Transcription
We are on day 18. It's May 19th. We're always just off by one this trial, but it is day 18. May 19th, it's Monday.
Remember, this week is a little bit of a different week because the court has some time off. So, Thursday, Friday, the court will have a half day Thursday. Friday is off, and then Monday is off of court. So, there's a 4-day weekend there, but we should have full days Monday, Tuesday, Wednesday, as we're getting, it seems, to the close of the Commonwealth's case.
What is left in the Commonwealth's case is the big question because I don't think they're going to call anyone else that was at the waterfall or at 34 Fair View at this point because it would be really out of sync with where they're at in the evidence. Does that mean they're not going to? No, it doesn't. But could they? Sure. It would just be weird.
I don't know cuz I watched the first trial and all the motions between that trial and this trial. If this trial is resonating differently with the clips from Karen Reed, I think that's a big change and with how paired down the evidence is, we can't even really call it the butt dial trial because the extent of the butt dials hasn't come in before this jury. A few, yes, but the extent of it, no. There's a lot they don't know yet. So, will they? I don't know. Can the Commonwealth choose to do that? Yes, they can. The Commonwealth can choose to not call witnesses all day long. The defense can choose to call them, but the Commonwealth can choose to not call witnesses all day long.
I don't know what we're going to do this week, but I imagine there's more scientific evidence ahead of us because I know from the last trial that we are not done. Next witness, almost next witness, is Shannon Burgess. Burgess. Where have we heard the name Burgess before? Well, in all of those motions about Aperture.
Um, so I did again. I reviewed a vehicle forensics report by AG Speak. Um, I reviewed documentation that was identified to me as evidence review. Um, a test prior testimony of trooper Gino and I reviewed some surveillance videos as well as a report by Mr. Whiffen. So the Commonwealth called their first Aperture expert today. Who saw that coming? Not me.
Witness number 35 is the tech aperture expert Burgess. This is the expert that we have heard some arguing over from Allesie and Brennan over the last few days, last week of court, because this expert is the one who correlated the times between the Lexus clock and John O'Keefe's phone. Here's what went down during direct examination. I found it easier to follow than the last time evidence was presented. But we went through the chip on, the chip off, the fact that apparently the Commonwealth's last expert completely missed that there was a micro SD card on the board and didn't take it off and evaluate it. Last trial, we had to go through all the different keystroke logs to try to figure out what the [ __ ] and it was so confusing. This trial, they have the Lexus clock data, so they can correlate the Lexus clock data and the text stream data.
What do I mean by that? In the vehicle, when the infotainment system goes on, the expert testified that it takes about 3 seconds from the power button to go on to the infotainment system to register that the car is on and show the time. So there's about 3 seconds from button push to like Lexus logo going on on the screen and the clock saying the car has turned on. Those turn on turn off times of the vehicle have been correlated to a bunch of different things in this trial including Karen Reed leaving One Meadows, returning to One Meadows, returning to her parents' home in Dayton, etc. So they take the Lexus clock and when the car turns on and when the car turns off and look at that within those windows of the car going on and off; there is a text stream data stream, and the text stream data stream just starts on a count up from the time the car turns on. So within the car turns on, car turns off, if you're driving around for 20 minutes, car goes on, and it just starts counting up. Car goes off, you would see it's like 20 minutes.
So, what they need to do with the Lexus data is take the time that the vehicle turns on and off, the key cycles I would imagine, and then take the text stream time and correlate those two together. So, if you have a text stream event at 12 minutes and then you have the Lexus on time, you need to take the 12 minutes and see what that would be in real time, not just count up time. So, then you have the Lexus data. Then you have the Lexus data showing different triggering events, including a three-point turn. Did they ask why that was a triggering event? No, they didn't. They didn't ask at all. Could be a lot of things. Could be change of speed, could be whatever. They didn't ask. We don't know. Maybe it'll come up on cross.
