Matthew DiSogra - Cross (Part 2)

MR. BRENNAN: Miss Gilman, if we could turn to page six of Mr. DiSogra's amended PowerPoint presentation. Sir, I want to ask you about your opinions and inevitably some of the slides that you've presented to this jury regarding adjusting the clock in a time period of 3 seconds. You have given an opinion that there's a difference that you see in the reports between when the defendant's Lexus is powered on and the infotainment system begins. Correct?

MR. BRENNAN: There is a 3-second difference on the exemplar vehicle between when the power is turned on and then the screen lights up —

MR. BRENNAN: The data from the SD card correlates directly to the infotainment system itself.

MR. BRENNAN: Because the SD card is with the other chips, part of the board that makes up the infotainment system.

MR. BRENNAN: That infotainment system powers the screen that goes on after a user presses the button to start the vehicle.

MR. BRENNAN: So the time that the infotainment system is registering is when the infotainment system goes on, not the power on event.

MR. BRENNAN: So that 3 seconds that was tested with the exemplar vehicle between pressing the button to turn the car on and the time the infotainment system turns on — the infotainment system clock does not accommodate that 3 seconds.

MR. BRENNAN: So when we're talking about time on the infotainment system, we're talking about after the 3 seconds when the screen comes on.

MR. BRENNAN: Okay. Now, you've made some slides and you've made some assumptions suggesting that that 3 seconds should be added to your analysis. And I want to ask you about your analysis regarding the 3 seconds. If we could turn to page seven, please. If you could zoom in on the left side. Sir, you told us that you didn't do any testing or data vetting yourself. You simply relied on reading and reviewing Mr. Burgess's report and Mr. Welcher's report.

MR. BRENNAN: And really, the information you're reviewing is Mr. Burgess's report. There's only a few references in Mr. Welcher's report where he cites Mr. Burgess's findings.

MR. BRENNAN: Most of it is from Mr. Burgess's reports. There's really nothing in any of Dr. Welcher's reports that you are considering that is not in Mr. Burgess's report.

MR. BRENNAN: Did you read both of Mr. Burgess's reports?

MR. BRENNAN: You're not aware that Mr. Burgess talks about that time stamp in his reports?

MR. BRENNAN: That is exactly not what he said. Where in the report — where in his report does he say that Dr. Welcher should not have relied on 154? Where does it say that in his report? I have it here. If you can give me the page, we will take a look at it.

MR. BRENNAN: Well, I was careful in your affidavit not to paraphrase you. Right. So, when you just made that assumption or that suggestion characterizing Dr. Welcher's state of mind or thought process, is there anywhere in the report you can cite or show me where Dr. Welcher said that?

MR. BRENNAN: Okay. When you read Mr. Burgess's report and you learned that he and others obtained an exemplar vehicle and did this testing, you have no other independent information to suggest that the power on, power off event and 3-second delay is inaccurate, do you?

MR. BRENNAN: Inaccurate. I'm sorry.

MR. BRENNAN: So, can you state it one more time? I'll rephrase it. When you reviewed Mr. Burgess's report and reviewed the information about his exemplar testing regarding the 3-second difference between turning on the car and the infotainment system going on, you have no other information that you looked at or studied that changes that analysis, do you?

MR. BRENNAN: Now when you are suggesting — could we shrink that and zoom on the right side, please? When you are suggesting that 3 seconds should be added to the time because of that 3-second gap. Do you think maybe you made a mistake in considering it that way?

MR. BRENNAN: The time that you're adding 3 seconds to is the infotainment time. The infotainment clock.

MR. BRENNAN: Yes. The infotainment clock begins when the infotainment system goes on. We just spoke about that.

MR. BRENNAN: Right. Which is 3 seconds after the power on event.

MR. BRENNAN: So you're essentially double dipping. You're adding 3 seconds that has already been separated because it isn't reflected on the infotainment system. Isn't that true?

MR. BRENNAN: You believe that that 3 seconds between the power on and the infotainment system going on should be accommodated extra on top of it.

MR. BRENNAN: You've never seen this before.

MR. BRENNAN: You know, Mr. Burgess actually looked at the data, not just the time stamp. You looked at the data. You understand that, don't you?

