Commonwealth v. Read — Trial ArchiveProcedural - Motions (Welcher)
37 linesMR. ALESSI: Thank you, your honor. Yesterday your honor discussed with the parties, and parties were heard, with regard to the issues we have raised with regard to the timing of the May 8th report from Mr. Burgess that the defense received on May 11. And what I wanted to do, your honor, is briefly provide the information your honor asked for yesterday, which was how much time we might need under various circumstances. And so I wanted to take a few moments to put that in context. It will only take me a brief amount of time to do so. So, your honor, there is a timing issue, but there's most importantly a substantive issue. I will not of course go into the detail of yesterday, but the timing really is informed by the substantive issue.
MR. ALESSI: And so with regard to the matter, we went back and we looked more deeply at the effect of this timing and this movement of the — what has been referred to as clock drift — in Mr. Burgess's report that we got on May 11th. I spoke of the significance yesterday, and here's what I would like to add as is relevant to the time we're going to need. I again urged the court to reject it substantively, because what we did was we went and we looked at matters such as the cross-examination of a key witness in this case, Jennifer McCabe. She testified with regard to observing a vehicle at 12:45 a.m. And that's a significant point. I know I don't need to elucidate for your honor.
MR. ALESSI: It goes — all of this is going — in significant part, if not total part, to what has been alleged — a collision here, which we vigorously contest. No collision ever occurred. But the timing of it, the timing of what's alleged by the Commonwealth, is very important. The seconds are important. Literally one second can not only completely turn the Commonwealth's theory around and debunk it, but also the jury's analysis of it. And this is the point I wanted to elucidate today: the jurors have been provided information and the defense has aimed its defense on this claim based in large part on timing. So now what we have is, on May 11th, Mr. Burgess changing the timing. So what does it affect?
MR. ALESSI: Not only witnesses like Jennifer McCabe, who we crossed, who we strategized with regard to, but also my decision to not even cross [unintelligible] because [unintelligible] had testimony with regard to when Ms. Read connected with the Wi-Fi at [unintelligible: "one meadows"?], and there's a certain time associated with that. We have Mr. Whiffin, who — the Commonwealth went through a timeline, and we believe they went through a timeline for the theory that they had — and we cross-examined, I cross-examined Mr. Whiffin extensively with regard to that timeline. There were several defense strategies and effectuations of strategies based upon that timing.
MR. ALESSI: So with regard to the substance, your honor — and there's more, but I think that's a fair representation — it [unintelligible: "intervates"?] our entire defense. The question now, your honor, of how much time it will take the defense to react to Mr. Burgess — I wanted to say it's not only a reaction but a substantive defense analysis — and three-quarters of the effectuation of that has already occurred through our presentation in terms of cross-examination. So we would have to — and we're still evaluating that — revisit all of that. And secondly, we would have to put that into the calculation of all of our witnesses that we've already prepared, that are based upon that timeline. So it is a very significant point.
MR. ALESSI: And to the extent that the Commonwealth tries to argue, "well, you know, we never really committed that much to a certain time period" — I again urge the court to look at the report of Dr. Judson Welcher, where he has [unintelligible: "1162-2"?] with a specific range — 12:30:38 to 12:30:43 — and even in their range it's a very small time, which further supports how each second matters in this regard. Now, to the answer to the question your honor asked yesterday: again, I urge that it just be rejected and we keep this trial moving at its current pace. To the extent that that does not occur — and again we urge that it be rejected, the report, because it's a Rule 14 violation — there is no remedy for the defense.
MR. ALESSI: However, to the extent — and given your honor nonetheless asked me for an answer in time — we would need four days to be able to address it. We will not ever be able to recover strategically or substantively from it, given all that's been presented to the jury. And it will be very difficult to figure out how we're going to present a defense after we've already presented to the jury our defense and our cross-examination. It's not really structurally possible to simply take four days and address Mr. Burgess, because we can't go back to all the witnesses I just mentioned and others and start crossing them and eliciting testimony with this new time period in mind.
MR. ALESSI: But I wanted to answer the question, your honor — respectfully, it would be four days for us to even go from where we are now and then try to alter not only witnesses such as ARCCA, but DiSogra and Gaffney and other witnesses that we have in that regard. So, your honor, respectfully, that is my response.
JUDGE CANNONE: All right. Does the Commonwealth want to be heard?
