What do legal experts predict about Karen Read’s retrial?

Minutes after Karen Read’s trial ended in a jury failure to reach a unanimous verdict on Monday, prosecutors announced their intention to retry the case, opening a Pandora’s box.

What would a retrial look like, and when might it take place? Would the disgraced lead investigator ever take the stand again? And most importantly, would a second jury have better luck reaching a verdict?

At this point, there are a lot of questions and few answers. But legal experts who spoke with Boston.com have a few predictions, saying the impasse grand jury report of a “deep divide” offers some lessons for prosecutors and defense attorneys ahead of Round 2.

“Neither side will be able to say this is a crazy or lone wolf,” said veteran attorney Tracy Miner. “Both sides will have to evaluate their case and determine how to better convince a group of people.”

Why a mistrial was a “predictable” outcome

In a final note to Judge Beverly Cannone before announcing the mistrial, the jury foreman wrote that the group was “deeply divided” due to “a sincere commitment to our individual principles and moral beliefs.”

“The way the note was written indicates that there was a healthy division,” said Brad Bailey, a defense attorney and former prosecutor.

He added that the mistrial was not surprising, given that the jury had signaled an impasse in two previous notes to Cannone.

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

He added: “These strong and conflicting views are likely to be repeated at any retrial.”

Although Miner noted that situations in which a jury failed to reach a verdict are relatively rare, she suggested that contributing factors included the enormous publicity surrounding Read’s trial and deep divisions in the local community.

“Jurors cannot avoid the emotions of the community, which may influence how they perceive the evidence, even if they try to ignore it,” she said in an email interview.

Did anyone emerge victorious from the Karen Read mistrial?

From a defense perspective, a mistrial is somewhat of a win whenever a client has been charged with murder, because a conviction carries a potential life sentence, Bailey explained.

“The defense has already had a dress rehearsal here, on the surface. They know where all the weak points are,” he said. “And they have all the Commonwealth witnesses blocked in their earlier testimony in this trial. Given that the Commonwealth has the … burden of proof, that’s positive for the defense.”

Prosecutors, on the other hand, have already seen the defense team’s strategy in action, “so they’re going to be trying to add a lot of evidence between now and the retrial date,” Bailey said.

But if there is no verdict in either case, “it’s a real defeat for both sides,” Miner said.

“Although Karen Read was found not guilty, she faces another trial, which she could very well be in,” she said. “The second trial also has emotional and financial consequences for her. Although Karen Read was found not guilty, the community must similarly devote energy and resources to another trial.”

At some point, Bailey noted, retrial becomes a question of resources—complex criminal trials are expensive businesses. You also have to consider the issue of stalemated juries, he said.

“Both sides really need to start thinking about, ‘Does this mean that no matter how many times you try to resolve this, the numbers aren’t going to change that much?’” he said.

Will prosecutors take action?

Although prosecutors have announced a retrial, will they actually put Read on trial a second time?

“That’s a very good question. You never know how much of it is bluff and bragging,” Bailey said.

A quick announcement of a retrial can sometimes be a strategic move to prompt the defense to negotiate a settlement, he explained.

But “I don’t see that happening in this case,” Bailey said. “I don’t see the defense turning around and saying, ‘Well, that’s an indication that this case might be better resolved.’” Indeed, Read’s lawyers stood outside the courthouse Monday and told reporters that there was “no going away.”

A Mansfield woman is charged in the 2022 death of her boyfriend, Boston police officer John O’Keefe. Prosecutors say Read was driving drunk and intentionally crashed her SUV into O’Keefe outside the Canton home of another Boston police officer. But Read’s lawyers say she is the victim of a massive cover-up.

“In this case, because their reputation is at stake and because the case has been so directly challenged, I think the commonwealth feels they really need to … relitigate this case to try to restore their reputation,” Bailey said.

Miner also believes prosecutors will seek a retrial “given the seriousness of the allegations and the fact that they believe them and believe they can prove them beyond a reasonable doubt.”

The fact that some jurors called for a guilty verdict “will only strengthen the prosecution’s belief in the strength of its arguments,” she said.

What can we expect from Karen Read’s retrial?

Read’s first trial lasted more than two months, from opening statements on April 29 to Monday’s declaration of a mistrial. Trial observers probably shouldn’t expect a quicker outcome next time, Miner and Bailey said.

“Typically, retrials take longer than the original trial because each side has transcripts from the first trial to work with,” Miner explained. “The prosecution will review those transcripts to see if there are any gaps in their 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 they can simply do the same thing again.”

Bailey anticipated some potential changes to the prosecution’s witness list following Monday’s news that Proctor had been relieved of his duties related to the Read trial.

“I think the line-up of witnesses may change because as a Commonwealth representative I will do everything in my power to prevent Michael Proctor from being put back on the witness stand,” he said.

Still, Bailey noted, “That doesn’t mean he’s out of the game, and what he did and the way he did it can’t still be considered and incorporated into the defense’s approach to the retrial.”

Even if prosecutors decide not to put Proctor back on the stand, the defense “can still put the case on trial,” he said. “And as the lead investigator, his conduct could still be a factor in the investigation. So that would still be a factor, even if he’s not a witness and even if he’s been relieved of his duties and severed from the case.”

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

“I think it’s going to be a long trial anyway and we’re still going to be watching the investigation and the trial of the investigators, given the defense’s approach to this case,” he said.

What about the potential outcomes? There are pros and cons on both sides, according to Miner.

“Conventional wisdom has it that a retrial favors the defense because they have the opportunity to review the prosecution’s case and see what worked and what didn’t work on cross-examination of prosecution witnesses,” she said. “On the other hand, in this case, the fact that the next jury will know that other jurors expected a guilty verdict may give them the confidence to side with the prosecution.”

Read is due back in court on July 22 for a conference to discuss next steps in her case.

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