Michael Proctor was supposed to be the next witness. On Monday afternoon in Norfolk Superior Court in Dedham, the former State Police trooper whose text messages have followed him from the Karen Read trial into a 2021 murder case sat down with his lawyer and the judge at sidebar, out of the public’s hearing, and told the court that if he were called he would invoke his right not to testify. Judge Peter B. Krupp then said the words that ended the day’s plan: “I find it would be properly exercised.”
Defense attorney Rosemary Scapicchio had prepared to walk Proctor through more than a decade of messages, voicemails and photographs from his personal phone. Instead she walked out to the cameras. “He represented to the court twice that he wasn’t going to take the Fifth,” she said. “We thought we were just coming in here today to make sure everyone was all set to testify, and then the whole world blew up.” The evidentiary hearing on her motion to dismiss the indictment against Myles King continues September 22, without the witness it was built around.
This piece explains what happened, why a judge can let a former police officer refuse to testify at a hearing about his own investigation, what the judge had to find, why nobody outside that sidebar knows the reason, and what it does and does not mean for the motion to dismiss.
The case, in brief
Marquis Simmons was shot and killed in Milton in July 2021. Myles King was charged with the murder. Proctor, then assigned to the Norfolk District Attorney’s State Police detective unit, was the lead homicide investigator. King has pleaded not guilty and is presumed innocent.
Scapicchio’s first motion to dismiss, filed in May, was about late-disclosed discovery: search warrants and other material turned over years after the crime. She has since filed two more. The one at the center of this hearing argues something Massachusetts courts have not squarely faced before: that the lead investigator’s racial bias, documented in his own private messages, so infected the investigation of a Black defendant that the indictment cannot stand. Our earlier coverage of the case and the State Police review of Proctor’s files is in Michael Proctor’s cases are being reviewed.
Prosecutors have called the messages “shocking, outrageous, and clearly intolerable in a law enforcement officer.” They also argue that much of the evidence against King was gathered by Milton police before Proctor was involved, and that “private communications on Proctor’s personal phone do not appear to reference steps undertaken in the course of this investigation.” Their position is that bias in the abstract is not misconduct in the case.
What happened Monday
According to MassLive and Boston 25, which both had reporters in the courtroom, Proctor appeared with his lawyer, Thomas V. DiGangi. Scapicchio said DiGangi had told her as recently as Monday afternoon that Proctor would not be invoking the privilege. Then Proctor, DiGangi and the judge conferred privately. Krupp ruled that Proctor had a valid Fifth Amendment privilege and would be permitted to exercise it if called.
Scapicchio said she is not permitted to know what Proctor told the judge, “but clearly something exposed him to criminal liability.” She added: “He has the right to change his mind, don’t get me wrong. But what’s he hiding?” Proctor and DiGangi declined to answer questions as they left.
She said the hearing will go forward, that losing Proctor as a witness “wouldn’t affect the motion to dismiss,” and that she intends to call an expert on racial bias to testify about the investigation.
Why a witness can refuse to testify at all
The Fifth Amendment says no person “shall be compelled in any criminal case to be a witness against himself.” Article 12 of the Massachusetts Declaration of Rights says the same thing in older language, and the Supreme Judicial Court has read it more broadly than the federal clause. The privilege is not limited to defendants. Any witness may invoke it, in any proceeding, when a truthful answer could be used against them in a criminal prosecution or could lead to evidence that might be.
The standard is deliberately generous to the person claiming it. The United States Supreme Court set it in Hoffman v. United States, 341 U.S. 479 (1951): a claim of privilege must be sustained unless it is “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answers cannot possibly have such tendency” to incriminate. The privilege covers not only answers that would themselves support a conviction but those that “would furnish a link in the chain of evidence needed to prosecute the claimant.”
Massachusetts follows the same rule. In Commonwealth v. LeClair, 469 Mass. 777 (2014), the SJC reversed a contempt finding against a witness who refused to say whether he had used cocaine on the night of a fight he saw. The court repeated its own formulation from Commonwealth v. Martin, 423 Mass. 496 (1996): the question is whether there is a “real risk” that the answers “would tend to indicate his involvement in illegal activity,” as opposed to “a mere imaginary, remote, or speculative possibility of prosecution.” The privilege is “to be construed liberally in favor of the claimant.”
Two details from LeClair matter here. First, the prosecutor’s statement that the government did not intend to charge the witness did not defeat the privilege. As the court put it, quoting Martin, “the prosecutor’s denial of an intent to prosecute a witness is not sufficient to defeat an assertion of the privilege.” Second, the witness’s possible other motives for not wanting to testify were “irrelevant” once the answers would in fact tend to incriminate him. Scapicchio’s question, “what’s he hiding,” is a fair political question. Legally, the answer to it does not change whether the privilege is valid.
What the judge had to decide, and why it happened at sidebar
A witness cannot simply announce that he is taking the Fifth and walk out. The judge decides whether the claim is valid. In Massachusetts that decision is made after what practitioners call a Martin hearing, named for the 1996 case: the judge hears, usually in camera and on the record but sealed, enough about the anticipated testimony and the witness’s exposure to decide whether the risk of incrimination is real.
