This isn’t my work, but it’s a very good read.
This is long but really interesting and from
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"While the witness testimony over the last two days was relatively uneventful (largely just a repeat of expert testimony provided in the first trial), the arguments between counsel outside of the jury’s presence have been fascinating to watch and highly significant.
At issue was the most significant datapoint yet to be presented at the trial, specifically the precise timing of the so-called “trigger event” in which Karen Read’s SUV accelerated rapidly in reverse and – according to the prosecution – collided with John O’Keefe. As I noted in a previous post, the analysis of John’s phone paints a pretty clear picture of when he arrived at 34 Fairview, when he got out of the SUV, and when he and his phone stopped moving. These time points are known down to the second. What has yet to be presented is the prosecution’s evidence (derived from the Lexus’s onboard computer system) as to when the collision occurred.
At the end of the session on Thursday, the defense (via Robert Alessi) asserted that the prosecution had “changed” its story at the last second via a supplemental expert report. He stated that the prosecution was now claiming that the collision occurred at 12:32:16 (the exact same time that John’s phone recorded its last movement) as opposed to 12:31:43, which he claimed had been the time stated in prior reports. He asserted that this late-breaking change amounted to a Rule 14 discovery violation and that it badly prejudiced the defense’s case because they had already spent a lot of time on cross-examination of key witnesses (in particular Ian Whiffin) developing testimony that John had been alive and operating his phone after the supposed time of the collision. He claimed that the only way to remedy this violation was to exclude expert testimony about the magnitude of this “time variance” and the explanation of that variance provided in the recently amended report.
Unsurprisingly, the folks in FKR world took all of these claims at face value and are now completely bent out of shape about the supposedly dirty tactics of the prosecution and their attempt at “trial by ambush.”
With the caveat that all we know about this dispute is what Alessi and Brennan said in court (the expert reports are not public information), there is every reason to believe that the defense’s claims are deeply misleading.
First, as Brennan noted in court, it’s clear that the prosecution has always asserted that there was a time variance between the timestamps taken from the Lexus data and the timestamps from John’s phone. Brennan made exactly this point in his opening statement, in which he said the following.
"We also have the information from the defendant's Lexus black box. The clocks run differently, there's a 30 second variance, but it's right in the heart of that time. And you will see through the data, at that time, when he makes the last movements with the phone, is when her car leaves, 34 ft at least, stops, neutral, and then shoots into reverse..."
So the notion that the prosecution somehow sandbagged the defense into believing that the prosecution’s theory was that the collision happened at 12:31:43 is absolutely ludicrous. As Brennan noted in court today, the prosecution has always been clear (via its expert reports) that it believed the two clocks were off from one another, that there was a variance of roughly 30 seconds. What appears to have happened here is that – per Brennan – the defense offered an expert report arguing that there is no time variance and, in the process of analyzing and rebutting that report, the prosecution’s expert was able to put a more precise value on the magnitude of the variance (apparently between 21-25 seconds, as opposed to 30 seconds).
I absolutely think that Judge Cannone made the right call by ruling against the defense on this. The notion that the prosecution is “changing its theory” is absurd. There’s no question that its theory is (and has always been) that John and his phone stopped moving because John was hit by the SUV. So the variance between the clocks was obviously always going to be a point of dispute and an issue explored by the parties in their respective experts’ testimony. It would be absurd to bar the prosecution’s expert from explaining why he thinks there is a variance and what he estimates that variance to be. Both sides have had access to all the same raw data for quite a while and the point of calling these experts to help analyze its meaning. Hamstringing just the prosecution expert’s analysis would not be reasonable under the circumstances.
But the buried lede here is that the defense no longer seems to have any real answer to the Lexus data. In the first trial, in part due to the bungled presentation and analysis of this data by the prosecution, the defense was effectively able to argue that the rapid reversal trigger event could have happened at a completely different time and place, that the prosecution hadn’t established that they were even focused on the right “key cycle.”
Implicit in the legal argument we witnessed today, however, is the fact that this argument seems to have been put to bed. Both sides have now referred several times to timestamps from the Lexus’ “infotainment system.” So it seems pretty clear that the prosecution can now establish that the trigger event occurred in the early morning hours of January 29, 2022, within 30 seconds of the time when John’s phone recorded its last movement.
So even if the prosecution can’t conclusively establish the existence or magnitude of a time variance between the Lexus’ clock and the clock in John’s iPhone, the defense is forced to assert that the close proximity of these two events is purely coincidence, that John was somehow attacked by others (or at least had his iPhone taken from him) within 30 seconds of Karen throwing her SUV into a rapid reversal. That’s a really tough story to sell to a jury, particularly when you take into account all of the other evidence.
To tell a remotely coherent story, the defense will need to argue that John got out of the Lexus sometime just before the non-adjusted trigger event time of 12:31:43 (which, by the way, is not at all consistent with his Apple Health data, which shows its first post-arrival movement at 12:31:56). He would then have to have walked straight into the house or garage and immediately been set upon by his attackers and/or had his phone taken from him. Either way, the phone needs to have spent the rest of the night in a “pocket state” (camera covered), in a cold environment, and not moving. To reconcile the GPS data, the phone would also need to have (shortly thereafter) made its way back to the flagpole area without recording any movement and somehow have been shielded from the elements until John’s body was later dragged outside and placed on top of it.
Needless to say, these are not the ingredients of a story that makes even the tiniest bit of sense.
Given the way the prosecution face-planted in the last trial in its presentation of the techstream evidence and crash reconstruction expert testimony, I don’t want to get too far ahead of the trial and assume the prosecution’s presentation of this evidence will be as compelling as it seems like it should be. But I am beginning to wonder why the defense felt this was a winnable case. I expect that whatever ARCCA presents will sound at least superficially plausible, but in order for that type of testimony to convince jurors, the defense needs to at least offer some kind of plausible alternative theory. And I’m just not sure at this point that it’s possible to even construct such a theory."