Commonwealth v. Read — Trial ArchiveJudson Welcher - Voir Dire
107 linesCOURT OFFICER: You are unmuted.
JUDGE CANNONE: Now open. You may be seated. All right. So I was told counsel — Mr. Alessi, you wanted to see me.
MR. ALESSI: Yes, please.
JUDGE CANNONE: Okay. Did you want to come to sidebar? Start at sidebar and then —
MR. ALESSI: Sure. We'll go from there if we —
JUDGE CANNONE: Okay.
COURT OFFICER: You are unmuted.
JUDGE CANNONE: Right. I was told counsel wanted to see me at sidebar again. Okay. Oh, great. Great. Step up. Thank you.
COURT CLERK: Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
MR. WELCHER: Yes, sir.
COURT CLERK: You're welcome. Good morning.
MR. WELCHER: Good morning, sir.
JUDGE CANNONE: All right. So, we're going to have a short voir dire.
MR. LALLY: Yes, ma'am.
JUDGE CANNONE: Okay. So, Mr. Alessi. Thank you. Thank you.
MR. ALESSI: Morning, Dr. Welcher.
MR. WELCHER: Good morning.
MR. ALESSI: If you look at any documents in answering my question, I appreciate you letting me know that. Okay. Do you have any documents open in front of you at this moment?
MR. WELCHER: I do. I have a [unintelligible].
JUDGE CANNONE: I would ask — until the question comes up, can you do without it, sir?
MR. WELCHER: For a few minutes, depending on the question. Sure.
JUDGE CANNONE: Okay. So just let us know if you need to look at it. Don't look at it without — I mean, without permission, please. All right. Go ahead, Mr. Alessi.
MR. ALESSI: Thank you, your honor. Dr. Welcher, you have changed your PowerPoint presentation in the last few days in this case. Correct?
MR. WELCHER: I deleted a slide and removed a couple words, right?
MR. ALESSI: But you've changed your PowerPoint presentation. Correct.
MR. WELCHER: Correct. I deleted a slide and deleted a couple words.
MR. ALESSI: Who have you spoken to at the Commonwealth in the last two weeks? Anybody associated with the Commonwealth? Who have you spoken to in the last two weeks?
MR. WELCHER: Mr. Brennan, Mr. Lally, Lieutenant Tully.
MR. ALESSI: Anyone else?
MR. WELCHER: I think Marielle and Gray.
MR. ALESSI: Anyone else?
MR. WELCHER: The tech person, Cindy, this morning. And with regard to those conversations, what —
MR. ALESSI: — prompted those conversations? Who initiated them?
MR. WELCHER: I was originally told I was going to have to be out here last Monday. So there was a whole flurry of conversations around that. I was initially told I may have to give all my rebuttal testimony on a whole huge data set I had received.
MR. ALESSI: I'm sorry to interrupt you, sir. My question was simply — because we have a limited amount of time — who initiated the conversations?
MR. WELCHER: Oh, there were multiple conversations.
MR. ALESSI: How many?
MR. WELCHER: I have no idea.
MR. ALESSI: More than 10?
MR. WELCHER: I'm sorry. More than 10? Probably not.
MR. ALESSI: All right. What did you discuss with — you understand it's — it's no longer Detective Lieutenant Tully. It's — as I understand it — Lieutenant Tully. Did you have — you said you had conversations with him. Correct?
MR. WELCHER: Correct.
MR. ALESSI: When was the first conversation? How many, and what are the nature of those conversations?
MR. WELCHER: Are you limiting it to the last 10 days, or in total, in my life?
MR. ALESSI: Within the last two weeks. Last two weeks.
MR. WELCHER: I believe it was when I got here on Saturday night — I informed them I'd landed — and then Sunday morning he gave me a ride over to the district attorney's office.
MR. ALESSI: And what did you discuss — did you have any discussions with Lieutenant Tully before Saturday, within the last two weeks?
MR. WELCHER: Not to my knowledge.
MR. ALESSI: What did you discuss with Lieutenant Tully? Topics. Give me a time frame. I keep saying the last two weeks. That's the time frame I'm looking at — all the conversations I had with him.
MR. WELCHER: Yes. "Can you have somebody pick me up at the hotel?"
MR. ALESSI: I'm talking substantive, sir — about the — your outline, your PowerPoint presentation. Topics — discussions about your — the topics in your PowerPoint presentation.
MR. WELCHER: I had no discussions with him about the topics in my PowerPoint presentation.
MR. ALESSI: Who did you have discussions with from the Commonwealth about the topics in your PowerPoint presentation?
MR. WELCHER: Mr. Brennan, Mr. —
MR. ALESSI: Describe those conversations and how — — many you had, including the first one that you had.
MR. WELCHER: Well, I originally submitted my presentation with my original report — way back, I believe in January, right?
MR. ALESSI: I'm asking for conversations within the last two weeks.
MR. WELCHER: Okay. Question wasn't clear. Then on Sunday, we just went through top to bottom through my presentation. Mr. Brennan wanted to make sure he understood everything in it. And then we met with Mr. Brennan again on Sunday. We ran through it briefly again, and then that was largely it.
MR. ALESSI: Who suggested the changes to your presentation?
MR. WELCHER: Mr. Brennan.
MR. ALESSI: Mr. Brennan suggested the changes that you made.
MR. WELCHER: He indicated some of the things — for example, the slide I deleted referenced testimony that I was not allowed to include on a slide.
MR. ALESSI: Were there any discussions with anybody from the prosecution team about the changes with regard to the — what I will call the Dighton route, the Dighton distance, and the total mileage? Do you know what slide I'm referring to, sir?