MR. BRENNAN: Thank you. Okay. Respectfully, your honor, the defense is very confused. They attempt to confuse the issue. They attempt to confuse your honor about what the impact would be. This has never been a change. The government is not changing their timeline. The Commonwealth is not changing any information. The Commonwealth is not offering anything that affects in any way the testimony of witnesses. It's notable that in the argument there is no relationship to the facts or the actual report that was provided. The Commonwealth has always provided the data which they have, and they hadn't had a chance to analyze, and the interpretation of the data has been different between the parties.
MR. BRENNAN: We have been clear from the beginning at the time in which the infotainment system shows that there was a collision. We've been clear and the data has been clear. That has never changed. That data in the [unintelligible: "teleream"?] system is based on a clock in the Lexus, which both sides know full well is different than a clock in an iPhone. You can see all the productions of Dr. Welcher's PowerPoint presentation where it shows that time — 12:31:43 — has never changed. Also, it has been clear that both sides appreciate that there is a variance between the clock in the Lexus, which leads to that system information, and a clock in an iPhone. In fact, the defense was so aware of it they hired an expert, Mr. DiSogra, who gave his opinions about that variance.
MR. BRENNAN: We have never suggested there was not a variance in this case. In fact, we have highlighted the variance. When their expert, Mr. DiSogra, provided a report, we believed that his analysis was wrong. And so we looked at the variance and the data that was available from the [unintelligible: "teleream"?] system and John O'Keefe's Waze data that was on his phone, that was always available to all of the experts on both sides. And when Mr. Burgess looked at the variance at the time of a three-point turn, about seven minutes before the collision, he simply matched the Waze information on Mr. O'Keefe's phone to that of the information from the [unintelligible: "teleream"?] system and saw that it was a 21- to 29-second variance. All that data was available to the defense.
MR. BRENNAN: Because their expert made an improper conclusion is not our fault. This does not change the testimony of anybody. They point to Jen McCabe's text message where she said she thought she saw a motor vehicle out front that evening at 12:45. That is not consistent with the Commonwealth's timeline, but that doesn't change. That favors the defense. It does not change anything to do with ARCCA. ARCCA has not, as far as I've seen in any reports, ever talked about the variance — just Mr. DiSogra. And so because this is inconvenient for the defense, and because it further focuses the variance that we've already discussed and provided, that isn't a reason to exclude it. It's not late discovery. It's not a Rule 14 violation.
MR. BRENNAN: It is further analysis of information that was already provided, opinions that were already provided, and it is in response to their expert's mistake about that variance. There's nothing new here. Nothing has changed.
JUDGE CANNONE: Okay. Go right ahead. The only question I had for you yesterday — for you to respond to today — was the time. So I gave you more leeway. You're giving me more leeway, and I appreciate — go right ahead.
MR. ALESSI: So, two items, your honor. As I alluded to yesterday — and it's been a point that Mr. Brennan just made — we believe strongly, your honor, that at a minimum there needs to be a voir dire of Mr. Burgess. And we believe strongly there needs to be a voir dire because we have a serious concern that the sequestration order has been violated. He has changed a very key aspect of this matter after the testimony of Mr. Whiffin. After Mr. Whiffin presented a timeline in his report, Mr. Burgess, in his new purported report of May 8th, references — to align it with Mr. O'Keefe's cell phone — that is the essence of Mr. Whiffin's report: anchoring his timeline. He did a whole timeline on Mr. O'Keefe's report. And conveniently, the proposed alteration by Mr.
MR. ALESSI: Burgess in his report of this clock drift now makes it very, very close to fitting within Mr. Whiffin's timeline and the theory of the prosecution. At a minimum, we need a voir dire to ask Mr. Burgess why he did what he did. Another reason for the voir dire: Mr. Brennan yesterday said we were surprised to get the report, and that further raises great concern as to why Mr. Burgess did what he did. Lastly, your honor, with regard to Mr. Brennan's point — he made it yesterday and I corrected it; he said it again today — that supposedly our witness, Mr. DiSogra, made an error and that we're trying to correct an error of Mr. DiSogra. That is incorrect, your honor. Again, Mr. DiSogra was responding to Mr. Burgess's report. Mr. DiSogra's report entirely says, "Okay, Mr.
