What happens in Karen Read trial if prosecutors don't call key witnesses?
After three full days of testimony from Massachusetts State Police Sgt. Yuri Bukhenik, lawyers, including WBZ's legal analyst Katherine Loftus, became increasingly skeptical that prosecutors might not call key witnesses in their case against Karen Read.
Those witnesses are Brian Higgins, Michael Proctor, and potentially Brian Albert. Proctor was the lead investigator on the case who has since been fired from State Police.
The other two are so-called third-party culprits: men who the defense has accused of being alternate suspects in the death of John O'Keefe. Higgins is an ATF agent, and Albert owned the Canton home where O'Keefe's body was found on the lawn.
It became clear on the stand in recent days that Sgt. Bukhenik was testifying about his own experience, but also those of these other witnesses. "All of the points that they are hitting that would otherwise come in through other witnesses," explained WBZ Legal Analyst Katherine Loftus. "It leads towards the idea that Attorney Brennan maybe might skip calling all three."
Reversal from first trial strategy
What would be the strategy, if so? Loftus says it's a reversal from the first trial strategy, in which prosecutors spent much of their case defending against defense theories rather that proving the elements of the crimes charged. "In this trial, Hank Brennan isn't doing that. Hank Brennan looks at this case and thinks, 'OK who do I need to call to prove the charges?'" Loftus said.
"Theoretically, do you need Michael Proctor if you have a police officer or other witnesses who can testify about virtually everything he does? No. Do you need Brian Higgins to prove manslaughter or murder? No. Do you need Brian Albert? No," she said.
So, what would happen if the prosecution does not call these witnesses?
Defense attorneys would always have the chance and the right to call them as a part of the defense's case. If the defense wants to pursue a third-party culprit theory of the case with Higgins or Albert, they would likely need to call them to the stand, Loftus explained.
What happens if the defense calls these witnesses?
And it's highly likely that the defense could call Michael Proctor to the stand, in Loftus's opinion. "I think you have to call Michael Proctor," she said. "I mean, how can you let him off the hook if you are the defense?"
If the defense calls these witnesses in its case, there will be one major difference: how the witnesses will be questioned. On direct examination of your own witnesses, lawyers are required to ask open ended questions. "That means narrative questions, you know, 'what happened? Who are you with? Can you explain this?'" Loftus said.
Meaning - the defense could not ask the tough, leading questions it typically asks on cross examination. A question like "you threw your phone away to hide evidence, right?" would not be allowed on direct examination if the defense were to call these witnesses, which could pose a challenge. "It's an interesting strategy by the Commonwealth," Loftus said.
What is a hostile witness?
There is one situation in which the defense could both call these witnesses and ask them those leading questions - if they are declared hostile.
If the witnesses take the stand for the defense and don't cooperate, take an adverse position, or behave with hostility, defense attorneys can ask the judge to declare them as hostile or adverse witnesses, which gives the defense the power to ask them leading questions. The decision is up to the judge.
Then, on cross examination, prosecutors could attempt to rehabilitate witnesses by asking leading questions. For Proctor, for example, Loftus says those questions might look like, "No investigation ever sustained in finding that you planted evidence? Or that you created evidence? Or that you did anything wrong with the witnesses?"
Lawyers for both sides are under a gag order right now, so there is no confirmation on whether these witnesses will be called by either side.
