Protest ban at Karen Read trial goes to First Circuit

BOSTON (CN) — A ban on demonstrations within a 200-foot “buffer zone” around the courthouse where the Karen Read murder trial is taking place is unconstitutional, one of the country’s most colorful First Amendment lawyers told the First Circuit Monday, and the judges seemed sympathetic at oral arguments but uncertain how to remedy the problem.

“We understand the arguments, but we have practical concerns that maybe you can help us with,” U.S. Circuit Judge Sandra Lynch told the attorneys, leading to a detailed discussion of the configuration of the courthouse building and the surrounding neighborhood as the judges tried to work out how to protect free speech while avoiding disruptions to the court proceedings.

Read was charged with hitting her police officer boyfriend, John O’Keefe, with her SUV and leaving him to die in a snowbank after a night of drinking. The case made national headlines because many residents believe O’Keefe died after a fight with another cop and that the local police covered it up by framing Read — leading to widespread public protests in Read’s favor.

Controversy intensified when text messages from the lead police investigator in the case, Michael Proctor, revealed not only that he was biased but that he searched Read’s phone for nude photos of her, called her a “whackjob cunt,” ridiculed her for having a chronic illness, made disparaging comments about her rear end and said that he hoped she would kill herself. He was suspended without pay and eventually fired.

Read’s first trial ended with a hung jury, and her retrial began last month.

Marc Randazza — a Las Vegas attorney whose work has involved Satanists, neo-Nazis, porn websites and rights to the Klingon language — complained that the buffer zone created by the judge in the trial, Beverly Cannone, banned speech on sidewalks and other traditional public forums. He said the ostensible purpose was to prevent noise from disrupting Read’s right to a fair trial, but Read herself didn’t object to the protests, and Randazza suggested that police were targeting people who made no noise at all and weren’t engaging in demonstrations.

One man peacefully walked by with a sticker on his jacket, and “the cops tore it off him and said that has to go,” Randazza claimed. Another man “was attacked by a cop just for making a video recording.”

This isn’t the first time Randazza has squared off with police in the Read matter. Last September, he appeared before the First Circuit complaining that protesters were improperly charged with “witness intimidation” after they held up pro-Read signs across the street from a pizza parlor owned by a prosecution witness.

In the buffer zone case, a federal judge denied a group of protesters a preliminary injunction, and they appealed. One of the plaintiffs, Jason Grant, had peacefully demonstrated on a sidewalk next to the courthouse holding signs that said “Judge Bev is Conflicted” and “Bev’s Court is a Clownshow.”

Given that the trial is ongoing and a quick resolution is needed, the judges worked hard over the course of nearly an hour to engineer a compromise. Randazza said his clients would be willing to accept a rule requiring them to remain silent and to stay off courthouse property if they could use the sidewalks for protests.

But even then, “some people were holding signs that might affect witnesses,” complained the assistant attorney general, John Hitt.

Lynch noted that the courthouse didn’t have underground parking, and thus the jurors who were bused into the courthouse would have to use the sidewalks and be exposed to the demonstrators.

“How about a buffer zone about the juror bus?” Randazza suggested. “No one would be complaining. We’d waive any right to that. We can all compromise on that … We’ll be silent; we’ll stay away from jurors.”

Randazza also noted that there were already laws on the books that prohibited intimidation of jurors and witnesses.

The judges seemed inclined to think that made sense. “Why can’t people be allowed to gather on the sidewalk if they don’t impede access and they adhere to the noise ordinance?” asked U.S. Circuit Judge William Kayatta, a Barack Obama appointee. “I see generalized findings of noise being a problem, but I don’t see a finding that allowing people to gather on the front sidewalk, if they don’t impede access and obey the noise ordinance, is a problem.”

But the judges also indicated that they hoped the parties could settle things themselves without requiring a hasty and complex constitutional ruling. “Have you tried to negotiate a deal with Mr. Randazza?” Kayatta asked Hitt.

U.S. Circuit Judge Lara Montecalvo, a Joe Biden appointee, then asked Randazza, “Have you sat with your colleague?”

Randazza suggested that the problem wasn’t with Hitt but rather Judge Cannone, who “wasn’t interested in hearing alternative views” and didn’t allow any protesters to intervene when she imposed “a 200-foot cone of silence.”

Lynch, who was appointed by Bill Clinton, suggested that even if the circuit affirmed the denial of a preliminary injunction, the case would continue and the record could be developed.

“It seems odd to have all these concerns floated in the federal court as opposed to being brought to the attention of the state court judge,” she said. “Perhaps something could be worked out on remand, including conversations between counsel.”