: Yeah, they're they're they're hung there, Yeah.
Speaker 3: They're yeah, they're hung yep.
Speaker 9: But at the end of the court, I don't know
Speaker 9: if you saw, the defense ran out. They were very
Speaker 9: happy for the mistrial and ran out and made a
Speaker 9: big statement on the steps.
Speaker 2: Yeah, that's that's what a defense lawyer is going to
Speaker 2: do in that situation. They're going to say that they
Speaker 2: that it was a hunger and that their client was
Speaker 2: not convicted, and in fact they were correct because on
Speaker 2: one issue, one indictment was hung and the other two
Speaker 2: of the juris. What we're hearing from the juris is
Speaker 2: they came to one acquittal.
Speaker 9: Yeah, but I am. My question is that I was
Speaker 9: going to ask, how valid do we know that they
Speaker 9: are really hearing from the jurors.
Speaker 2: Real simple, real simple, simple Christian. They know who the
Speaker 2: jurors are. They bring the juris back in and they
Speaker 2: questioned the jurors under oath, and if one juris is no, no, no,
Speaker 2: that's not true. Were we were hung on all three?
Speaker 3: Then they're not doing that.
Speaker 9: Are you saying that that's what they should do.
Speaker 2: I think that's what the the Prime State Supreme Court
Speaker 2: should should instruct Judge Catoni to do.
Speaker 9: Yes, okay, because right now, so far, all this hullabaloo
Speaker 9: is by the defense telling us what they're hearing from
Speaker 9: the jurors.
Speaker 2: Apparently the jurors have gone to the prosecution as well,
Speaker 2: according to the Boston Globe. And I will accept that
Speaker 2: as truth up against it. You gotta call earlier. I
Speaker 2: gotta go here because the ten oclock News, and I
Speaker 2: got a guess coming up on the other side. Other
Speaker 2: than that, I keep you with us, Thanks, Kristin. Here
Speaker 2: comes the ten o'clock news. We're going to talk about
Speaker 2: space weather on the other side.