Commonwealth v. Read — Trial ArchiveProcedural - Motions
78 linesMR. ALESSI: Thank you, your honor. The topic I would like to raise with your honor is the timing and nature and significance of the information that the defense has received from the firm Aperture. And your honor may recall there are two individuals on the witness list that we understand are to testify in this matter. First is Dr. Judson Welcher, and the second is Shanon Burgess.
JUDGE CANNONE: And are they testifying in reverse order than what you said?
MR. ALESSI: My understanding is, your honor, yes. My understanding — Mr. Brennan has the best information — is that it's proposed that Mr. Burgess testifies first and Dr. Welcher testifies thereafter.
JUDGE CANNONE: Okay.
MR. ALESSI: So the Commonwealth has — not "established," but stated in the reports of Aperture, particularly the slide presentation of Dr. Welcher, a trigger called 11622 that they have associated in the report of Dr. Welcher with a specific time, and that specific time that they have associated with that trigger is 12:31:38 to 12:31:43. And we have been assuming that information — and this is from best memory, but I believe it's slide 37 or so — where this statement is in the slide. And so we have proceeded with our defense. We have proceeded with the work that has been assigned to ARCCA based upon that time period. On May 8th, not too long ago, your honor, we received an amended report of Shanon Burgess that pushes that time period.
MR. ALESSI: I'm just going to get — although it was dated May 8th, we received it actually on May 11th. And in that report, Mr. Burgess states that he is making an amendment, and he is now stating that that infotainment trigger of 11622 is further back in time, and it is past 12:31:43.
JUDGE CANNONE: Do you have the time?
MR. ALESSI: I'm going to get the exact time, your honor. It is 12:32:16. And your honor may recall that the seconds — literally, seconds matter in the analysis of many factors. I won't go into them, other than to say I went through and developed testimony with regard to the cross-examination of Mr. Whiffin. He had a timeline. He talked about much human volitional conduct. Suffice it to say that that information is literally — by seconds — determinative in some ways of various analyses. So we've basically commissioned, if you will, ARCCA to be looking at matters based upon the infotainment trigger 11622 of 12:31:38 to 12:31:43. As of May 11th, we've received information that has changed that. Now, your honor, that is a Rule 14 violation, among other issues.
MR. ALESSI: But I wanted to start there — it's a Rule violation. It's obviously, as I stated, an amendment of a report of a significant matter. And also with regard to the defense's ability to provide a defense, we have to be able to evaluate that information. In terms of our entire defense — and it's not limited to ARCCA, it's our entire defense. The other data point I want to get to — so the effect is, we still haven't even been able to evaluate that entirely. And I believe, your honor, based upon the information that I have, that this may have been a calculated matter by the Commonwealth. But even assuming it's not calculated, the effect it is having is pronounced. So what I want to do, your honor, is to look at what the reason Mr.
MR. ALESSI: Burgess has given, which leads me to be very concerned about a calculation — a strategy calculation — here. Mr. Burgess states in his own words that the reason why that time is being changed is to, quote, align the trigger with Mr. Whiffin's analysis, and Mr. Whiffin's analysis is based upon the extraction data from Mr. O'Keefe's phone. And I believe it's undisputed that the extraction from Mr. O'Keefe's phone occurred years ago, and the data from that has been extracted. It's been available for years. So to me, your honor, that basis can't be a proper basis, particularly at this stage where we are approaching the end of the trial — just literally days before the testimony of Aperture — and we are in a very, very — almost impossible — challenging situation.
MR. ALESSI: So, your honor, there are best for the Commonwealth, Aperture had — and Mr. Burgess and Dr. Welcher had Mr. Whiffin's report that talked about the clock differences. So the clock differences cannot be, as the Commonwealth is proffering, some sort of new information that caused Aperture to provide a new report. This variance that attorney Brennan talked about — it's called the clock drift; a more lay person's term is a variance of time. Mr. Burgess in his original report months ago has a whole section on clock drift. That's not a new concept for him. He's just changing the drift. Okay. So, what I'd like to do — because I want to address the other issue and I don't want to keep people here too long —
MR. ALESSI: Obviously your honor knows the situation here. Our first request is that the May 8th report that we received on May 11th be not allowed, that it be not considered at all. As your honor knows, I don't like to use hyperbolic words, but the word has been used for us against us. Ambush, ambush, ambush. If there's ever an example of an ambush, this is it. And so, your honor, our request is that your honor find a rule 14 violation. That your honor have the remedy be that the violation remedy be that this is not allowed, and that the Commonwealth proceed with its — the information of Aperture that has been extant before the May 8th date of the report.
