Daniel Wolfe - Re-redirect/Re-recross

MR. JACKSON: If I may, your honor — you were asked by Mr. Brennan to give one name — one name, very dramatically — of someone.

MR. JACKSON: You were asked to give one name to support using a 50th percentile Hybrid III in testing forces on a 216-lb man. Do you remember that question?

MR. JACKSON: How about the name Judson Welcher? How about that name?

MR. JACKSON: Did Judson Welcher use a 50th percentile hybrid in his drop test?

MR. JACKSON: What did Judson Welcher use in his drop test?

MR. JACKSON: You were also asked whether or not using that Hybrid III arm with the same speed would have an effect on the force equation on the force calculation.

MR. JACKSON: And you agreed it might have a small effect on the force calculation.

MR. JACKSON: This is just foundational, your honor.

MR. JACKSON: How did you answer that question?

MR. JACKSON: Sure. Let me ask it this way. In the 29 mph test with the Hybrid III arm, were you going faster than 24 mph?

MR. JACKSON: And what was the calculation again on the increased force that would be exerted on the tail light — on the arm, the tail light?

MR. JACKSON: Got you. So —

MR. JACKSON: How much — what was the percentage that you calculated the increase?

MR. JACKSON: And did you find damage even with the increase of 14%? Did you find damage on that exemplar tail light consistent with the extensive damage on the subject SUV?

MR. JACKSON: Can we have 2011 put up one more time? Mr. Brennan just asked you if you made note of these little red pieces.

MR. JACKSON: Do you have any idea the size of those pieces, as you sit here?

MR. JACKSON: So, as you sit here, do you have any idea what the size of those pieces are?

MR. JACKSON: No idea if they're a foot long —

MR. JACKSON: You were asked when shown this picture if you accounted for this in terms of damage to the garment, the sweatshirt, right?

MR. JACKSON: What if I told you those were —

MR. JACKSON: Mr. Woll, do you have the picture of the tin? The tin, the little round tin. Do you see that tin?

MR. JACKSON: Are you aware that all those pieces are inside that tin?

MR. JACKSON: Did you ever see this tin in your analysis?

MR. JACKSON: In your experience, are very large pieces or very small pieces put in little tins about 2 inches wide? You asked a bunch of questions about the arm being pushed by the tail light.

MR. JACKSON: You indicated — what did you say in terms of the contact by a vehicle pushing it?

MR. JACKSON: In your testing, how long did it take the Hybrid III arm to get up to speed of the vehicle in the 24 mph test?

MR. JACKSON: Very — I'm sorry. Say that again.

MR. JACKSON: 10 milliseconds.

MR. JACKSON: Correct. So when you say the arm is being pushed, it's being hit.

MR. JACKSON: In every one of your tests, every single one of your tests, did any tail light fragment tear a hole in the sleeve of the shirt that you were testing?

MR. JACKSON: Was there ever a defect in that garment in any of that testing, other than the road rash that we saw in the 29 mph direct impact — that the only test that showed the holes and the abrasions was that full-on hit where the body was sliding on the ground?

MR. JACKSON: And in that test, what happened to the back of the test Lexus?

MR. JACKSON: No further questions on redirect.

MR. JACKSON: Objection.

MR. JACKSON: Objection. May we approach?

MR. JACKSON: We need to approach. I need to approach.

MR. JACKSON: Thank you, your honor. An issue has arisen related to the re-cross-examination of the last witness and Mr. Alessi would like to address a detail about that.

MR. ALESSI: This is a separate issue. I'm asking Mr. Lally to address.

MR. ALESSI: Bear with me a moment, your honor. I need to put on evidence gloves. Your honor. The defense moves for a mistrial with prejudice based upon intentional misconduct that just occurred before the court and for the jury. And what I'd like to do, your honor — this regards the hoodie and this regards questioning and representations in questioning by Mr. Brennan. And what I'd like to — and need to do, your honor, is to have two documents marked as exhibits. And then I am going to use Exhibit 88, which is in evidence — which is the hoodie — which is why I'm putting on the evidence gloves, and it will become quite obvious very shortly what the issues are.