And they took the three-point turn where it looks like Karen Reed overshot Fairview and made a turn and came back and correlated it to the data on John O'Keefe's phone because John O'Keefe's phone showed, and they brought up the chart on his location data showing that the phone was traveling at a consistent speed, then slowed down, then went to zero, and then the heading shifted and then the phone started registering speed again traveling the other direction. So, they were able to take the triggering event from the Lexus text stream, correlate it to the Lexus clock and look at what time it was, and then take John O'Keefe's phone and the location data on John O'Keefe's phone and correlate it from Waze to John O'Keefe's phone clock and then correlate the two. Though Brennan kept saying sync the two, they're not trying to sync the two. They're trying to correlate the two. The experts said that correlation was 21 to 29 seconds between what's going on on the Lexus text stream data then correlated to the Lexus clock and what's going on on John O'Keefe's iPhone, which was running faster than the Lexus clock.
We're going to hear more about it as we get into cross, and I'm sure we're going to hear a lot more about it. This witness was asked why did you look more into correlating the phones? He said, "Originally, we didn't look at it because we looked at the ring video and all of this and a one-minute variance between clocks is assumed or normal within the forensic community." So, he didn't think there was any controversy, my word, not his, around the fact that a 60-second variance is incredibly normal. But he said he saw a report that correlated the times in a way that he thought was misleading. And in the time in that report, which I think is the defense expert report, he did not say that specifically. I think that's the defense expert report; he then went back and looked at more data because he thought that the other information he received was misleading and it needed to be corrected.
So Brennan asked quite a lot about the time correlations. What was notable to me is that the PowerPoint included information about John O'Keefe's phone. I don't know if new PowerPoint slides were turned over to the defense. I'm sure the defense will ask about it on cross or if those PowerPoint slides with the time variance were included when this PowerPoint presentation was initially argued over, which was a few months ago now because Allessie was arguing about this witness and the fact that his opinions had not been distilled down for the defense. They just got like a 400-page PowerPoint. So I imagine when we get into all of the cross, we are going to hear about correlating the time, why he looked at it, if he watched any other testimony, but he would have been given the data from Whiffen when Whiffen's report was done, which he said was in January. We will see.
Why does it matter? Because when we get to the accident reconstruction, this is the foundation for the Commonwealth to argue that the backing event correlates to when John O'Keefe locked his phone for the last time. Because John O'Keefe's phone, per Ian Whiffen's testimony, at 12:31:52, John O'Keefe's phone was in a pocket state. At 12:32:00, the pocket state was cleared. At 12:32:00, Face ID unlocked John O'Keefe's phone. At 12:30:206, John O'Keefe's phone registered red to a text message from Jem McCabe that said, "Pull behind me." And at 12:30, the phone device was locked with a button. So, they are saying that the backing event on Karen Reed's phone timewise would correlate between 12:32:00 and 12:32:12 with John O'Keefe locking his phone in their PowerPoint. They said for the last time at 12:32:00. That is why this matters so much to both sides because we are laying the foundation for when the accident reconstructionist will argue that this collision took place. We know that the defense is going to argue that no collision took place. We know that the Commonwealth is going to argue that a collision took place. I think we're getting to a clip or a sideswipe.
Okay. In in both of those CVs, you indicate that you have not yet earned a bachelor's degree. That is correct. And you certainly have not earned a bachelor of science degree in any educational field according to those two CVs. Right. Correct. And in fact, as you sit here today, you do not possess any bachelor degree. Correct. You have a public profile that's published on Aperture's website. Correct. Yes, I do. And it's in the form of a biography page. Yes, I believe so. In that biography page, has your education listed? Uh, very possible. Yes. You recognize that document? Uh, yes, I do. And indeed, that is the bio page that's published on Aperture's website. Correct. That is what it appears to be. Yes. Now I would like you sir to turn to page two of that document. Okay. And what's it say your focus about you on your website education. It states to my correct sir BS mathematics and business administration. Is that correct? It does state that. Yes. And there is no qualification that that's currently pending. It states BS in mathematics and business administration. Correct. That's what it states there. Yes. And you do not have a Bachelor of Science in Mathematics and Business Administration, do you? No, I do not.