JUDGE CANNONE: Thank you. All right. Do you have another option if that's not something that we do? Right. Because the Commonwealth moved to exclude ARCCA, or have them go by their old report. Right.
MR. ALESSI: Right. And, your honor, I'm going to answer your question, but with just the quick point that this is really much different than ARCCA, because two reasons. We are the defense and ARCCA is a rebuttal to the prosecution's case. That is much different than a prosecution changing its theory of the case at this time.
JUDGE CANNONE: I understand that. I'm just asking if you have another option. It's not what I am — am saying that I am proffering. I think the only remedy here is exclusion in a rule 14 violation. And you're not waiving that?
MR. ALESSI: Oh, I'm not waiving that.
JUDGE CANNONE: No, I'm not asking you to. Okay. Continuance for how long?
MR. BRENNAN: — the clocks have different times. The defense provided a report by a person by the name of Mr. DiSogra, a noted expert witness who they listed as a witness they might potentially call. Mr. DiSogra wrote a report and in the report he suggested, based on his analysis, that Mr. O'Keefe's phone always ran late. That means if the
PARENTHETICAL: [inaudible]
MR. BRENNAN: data, the blackbox data from the car, has an event at 12:31:38 and Mr. O'Keefe's last movements were 12:32:16, last interaction 12:32:09, there is a variance between those times. We asked our expert to review their expert's report to see if he was accurate — that the variance means that these times would never align — and that's what he did. He studied the data. He studied the Waze data. He studied the Lexus blackbox relative to the time.
MR. ALESSI: I could have a better answer perhaps to that question tomorrow. Given what's been going on, I haven't even had a chance to talk to ARCCA at all.
JUDGE CANNONE: All right. So, tomorrow morning, let me know that. All right.
MR. ALESSI: And, your honor, I will do that, of course, and I will also say, without getting into an elaboration of it — we have to look at all the witnesses that we called. I'll give you an example. Mr. Whiffin — I had my whole cross-examin — not whole, but a significant part of my cross-examination of Mr. Whiffin based upon going through human volitional conduct off that phone that was after that 11622 trigger. And a lot of our defense and theory is based upon that — that's been in existence now for several months. And again, I go to the bottom line that the proffered reason in Mr. Burgess's report is to align with the data on Mr. O'Keefe's phone, and that's been around for a long time. So that's my answer to your honor.
JUDGE CANNONE: Right. Thank you, Mr. Brennan.
MR. BRENNAN: Your honor, this disclosure is not a rule 14 violation. The Commonwealth, just like the defense, is entitled to continue to work on their case and study their case as time goes on. This issue — the relevance of this issue has been clear throughout the case, including my opening statement. And the issue is that clocks are different. There is a clock in a Lexus that runs on a different time than that of an iPhone. And if you recall in my opening statement, I talked about the fact that there are variances between those clocks. So instead of a moment that coincides happening at the precise second, sometimes there's a variance of time between the two. So the Lexus clock could be at a variance with an iPhone, but the event still could happen at the same time.
PARENTHETICAL: [inaudible]
MR. BRENNAN: Doesn't change anything. Doesn't change the data whatsoever. Just adds to the time. What he learned from his opinion is that Mr. DiSogra was wrong. He used information from different phones, not recognizing the items that these timelines came from, and that his time estimates are wrong. So then he looked at the time of the event of the ignition on and off, and he compared that to the Waze data, and when he did he found that he could identify what the actual differential was, instead of guessing. That it was within the 30-second window — it was somewhere around 21 to 25 seconds. And that 7 minutes before the collision, Mr.
