Former State Trooper Michael Proctor can invoke the fifth amendment during a hearing to dismiss a Milton murder case he investigated, a judge ruled Monday.

“Clearly, something exposed him to criminal liability,” defense attorney Rosemary Scapicchio said of the ex-cop.

When Proctor left the Norfolk Superior Courthouse, his lawyer said he had no comment.

Scapicchio represents defendant Myles King, who faces a murder charge for the shooting death of Marquis Simmons in July of 2021.

Proctor was the lead investigator on the case, and since the investigation a series of bigoted, misogynistic, and racist messages were discovered on the former trooper’s phone. Scapicchio has been pushing to dismiss King’s charges. King’s bail was revisited last year because of her efforts, and her client was on release until he was rearrested by federal authorities for alleged drug dealing in May.

Scapicchio said she’d gone into Monday’s hearing assuming that Proctor would testify next week, after she said Proctor’s attorney had indicated twice that he wouldn’t invoke the fifth, which is the right to not incriminate oneself.

But when they got into the courtroom, it was a different story, she said.

Judge Peter Krupp held what’s called a Luman Martin hearing, a proceeding to determine whether a witness has a valid privilege to plead the fifth, at sidebar. The hearing was only between Proctor, his attorney, and the judge, and was sealed afterwards.

Proctor was allowed to change his mind and invoke his right, Scapicchio said, adding, “But what’s he hiding?”

The defense attorney said Proctor’s lawyer must have presented some evidence that showed, “something that he may have been asked or something he may have had to answer [during the hearing] would have put him in jeopardy.”

When asked what Proctor might have been concerned about, Scapicchio said, “I don’t have any idea.”

“We’re not entitled to know what their 5th amendment privilege is because it would eviscerate the fifth,” she explained.

There is an evidentiary hearing on Scapicchio’s motion to dismiss King’s charges scheduled for Sept. 22, and she said although she was prepared to question Proctor, it doesn’t change her case.

“It doesn’t mean anything, he is who he is, he’s a racist,” she said. The judge will still have that information even though she would have liked to ask questions about individual messages.

Proctor also sat for a civil deposition, which may contain pertinent information, she said.

It’s also possible that, if the motion to dismiss fails and the case goes to trial, Proctor may not plead the fifth then.

Proctor initially came under fire after investigating Karen Read for the death of her late boyfriend John O’Keefe in January of 2022. During Read’s first trial, which ended in a hung jury, Read’s lawyers made Proctor read out the messages he’d written about her on the stand, texts that used vulgar language and assumed her guilt right after O’Keefe’s death.

Read was acquitted of all major charges except drunk driving last summer. Proctor was fired by the state police soon after.

Since then, more messages from Proctor have become public in other legal filings for other cases, including those where he demeans Black, Asian, Jewish, and gay people, as well as women.

“I was planning on tying a [n-word] up and dragging him from my bumper through the streets of Randolph,” Proctor sent in a text included in the motion Scapicchio filed to dismiss King’s case.

“Let’s get some horses and white sheets and burn a cross in the arboretum,” Proctor wrote in another text, seeming to refer to the Ku Klux Klan.

“You don’t leave your racism at the courthouse door,” Scapicchio said, telling reporters that it would have imbued his official actions. “He was the lead investigator, he was the one who made decisions.”

Scapicchio said that she’ll have an expert testify to how, if even implicit bias can impact investigations, what it means when in a case so blatant.

“He’s proved he is a racist through and through, so what are we doing here?” she asked. “Why isn’t that enough to dismiss a case?”

Scapicchio expressed frustration with Norfolk District Attorney Michael Morrisey and his office and their continued prosecution of the case despite the issues with Proctor.

The Commonwealth has said they can still try King without bringing Proctor to the stand and while Scapicchio acknowledged the prosecution could do it without the former trooper, “Should you do it without him?” she said. “Is that really seeking justice?”

During the evidentiary hearing, retired State Police Lt. Brian Tully, who oversaw the Read investigation, will get back on the stand. The judge is also expected to hear from Milton police officers and the defense’s expert on bias.

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