What are legal experts predicting for Karen Read’s retrial?

Minutes after Karen Read’s trial ended with a hung jury Monday, prosecutors announced their plans to retry the case and, in doing so, opened a Pandora’s box.

What would a retrial look like, and when could it happen? Will the disgraced lead investigator take the stand again? Most importantly, will a second jury have better luck reaching a verdict? 

There are a host of questions at the moment, and not many answers. However, legal experts who spoke with Boston.com have a few predictions, and they say the deadlocked jury’s report of “deep division” offers prosecutors and defense attorneys some lessons heading into round two. 

“Neither side will be able to write this off as being due to a crazy or lone wolf juror,” said veteran defense attorney Tracy Miner. “Both sides will have to evaluate their case and determine how to better persuade a group of people.” 

Why a mistrial was a ‘predictable’ outcome

In a final note to Judge Beverly Cannone ahead of the mistrial declaration, the jury foreperson wrote that the group was “starkly divided” due to “a sincere adherence to our individual principles and moral convictions.” 

“The way that note was written suggests that this was a healthy split,” said Brad Bailey, a defense attorney and former prosecutor. 

He said the mistrial didn’t come as a surprise, given the jury signaled a deadlock in two prior notes to Cannone. 

The hung jury was “predictable,” agreed Martin G. Weinberg, a Boston-based criminal defense attorney. While some jurors believed in the prosecution and its experts, others undoubtedly felt they could not trust the investigation in light of Massachusetts State Police Trooper Michael Proctor’s “dehumanizing and demeaning personal texts about the defendant” and defense attorneys’ demonstration “that the most professional practices used by law enforcement conducting a homicide investigation were not faithfully followed,” Weinberg told Boston.com in an email. 

He added: “These strong and conflicting views are likely to repeat in any retrial.”

While she noted hung juries are relatively rare, Miner suggested that contributing factors included the enormous publicity surrounding Read’s trial and the deep divisions within the local community.

“Jurors can’t avoid the community’s emotions, which may influence how they viewed the evidence, even if they tried to disregard it,” she said in an email interview. 

Were there any winners in Karen Read’s mistrial?

From the defense perspective, a mistrial is something of a win any time a client is facing a murder charge, because a conviction means a potential life sentence in prison, as Bailey explained. 

“The defense has had a dry run here now, ostensibly. They know where all the vulnerabilities are,” he said. “And they also have all the commonwealth’s witnesses locked into their prior testimony from this trial. Given that the commonwealth does have … the burden of proof, that’s a positive for the defense.”

On the other hand, prosecutors have now seen the defense team’s strategy in action, “and so they’re going to be attempting to do a lot of backfilling between now and the actual retrial date,” Bailey said. 

Yet without a verdict one way or the other, “this is truly a loss for both sides,” Miner said.

“Although Karen Read was not found guilty, she has to face another trial where she might very well be,” she said. “There is also the emotional and financial impact of a second trial for her. Although Karen Read was not found not guilty, the commonwealth similarly has to commit the energy and resources to another trial.”

At some point, Bailey noted, retrying a case becomes a question of resources — complex criminal trials are a costly business. The deadlocked jury is also something to keep in mind, he said.

“Both sides really do need to start thinking about, ‘Well, is that an indication that no matter how many times you try this case, those numbers aren’t going to move that much?’” he said. 

Will prosecutors follow through? 

While prosecutors say they intend to retry the case, will they actually put Read on trial a second time? 

“It’s a very good question, and you never know how much is bluff and bluster,” Bailey said. 

A swift retrial announcement can sometimes be a strategic move to try to push the defense into plea negotiations, he explained. 

However, “I do not see that happening in this case,” Bailey said. “I don’t see the defense turning around and saying, ‘Well, this is an indication that maybe we better resolve this case.’” Indeed, Read’s lawyers stood outside the courthouse Monday and told reporters they have “no quit.” 

The Mansfield woman is charged in the 2022 death of her boyfriend, Boston Police Officer John O’Keefe. Prosecutors allege Read was driving drunk and intentionally backed her SUV into O’Keefe outside a fellow Boston officer’s home in Canton. However, Read’s lawyers say she’s the victim of a vast coverup. 

“In this case, because their reputation is at stake, and because it was so directly challenged, I think the commonwealth is feeling that they really need to … do this case again to try to restore their reputation,” Bailey said. 

Miner also felt prosecutors will follow through on a retrial, “given the seriousness of the charges and the fact that they believe in their charges and believe that they can prove them beyond a reasonable doubt.”

That some jurors held out for a guilty verdict, she said, “will only bolster the prosecution’s belief in the strength of their case.”

What can we expect from Karen Read’s retrial?

Read’s first trial spanned more than two months, from opening statements on April 29 to Monday’s mistrial declaration. According to Miner and Bailey, trial watchers probably shouldn’t expect a speedier result the next time around. 

“Typically, retrials take longer than the original trial as each side has transcripts from the first trial to work with,” Miner explained. “The prosecution will review those transcripts to see if there are holes in its case that can be filled with additional evidence. The defense will use the transcripts to develop additional areas of cross examination.”

She added: “It would be a mistake for either side to think that they can just do the same thing all over again.” 

Bailey predicted some potential changes to the prosecution’s witness list following Monday’s news that Proctor has been relieved of his duties in light of Read’s trial. 

“I think the witness lineup may change, because if I’m the commonwealth, I’m doing everything I can not to put Michael Proctor back on the witness stand,” he said. 

Still, Bailey noted, “That doesn’t mean that he’s out of play and what he did and how he did it can’t be still infused and incorporated into the defense’s approach to any retrial.”

Even if prosecutors decide against putting Proctor back on the stand, the defense “can still put the investigation on trial,” he said. “And as the lead investigator, his conduct can still be on trial. So that still is going to be a factor, even though he may well not be a witness, and even though he’s been relieved of his responsibilities and separated from the case.”

Moving forward, Bailey said he expects Read’s lawyers to again raise a third-party culprit defense, essentially arguing that someone other than Read was responsible for killing O’Keefe. 

“But I think it’s still going to be another lengthy trial, and I think that you’re going to continue to see the investigation and the investigators on trial in terms of the defense’s approach to this,” he said. 

As for potential outcomes? There are pros and cons on either side, according to Miner. 

“The conventional wisdom is that a retrial favors the defense as it has the first trial to learn the prosecution’s case from and to have seen what worked and what didn’t on their cross examination of the prosecution’s witnesses,” she said. “On the other hand, in this case the fact that the next jury will know that other jurors held out for a guilty verdict may give them confidence in siding with the prosecution.”

Read is due back in court July 22 for a status conference that will focus on next steps in her case.