MR. BRENNAN: O'Keefe's phone was 21 to 29 seconds ahead, which means you subtract that time, which puts it in the same variance that we've been arguing from the beginning — that the collision occurred at the same moments where Mr. O'Keefe's last phone user interaction occurred — and that reconciles with the data. It does not change the text screen data or the blackbox information on the car whatsoever. It does not change ARCCA's analysis whatsoever. We received this report on May 8th. I was surprised to receive it. I welcomed it. We turned it over on May 8th. There was no delay. It's been a week now — the defense has had this information. And so this is not an attempt to align anything. While it may reconcile or identify that variance more closely, it doesn't change any data whatsoever.
MR. BRENNAN: And so this is not a rule 14 violation. The effort was in response to disclosures that we believe were wrong by the defense expert, and it is clarified and it is favorable for us, and so we should be able to use it.
JUDGE CANNONE: Did you intend to use it in your case in chief, or only if this witness, DiSogra— I don't remember reading that name so I don't know how to pronounce it.
MR. BRENNAN: My case in chief. In my case in chief, because we now have this available data. As I said, this wasn't an ambush — it isn't something that we sat on. It was in response; fortunately, upon receiving their expert report, which caused us to focus more closely. And now that we have identified that variance — rather than having an open variance of 30 seconds — we should not be precluded from favorable information that has been provoked by a report by the defense.
JUDGE CANNONE: Okay. Yes.
MR. ALESSI: I'll do it quickly.
JUDGE CANNONE: Okay.
MR. ALESSI: Attorney Brennan has provided a lot of information and he has accurately provided information, but he's got the time completely wrong and the significance respectfully completely wrong. I'm going to hit his four categories quickly. He referenced Mr. DiSogra, who is a defense witness. Two points about Mr. DiSogra. First, Mr. DiSogra provided his expert report within the reciprocal discovery deadline. Okay.
JUDGE CANNONE: Okay.
MR. ALESSI: And he provided that report months ago. Okay. So, if as I heard attorney Brennan — he's saying the reason why we're getting something on May 8th is because Mr. Burgess supposedly is responding to that — that was months ago. Okay. The more apt point — or an even more apt point — is Mr. DiSogra was responding to the information of Aperture. It wasn't like Mr. DiSogra was coming up with something new. He was responding — he was rebutting, as defendants do. So — and it's Mr. DiSogra. So that's an important point with regard to Mr. DiSogra. Now I want to go to attorney Brennan's comment about clocks are different. I agree with attorney Brennan on that.
MR. ALESSI: The shortcoming for attorney Brennan's argument, however, is that the "clocks are different" concept has been in existence in this case for over 6 months. I can give you by memory Mr. Whiffin's report of December of 2024, where his report went into the different clocks and what their significance was. So that is almost 6 months ago — at least 5 months ago — the issue of different clocks has been in existence in this case. So therefore the issue of different clocks dates back to then. But even more fatal for the Commonwealth's argument is that Mr. Burgess himself issued his report and talked about the difference in clocks. He already knew it. He already had it.
JUDGE CANNONE: Did he testify to that last time? Did he testify?
PARENTHETICAL: [inaudible]
MR. ALESSI: reason to not allow it, because they're surprised to get it. And I can lastly say this, your
MR. ALESSI: Aperture was not part of the first trial.
JUDGE CANNONE: All right. I thought Burgess was—
MR. ALESSI: No. No. Neither — no one from Aperture was.
JUDGE CANNONE: I knew Aperture wasn't. I thought he may have been some—
MR. ALESSI: The name just sounded— neither Burgess nor Welcher were part of the first trial, but they were retained. Aperture was retained, I believe, in October of 2024.
JUDGE CANNONE: Okay.
MR. ALESSI: And at best for the Commonwealth, Aperture had — and Mr. Burgess and Dr. Welcher had — Mr. Whiffin's report that talked about the clock differences. So the clock differences cannot be, as the Commonwealth is proffering, some sort of new information that caused Aperture to provide a new report. This variance that attorney Brennan talked about — it's called the "clock drift." A more lay person's term is a "variance of time." Mr. Burgess in his original report, months ago, has a whole section on clock drift. That's not a new concept for him. He's just changing the drift.
