Did Karen Read’s lawyer break ‘golden rule’ in opening argument?

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BOSTON — Did defense counsel stumble out of the gate in Karen Read‘s second murder trial by once again engaging in an improper form of argument?

At least one former state court judge thinks so.

In opening statements on April 22, Read’s lawyer, Alan J. Jackson of Los Angeles, sought to introduce the new jury to State Police investigator Michael Proctor, who led the probe into the death of Boston Police Officer John O’Keefe. Proctor has since been fired, in part for sending derogatory text messages about Read, one of the more memorable revelations from Read’s first trial.

“You’ll learn that in Michael Proctor’s world, rank has its privileges,” Jackson told the jury.

Pointing first at the jury and then at himself, he continued: “And the evidence will show that’s privileges you don’t get and I don’t get.”

That, says former Superior Court Judge John T. “Jack” Lu, was an improper “golden rule” argument, one that improperly asks jurors to “put themselves in the position of any person involved in the case,” in the words of the Massachusetts Guide to Evidence.

Back in 2021, the Supreme Judicial Court upheld the granting of a mistrial based on such arguments in a civil case, Fitzpatrick v. Wendy’s Old Fashioned Hamburgers.

In Fitzpatrick, the plaintiff, who had endured multiple medical procedures after biting down on a small piece of bone in a Wendy’s hamburger, lost out on a $150,000 verdict when the trial judge declared a mistrial, in part due to the plaintiff’s attorney’s “golden rule” arguments in his closing.

As the U.S. Court of Appeals for the 8th Circuit explained in the case U.S. v. Palma, such an argument “is universally condemned because it encourages the jury to ‘depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.’ ”

Lu says Jackson also crossed the golden rule line with part of his closing argument in Read’s first trial.

“You’re the only thing standing between Karen Read and the tyranny of injustice,” Jackson began.

Jurors, he said, possess “the greatest responsibility we have as citizens here in America, lest the government stop answering to us, and we start answering to the government.”

Jackson then added, “And lo’ betide any one of us… who might find ourselves in the crosshairs of a Michael Proctor.”

Lu says both arguments are improper in an opening or closing in Massachusetts.

“They are fundamentally destructive of the jury system,” he says, adding that the golden rule argument may be perfectly OK in California, where Jackson’s practice is based.

California allows golden rule arguments in the penalty phase of capital trials, as lawyers are trying to sway jurors to impose either a life or death sentence.

The California Supreme Court, in Cassim v. Allstate Ins. Co., has also adopted a narrow definition of what type of golden rule argument is out of bounds. In Cassim, asking jurors to imagine having been wrongfully discharged themselves was not an improper golden rule argument because the jurors had not been urged to put themselves in the plaintiff’s position, the court ruled, reversing the Court of Appeal, which had found the argument improper.

But while he is in a Massachusetts courtroom, Jackson is obligated to comply with the state’s rules of evidence, Lu notes.

“This is the second time Mr. Jackson has done this in this closely followed case in Massachusetts, and for him to be allowed to do so without protest from a member of the bar is unacceptable,” Lu says.

Technically, any argument in an opening is improper, but Lu says he is less concerned with a defense lawyer previewing an argument he will circle back to in closing, after related evidence is admitted at trial.

“But you cannot make an argument in your opening that you’ll never be allowed to make [at trial], and you cannot make an argument in your opening that undermines the integrity of the jury system,” he said.

Lu says he is speaking up because he worries that some viewers of the closely watched trial will take the wrong lessons from Jackson’s argument.

“I fear that improper argument like this cheapens the quality of justice available to the commonwealth’s citizens,” he says. “I hope we have a learning moment here that will reduce the chances of attorneys emulating this defense attorney in future trials unrelated to this one.”

Jackson did not respond to a request for comment.