MR. BRENNAN: You did not, did you?

MR. BRENNAN: The data for the timestamp on the text stream data.

MR. BRENNAN: Did you look at the data to make that determination that you're claiming right now? Did you actually look at the data?

MR. BRENNAN: Yeah. Did you look at the raw data?

MR. BRENNAN: The raw text data from infotainment. Did you look at it?

MR. BRENNAN: And you said — so they're not. Did you look at the infotainment raw data?

MR. BRENNAN: Okay. And did you find a time stamp on the infotainment raw data?

MR. BRENNAN: Now, when you added 3 seconds, you were trying to — in addition to the infotainment data, you were adding on the 3-second delay that now you're saying might not even be accurate. Is that fair to say?

MR. BRENNAN: So, you disagree that the clock stamp on the infotainment module begins the run. You believe that there's potentially 3 seconds before when the ignition goes on that should be added to that time.

MR. BRENNAN: But on this case, you don't know anything firsthand because you didn't do the testing yourself.

MR. BRENNAN: I'm sorry. I'm sorry. Finish.

MR. BRENNAN: Well, you don't know that they didn't document that.

MR. BRENNAN: Right. So, in this case, you said cars are different. And that's why you're hesitant to accept the fact that there's a 3-second delay. It's a yes or no question.

MR. BRENNAN: And so when you are determining that 3-second variance, you don't have any assurance in your own mind whether or not this car — Ms. Read's Lexus — has a 3-second variance. That's what you're trying to say.

MR. BRENNAN: And the way you would determine that is to actually do testing or look at the data.

MR. BRENNAN: Now let's turn to slide nine. As part of your charts — could you enlarge left, please? — as part of your charts, you took this chart from Mr. Burgess's report and you made some assumptions about this, didn't you?

MR. BRENNAN: When you looked at the first five columns — 1:14:13 a.m., 4:38:16 a.m., 4:42:06 a.m., 4:45:12 a.m., and 5:04:28 a.m. — you said on direct examination — Oh, boy. You said on direct examination that was matching infotainment to iPhone.

MR. BRENNAN: Is that your opinion that those first five columns are matching infotainment to iPhone?

MR. BRENNAN: You're basing your later charts on the predicate that these numbers — the first five columns — are infotainment compared to John's iPhone. Aren't you, based on the chart?

MR. BRENNAN: You didn't do any study on your own to determine the genesis of that information, did you?

MR. BRENNAN: Now, what I asked you specifically is: on those five columns, did you do any research or study to determine whether or not it was infotainment matches to John's iPhone or some other phone matches to John's iPhone? Did you do any independent study about that?

MR. BRENNAN: Because in your ultimate conclusions and all the charts you've given to the jury and shown the jury, it relies on the conclusion that the first five columns are a comparison between infotainment and John O'Keefe's iPhone. Isn't that fair to say?

MR. BRENNAN: Did you know that at 1:14:13 a.m. the defendant's Lexus was turned off?

MR. BRENNAN: Did you know at 4:38:06 a.m. that the defendant's Lexus was turned off?

MR. BRENNAN: And did you know for 4:42:06, 4:45:12, 5:04:28, did you know that her Lexus was turned off?

MR. BRENNAN: Do you know that when you make phone calls — oh, by the way, do you know on those different times, or five times, where that information is generated from? Which column? Left column — 1:14:13 all the way down to 5:04:28. Those five columns. You know where that information came from?

MR. BRENNAN: Do you know where the genesis — the beginning — the source of that information — that matters, right? The source — do you know where it came from?

MR. BRENNAN: Do you know the genesis, the source of those numbers? Definitively?

MR. BRENNAN: Your entire premise — your entire premise — for your slides and values and ranges depends on knowing the genesis of those numbers, doesn't it?

MR. BRENNAN: Did you know that those are all phone calls from the defendant to — [unintelligible]? Yes, you did know that.

MR. BRENNAN: So, do you know where those calls came from? The source — a phone. Who?

MR. BRENNAN: Now, I know you're not an expert on mobile devices, but did you know what it's called? It's contemporaneous synchronization. Plug your phone in — it's going to register on the infotainment system but come from the phone.

