According to the Norfolk County Court Clerk’s Office, the names of the jurors are not being released because Read’s trial ended in a mistrial (without a verdict of guilty or not guilty).
“No juror names will be released,” a court official wrote in an email to the Globe on Monday. “That will only happen if there is a verdict.”
In 2015, the state Supreme Court ruled that juror names must be part of the public court record. “Only upon a judicial finding of good cause, which may include a risk of harm to the jurors or to the integrity of their service, may such a list be suppressed,” the SJC concluded. “We take this opportunity to direct that a list of jurors appointed in a criminal case be placed in the court record of the case no later than the conclusion of the trial.”
Former Justice Robert Cordy wrote in the ruling requested by the Globe that “there is no dispute that, absent extraordinary circumstances, the identities of jurors appointed to serve in criminal trials are presumptively public under longstanding Massachusetts law, practice and tradition, even in high-profile and contentious cases.”
Judge Beverly J. Cannone speaks in Norfolk District Court on Monday, July 1.Pat Greenhouse/Associated Press
Would Judge Beverly J. Cannone oversee a new trial?
Yes. “Judge Cannone is assigned to Commonwealth v. Karen Read, and that has not changed,” court spokeswoman Jennifer Donahue wrote in an email to the Globe on Tuesday. A preliminary hearing is scheduled for July 22.
Would Read have the same defense lawyers for a new trial?
Defense attorney David Yannetti said in a brief email to the Globe on Tuesday that he will represent her at a second trial.
“I will be there,” he wrote.
Both he and Alan Jackson, Read’s top California attorney, told reporters outside the courthouse in Dedham Monday that they had “not given consent” to their efforts on Read’s behalf.
Karen Read (center), flanked by her defense attorneys Alan Jackson (left) and David Yannetti (right), in Norfolk District Court on June 21.Josh Reynolds/Associated Press
The first trial drew jurors from Norfolk County, but attorneys sometimes request a change of venue in high-profile cases because of negative publicity toward a client. Could that happen in a new trial?
Ultimately, that decision would be made by Read’s defense team. But veteran criminal defense attorney Larry Tipton said that if he were in a position to determine trial strategy, the intense support for Read that has emerged among some of the trial’s followers would lead him to stick with Norfolk County residents.
The attention to the Read case “just kept growing and became national in scope,” he said. “I really can’t imagine the defense saying, ‘Let’s pick a jury from outside the county.’ I think they’re banking on the community sentiment that’s developed.”
Can the Read case end in a settlement?
According to Leonard H. Kesten, a founding partner of the downtown Boston law firm Brody Hardoon Perkins & Kesten LLP, any case in criminal court can end in a settlement before a verdict is reached. And that is how most cases end, often before they go to trial.
But is it likely in Read’s case? That’s another question.
Read’s lawyers aggressively defended her, claiming she was the victim of a police conspiracy. The jury’s split on the verdict suggests the story has convinced at least some jurors, said Kesten, who has practiced law since 1981. It would likely be even harder for the prosecution to win over a second jury, he said. So Read has little incentive to take a plea deal, which would require her to admit that some aspects of her version of events were inaccurate.
“It would be difficult for her to settle now and admit that it wasn’t a sham,” Kesten said in an interview.
Rosanna Cavallaro, a professor at Suffolk University Law School who teaches courses in criminal law and evidence, said prosecutors may now feel more inclined to make a deal, especially after State Police Trooper Michael Proctor, the lead investigator in the Read case, was removed from his position on Monday. Proctor testified under cross-examination that he had sent crude and derogatory text messages about Read, said he had searched her phone for nude photos and shared details about the case.
“The prosecution needs to know that the case didn’t go the way they wanted it to, and that’s a reason for them to figure out how to make the best of what they have,” Cavallaro said in an interview. “And maybe it’s reaching out to see if there’s an agreement to plead to something less than second-degree murder. … Their case certainly isn’t going to be any stronger.”
Cavallaro said attorneys could negotiate a plea agreement in which Read would admit she was negligent in O’Keefe’s death, meaning she unintentionally caused the death.
“Would that tempt her, given that her lawyers have already seen a jury not be convinced by the intentional homicide theory? That’s a very difficult decision,” she said. “The idea of having to go through all of this again must be devastating for the defendant. It’s also extremely expensive.”
Massachusetts State Trooper Michael Proctor testifies at the trial of Karen Read on June 12.Greg Derr/Associated Press
Would Proctor testify in a second trial against Read, despite his damaging text messages about the case?
Yes. Or more likely, yes. Defense attorneys said Morrissey’s office can’t avoid Proctor, given his prominent role as the lead investigator in the case.
“Because he was the lead investigator, the prosecution is forced to bring him back in for a new trial,” said Elliot Levine, a local defense attorney who has done defense work for many years. “All of this stuff about his horrible comments would be fair game for the defense again. I don’t think they can hide him; I don’t think they can avoid him.”
And if prosecutors decide not to call Proctor, that would give the defense the opportunity to do so. But defense attorneys would have to ask the judge to declare Proctor a hostile witness before they could question him, Levine said.
The defense could urge jurors to see the distance between the prosecutor and Proctor as evidence of the flaws in the investigation he led.
“He was a terrible witness the first time,” Cavallaro said. “And it’s not like they can get that evidence any other way, because he was the one leading the investigation and driving the case.”
According to Tipton, the prosecution has an interest in already knowing what Proctor’s statement and the defense’s cross-examination entailed.
“At least now the government knows that they have to address the Proctor issue head-on, and it seems much more forceful to me,” he said. “They need something that they can introduce that shows that as rotten as he was, he did not compromise the integrity of the investigation. How do they do that? I don’t know, but it would certainly be a conversation that I would have.”
How often do misprocesses occur?
“Rare,” according to Cavallaro and Kesten.
Kesten, who has tried about 150 civil cases, said only one has ended in a mistrial. In civil court, however, a unanimous jury is not required; only 10 jurors need to agree to reach a verdict.
“It’s definitely more common in criminal cases, but it’s still rare,” he said.
In criminal court, a judge can declare a mistrial because of a jury’s indecisiveness or because of attorney misconduct in presenting the case. This can result in the case being closed and not being retried, Cavallaro said.
She said the case could be retried if there was a mistrial because the jury couldn’t reach an agreement, and then again if a second or even third jury can’t reach an agreement. That’s something prosecutors in the Read case certainly want to avoid.
But according to Cavallaro, only a few cases are declared null and void in each court each year.
“It’s just very unusual,” she said. “Why? Because when there’s doubt, the jurors can usually convince each other to say, ‘No, I get your point. I get why this is troubling, but I just don’t think it rises to the level of reasonable doubt.’ … People do talk to each other, not in a bad way, but in a constructive way.”
John R. Ellement can be reached at [email protected]. Follow him @JREbosglobe. Jeremy C. Fox can be reached at [email protected]. Follow him @jeremycfox.
