Karen Read’s lawyers said the trial judge made crucial errors in her declaration of a mistrial in the murder case and in dealing with jurors’ post-trial disclosures that they were ready to acquit Read on two of the charges against her.

“The very day after the trial court declared a mistrial, counsel for Ms. Read began receiving unsolicited communications from five of the twelve deliberating jurors … indicating, unequivocally and unconditionally, that the jury had a firm and unwavering 12–0 agreement that Ms. Read is not guilty of two of the three charges against her, including the charge of murder in the second degree,” attorney Martin Weinberg wrote in a 55-page argument to Massachusetts’ top court that those two charges be dropped in Read’s next trial.

Weinberg had argued the same thing to Norfolk Superior Court Judge Beverly Cannone, who proceeded over Read’s trial earlier this year, using affidavits from Read’s trial attorneys detailing the juror disclosures. Cannone was not moved and a month ago denied the motion to drop the second-degree murder and leaving the scene of an accident causing death charges in Read’s new trial scheduled for January.

“This Court concludes that because the defendant was not acquitted of any charges and defense counsel consented to the court’s declaration of a mistrial, double jeopardy is not implicated by the retrial of the defendant,” Cannone wrote then, adding that the arguments were “without merit,” echoing prosecutor Adam Lally’s own response.

Read, 44, of Mansfield, faces those charges as well as manslaughter while operating a motor vehicle under the influence in relation to the death of Boston Police Officer John O’Keefe, her boyfriend, on Jan. 29, 2022. Prosecutors say that the financial analysts and Bentley University lecturer, drunk and angry with her troubled relationship, backed her SUV into O’Keefe at high speed, leaving him to freeze and die on a Canton front yard.

Weinberg filed an appeal to the Supreme Judicial Court earlier this month to overturn Cannone’s ruling.

In the brief filed Tuesday, he argued that not only had defense attorneys not consented to a mistrial, but that Cannone had not given them a chance to consult with Read or to argue against the declaration. He further argues that Cannone misinterpreted case law when denying his request that the original jurors be brought back in and questioned about what verdicts they would give to each charge.

“The relevant inquiry could be accomplished by a single ‘yes’ or ‘no’ question posed to jurors: did you unanimously acquit Karen Read of the charges in Counts 1 and 3?” Weinberg wrote in the brief.

“Of course, the results of a jury’s deliberations are not secret. They are, in fact, routinely announced in open court. Here, the defense has learned post-trial that the jury reached a verdict that was not so announced. It was at least entitled to the opportunity to substantiate that fact in order to ensure Ms. Read is not unconstitutionally forced to stand trial for criminal offenses of which she has already been acquitted,” he continued.

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He says his argument is further bolstered by neither Cannone or prosecutors disputing “the factual basis for the defense motion in any meaningful respect,” nor any other jurors contradicting the five jurors who did speak out, even with the extensive media coverage.

In all, Weinberg’s brief makes five arguments: that “the jury’s unanimous conclusion … that Ms. Read is not guilty on Counts 1 and 3 constitutes an acquittal”; that Read is at least entitled to a “judicial inquiry to determine whether the evidence supports the juror representations”; that re-prosecution of the two charges in question is “independently barred” because the jury had reached a conclusion; and that even if the SJC finds, as Cannone did, that the defense did consent to a mistrial declaration, that Read’s “personal consent was required.”

The Norfolk District Attorney’s office, responsible for prosecuting the case, said that it had no comment at the moment and that prosecutors will file a response to the court.

Read is scheduled for retrial in Norfolk Superior Court on Jan. 27.

Attorney Martin Weinberg (Herald file photo)