MR. BRENNAN: Do you know when someone plugs their phone in after they turn the car back on, how it synchronizes on the system?

MR. BRENNAN: If you don't know, then your conclusions and all your opinions to this jury are based on an assumption that you don't even know the predicate for. Isn't that fair to say?

MR. BRENNAN: But that's not what I asked. If you're making an improper assumption about the predicate — about these calls and the source of them — and you're wrong, that would change your entire analysis and conclusions and charts that we see in your later charts, wouldn't it?

MR. BRENNAN: Did you know that when an iPhone is plugged into a car, it downloads the information from the iPhone onto the infotainment system? Do you know that?

MR. BRENNAN: Well, if you don't know, how can you make conclusions based on a car if you don't even know what it is?

MR. BRENNAN: My apologies. If you have two different devices — a Lexus clock infotainment system and an iPhone — you would agree that it's not unexpected to have variances. Correct?

MR. BRENNAN: When you're comparing two iPhones, do you have an opinion? Do you believe that you would expect the variance to be fairly small, iPhone to iPhone?

MR. BRENNAN: Have you ever studied that before? Two iPhones?

MR. BRENNAN: So, as you sit there today, you don't have any expertise, any education, any knowledge about how closely two iPhones would sync with each other?

MR. BRENNAN: Do you see in the first five columns the numbers are small? 2, 2, 1, 2, 1.

MR. BRENNAN: Would you agree iPhone to iPhone, using the same source of time, is generally going to be within one or two seconds of each other?

MR. BRENNAN: Do you have any opinion about whether iPhones to iPhones will generally be within one or two seconds of each other? You can ask if there's an opinion.

MR. BRENNAN: If the first five calls are iPhone to iPhone rather than infotainment to iPhone, you agree all of your assumptions and conclusions are inaccurate.

MR. BRENNAN: You're speculating now, aren't you?

MR. BRENNAN: You don't know.

MR. BRENNAN: Okay. Don't say "we don't know." You don't. So — this is iPhone to iPhone — your assumption is the first one: 2, 2, 1, 2, 1. If they're iPhone and you're wrong about the fact it's infotainment to iPhone, your assumptions and conclusions are inaccurate, aren't they?

MR. BRENNAN: But that's not the question. I appreciate that. My question is: if those first five calls were iPhone time to iPhone time, and you mistakenly analyzed them as infotainment time to iPhone time, then the rest of your assumptions and charts would be inaccurate, wouldn't they?

MR. BRENNAN: At 5:21:36 — do you know whether or not the defendant's Lexus was on?

MR. BRENNAN: And so if you don't know if that was on or off, were you able to do an analysis whether this was phone to phone or infotainment to phone?

MR. BRENNAN: 5:30:31 — do you know if the defendant's car was on at that one?

MR. BRENNAN: Correct. Correct. And then in the O'Keefe iPhone call timestamps, there are two different numbers. 5:30:15 and 2.

MR. BRENNAN: And do you appreciate that that is two separate calls, or do you think it's something different?

MR. BRENNAN: I'm asking if you know.

MR. BRENNAN: Did you ever look at phone records for the defendant or for Mr. O'Keefe to make a determination whether these are two separate calls or not? Did you ever do that?

MR. BRENNAN: If these are two separate calls, can you explain to us why there is one timestamp?

MR. BRENNAN: This information was not taken from the table out here, was it — this table?

MR. BRENNAN: This information was taken from the infotainment system of the defendant's car. Isn't that true?

MR. BRENNAN: And the phone calls were taken from Mr. O'Keefe's iPhone. Isn't that true?

MR. BRENNAN: And so do you know why there would be two phone calls and only one timestamp, beyond the exemplar testing that showed an exemplar vehicle did that?

MR. BRENNAN: Do you know that the infotainment system doesn't always capture all of the phone calls and the phone data in the download? Did you know that?

MR. BRENNAN: Well, if you know that, can you conclude that even though there's two calls and — only one time stamp, that's because of how the infotainment system works?