So, they're looking at the LinkedIn now. You go right to the second page bottom and under education, it says University of Alabama at Birmingham. It's got a little UAB uh logo uh acronym there and it says Bachelor of Science PN B period S period, Applied Mathematics and Scientific Computation 2016-2018. Do you see that, sir? Yes, I do. That's not correct, is it? No, it's not correct. And you do not hold a BS in, can't you put on LinkedIn if you went to school for a couple years and didn't finish your degree? Can you indicate that on LinkedIn cuz I don't a bachelor of science in applied mathematics and scientific computation from the University of Alabama at Birmingham. Do you? I do not. And that would have been at that time an expected graduation date. So it would be expected you you are correlating clocks down to seconds and you are telling me that would have been an expected degree date in 2018. It is 2025. How many courts have you testified in? How is this never come up until now? I can't even believe this would never come up until now.
You prepared your May 8th report on your if those were your words on your direct. Correct. Correct. So they didn't ask you to update a report like I need more explanation. We need the first line of your May 8th, 2025. Goody goody goody. Okay. If you have, do you have it in front of you, sir? I do. Yes. It starts dear Mr. Brennan. Do you see that? Yes, I do. Pursuant to your request. That's a Pursuant to your request. Yes, I do. Pursuant to your request. That's a request you're referring to of Mr. Brennan. Correct. Correct. I have completed an additional analysis concerning the above referenced matter. To formulate opinions, the following additional items were reviewed. This wasn't done on your initiative. You put in writing, you did it at the request of Mr. Brennan. Which is it? Uh, so that was on my own initiative. This is a uh holdover, so a copy and paste from my original report. What you're explaining. Brennan said he was surprised by the report and he's saying I just copy and pasted it. So now we have typos and everything. We have direct lies in the CVs and the website and we have like, "Oh, that was a typo. Oh, this was a typo." Sir, you're expecting us to believe that you are accurate down to the seconds. But it's like, "Oh, that was a typo. Oh, I copy and pasted that. Oh, yeah. I didn't think it was going to get worse. It keeps going."
In your initial report, you stated that the December 2023 data acquisition was from the expansion clip SP A S I O N from the infotainment model was incomplete because the acquisition was only 8 megabytes in size even though the chip has a storage capacity of 64 megabytes. Correct? Yes, that is correct. And that's your October 10, 2024 report. Correct. Protocol. I'm sorry. We will Well, is it proposal or protocol? Uh protocol. Protocol. We'll use protocol. And you blame this on the quote programmer's inability to fully read the component close quote. Correct. Correct. In point of fact, the manufacturing specifications establish that the total flash memory component of the chips in question is equal to 64 megabits not 64 megabytes. Correct. That is correct. 64 megabits is 8 megabytes. Correct. That is correct. That means the expansion chip was not incomplete. Correct. Correct. The acquisition was the same data size as the total memory storage capacity of the chip. Correct. Correct. Your protocol for data acquisition was based on a misunderstanding of megabits versus megabytes. Correct. It was based on a working theory and a misinterpretation. Yes. And that was your misinterpretation. Yes, it was.
The end of uh day 18. The complete implosion on cross-examination of the Commonwealth's witness from Aperture, I don't think is me being hyperbolic or overstating it because the jury will get an instruction at the end of this trial with the jury instructions telling them how to evaluate witness testimony and if witnesses have been impeached or if they did not believe witnesses on the stand. When they talk about witness credibility, they will be told that if they do not find a witness credible, they can disregard some or all of that witness's testimony. And when we got into it today, Allessie just step by step by step by step went through this expert's CVs or resumes. And as they were going through the resumes, it was you have this one that was provided to the court and council and then you have this one that was provided to the court and council. And on those two different ones, it says that your BGS, Bachelor of General Science asterisk, we'll come back to that later, is in progress. And then it was, well, on your company website, Aperture, the company that the Commonwealth hired here, it says that you have a BS degree in mathematics and business administration. And on this other resume that you can download from your company's website, it says that you have a degree from 2022. But then on LinkedIn it says that you obtained this degree between 2016 and 2018. Yes. But that degree's not been completed. No. Well, when did you start working on that degree? 2007.