JUDGE CANNONE: Okay. So what I'd like to do — because I want to address the other issue and I don't want to keep people here too long — can you wrap it up, Mr. Alessi, or is that in 60 seconds?
MR. ALESSI: Thank you, your honor. So, your honor, the last point I wanted to make — and I think I heard attorney Brennan correctly — is he said he was surprised that he got this report dated May 8th. That's what I heard. So, if the Commonwealth is surprised that they got it, that should — to me, your honor — be an outstanding
JUDGE CANNONE: Can you wrap it up, Mr. Lally, or is that in 60 seconds?
MR. ALESSI: Thank you, your honor. So, your honor, the last point I wanted to make — and I think I heard attorney Brennan correctly — is he said he was surprised that he got this report dated May 8th. That's what I heard. So, if the Commonwealth is surprised that they got it, that should — to me, your honor — be an outstanding, fetching reason to not allow it, because they're surprised to get it. And I can lastly say this, your honor, there's nobody that's more surprised at getting this than the defendant — when we got it on May 11th.
JUDGE CANNONE: Okay. Thank you. The other issue about calling your expert on rebuttal, Mr. Brennan, based on the late disclosure of the ARCCA materials. What's your argument on that?
MR. BRENNAN: I won't iterate the entire path, but your honor has found discovery violations. Your honor has found that — I want to phrase this properly — the efforts of the defense were improper, and inevitably we've now received an extraordinary amount of discovery on the most important issue in this case, well beyond the discovery deadlines, without any excuse. And the court understandably has overruled government objection and has stated that it is going to allow the defense to offer two expert witnesses in a very complicated field, in an issue that is the heart of this case. If you're going to allow them to testify, despite the fact that we have not had the time to review and to prepare and to address it — the Commonwealth has the burden of proof.
MR. BRENNAN: The Commonwealth has an obligation to prove this case beyond a reasonable doubt. And this isn't simply late disclosure of some evidence. This is a massive amount of evidence of the most critical issue. And so we provided this information to our expert —. As you know, he was away. He did not get a report until maybe May 7th. He did not have a chance to look at it until May 9th. An extraordinary amount of work, effort, and expense has gone into preparing our case for the jury. He is still in the process of reviewing the materials. There are entirely new subject areas within this information, well beyond the simple four opinions that they gave at the beginning. There are studies, there are demonstrations, there are experiments.
MR. BRENNAN: This requires not only review but an analysis, testing, vetting, and then comparing testimony to address the claims made by the defense experts. Not to get into a battle of disparagement, but our expert has found extraordinary issues in his first reviews of material. And some of those concerns lead him to — his opinion — to actually conduct his own tests to demonstrate the failures of these ARCCA witnesses. That's going to take time. You've heard from the ARCCA witnesses themselves that the amount of data they've received — they estimated they needed five weeks and they were given five weeks, despite all the discovery deadline violations. They were given five weeks. We did not get the report until May 7th.
MR. BRENNAN: And so we believe we are entitled to have our expert review all the materials, do his testing, provide opinions. None of that is going to happen anytime soon because he still has not finished reviewing all the materials. There are many, many gigabytes. He is in a difficult schedule. He is away tomorrow, Saturday. We were going to try to begin to prep at the end of the weekend. There is no way he's going to be able to testify anytime soon and have all of this validation and vetting and testing.
JUDGE CANNONE: So what is it exactly you're proposing?
MR. BRENNAN: So what we would like to do is have him testify about what he has prepared. If he's had adequate time to prepare — if either of these ARCCA witnesses testify and they introduce new opinions, new testing, new demonstrations — he should be able to continue reviewing the materials, actively engage his own testing. So by the time the defense case is over, he be prepared to come back and address the new issues — not the older issues or regurgitate his testimony — but to address any new issues that were provided in violation of discovery orders, and so that he can then address the jury on those specific new issues. I see no other way of this expert being fairly presented to the jury. The unfair prejudice cannot be cured in any other way.