MR. BRENNAN: So when you look at 5:30:15 in the middle and 5:30:52, it is impossible to tell which one relates to the 5:30:31 on the left. Compare. It's impossible, right?

MR. BRENNAN: So there are two possibilities.

MR. BRENNAN: One is that you have a difference, a disparity of 16 seconds.

MR. BRENNAN: And the other one going the opposite way is a disparity of 21 seconds.

MR. BRENNAN: And so when you add those disparities, you have 27 seconds disparity in those. Is there a 27-second disparity when you compare the two?

MR. BRENNAN: 5:30:31 is 16 seconds different than 5:30:15 on each phone.

MR. BRENNAN: 5:30:31 is 21 seconds different than the 5:30 phone call.

MR. BRENNAN: And the difference is cut each way.

MR. BRENNAN: Add those — 27 seconds. Objection.

MR. BRENNAN: No. Okay. What do you get? You're saying — maybe so I can be clear what you're asking. If we have a -6 and we have a positive 21, how many seconds are in between there?

MR. BRENNAN: And so you can see — did you know that the car was turned off at 5:07 a.m.? Does that ring a bell?

MR. BRENNAN: So you can see between 5:21 and 5:30 the offset is different between them, which shows that variances change, they move.

MR. BRENNAN: But when I said it seems reasonable, do you have the experience and the knowledge to agree with me that variances move?

MR. BRENNAN: Okay. If those first five calls were iPhone to iPhone rather than infotainment to iPhone, would you agree they should not have been considered in your analysis?

MR. BRENNAN: But under that assumption, then yes, you would agree.

MR. BRENNAN: If we turn to 10, please. Could you zoom in a little, please, on the left? Given that these data points come at 5 in the morning — or 1:44, 4:55, and 5:30 — did you consider whether they would be less reliable than comparing to the triggering event, the three-point turn at 12:23 the night before? Did you consider that?

MR. BRENNAN: When you said you reviewed in your critiquing reports, did you read Mr. Burgess's report on May 8, 2025?

MR. BRENNAN: Did you read in his report where he explains that this is a less reliable method — well, it's a less reliable method because of the time distance between the actual event? We're interested in entry 1162 with 12:31:43 to :48. Then the three-point turn.

MR. BRENNAN: Okay, when he explains that the method of using 5:21 and 5:30 on January 29, 2022 — he explains about how the information is stored in the infotainment system when it's powered back on, doesn't he?

MR. BRENNAN: Well, do you remember when you were reviewing his report that he explains the available call log correlation is restricted to a time frame between 5:21 and 5:30 a.m. on January 29th, 2022, when the vehicle was powered on? All other calls stored in the infotainment module occurred while the vehicle was powered off, indicating those entries were synced from Miss Read's iPhone upon reconnecting to the system on the morning of January 29th. You considered that when you decided — or formulated your critique, didn't you?

MR. BRENNAN: This further indicated that the associated timestamps for those calls originated from Miss Read's iPhone. Did you read that?

MR. BRENNAN: Relative to those first five columns.

MR. BRENNAN: This behavior was previously documented in the initial report, which is the January 30th report.

MR. BRENNAN: Yes, you shrugged. I mean, I don't want you just to agree with me. Do you remember it was in the January 30th report?

MR. BRENNAN: Okay. Do you agree generally, or can I give you the report? You can look and remind yourself. I want to get your best memory on this.

MR. BRENNAN: Sure. Do you have a copy? Would you like me to bring it? Do you have the reports with you, sir?

MR. BRENNAN: Mine is marked. Let me see if I can get a clean copy for the witness. I don't have a clean copy. I don't want to show you something that has my writing on it. Not that I care that you read it, but that's the protocol. Okay, in discussing why this is not an effective way of matching the time — did you consider in his May 8, 2025 report when he's talking about this method, when he says as a result this method yields a single reference point for potential alignment?

MR. BRENNAN: From the 5:21 a.m. to the 5:30 a.m. window, a clock offset of approximately -6 plus 21 seconds was observed between the Lexus clock and Mr. O'Keefe's iPhone clock. Would you consider that?

MR. BRENNAN: This offset is measured approximately 5 hours after the time of the collision and cannot be assumed to apply to other time frames stated in the initial report.

