FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ON
DEFENDANT'S MOTION TO DISMISS FOLLOWING MISTRIAL
B. Krupp, Justice of the Superior Court.
Kareem Richardson is facing long-pending, serious charges
arising from events that occurred at Rumors nightclub in
2010. After defendant's successful
motion for a mistrial, the case is before me on
Defendant's Motion to Dismiss Based on Egregious
Misconduct (Docket #106). After hearing, I am constrained to
deny the motion.
series of previously failed attempts,  this case came
before me for trial in July 2017. In the midst of trial, and
without prior notice to the Court, the Boston Police caused a
warrant to be issued for Mr. Richardson for misdemeanor
charges out of the Taunton District Court; arranged for its
fugitive unit to arrest Mr. Richardson on that warrant; and
chose to make the arrest at about 8:30 a.m. as Mr. Richardson
was entering the public entrance of the Suffolk County
Courthouse for the fourth day of trial. Not surprisingly,
jurors selected for this trial were also entering the
building through the public entrance and observed the police
apprehend Mr. Richardson. Because the police removed Mr.
Richardson from the premises, trial proceedings were delayed
and jurors understandably discussed their observations in the
jury room as the jury, the lawyers, investigators, witnesses
and the Court waited for the police to bring Mr. Richardson
back to the courthouse. After interviewing each of the
jurors, I granted a defense request for a mistrial.
now moves to dismiss the case, claiming that the police
officers' actions induced him to move for a mistrial and
should be chargeable to the Commonwealth for double jeopardy
purposes. Over two days, I conducted an evidentiary hearing
on the motion to dismiss. I heard testimony from 12 witnesses
and received 12 exhibits. I now find the following facts
based on a preponderance of the credible evidence.
5, 2017,  this case was set for trial on July
17. On July 13, I held a final pretrial
conference. The Commonwealth was represented by Assistant
District Attorney Lindsey Weinstein. At all relevant times
before me, ADA Weinstein represented that the Commonwealth
wished to proceed with trial as scheduled and, due to an
earlier ruling by the Court (Gordon, J.) on a speedy trial
motion, among other reasons, she did not want the trial date
7, the Taunton District Court issued plaintiff Kim Cooper an
ex parte abuse prevention order against Mr.
Richardson under G.L.c. 209A. The Taunton District Court
scheduled a hearing for July 21. Defendant was not served
with the Taunton restraining order until July 14 at 11:25
14 at about 11:15 a.m., Ms. Cooper walked into the Boston
Police Department's District A-1 and reported that on
July 13 she had encountered Mr. Richardson who made threats
against her. The police officer who took Ms. Cooper's
report was unable to confirm the existence of a restraining
order on Mr. Richardson's record. At about 2:18 p.m. on
July 14, Ms. Cooper told a Boston police officer that Mr.
Richardson had again violated the restraining order by
approaching her on Shawmut Avenue and arguing with her. Both
complaints by Ms. Cooper found their way to Boston Police
Detective Roque Heath for investigation. Det. Heath was
unable to determine that Mr. Richardson had been served with
a restraining order. As a result, on July 17, Det. Heath
filled out an application for a criminal complaint as to both
incidents and sought a clerk magistrate's hearing in the
Roxbury Division of the Boston Municipal Court to determine
whether a criminal charge should be brought in either
instance. Under this procedure, Mr. Richardson was to be
notified of the hearing date and summonsed into court for the
hearing. Det. Heath did not ask for a warrant to issue. The
hearing was scheduled for August 24. Det. Heath sent a letter
to Ms. Cooper notifying her of the date of the hearing.
trial in this case began on July 17. A jury of 14 was
selected. On July 18, the jurors were sworn. Evidence began
on July 18 and 19. Trial was scheduled to continue on July 20
and subsequent days.
19, Det. Heath received a telephone call from a Boston Police
Lieutenant, who asked if Det. Heath would take a call about
Mr. Richardson from Boston Police Sergeant Detective Thomas
Foley, who was assigned to the homicide unit. This call was
unusual and inconsistent with standard police protocol
because Sgt. Det. Foley was not Det. Heath's supervisor.
Det. Heath agreed to take the call. Sgt. Det. Foley, in
effect, asked Det. Heath to seek a warrant for Mr.
Richardson's arrest. Det. Heath agreed to look into the
matter. After confirming with the Taunton District Court that
Mr. Richardson had been served with the restraining order,
Det. Heath contacted the Roxbury Division of the Boston
Municipal Court and asked an assistant clerk to issue a
warrant for Mr. Richardson's arrest. The Roxbury clerk
did so based on the " additional concern provided by
Officer Heath." Det. Heath contacted Sgt. Det. Foley to
let him know that the warrant issued.
Det. Foley contacted Boston Police Sergeant Detective Brian
Alpert of the fugitive unit to notify him of the existence of
the warrant, and then sent him information about the warrant.
Sgt. Det. Foley also notified others in the homicide unit,
including Boston Police Detective Robert Kenney.
afternoon of July 19, Boston Police Officer Patrick Murphy,
who was assigned to the fugitive unit, was tasked with
finding out where Mr. Richardson could be apprehended. Among
other things, he ran Mr. Richardson's criminal record and
learned that Mr. Richardson had an open case in Suffolk
Superior Court and had been due in court on July 19. Off.
Murphy called the Suffolk Superior Court Criminal Clerk's
Office and learned that Mr. Richardson was not in custody,
had appeared in court on July 19, and was due back in
Courtroom 817 on July 20. Although Off. Murphy was told that
this was an ongoing proceeding, he says he did not ask if Mr.
Richardson was on trial, was not told that Mr. Richardson was
on trial, and he did not put two and two together to figure
out that Mr. Richardson was on trial in Courtroom
District Attorney Tara Burdman is assigned to prosecute
homicide cases. In that context, she was working with Det.
Kenney in July. At about 3 p.m. on July 19, Det. Kenney
contacted ADA Burdman and told her that there was an
outstanding warrant for Mr. Richardson, that Mr. Richardson
had been in court on July 19 and was returning on July 20,
and that the Boston Police would try to execute the warrant
in court on July 20. ADA Burdman was not aware Mr. ...