After five days of deliberations following a nine-week murder trial for Massachusetts woman Karen Read, a mistrial was declared and the jury was excused by the judge, Beverly Cannone. The jurors indicated that they were unable to reach a unanimous verdict on Read’s charges of second-degree murder of her boyfriend, John O’Keefe, vehicular manslaughter while under the influence, and leaving the scene of an accident causing a fatality.
Considering the prosecution’s intent to retry Read, the landscape of a second trial will be decidedly different, and more refined.
On two occasions since deliberations began, the jury notified the court that it was unable to find unanimity. The second time, which was just this past Monday, the jury’s letter stated that “the divergence in our views are not rooted in a lack of understanding or effort but deeply held convictions that each of us carry, ultimately leading to a point where consensus is unobtainable.” Upon receipt of this note, Judge Cannone read instructions to the jury to force them to continue to deliberate. Called “Tuey-Rodriguez instructions” in Massachusetts, these explained that the verdict must not be “merely an acquiescence in the conclusion of the other jurors,” and that the preference is to obtain a verdict. Despite these Tuey-Rodriguez instructions, the jury of six men and six women ultimately admitted that they were deadlocked on whether the prosecution had met its burden of proof to convict.
The prosecution immediately announced that it intended to retry Read. Her defense team responded, “We will not stop fighting.” As I previously wrote, Read alleged that there was a conspiracy to cover up O’Keefe’s murder by his fellow law enforcement officers and the defense argued that the forensic evidence as explained by their experts corroborated this theory. During the trial, Read also pointed the finger at a possible suspect: an ATF agent with whom she had been exchanging flirtatious texts prior to O’Keefe’s death.
Considering the prosecution’s intent to retry Read, the landscape of a second trial will be decidedly different, and more refined. There will be a transcript of that first trial, which will include the testimony from all of the witnesses, both fact and expert, legal arguments made in court by both sides, jury selection issues, and other nuances that are now officially the record of the first trial. This kind of insight into the entirety of the theories and themes on both sides of the case is priceless. As a trial lawyer, you want to be able not only to repeat the good, but to anticipate the bad/what didn’t work in the first iteration of the trial so you can avoid those pitfalls the second time around. Having that transcript and knowledge going into the second trial will expedite and enhance your trial prep considerably.
The retrial may not happen quickly, though. According to a local CBS affiliate in Boston, the Norfolk Superior Court trial calendar is full and a second trial may not be scheduled for several months. A status hearing is teed up for July 22 and at that time, some clarity should be provided by the judge as to a new trial date.
Of course, the jury will be an entirely different group of people in the re-trial, meaning the dynamics will not be the same. And seating a jury might pose an issue: During the first trial, more than 400 potential jurors were called for jury duty. Only 17 people qualified to serve and 12 were ultimately selected. Seating jurors for high-profile cases can be difficult due to pre-trial publicity and a number of other challenges. Media coverage of Read’s trial, especially in the Boston area, has been extensive and will surely further narrow the potential jury pool for the second trial. Despite the prosecution’s hasty announcement of a retrial, these difficulties of securing a jury may end up factoring into the DA’s Office’s decision of how to approach the second trial. One especially noteworthy development since the mistrial announcement Monday is the fact that the case’s lead investigator, Massachusetts State Trooper Michael Proctor, has now been “relieved of duty” and will be transferred out of the detective unit. This move is separate from an ongoing internal investigation into Proctor’s “serious misconduct.” During the trial, Proctor testified for the prosecution and was then cross-examined about inappropriate and crude texts about Read that he sent to friends, family and fellow law enforcement officers. These texts revealed that he called her several names, like “whack-job c—” and “re——,” mocked her medical conditions, and said to his supervisors that he did not find any nude photos of Read while searching her phone. He also texted his sister that he hoped Read would “kill herself” and revealed investigative details to friends and family on a text thread. Read’s defense highlighted Proctor’s egregious misconduct during the trial and alleged that Proctor planted evidence as a part of the cover-up conspiracy. Even the governor of Massachusetts said she was “disgusted” by Proctor’s conduct and that it could tarnish the integrity of law enforcement in her state. Proctor being relieved of duty will be a huge obstacle to the prosecution’s strategy in any retrial of Read. As the lead investigator on the case, this latest development will be an even bigger part of Read’s defense. After the mistrial was declared, one of the alternate jurors spoke with the media, stating that if she had deliberated, she would have found Read not guilty: “I believe the Commonwealth did not do their job to convince me beyond a reasonable doubt that Karen Read was guilty of the charges.” When asked about the influence of Proctor’s testimony on her feelings about the case, she responded: “Even if his testimony had not been included in this case, I still believe there would not have been enough.” Given all we learned during the first trial, the prosecution should take a beat to decide whether retrying Karen Read actually makes sense. Sometimes, even if it seems like it doesn’t make sense, the prosecution will pursue another trial because they still believe that the facts and the evidence align with the charges and that it serves the interests of justice to do so — even if the verdict ends up being an acquittal. We shall soon see whether the prosecution rethinks its plan, or chooses to push forward with a new trial, challenges and all.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