As they were going through this part of the cross, it then comes up. Are you aware that someone can look on your LinkedIn or you can see who looked on your LinkedIn? Yes. Are you aware that anyone from the defense team looked at your LinkedIn? And he's like, I am not aware of that. Are you aware that on your profile page, on your company's website, the little linkydoo that you push that says LinkedIn to take you to your LinkedIn page does not work the moment? He was like, "No." He's like, "Were you aware that that change was made in the last 48 hours?" And he was like, "No, I was not aware that that change was made in the last 48 hours." and it just continued to roll downhill from there. We got into the questions about the updated May 8th report and the fact that the beginning of the May 8th report said I am submitting this per your request. When Allessie asked what request of the Commonwealth Attorney Brennan led you to write the May 8th report, he said none. The May 8th report I initiated after reading the defense expert report. Unless he's like, well then why does it say per your request? The answer was I cut and pasted that from another report. So the natural followup to that was um you cut and pasted it and didn't verify that it was correct. He said he didn't think it was important. You don't think it's important the distinction between you writing a report sua sponte and the commonwealth asking you for follow-up. You don't think that's different? I have questions and thoughts but I'm going to wait till the end of cross before I talk about them. Didn't think it was important and it sounds like the May 8th report is not just like a itty bitty little one-page report. It sounds like there was a lot more information in the May 8th report.
This witness has maintained that the reason he wrote the May 8th report is to correct the time correlation based on the way it was interpreted by the defense expert. He said that he didn't think it was in question because everyone in the field generally agrees that a 60-second time variance between clocks is kind of standard. If you can narrow down the variance, why wouldn't you? And I don't know if everyone generally agrees because at one point when he's asked about Ian Whiffen's report later in cross, he says that he learned about the pocket state designation on an iPhone and the iPhone we learned during this trial has a pocket state and a pocket state cleared. He said he learned about those from Ian Whiffen's report. He also holds himself out as a phone expert and someone with celebrate certifications in addition to being a vehicle expert.
Those aren't the only errors they got into. So the errors of do you have a bachelor of general sciences degree or not and then the fact that a bachelor of general sciences degree is not actually what the degree is. It's a bachelor of general studies, but it's been held out as a bachelor of general sciences in a number of the places that the defense pointed out. But it also got down to the bits and the bytes of it all. And this came up in pre-trial hearings. This expert said that the reason he told the Commonwealth the work that needed to be done was because he looked at three different chips from Karen Reed's car and said, "These chips hold more information. So, those extractions can't be complete. Those extractions can't be complete because those extractions aren't the right amount of data based on what like the manufacturer standards are for these chips." Well, that wasn't accurate. It seems that the reason that this expert thought that there was a variance in the data downloads from those three different chips is because of their misinterpretation of the amount of data those chips should have by not properly reading the bits versus the bytes or whatever. So in fact, the data that was downloaded was complete and was the right amount of data for each of those chips. He was just wrong on the first draft that he sent to the Commonwealth, which makes me wonder, how much time is the Commonwealth being billed for? Not that I'm any big fan of the Commonwealth, but I just have to wonder as I'm sitting here listening to all of this, how many reports is Aperture billing the Commonwealth for? Because the first report was all based on work that seemingly didn't need to be done in the way that he suggested it needed to be done because it was an oops, well we need to do all of this, just how much padding is going into what they're billing the government I have to wonder because they would have been billed for the first report and the second report and the May 8th report and why are we billing for a report you're just writing on your own because generally the attorney would say no no more reports and you would ask before, but no, no, this expert said he did not ask the Commonwealth about the May 8th report. He wrote the May 8th report and he said he didn't talk to anyone about the May 8th report before the May 8th report except for on May 7th when he called attorney Brennan and told him what was in the report.
So you didn't talk to anyone before the May 8th report? No. Well, on May 7th, you called attorney Brennan and told him all about your report. Yes. Okay. So, you did talk to the Commonwealth about your report or was that not a conversation? And then he's like, "Oh, well, and I did ask Lieutenant Tully for the full download of the location data of John O'Keefe's phone." And while Allessie went back and forth on the expert about that, I actually don't disagree with the expert on that. When Allessie was saying, "But you have Whiffen's report." I don't disagree that the experts like I have Whiffen's report but I want the raw data too. I want all of that data. I'm not quibbling with him about that because there's too much else including the fact that he had the defense report from the beginning of March. So if you have the defense report from the beginning of March, why did it take until May 8th to send a supplemental report responding to the clock variance issue to the Commonwealth? Like why not April? We still don't have a clear answer on that in my mind.