MR. ALESSI: What I would like to have marked — what I would like to have marked — the first document — I want to get the specific title. These two documents are from the criminalist's file, specifically Miss Maureen Hartnett's notes regarding cuttings from the hoodie sweatshirt that's in the crime lab file folder.

MR. ALESSI: So, the first is the back of the hoodie. So, with your honor's permission, I would have that marked for identification.

MR. ALESSI: Okay, that is the back of the hoodie, your honor. If I could please have the next marked in order.

MR. ALESSI: Yes, your honor.

MR. ALESSI: There were no holes in the back of the sweatshirt. That's only part of it, but that is in fact the case, your honor.

MR. ALESSI: Your honor, may I have the exhibit marked for identification back for my argument?

MR. ALESSI: Thank you, Madam court reporter. Your honor, what we just saw is attorney Brennan question Dr. Wolfe with regard to the hoodie sweatshirt that heretofore has been in the plastic casing for trial. And this is — what happened was attorney Brennan held up the casing with the hoodie sweatshirt, went to the back of the hoodie sweatshirt. First point to note: Mr. Brennan did not show Mr. Jackson the back of the hoodie sweatshirt. Didn't give Mr. Jackson an opportunity to look at it.

MR. ALESSI: That is not the case. The first time I realized that that last question was going to be asked was when Mr. Brennan asked it.

MR. ALESSI: Thank you, your honor. So to do it in order, Mr. Brennan takes the hoodie sweatshirt in the casing without notice, shows it to Dr. Wolfe, and shows the back of the hoodie, which has certain holes — and I'm going to limit calling them holes to do this chronologically. I'm going to refer to exactly what they are in moments.

MR. ALESSI: Absolutely. So, here is the back. Of the hoodie.

MR. ALESSI: It's very obvious that these are cutting holes cut by the criminalist. And I'm going to get back to this in a moment, but I would like to do it and certainly entertain any of your honor's questions, but in a logical order.

MR. ALESSI: I think this will take about 10 to 15 minutes, your honor.

MR. ALESSI: Thank you, your honor. So I just want to get the flow back going here and the logic. And I'll do it quickly. So, Mr. Brennan grabs the hoodie sweatshirt inside the casing, doesn't show it to Attorney Jackson, goes up — we had no idea that this was going to happen — goes up, confronts the witness, Dr. Wolfe, shows the back of the hoodie sweatshirt. To my knowledge, the first time the back has been referenced of the hoodie sweatshirt. Shows Dr. Wolfe, confronts him and basically says, "Couldn't these holes be caused — and I'm paraphrasing — from a fall backwards?" Obviously positing in the jurors' minds — after, remember, we just saw all kinds of videos with regard to Rescue Randy and impact at 24, 29 miles an hour — more aptly, 29 miles an hour — and damage to the hoodie, et cetera.

MR. ALESSI: So what then happens is Dr. Wolfe is asked a series of questions very much with the indication that somehow — the clear implication — that these holes are being caused by road rash and that the holes in the back of the hoodie sweatshirt, exhibit 88, could have been or likely were caused with regard to some type of impact. Clearly presented to the jurors with that in mind in that questioning. Here is the basis for the mistrial with prejudice. Those holes in the back of the hoodie sweatshirt are clearly, unequivocally, without doubt, caused — nothing to do with any type of event on or about January 29th, 2022.

MR. ALESSI: Yes, your honor. What we have are two documents to show that.

MR. ALESSI: Let me get the date, your honor.

MR. ALESSI: Notice of discovery, May 2023.

MR. ALESSI: In to confirm.