MR. BRENNAN: Sir, going back to my question. So you read Mr. Burgess's report, the same report that you're critiquing, and you were aware of this information, weren't you?

MR. BRENNAN: And so you were aware that Mr. Burgess in his May 8th report was identifying that the section in green was the only contemporaneous information for analysis. Did you know that?

MR. BRENNAN: I can read it again. I just read it to you if you don't mind. Objection.

MR. BRENNAN: I'm sorry, your honor. Let's give him a copy. Does he have the clean copy?

MR. BRENNAN: If you can turn to page three, what I read to you was where it says clock sync method one. Do you see that?

MR. BRENNAN: And this is, if you look at the second paragraph, I read that to you word for word. Do you see that?

MR. BRENNAN: The 5:21 a.m. and 5:30 a.m. are the only two data points when that car was on on January 29th, 2022. Is that fair to say?

MR. BRENNAN: Okay. And if you look at the last paragraph, do you agree or disagree — as a result this method yields a single reference point for potential alignment? Do you agree with that?

MR. BRENNAN: But that's not my question. My question is — you are taking the position those first five calls are an infotainment to iPhone analysis.

MR. BRENNAN: So you're now saying that you're not assuming that's an infotainment to iPhone analysis. Are you now saying that —

MR. BRENNAN: And if it was iPhone to iPhone, your analysis would be wrong.

MR. BRENNAN: So if we put up chart 12, page 12 please. If you were wrong about the infotainment to iPhone analysis and those first five should not be considered, which part of your chart would now be wrong? What do we have — 12 lines on the chart?

MR. BRENNAN: If we decided to eliminate the lines that are based on the calls when the vehicle was off, we would be left with four lines on the chart. And if we turn to 14, please. And if you could enlarge — I don't think you can enlarge it. If your analysis about infotainment to iPhone was wrong, you would agree those first 1, 2, 3, 4, 5 — six columns should not be there, should they?

MR. BRENNAN: Correct. And you would agree that that distance is not as accurate as keying it from the three-point turn event 1162:1. The three-point turn is closer in time than the call at 5:30 and thus more reliable, wouldn't you say?

MR. BRENNAN: And the -21 that was from 5:30 and some seconds the next morning. Same idea. Not as reliable as the three-point turn information.

MR. BRENNAN: So when we turn to the three-point turn information, you mentioned in Dr. Welcher's report that it was noted that the timestamp 154 was the end of the three-point turn event.

MR. BRENNAN: And then more information was provided when Mr. Burgess then broke down that 154 timestamp.

MR. BRENNAN: And when he broke down the 154 timestamp, he actually wrote a report about it, didn't he?

MR. BRENNAN: He didn't just have it in his head. He put it on paper for all to see.

MR. BRENNAN: And in that report, not only does he break down the data, he also shows a visual of the actual data on a map, doesn't he?

MR. BRENNAN: Okay. I have exhibit 192 A. Okay, let's start with 192 B. Please, if you could open that up so we could see it a little better. When you look at the data he actually broke down, do you agree that instead of at the end of the three-point turn event as timestamp 154, that actually is at the beginning of the three-point turn? Do you agree with that?

MR. BRENNAN: Do you see the green circle?

MR. BRENNAN: Do you see the black line?

MR. BRENNAN: Does that orient you to the direction the car was traveling?

MR. BRENNAN: And then the yellow is facing a different direction towards Fairview.

MR. BRENNAN: And do you see the green square rectangle?

MR. BRENNAN: You think that correlates to the green circle?

MR. BRENNAN: Okay. And it notes that — ask it differently, Mr. B. Does that heading note the start of the three-point turn of O'Keefe's phone is 12:23:59?

MR. BRENNAN: And do you have any information to suggest that's not spot-on accurate?

MR. BRENNAN: And then the heading of the change, end of three-point turn to O'Keefe's home, 12:24:07. You have any information to suggest that's not spot-on accurate?

MR. BRENNAN: And so when you look at that and break down 154, did you determine or make an analysis that 154 — that was generally accepted because there are variances between items when you break it down with more specificity — 154 is actually earlier than the three-point turn conclusion. Did you consider that?

