At least seven criminal cases were plunged into a state of chaos last week when prosecutors filed notice of a federal court order requiring them to destroy or return all materials produced by the government in the Karen Read case.
The order, Norfolk County prosecutors said, mandated all confidential materials be returned or destroyed by July 18 — 30 days after Read’s acquittal. But prosecutors didn’t file notice of the order in any of the seven cases until July 17, drawing the ire of defense lawyers in those cases, which include five murders.
The chaos is reflective of the unprecedented nature of the federal investigation in the Read case. It is extremely rare for the federal government to open an investigation while a state prosecution is pending. The investigation, the target of which was never specified, was closed this year without the filing of any indictments, according to the special prosecutor in the Read case.
But its impacts have been far-reaching.
It was the federal government that unearthed demeaning text messages former trooper Michael Proctor sent during the Read investigation. Proctor mocked Read’s medical condition and told his sister he wished Read would kill herself.
Perhaps seeing the success the Read team had in making Proctor a central part of its defense, other defense lawyers in murder cases investigated by the former trooper have sought access to his communications.
The problem, prosecutors say, is they have no way to account for what Proctor may have said on his personal phone. During the federal investigation, prosecutors got access to his iCloud account and unearthed the communications that way.
Still, there is a constitutional requirement for any prosecutor in any case to turn over exculpatory evidence in their care, custody or control to the defense. But because of the secrecy surrounding the federal case, prosecutors are having a hard time doing so.
A prosecutor on the Read case, Laura McLaughlin, found information she deemed exculpatory in the materials and notified another prosecutor of it. But McLaughlin was told by federal prosecutors she could not disclose the material, according to a court filing.
“If we had the ability to provide those documents to the defendants in these cases, we would do that,” First Assistant Norfolk District Attorney Lisa Beatty said in court last week.
The order issued by U.S. District Court Chief Judge Denise Casper is itself confidential, Beatty explained, further complicating the issue. But it was issued in February 2024, meaning at least some prosecutors in the district attorney’s office were aware of the looming deadline.
Among them is Assistant Norfolk District Attorney Adam Lally, who was the lead prosecutor in the Read case when the federal investigation began. Lally was, for a time, the prosecutor in another case investigated by Proctor, that of Myles King, who is accused of gunning down a man riding a moped in 2021.
King’s lawyer, Rosemary Scapicchio, blasted Lally for his apparent failure to disclose the terms of the order.
“What is incomprehensible to me is that ADA Lally, who was involved in the King case from the very beginning … He knows what the order says. He has a copy of the order. Why isn’t he here?” she said during a hearing in Norfolk Superior Court last week.
Prosecutors are obligated to turn over any exculpatory information in the communications that they have custody of, she argued, regardless of whether they can turn over the document itself.
“Once we ask for them, they have an obligation,” she said. “I don’t see how they get out of it.”
Scapicchio asked Norfolk Superior Court Judge Peter Krupp to force the district attorney’s office to preserve the documents turned over by the feds, or to order them to review the materials for exculpatory evidence related to King and others.
But Krupp was reticent to do so, noting he did not want to issue an order directly contradicting a federal judge.
“If this order was out there, and the focus of anybody’s attention at the completion of the Read case, we would have had 30 days to deal with this,” he said. “Now we are up against a deadline, and if there is no extension by Judge Casper, I may have to take some sort of an action on an expedited basis, based on very imperfect information.”
A day later, a lawyer for the district attorney’s office told Krupp federal prosecutors had filed a motion asking Casper to extend the order for 30 days to allow state and federal prosecutors to work through the issues related to the materials. As a result, the district attorney’s office agreed to hold off on any action for a week.
Scapicchio expressed frustration with the entire situation.
“We’re literally putting out a fire here,” Scapicchio told NBC Boston last week. “Had we not appeared yesterday in court, had we not asked the court to stop them from destroying this information, they would have just sent it back to the feds, and it would have [been] destroyed, and we never would have had the opportunity to look through it.”
Krupp has ordered the district attorney’s office to give an update at a hearing Friday afternoon.
The affected cases
MassLive has identified at least seven cases impacted by the federal court order through a review of court filings and in court disclosures by prosecutors.
Those cases are: Bianca Chionchio, Jovanni Delossantos, Bryanna Gardener, Lance Holloman, Shaun Johnson, Myles King and Brian Walshe.
Both Delossantos and Johnson are charged with murder in connection with the fatal shooting of Ivanildo Cabral, a 29-year-old Worcester man, in the parking lot of the Mojitos Country Club in Randolph on July 4, 2022.
Chionchio is charged with accessory in that case, after prosecutors say she drove both men to New York following the shooting and returned home without them.
King is charged with the murder of Marquis Simmons, 25, who was shot while riding a moped in Milton in July 2021. Gardener, who was in a relationship with King at the time, is charged as an accessory in that case.
Holloman is charged with two murders that occurred in 2017. Prosecutors say he shot a man riding a motorcycle on Interstate 93 in Boston and a New Hampshire woman inside a Dorchester apartment.
Walshe is charged with murder in connection with the death of his wife, Ana, who was reported missing in January 2023. Ana Walshe’s body has never been found. Brian Walshe will be in court Thursday for a hearing on a motion to dismiss his murder case.
His lawyers have also sought court-ordered relief from the destruction of the federal materials. Much like Scapicchio, they asked a judge to order state prosecutors to go through the material and identify exculpatory information relevant to the Walshe case.
It’s possible more cases are impacted. A spokesman for the Norfolk district attorney’s office did not immediately respond when asked to provide either a list of affected cases or the number of such cases.
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