MR. BRENNAN: We ask that he be able to continue his review, offer rebuttal opinions on anything that is new and not to encroach on anything that's been previously provided.
JUDGE CANNONE: Can Burgess testify after Welcher?
MR. BRENNAN: No. No. Because Dr. Welcher relies on Shanon Burgess's information and material. It will make no sense. I thought about it. It makes no sense to the jury — this presentation — unless Shanon Burgess has an opportunity to provide the background information.
JUDGE CANNONE: All right, Mr. Alessi, I'll hear you on this.
MR. ALESSI: Thank you, your honor. I think — and I understand the time of the day, so I'm going to do this hopefully efficiently. When we're talking about ARCCA and the information of ARCCA, it's very important analytically to put them in their two proper buckets. The first bucket is the information and opinions of ARCCA that have been in existence since February of 2021.
JUDGE CANNONE: Let's focus on the beyond. Let's focus on —
MR. ALESSI: Okay, good. Because my [unintelligible] conclusion is there should be no prejudice on the — and I don't think the Commonwealth's even suggesting that. So we're focusing just on the quote "new information" bucket. Your honor, it's very important to understand that what ARCCA is doing is in response to the testing of Aperture. ARCCA did not come up with new approaches. We — again, to state the obvious — are the defense. We get to rebut what the prosecution has put forward. And so what ARCCA has done with the new information and new testing is simply to rebut what Aperture has done. So I do not understand the length of time or the lift, if you will, that's being proffered for Aperture.
MR. ALESSI: Now, with regard to the time period, your honor has already determined what the appropriate approach is for the new information from ARCCA. When Dr. Rentschler was on the stand, you said, "When can you get me the information?" and they said — I think it was May 6th or May 7th, whatever — and they met the deadline. They did it. We proceeded along with the trial with that information. We complied with that request. To continually try to claim that there should be ongoing remedies of something that's already been decided — I do not understand.
JUDGE CANNONE: I did leave it open to address.
MR. ALESSI: You did leave open the time, but your honor didn't leave open that you were going to continue to address this matter as if the defense is making perpetual violations. There was a determination made and then the question was the remedy. So I'm just addressing the Commonwealth positing that somehow there's continuing violations. My final two points: What Mr. Brennan is seeking is improper. What it's seeking is the most extraordinary situation, which is: have Aperture come before the jury, testify to certain things, have ARCCA have to come on, and then have Aperture come back and essentially have almost a rebuttal to a rebuttal as of right. I do not understand that process. I do not understand that proposal. It inverts the order of proof.
MR. ALESSI: It prejudices the defendant because it almost ipso facto gives a double rebuttal to the defense. I believe, your honor, the final point is: if your honor is inclined to give Aperture more time — and I haven't even heard a deadline yet for Dr. Welcher, it's still open — what I would recommend, your honor, is that we follow the proper order of proof. We determine when Aperture can conclude its review of the ARCCA work, and that there be a schedule that keeps the order, namely that the prosecution comes in with Aperture, Dr. Welcher, and Mr. Burgess, and then the defense as part of its case-in-chief puts on ARCCA, and we make the determination as to what happens there.
MR. ALESSI: Otherwise, what's happening here is almost a self-serving matter where the Commonwealth is getting to put on certain witnesses from our witnesses and then have an automatic rebuttal, your honor. I just think that's improper and prejudicial. There's another — and importantly, it's a burden shifting to the defense.
JUDGE CANNONE: All right. So I have a question for you, Mr. Yannetti. Are you still thinking that if the defense puts on a defense, that will take roughly a week and a half for that to take place?
MR. ALESSI: That is our best estimate still, your honor.
JUDGE CANNONE: And not holding you to this, because obviously you have no burden — if ARCCA is part of that defense, when in that week and a half time frame would that be?
MR. ALESSI: We haven't made a final decision, your honor, but we're pretty close that it would be toward the end.
JUDGE CANNONE: Okay. All right. I needed all this information now, so I appreciate it. All right. Thank you.
COURT OFFICER: All rise.
JUDGE CANNONE: Goodbye.