MR. ALESSI: ZZZ is not in evidence, and that is part of the basis for the mistrial. It is no coincidence that these two documents are not in evidence, because if they were in evidence, they would clearly have prevented the stunt that we just saw occur with regard to Dr. Wolfe. So that is part of the intentional misconduct, your honor. These are documents from the criminalist's file — it's the Commonwealth's documents — and it is very clear when you go to exhibit ZZZ, the cuts that the criminalist made to the back of the hoodie are specified.

MR. ALESSI: It's item number seven. I'll read it from the top. LMS22-2184, analyst MSH, which is the initials for Miss Hartnett. Dates: May 11, 2022, May 12, 2023, and then May 18, 2023. And what she does is she's got the —

MR. ALESSI: I certainly can, your honor. And I can conduct my argument from right here if that helps.

MR. ALESSI: This is the back. So you can see the back of the hoodie. That's the back of the hoodie here. And then you can see the various —

MR. ALESSI: Your honor, are you comfortable using the computer or the back? Because I think we just had the wrong one. We need to mark it though.

MR. ALESSI: Thank you, your honor. So your honor, what is being printed — which we will mark — will be the front of the hoodie. The purpose of exhibit ZZZ and the one that is being printed is to show, and to give the court — and we're going to request to give to the jury — the complete picture and the complete true story about these holes in the hoodie that were presented as if they were caused in some manner by something else other than these.

MR. ALESSI: I appreciate that, your honor. And here is the reason for the motion for a mistrial with prejudice on its own. And you put together all of the parts of what just occurred. You start with the fact that the — you start with the fact — and if I could, your honor, now that I have it, get it marked so I can then refer to it.

MR. ALESSI: Absolutely. Can you — and for the Commonwealth to see — I'm going to show the Commonwealth what I just printed. documents being distributed Well, Mr. Brennan is doing that your honor, we may hand to Madam Court Reporter the chain of custody document for these and ask that it be marked as the next exhibit in order.

MR. ALESSI: I do not need either of them, your honor. And I have the extra copies as well.

MR. ALESSI: Okay. So, your honor, I now have enough copies for your honor and for Oh, thank you. Okay. So, if I could have one set, that would be great. Yeah, thank you.

MR. ALESSI: So, your honor, to do this quickly chronologically. So, we have a hoodie sweatshirt that was brought into the criminalist, Miss Hartnett, with the back of the hoodie with no holes on it. The criminalist makes cuts to the back of the hoodie, makes cuts to the front of the hoodie. The exhibit your honor has depicts those. There's a chain of custody document that describes the chain of custody for the hoodie and the cuts in the chronology. And of course, we have exhibit 88, which is the hoodie. So, what Mr. Brennan did — and I'm now pulling exhibit 88 — he holds up the back of the hoodie, which has cuts in the back from the criminalist, somebody from the Commonwealth, a witness in this case, Miss Hartnett. She's testified, and Mr.

MR. ALESSI: Brennan has indicated he wants her to come back and testify, which we welcome. And now what we have is we have holes in the back of the sweatshirt that were dramatically held up to and confronted with Dr. Wolfe. And then the jury sees it with the clear, unmistakable, purposeful intention of having the jury conclude that these holes could have come from events on January 29th of 2022,

MR. ALESSI: when in fact the Commonwealth well knows, from its own document, from its own criminalist, that those holes in the back were caused by their criminalist as part of their examination and sampling of the hoodie. What could be more egregious? What could be more misleading than that? And what could be more important for context than the alleged collision that never occurred? That's the topic before some of the most significant and probative witnesses in this trial that the Commonwealth has been attacking from the jump of pre-trial. They picked the most opportune, sensitive time to pull this stuff. This is intentional. This is irremediable. This is on the key issue of this case — whether there was any collision at all. On its own, your honor, on its own, this is a mistrial with prejudice.