The hearing is private for an obvious reason. If the witness had to explain in open court why his answers would incriminate him, the explanation would itself incriminate him. That is why Scapicchio does not know what Proctor said, and why neither does anyone else. Krupp’s finding that the privilege “would be properly exercised” is the public product of that private hearing. It means the judge was satisfied that Proctor faces a real, not speculative, risk of criminal exposure from the questions he would have been asked.
It does not mean Proctor has committed a crime, and it does not identify what the exposure is. It could relate to the content of the messages, to how they were created or shared, to something said in prior sworn testimony, or to something none of us has thought of. The only public fact is that a Superior Court judge found the risk real enough.
Could the Commonwealth have forced him to testify?
Yes, in theory. The privilege protects against compelled self-incrimination, so if the risk of prosecution is removed, the privilege goes with it. Massachusetts does this through immunity under G.L. c. 233, §§ 20C to 20I, but only a Superior Court or appellate judge can grant it, only on application by the prosecutor, and article 12 requires transactional immunity: full protection from prosecution for the transactions the testimony covers, from any Massachusetts prosecutor, not just a promise from one office.
That is a large thing to give a former investigator whose conduct is under review in “hundreds” of cases, and there is no indication the Norfolk District Attorney’s office offered it or was asked to. The defense cannot grant immunity. The judge cannot grant it without the prosecutor’s application. So the practical answer is no.
What the invocation means for the motion to dismiss
Less than the courtroom drama suggests, in both directions.
It does not help the Commonwealth. Proctor was going to be a defense witness. His absence removes a chance for the defense to build a record of his statements, but the messages themselves are already in the record through the filings, and the defense can still argue from them. Scapicchio has said the bias is established and “that’s not going to change.”
It does not, by itself, help the defense either. In a civil case a jury may draw an adverse inference from a witness’s invocation. In a criminal proceeding the invocation of a non-party witness generally cannot be used as evidence against the defendant, and it is not evidence of the Commonwealth’s misconduct. The judge is not permitted to treat “he took the Fifth” as proof that the investigation was tainted. The motion still has to be won on what Proctor did in the King investigation, which is exactly the ground prosecutors have chosen to fight on.
The harder problem is the one MassLive flagged: if the indictment survives and the case goes to trial, the same question returns. Scapicchio has said she will call Proctor if the prosecution does not. If he invokes again, the jury will not see the lead investigator testify, and the defense will have to attack his investigation through other witnesses. A lead detective who cannot be examined is an unusual feature of a murder trial, and how a judge instructs a jury about it will be litigated.
Why this is different from the Read deposition
Proctor sat for a deposition earlier this year in the wrongful death suit brought against Karen Read by John O’Keefe’s family, and MassLive reports there is no indication he invoked the privilege there. A civil deposition and a criminal evidentiary hearing about one’s own conduct are different settings, and the scope of what has become public about his phone has grown since. Whether the earlier testimony waived anything is a question no court has been asked, and waiver of the privilege is generally confined to the proceeding in which it occurred.
What to watch on September 22
The defense’s racial bias expert, and whether prosecutors move to exclude that testimony as opinion on the ultimate question. Whether Scapicchio seeks any relief based on the timing of Proctor’s change of position after two contrary representations. And whether Judge Krupp says anything further on the record about the scope of the privilege ruling, which he is not required to do.
This is the first Massachusetts case to test whether a lead investigator’s documented bigotry, without a proven link to a specific investigative decision, can void an indictment. Monday made it harder to build that link through the investigator himself. It did not make the question go away.
Common questions
Can a police officer take the Fifth about his own investigation?
Yes. The privilege belongs to any witness who faces a real risk that truthful answers could be used in a criminal prosecution against him. It does not matter that he was a public employee or that the subject is his own work.
Why did the hearing on Proctor’s privilege happen in private?
Because explaining why an answer would be incriminating is itself incriminating. Massachusetts judges hold what is called a Martin hearing, after Commonwealth v. Martin, 423 Mass. 496 (1996), in camera and sealed, and announce only the result.
Does taking the Fifth mean Proctor committed a crime?
No. It means a judge found a real, not speculative, risk that his answers could be used against him. The privilege can be validly invoked by someone who is never charged.
Can the judge hold his refusal against the prosecution in deciding the motion to dismiss?
No. A witness’s invocation is not evidence of anyone’s misconduct. The motion has to be decided on what the record shows about the King investigation.
Could prosecutors immunize him?
Only a Superior Court or appellate judge can grant immunity, only on the prosecutor’s application, and Massachusetts requires transactional immunity from prosecution. There is no indication it was offered.
Courtroom facts and quotations from MassLive (Charlie McKenna) and Boston 25 News, September 14, 2026. Prosecutors’ filing quoted as reported by MassLive. Hoffman v. United States, 341 U.S. 479 (1951), Commonwealth v. LeClair, 469 Mass. 777 (2014), and Commonwealth v. Martin, 423 Mass. 496 (1996), verified against CourtListener; Martin’s standard quoted as restated in LeClair. Immunity statute read at malegislature.gov. Myles King is presumed innocent. Michael Proctor has not been charged with any crime. General information about Massachusetts law, not legal advice.