This is supposed to be one of the most critical witnesses for the Commonwealth. And I can't imagine what Hank Brennan is thinking at the end of today because I have never seen anything like that in court. I'm going to have to ask every attorney I know and all of you that are watching, just put it in the comments. I have never seen anything like that happen. I have never seen an issue like that with a CV. The thing that concerns me is that um this expert testified that he's testified in cases in numerous courts. And this is the first time this has come up. It's never come up before that your LinkedIn says you received a degree, your company website says you received a degree, the resume on your company website says you received a degree, but the resume that you give to court says that you didn't. And then it's alluded that it's a bachelor of general science, which is different than a bachelor of general studies. Anyone who has a degree that ends in the word science is going to take massive issue with a general studies or an arts degree correlating to a science degree. What I have found from all of the science nerds that I know and love is that there is a lot of pride in how [ __ ] difficult those degrees are because there's a lot that goes into a bachelor of science that does not go into other type of degrees. So, does it support an air of greater knowledge or understanding? Yeah, it does support a greater degree of understanding if that is your degree. So, am I bothered about whether somebody has the degree or doesn't have the degree? No. What I'm bothered about the most is the misrepresentations in multiple locations. How the [ __ ] does that even happen?
I also have to wonder what rate his company is billing him for to government entities and to insurance companies cuz he said he works with insurance companies. And I wonder if that rate is due in part to the expert's background, training, and experience. I just have to wonder a if the defense will get around to asking that, if this witness knows, and b if other clients of this company are going to sit there going, wait a second, what or maybe it's not going to come up. Maybe this is an anomaly for that company. But in this trial with this expert, it is not good at all. I don't know if it will matter to the jury what he says about the timing. And this information came in in a much more clear way than it did in the previous trial. It was presented in a much more understandable way. They did not correlate it to a time last time. Last trial we were going through the key events and then the text stream events and then it was well this one must have been when it went on the this and this one must have been there. It was so choppy and so jumbled and it was so hard to
Follow. This was much clearer. But once we get to this this this this, how can you say that this expert is detailed, meticulous, and careful enough to pin the timing of when two things happened on? How can that be relied upon? Because he's like, "Oh yeah, that was an error in this. Oh yeah, that was an error in this. Oh yeah, that was a I just kind of cut and pasted it in that." Okay, so the only time that you didn't make mistakes is this one window of time in your report, cuz that's a lot of errors. And as to the CV, misrepresentations. And this witness said, "Misunderstandings. Miss me."
You know that putting the date indicates that you received the degree. Not that it's in progress, not that you've done four units, not that you had a semester. It indicates that you completed the degree. And after that, I don't know how the jury looks at anything that expert says and goes, "Yes, I can confidently rely on what this expert said to make a determination in a homicide case." Or does the jury look at it and be like, "Whatever he said, none of it." And then does it also taint the opinions that rely on his opinion? Cuz I very well think that it can. What an absolute wild [ __ ] show today. And the [ __ ] show was being orchestrated by Allessie. Allessie was just like, "Let us begin." And walked through the questions on cross-examination to catch this expert in misrepresentations about his degree, not to the court, but everywhere else. Errors in interpreting data when it's like literally your one job, typos and copy and pastes and misunderstandings. How is it reliable?
And cross-examination resumes tomorrow. So, not only are we going to have more or lessy word of the day tomorrow, but this cross is going to last quite a while tomorrow. I think that this witness gave the defense what they need to argue. Thanks for joining me. If you enjoyed this episode and don't want to miss updates on your favorite cases, you're going to need the Lawnard app at lnardapp.com. That way, you can stay in the loop on the cases that matter most to you. And you never know when you're going to catch feelings for a new case. So, make sure you get it for free on iOS and Android. Thank you for being here and thank you for being alonored.