Prosecutors are already bringing Karen Read’s interviews to the jury. It has hurt defendants before

By Elise Hammond, CNN

(CNN) — In a courtroom where every word is scrutinized, defense attorneys say “the right to remain silent” is golden.

Karen Read did not testify in her first trial in the death of John O’Keefe, but comments she made to media outlets and in a recent documentary have already been presented this week to the jury in her retrial on murder and manslaughter charges.

And prosecutors are taking advantage.

That kind of public presence is something that some defense attorneys say could tip the scales of a case. Misty Marris, a defense attorney and co-managing partner of the Gordon Rees Scully Mansukhani’s New York office, said a defendant’s right to remain silent is important. It’s intended to protect them from incriminating themselves on the stand, she said.

“You blow that up a little bit if you make a lot of extrajudicial statements because all of a sudden there’s a lot of stuff out there that the jury would never hear and that, is in every case, a risk,” Marris told CNN.

Read’s attorneys are not the first ones to face this problem. In recent years, public comments made by Robert Durst and Sam Bankman-Fried also came up in their high-profile cases.

Read was tried for second-degree murder and other charges last year in O’Keefe’s death, but a mistrial was declared due to a hung jury.

Last month, Investigation Discovery released a five-part documentary series “A Body in the Snow: The Trial of Karen Read” featuring interviews with Read and her defense attorneys before, during, and after the first trial. Investigation Discovery, like CNN, is owned by Warner Bros. Discovery.

In the documentary, Read denied the accusations against her. Prosecutors have alleged a drunken Read struck O’Keefe with her vehicle and then fled, leaving him to die in the cold snow.

“I did not drive my car into John. Didn’t reverse it. Did not hit John with my car,” Read said. “There is zero chance this is an accident. There is zero chance John was hit by a vehicle.”

But in other clips, like in an October 2024 interview with NBC’s Dateline, Read appears to entertain the possibility that she did strike O’Keefe: “Could I have clipped him? Could I have tagged him in the knee and incapacitated him? He didn’t look mortally wounded, as far as I could see. Could I have done something that knocked him out, and in his drunkenness and in the cold, he didn’t come to again?”

Special Prosecutor Hank Brennan played the clip during his opening statements this week and told the jury they would “hear from her own lips in many of her statements, her admissions” on things like how intoxicated she was, what happened with her car and her feelings toward O’Keefe at the time.

Read’s public comments didn’t end there. During jury selection Judge Beverly Cannone imposed a gag order on all attorneys — but not on Read, who told reporters outside the courthouse Tuesday that she felt the first day of the trial “went well.”

Extrajudicial statements in the courtroom

Before the trial began, prosecutors told the court they intend to use interviews Read has done with media outlets in their case. In court on March 18, Brennan argued that some of her statements in “A Body in the Snow” presented new information, for example, Read saying that she watched O’Keefe get out of the car and go into the house that night.

This is one of the pitfalls defendants can fall into when they make public statements during or before a trial, Marris said. Everything that Read has said “can come back to you in the courtroom. It’s going to be admissible. It’s going to be something that she can be confronted with. It’s going to be something the jury can see.”

Even if a defendant makes statements that seem innocuous at the time, she said, trials are unpredictable and “you can’t entirely predict what’s going to happen and what’s going to come up and what’s ultimately going to be important.”

So far, prosecutors have used clips to bolster witness testimony and refute some of the defense’s arguments. On Tuesday, Kerry Roberts, who was in the car with Read when they found O’Keefe’s body, testified that Read pointed out to her that morning, part of her taillight was broken.

The defense suggested in its opening statement that evidence would show the lead investigator at the time, Michael Proctor, tampered with the vehicle and deposited pieces of the taillight in the front yard.

Brennan played a clip of an interview Read did with journalist Gretchen Voss in June 2023 that appeared to back up what Roberts said and cast doubt on the defense’s tampering claim.

Creating inconsistencies

Another danger, defense attorneys say, is that the public statements can create inconsistencies. Defendants, like Read, make a series of official statements when the incident first happened to the police, to witnesses, to family members, for example. Prosecutors can use subsequent public comments to argue to the jury that the defendant’s narrative has changed over time.

“It can paint the defendant as somebody who’s fabricating a story for their own self-interest. It can paint them as a liar,” Marris said.

In the case of Read, prosecutors played a clip from the ID documentary series where Read said after O’Keefe’s death, “His mother leans over the kitchen island and says to me, ‘I think it looks like he got hit by a car.’” However, Peggy O’Keefe, who testified this week, told jurors she was never in the kitchen with Read that day.

These challenges have also come up for other high-profile defendants. Bankman-Fried, who was convicted of fraud and conspiracy charges related to the collapse of his cryptocurrency exchange, FTX, issued several public apologies and comments to the press before he was indicted. His statements came shortly after he resigned as CEO and dozens of affiliated companies filed for bankruptcy.

“What SBF is doing is a form of litigation suicide,” Howard Fischer, a former Securities and Exchange Commission lawyer said at the time. “Everything he says that turns out to be contradicted by admissible evidence will be taken as evidence of deceit … I don’t know if this is a sign of unrepentant arrogance, youthful overconfidence, or simply sheer stupidity.”

Whether or not to advise their clients to take the stand is a difficult decision for defense attorneys, Marris said. Public statements make this even more complicated. If a defendant takes the stand, those statements can fuel a harsh cross-examination, she said. If they don’t, prosecutors could still use them to paint a picture of the defendant to the jury, without their direct testimony.

Durst — who did testify — was arrested in 2015 and convicted in 2021 for the killing of Susan Berman in part because of comments he made in a documentary about the case. Several clips from “The Jinx: The Life and Deaths of Robert Durst” were played for the jury during the trial, including one where Durst is heard saying, “Killed them all, of course,” in what was widely interpreted by viewers as a confession.

However, transcripts of the audio recording in court revealed that the quotes were spliced and edited to be in a different order and context, The New York Times has reported. Durst has said he was “high on meth” during the taping of the documentary.

A “dangerous” line to walk

Public statements from a defendant “is a defense attorney’s nightmare,” Marris said, because of the issue of attorney-client privilege. If defendants make comments in public in the presence of their lawyers about details of the litigation, or disclose what she talked about with her lawyers, it could waive that privilege, she said.

In the documentary about the Read case, she is seen discussing the case with her legal team. Marris said this is “one of the most dangerous lines to walk because the reason that privilege exists is so that a defendant can be completely open and honest with their attorney.”

Prosecutors argued that Read waived some attorney-client privileges in her public comments and asked for text communications on certain issues to be turned over. The judge ultimately ruled in Read’s favor, but Marris said, “it was a close one.”

“If you’re in a situation where privilege seems to be waived by the court and you end up turning over communications between attorney and client, it can completely change the game of the case because it is like insight into the legal strategy and into the problems and pressure points of the case that the prosecution would never otherwise have,” she said.

CNN’s Jean Casarez contributed reporting.

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