MR. ALESSI: But I add to that what just happened, and I'm not going to repeat or go into it other than to reference: this comes on just mere days after the Commonwealth raised the specter of absence of DNA on the same hoodie sweatshirt without having the criminalist — excuse me — the Miss from UC Davis come in. I know your honor already ruled on that, right? So let's move along from there. And I'm going to come back to this. Why is this occurring, your honor? Why is this happening? The Commonwealth has no case. They have no collision. They are desperate and are trying to create evidence of specters of collision where the evidence doesn't support it. So where are — what have we come to? We've come to the manufacture of evidence.

MR. ALESSI: We've come to, incredibly, taking a hoodie — a key piece of evidence in this case — and holding it up to Dr. Wolfe, the ARCCA expert, to try to make it seem like Dr. Wolfe didn't do his job. "You didn't account for these holes. How could you be a credible accident reconstructionist when you talk about some holes, but you don't talk about these holes?" — knowing all along the holes that Mr. Brennan is trying to impeach Dr. Wolfe were caused by the Commonwealth's own criminalist as part of sampling. I don't believe one could come up with more misleading, misdirecting elucidation of testimony than this on the key issue in the case. We have irrefutable, objective evidence.

MR. ALESSI: And I will state that it's more than interesting that none of these exhibits that your honor now has marked for identification were put in evidence by the Commonwealth. Isn't it some coincidence that these are the one and only one — with regard to the hoodie, the back of it not in, although the rest of them are — but these aren't. Your honor, I think there is one and only one conclusion: that this is intentional, that it is a matter of such significance and of such misconduct — intentional — that it merits the sanction of a mistrial with prejudice. The amount of effort, the amount of work — I can't even begin to think to remedy this in front of the jury, to go backwards on this. That should not befall the defense. That should befall the prosecution. Ms.

MR. ALESSI: Read again is entitled, like every other defendant in this wonderful Commonwealth, to a fair trial. The prosecution is supposed to be held to a higher standard, to do justice, to create a fair trial. This is the antithesis of a fair trial. Ms. Read's rights under the Constitution and the Declaration of Rights have once again been trampled on. And it is becoming evidently clear — the more desperate the prosecution gets because it can't prove its theory, including its own medical examiner can't support them — that they're now resorting to conduct like this. Your honor, at some point, at some point this has to come to an end. At some point, Ms. Read's rights have to be protected.

MR. ALESSI: At some point, confidence in the judicial system — the public's confidence in the judicial system — that prosecutors will conduct themselves with their duty to present a fair trial — that has to be enforced at some point for Ms. Read to receive the fair trial that she and every other defendant in this Commonwealth is entitled to.

MR. ALESSI: Your honor — May 18th, when the defense filed a motion to test. So those — those are — that's the probative date. So May 18th.

MR. ALESSI: Yep.

MR. ALESSI: Your honor, I'm not going to go any more into the argument, but I appreciate the opportunity to provide perhaps some further instructions for your honor.

MR. ALESSI: So — so the first, your honor, is with regard to two things. One, I would like the opportunity to have the hoodie sweatshirt held up, because that's — these things. So, that's number one, as part of the stipulation.

MR. ALESSI: I misspoke, your honor. Uh, I agree — not a stipulation, but just as your honor said with regard to the matter. Your honor said they're not to take an inference. I would respectfully request that this be handled just like your honor did with regard to the rock at 34 Fairview Road — your honor said that that rock wasn't present, you know, about the time — so I do say that when I say Miss Hartnett did this, so rewording it just a little.

MR. ALESSI: So — all

MR. ALESSI: Mr. —

MR. ALESSI: Is it possible for your last comment — instead of not drawing an inference — but you should conclude that these holes were not present in the hoodie?

MR. ALESSI: And I would hold it as your honor begins to read. Is that consistent with your honor's —

MR. ALESSI: Would you like me to start?

MR. ALESSI: Thank you, your honor.

MR. ALESSI: Pardon? Me?

MR. ALESSI: I would suggest, your honor,