MR. WELCHER: I do. Yes.
MR. ALESSI: Who initiated the discussion on the changes to that slide?
MR. WELCHER: So that slide was changed — I don't know — probably eight or 10 days ago.
MR. ALESSI: Oh, it was changed eight or 10 days ago. Correct?
MR. WELCHER: Correct.
MR. ALESSI: Were there any changes made from eight or 10 days ago to what's now in your presentation?
MR. WELCHER: Not beyond what we've talked about.
MR. ALESSI: Oh, okay. So 10 days ago those changes were made?
MR. WELCHER: Eight to 10 days ago. I could actually probably figure out exactly when, if you like.
MR. ALESSI: Now, my next questions go to Mr. Burgess. Mr. Burgess is a colleague of yours at Aperture, correct?
MR. WELCHER: Correct.
MR. ALESSI: Are you aware of issues relating to the accuracy or inaccuracy of his CV?
MR. WELCHER: His — unfortunately, I've been bombarded with emails that have referenced that. I've seen it. I have not read them.
MR. ALESSI: You've been bombarded with them — and you say unfortunately — but you have not read any of them?
MR. WELCHER: None. Maybe one or two lines. For example, they come in — they're looking like legitimate business emails — and then I pull it up as a business email. I'm like, okay, I'm not supposed to do this. Court said I can't look at this.
MR. ALESSI: Now, I want to go back to your slide presentation. I understand that you intend — subject to our objections and the court's ruling — you intend to present testimony with regard to your PowerPoint where you are going to elaborate on your 12:31:38 to 12:31:43 trigger 11622, and you're going to add to what has been in your presentation a verbal discussion with regard to Mr. Burgess's change that he made in his May report with regard to the variance — the time window. Do I have that correct?
MR. WELCHER: No, you don't. It's — it's not based upon a — — verbal discussion. It's based upon his report.
MR. ALESSI: Okay. So you're going to make — what you're intending to do is you want to add the change from Mr. Burgess's May 8th report to what you're going to testify to on your PowerPoint. Do I have that correct?
MR. WELCHER: That is correct.
MR. ALESSI: And the only reason you're going to testify with regard to altering the 12:31:38 to 12:31:43 window is because of what Mr. Burgess has done on May 8th. Is that correct?
MR. WELCHER: It's better data. So I'm altering it and correcting it with better data that I've received from Mr. Burgess.
MR. ALESSI: Right. But my point is — if it weren't for Mr. Burgess's change, you wouldn't be making — — any changes in your testimony. Correct?
MR. WELCHER: Correct.
MR. ALESSI: It's only because of what Mr. Burgess did on May 8th. Is that correct?
MR. WELCHER: Only from his report. Correct.
MR. ALESSI: So, you understand, sir, that that change has significant effects on the very issues in this case — with regard to the timeline and the collision you allege occurred, and comparing it to the volitional conduct of Mr. O'Keefe with regard to his manipulation of the phone. You understand the consequences of that change, do you, sir?
MR. WELCHER: I do. I would disagree with your assertion that it's consequential. Again, my original data, which is in my PowerPoint and has not changed — that data is still there. The timing was extremely close, within the error of the measurements, which Mr. Burgess ultimately showed in his subsequent report — that that was within the variance associated with those timing devices.
MR. ALESSI: I understand. But my point, sir — and I want to understand if I have it correct — is that is going to move the time that you assert the 11622 trigger occurred. Correct?
MR. WELCHER: Correct.
MR. ALESSI: And you would agree that's a substantial change, given the issues in this case when seconds matter? Or do you think it's an insignificant change?
MR. WELCHER: I wouldn't say it's insignificant. Again, I haven't modified my PowerPoint at all. I was happy with the data I had and satisfied — — with the data I had. Again, once presented — as an engineer would — with better data, we use better data. It brings it —
JUDGE CANNONE: I'm sorry — and let him finish.
MR. WELCHER: Yeah. It brings it closer in time to Ian Whiffin's last contact point data. But even if we don't have that, given what I knew about the variance in the cell phones, my time was still within that window anyway.
MR. ALESSI: Sir, you've just answered my question, which is you agree that it affects the timeline in the activity of Mr. Whiffin's report. You said "brings it closer." Did I have your words correctly?
MR. WELCHER: Correct.
MR. ALESSI: What I was concerned about was your word about "significant change." It brings it closer.
MR. WELCHER: It doesn't necessarily bring it significantly closer. My original timeline was very close within the range of the accuracy of those types of cell phones' infotainment system data. So even if I didn't have Mr. Burgess's subsequent report, the data is still within that time window.
MR. ALESSI: Sir, isn't it a fact that with the variance of Mr. Burgess that you're now going to — you want to testify to that there is a change, because your 11622 trigger — 12:31:38 to 12:31:43 — you know that there's a device lock event on the phone of Mr. O'Keefe after that time period. You understand that, correct?
MR. WELCHER: So again, there's a window of plus or minus on that. Technically, those timestamps on that are, as you indicated — again, that's literally — I wrote that on my slide. That includes my slide where I have that exact comment.
MR. ALESSI: But my question, sir, is the change means now that with the Mr. Burgess variance moving, you now have part of the moving range that occurs after the device lock. Whereas before your change, the device lock occurred after every bit of your range of 11622. I have that correct, don't I, sir?
MR. WELCHER: You do.
MR. ALESSI: Okay, your honor. That's all I needed. Thank you.
JUDGE CANNONE: All right. So we're going to bring the jury in. They're outside the door. You may as well stay right there.
MR. WELCHER: Okay.