MR. ALESSI: Burgess says this, and therefore the defense says this." Now Mr. Burgess is changing what he is saying, so it is completely incorrect to say that Mr. DiSogra is trying to correct an error — that would require Mr. DiSogra to change what he has done. Final point is this. There was also an issue, your honor — and this is extremely important — with regard to burden shifting. There's not only the question of should this be allowed at all, there's not only the question of how much time the defense will need, but there's a third and important issue, and that's burden shifting. What Mr. Brennan proposed yesterday was a very irregular process where essentially the Commonwealth gets three bites at the apple for a problem that they caused. The problem we're talking about is Mr.
MR. ALESSI: Burgess changing a significant part of a timeline. Yes, there was a variance that he had, but he picked a range of the variance. He's now changing the variance. So what the Commonwealth is proposing is that our witnesses go forward, that the Aperture gets to wait, they come on, and then they get to come — the Aperture gets to come on yet again.
JUDGE CANNONE: We would urge — I did not understand the Commonwealth asking me that. Are you asking me to do that, Mr. Brennan? I appreciate the clarification. I'm not sure what he's saying. So it sounds like DiSogra — or whatever his name is — is DiSogra. Yes, DiSogra. You're suggesting that the Commonwealth suggested yesterday that he testifies first and then the Aperture witnesses. What I understood was going to happen is Mr. Brennan said yesterday that Dr. Welcher cannot come in until after —
MR. ALESSI: No, I didn't understand that.
JUDGE CANNONE: I understood Dr. Welcher — Shanon Burgess and then Dr. Welcher for everything that you folks received prior — that January 31st or whatever the date was — and then potentially for all the new ARCCA information that came in May 7th, that portion, Dr. Welcher returning on rebuttal — not that they were holding back Dr. Welcher completely.
JUDGE CANNONE: Is that correct, Mr. Brennan?
MR. BRENNAN: That's the conversation I had.
MR. BRENNAN: That conversation I wasn't part of.
MR. BRENNAN: Yeah, I think you misunderstood that, Mr. Alessi.
MR. ALESSI: So, I just — so I'm clear. What is it
JUDGE CANNONE: , Mr. Brennan? All right. This is separate and I'd really like to give everybody a break here. What is it the Commonwealth is asking to do regarding that? Regarding Mr. Burgess or Mr. Welcher?
JUDGE CANNONE: Mr. — Dr. Welcher.
MR. BRENNAN: Dr. Welcher should come in and testify to his PowerPoint, all of his opinions which address all of the prior representations and opinions of ARCCA. Although we still don't have any raw information, but we're ready to move forward regarding any new opinions, which there are over a dozen new opinions. That includes testing, video, experiments. Dr. Welcher should have enough time to review, conduct his own testing, turn it over, and then in rebuttal address — limited to the new issues raised by ARCCA.
JUDGE CANNONE: That's how I understood it, Mr. Alessi. And that's how I did also. But the question is now with the Burgess changing of the clock drift, how many times is the Commonwealth proposing that Dr. Welcher gets to come in and talk about that? Is he just going to come in and talk about it? So, you talk with Mr. Brennan about that.
MR. BRENNAN: All right. So, I'm all set for this. There are no changes. There are no changes in the timeline. He keeps trying to portray this as something that has changed. Nothing has changed. It's the exact same. He's always said there's a variance. He's been looking into the variance for a long time and now he has found a method to show the exact variance. It's not changing. There's nothing in the reports that changes as far as the timeline. That's just an attempt to cause fear. There's nothing that has changed. We can look at the reports. It's all the same. Always has been. Other than now he's identified the mistake of their effort and that led him to be able to identify the variance, which is helpful and new.
MR. BRENNAN: And the suggestion that there's been some violation of an order — no good faith basis whatsoever.
JUDGE CANNONE: Does the Commonwealth oppose a voir dire just on that one issue?
MR. BRENNAN: Yes, because it's suggesting that there's a good faith basis for it. Nothing has — Ian Whiffin's report was available to the defense and our experts months and months and months ago. The issue of variance has been an ongoing issue for months. There's nothing that triggers a change in the testimony to adopt or adapt to it. Our timeline has been the same since when we turned it over at the beginning. They cannot point to one thing that has changed between Dr. Welcher, Ian Whiffin, Jessica Hyde, or Shanon Burgess. They are just saying things without a good faith basis in the report. Show us where something has changed.
MR. ALESSI: Your honor, to inform you — your honor, we would like to print the page in the clock adjustment because what Mr. —
JUDGE CANNONE: Yes. And I'm happy to — any information. Thank you. All right. For the court, please.