In America: How Courts and Politics Are Redrawing Retrial Rules in 2025
On January 29, 2022, John O’Keefe, a Boston police officer, was found dead in the snow outside a colleague’s house the morning after a party. Karen Read was charged with second-degree murder, manslaughter while under the influence, and fleeing the premises, leaving him to die in a Massachusetts blizzard. Despite the public scrutiny and pressure, Read maintained her innocence and chose to go to trial rather than accept a plea deal. The Defence contended that she was framed, and that the facts revealed a cover-up by law enforcement after O’Keefe was severely assaulted and dragged outside by partygoers.
Karen Read: The Verdict | ABC 20/20
After over two years of legal battle, the jury was reportedly unable to reach a consensus on all charges, resulting in a mistrial due to a hung jury. Evidence raised doubts about the car-crash theory but was insufficient to dismiss the case. Read’s defense attorneys filed a motion to dismiss two charges, as the jury reportedly agreed unanimously that she should neither be found guilty of second-degree murder nor fleeing the scene, but remained at an impasse regarding the other charges. Despite this, a retrial for all charges was set in motion without the judge polling the jurors to confirm their conclusions; a judicial decision that some saw as a violation of Read’s constitutional rights. Both Appellate Attorney Martin G. Weinberg and the high-profile litigation firm Quinn Emmanuel Urquhart & Sullivan LLP asserted that Read’s clear acquittal, in substance, by the jury would make a retrial a “grave injustice and a clear violation” of her Fifth Amendment rights, specifically the protection against double Jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution states: “(...)nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb(…)”
Read consented to a retrial, and since the jury's verdict was never formalized, the Massachusetts Supreme Court ruled that retrying the case was constitutionally valid and necessary for fair adjudication.
Some might argue this rebukes the spirit of the double Jeopardy clause, as it is not only a jurisprudential injustice but also a moral one, as it violates Read’s dignity and subjugates her to unnecessary emotional, financial, and social strain. The judge should also be at fault for not properly consulting the jury before passing the verdict. The court relied on Blueford v. Arkansas as a precedent due to its similarities. However, the jury in Blueford had explicitly stated, directly to the Judge, that they had reached unanimity in multiple charges and were deadlocked in only one; yet, a mistrial was declared, and there was a retrial on all charges.
Even regarding Read’s consent for a retrial, it can be argued that consent for new proceedings does not equate to consent to be retried under the same charges; thus, to do so constitutes judicial overreach and erosion of due process.
Yet, others are correct to point out that the jury’s private verdict was judicially impermissible, her direct consent (submitted with the mistrial verdict) made the double jeopardy clause inapplicable, and thus, the retrial of the same charges was the only appropriate course of action for fair adjudication. According to the University of North Carolina’s Defender Manual, and confirmed in United States v. Perez, “The Double Jeopardy Clause(...)precludes retrial of defendants in some instances where the proceedings are terminated before judgment.” Yet it is also the case that retrial is barred when “the mistrial was provoked by prosecutorial misconduct intended to force a mistrial.”
The dubious nature of the trial, the direct involvement of local and state Police departments, and the legal gray zone that supported the legitimacy of the judge’s decision for a retrial do hint at possible political pressure affecting the judiciary and eroding due process protections. After the second trial, Karen Read was again acquitted of the same two charges and was only charged with driving under the influence of alcohol. While Karen Read v. Massachusetts is not particularly unique, it received far more media coverage than comparable cases, some ongoing. The 2025 Supreme Court case Barrett v. United States exemplifies how the Dual Sovereignty Principle continues to erode the Fifth Amendment’s promise of finality, allowing consecutive prosecutions for the same act under the rationale that state and federal governments are separate sovereigns.
Lawline: What is Dual Sovereignty?
The reasoning behind this is that since sovereignties are responsible for their own laws, they are also responsible for their own offenses. So even though it is a single crime, their separate laws require separate disciplinary measures (meaning separate sentences) for the same act. Furthermore, its basis on the Eighteenth Amendment is widely accepted as immutable, making it arguably equally as valid as the Double Jeopardy clause of the Fifth Amendment.
This reasoning permitted the dual prosecution of Terrance Gamble for the same offense of illegal possession of a firearm in the 2019 Supreme Court case Gamble v. United States. Yet in their dissenting opinions, Justice Neil Gorsuch and Justice Ruth Bader Ginsburg elucidate clearly why this decision, and its precedents, erode the very core of individual rights and liberty on a legal, moral, and substantive level. Gorusch stated that this ruling “invites governments to manipulate the criminal process and punish individuals repeatedly for the same conduct”. Similarly, Ginsburg stated that “it undermines the central aim of the Double Jeopardy Clause, namely to shield individuals from repeated prosecutions for the same offense”. Eleuthera Sa wrote in the NYU Law Review that the doctrine “Flips the script: it protects the interests of the sovereign at the expense of the individual”. The ACLU made a similar claim as well. If exercised to its full legal extent, the DSP could stack punishments beyond the measured and proportional ideal of the law, thereby further undermining Fifth Amendment principles and even undermining the Eighth Amendment protection against cruel and unusual punishment.
The expansion of loopholes in double jeopardy protections makes the term “Kafkaesque”—originally meant to describe surreal, illogical legal ordeals—a stark reality for many Americans. Ongoing issues like the ACLU's 2025 lawsuit against the Orleans Parish public defender’s office and the 2023 Public Defense Workload Study reveal a justice system where impoverished defendants often languish in jail without counsel, caught in a system that seems engineered for dysfunction.
That notwithstanding, there are still avenues for change drafted even within ongoing Court cases. Legislation expanding on previous Bills (such as the Civil Rights Act of 1964) could empower States to broaden protections and reduce disproportionate cumulative sentencing could mitigate some of the downsides of curbing federal Double Jeopardy protections. And according to Congress’ interpretation of Gamble, the “streamlined” prosecution of multifaceted crimes that require dual sovereign jurisdiction could aid prosecutors in adjudicating cases of transnational terrorism and financial crimes by giving them the necessary flexibility to ensure national security. In a 2019 National Review column, former federal prosecutor Andrew McCarthy argued that the Dual Sovereignties Principle (DSP) was essential in securing a federal terrorism conviction against Sayyid Nosair after his acquittal in state court, highlighting its value in combating serious crimes. He warned that weakening the DSP could hinder law enforcement and interagency cooperation, especially as gang violence and organized crime continue to pose significant threats across U.S. cities.
The heart of the issue is this: prioritizing retribution overdue process may boost public confidence but risks eroding democracy, expanding state power, and undermining constitutional protections.