MR. BRENNAN: Good question if you don't mind. You mentioned Dr. Welcher's report said it relied on 154 as a timestamp for the end of the three-point turn.

MR. BRENNAN: Based on Mr. Burgess's May report and based on the data which you don't contest, you now agree that 154 was not the end of that three-point turn. It was at the beginning.

MR. BRENNAN: Are you suggesting in any way it's inaccurate? Again, are you suggesting it is in any way inaccurate?

MR. BRENNAN: Do you have any information you'd like to add or weigh in on to dispute the accuracy of those times?

MR. BRENNAN: And let's turn to the previous exhibit so we can actually see the data that's broken down. You could open that the 154 timestamp. If you go to the left, please. Do you see that right above the green line?

MR. BRENNAN: 12:23:58. You see that?

MR. BRENNAN: And then the green goes to the orange. And that's an 8-second difference, isn't it?

MR. BRENNAN: And when you looked at this, you considered that this was a more detailed study of that timestamp by Mr. Burgess, right?

MR. BRENNAN: And do you know why he did a more detailed analysis of this? Why it wasn't in the original PowerPoint?

MR. BRENNAN: Well, you said that variances are generally accepted in the community, right?

MR. BRENNAN: But then you wrote a report suggesting numbers and additions and you submitted that report as part of the basis of your testimony, right?

MR. BRENNAN: And after you submitted the PowerPoint, isn't it fair to say Mr. Burgess then analyzed this data to be more specific after you introduced your PowerPoint.

MR. BRENNAN: So can you guess why he went through a more detailed analysis?

MR. BRENNAN: In the final exhibit. Let's go back to the data. You said that Mr. Burgess had an 8-second range, 21 to 29 seconds. Remember?

MR. BRENNAN: And you were suggesting that somehow there was some uncertainty. Do you remember that?

MR. BRENNAN: Okay. Were you guessing about his state of mind, whether he was certain or not? Do you know why he gave an 8-second range?

MR. BRENNAN: You suggested the reason why there's an 8-second range is that Mr. Burgess is uncertain. Remember saying that to this jury?

MR. BRENNAN: That data from the green — would you agree — indicates the beginning of the three-point turn and then the orange is at the end when the car is already in motion at 11.2 miles per hour?

MR. BRENNAN: Do you agree with that?

MR. BRENNAN: You could have analyzed this data yourself, right, before you came in and gave an opinion?

MR. BRENNAN: But you didn't.

MR. BRENNAN: You have any reason to test accuracy of this data that's been broken?

MR. BRENNAN: And so by giving the range of 8 seconds, we talked about looking at different values to be fair, wider range, right? Even though this analysis depends on the end of the three-point turn, would you agree it's kind of forgiving to give that 8-second range to give the benefit of the doubt by starting at the beginning of the three-point turn all the way to the end of it rather than just giving the end point.

MR. BRENNAN: Does the 8-second range that is provided by Mr. Burgess coincide with the data and the 8-second range between the green and the orange? That's where he comes up with the 8-second range.

MR. BRENNAN: And so if Aperture's position is the matching times at the end of the event, going back to the beginning, isn't that even more forgiving than being a scientist?

MR. BRENNAN: The opposite of cherry-picking, right?

MR. BRENNAN: Do you have an opinion to a reasonable degree of forensic data certainty about whether the text stream data provides data reflecting whether a collision actually occurred?

MR. BRENNAN: And your opinion to a reasonable degree of forensic certainty is the text stream data would not reflect a collision.

MR. BRENNAN: It's possible.

MR. BRENNAN: Did you know that the defendant's vehicle at 5:07 a.m. on January 29, 2022 bumped into a different car?

MR. BRENNAN: Do you see that reflected on the text data?

MR. BRENNAN: Well, you don't remember seeing it? It's not there, is it?

MR. BRENNAN: You're not —

MR. BRENNAN: You're not testifying or offering an opinion that there was no collision with this car that night, are you?

MR. BRENNAN: Because if you were implying that or suggesting that or insinuating that, that would be misleading, wouldn't it?

MR. BRENNAN: I have no further questions.