When will lead investigator Trooper Michael Proctor testify in Karen Read murder trial?
DEDHAM - The Commonwealth's case against Karen Read has moved into the hard evidence phase, more than a month after testimony began. The jury has heard from state troopers as well as members of the state police crime lab, with more state police members expected to take the stand this week.
The current phase of the state's case begs the question: when - and how - will Trooper Michael Proctor testify?
Proctor was the lead investigator on John O'Keefe's death. He's a state police detective assigned to the Norfolk County District Attorney's office. He's currently under internal investigation for his handling of the case.
Karen Read's defense team has accused Proctor of planting evidence at the scene and intentionally botching the investigation to cover up for friends who are witnesses in the case.
Proctor's attorney did not respond to a WBZ request for comment. Proctor is listed on both the state's and the defense's witness lists - but neither is definitive about who will be called.
There are three options for Proctor's testimony:
The state calls him to the stand as a witness for their case
The expected scenario here is that the state calls Trooper Proctor. However, legal analysts tell WBZ it is risky to open him up to cross examination by defense attorneys.
"So, it's always easier to cross examine a witness because you can ask leading questions," said Chris Dearborn, a professor at Suffolk Law School.
"They could decide not to call him at all," legal analyst Jennifer Roman added. "They could decide that he's going to be a liability on direct exam, leave it for the defense to call him, and then essentially cross examine their own witness."
The prosecution doesn't call Proctor, and the defense calls him
In a strategic move, the prosecution could choose not to call Proctor. In a previous pretrial hearing, the defense has said that if the state doesn't call Proctor, they will. If the defense calls him in its case in chief, their style of questioning is limited.
"If you have to call a witness, you can only ask open ended questions," Dearborn said. "It's much easier to lose the witness, or have the witness run astray a little bit. So, if the defense decides to call him, if I were them, I would ask the judge as early as possible to have him declared a hostile witness, so they could then, in fact, ask leading questions which is much easier to control the narrative, to control the witness."
Trooper Proctor could invoke his Fifth Amendment right
If - and it's a big if - testifying could potentially incriminate Trooper Proctor for criminal behavior, he could invoke his Fifth Amendment right against self-incrimination. This situation is highly unlikely given that Trooper Proctor has already testified in front of the grand jury in this case.
If he does wish to avoid testifying, he would have to let the judge know in advance. Proctor, his attorney, and Judge Cannone would then have a private colloquy "to determine whether the person has a legitimate concern that they may be prosecuted criminally," Roman explained.
If the judge finds the concern legitimate, Proctor would be exempt from testimony. "The jury would never hear about that," Dearborn added.
In essence, Proctor would never testify, lawyers would not be allowed to explain why, and it would be a big elephant in the room for the jury. "It'd be a really tricky elephant to navigate for the defense, because obviously they would want the jury to draw on a negative and adverse inference about Proctor not testifying, but it would be unethical and illegal for them to comment on his lack of testifying," Dearborn said.
Again, given that he has testified in prior hearings, asserting the fifth is highly unlikely.
The Karen Read trial resumes on Wednesday with a full day of testimony.
