Karen Read Retrial, Week 5.5: The End of the Prosecution is Near, With Evidence From an Expert Witness That Might Just Be Surreal Enough for a Conviction

Boston Globe. Getty Images.

I can't honestly say the world has never seen a court proceeding like the Commonwealth v. Karen Read II: The Retrialing. In fact, it bears striking similarities to the original. Not quite to the extent of The Hangover 2, which was a joke-for-joke remake of the first, but with the baby species-swapped for a monkey. As the prosecution is getting close to wrapping up, we've seen major players in the first one not called to testify. Old experts replaced with new ones. And in general it's been leaner and quicker this time around, with (as I'm writing this) 38 witnesses as opposed to 50 in the first trial. 

But the bizarre, surreal atmosphere of the two trials is exactly the same. It's often felt more like they were filmed at the same time like the Lord of the Rings trilogy, and just edited into two separate narratives. Take, for example, the "expert" the Commonwealth called before the trial broke for a six-day recess last week:

To refresh your memory after that very Massachusetts state worker-like break, Shanon "With Two Ns" Burgess works for a firm called Aperature. That would be the company that took down the link to his LinkedIn profile and splashed a watermark across his page denying he's an expert:

… while he was on the stand. 

Whether Burgess will ever get the credits necessary for the BS he's made a lifestyle out of, or even if he still as a job after this humiliation, remains to be seen. All we know is a little thing like having one of Aperture's employees melt like a Dollar Store candle during cross examination hasn't destroyed the Commonwealth's faith in the company's ability to find experts in their field. 

In fact, they went right back to another Aperture staffer, Dr. Judson Welcher, to reconstruct the alleged pedestrian strike that is nothing less than the core of the prosecution's entire theory of the case:

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Welcher is so important to the cause, that money was very apparently no object:

… compiling data for my report and slides. "

…to the work of Trooper Paul? 

JW:  I have no idea. I don't get the billing or the statements. 

There's no GIF for "Spared no expense," so here's the next closest thing:

Giphy Images.

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Naturally the Free Karen Read side is up in arms about their tax dollars going to buy brand new Lexus SVUs and $400K in billable hours going to a firm that can't be bothered to vet their employees resumes. I get the frustration. But I'll just remind them that justice isn't about turning a profit. Nor is a break-even proposition. Somebody somewhere is responsible for the death of a good man (John O'Keefe and I had a mutual friend and I can assure you of this), and something as important as bringing the perpetrator to justice shouldn't have to stay within budget. 

But it is worth asking if Aperture should be the one-stop shopping for all your criminal investigation needs. First of all, there's the matter of Judson Welcher (who has the name of the evil CEO from the rival company in every show about a family business enterprise, from Succession to Yellowstone) changing his data mid-trial in order to conform with poor hapless Shanon's findings:

At the request of lead prosecutor Hank Brennan:

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Which actually isn't all that surprising, given that Burgess admitted altering his reports after the trial started as well. Which dovetails with earlier, non-expert witnesses admitting they changed their testimony from the time they first spoke to police to the Grand Jury proceedings to the first trial to now. 

No, what makes Welcher's contributions to the proceedings surreal, and why I used the word in the headline, was when he blue himself:

[Note that I recognize I've gone a little heavy with the sub-references already and will try to not exceed my quota going forward.]

Welcher took the … let's call it unorthodox move of dressing up like John O'Keefe to do a reenactment of the collision the prosecution is hanging its case on. He asserted that he is O'Keefe's approximate height and weight, so it works scientifically. So cosplaying as the off-duty police officer who lost his life on January 29th, 2022 helps with … the visuals? I guess?

Here are some of the images. And two very different opinions of what it proves, just to be fair to both sides:

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And a third opinion, similar to the second:

… paint and his parent’s car. You’re probably not a deceptive scumbag Jud. You are one.

I think if nothing else, it could easily help a juror visualize how the taillight could impacted his arm. Until now, through almost two complete prosecutions, I never understood exactly what the ADAs were getting at trying to get at claiming the marks on O'Keefe's arm were consistent with shattered taillight polycarbonate, because I couldn't picture it being high enough for a big man like himself. I stand corrected on that. 

The thing is, visual aids like this can be extremely effective. You can listen to obtuse arguments from data collection experts about why the time of this is different than the time of that even though they're the same time until you die from a Big Gulp headache. But it's hard for your brain to not to give weight to a video of a man the same height getting his forearm impacted like that, with blue paint extending from his bicep almost to his wrist. 

Whether jurors will unanimously believe the whole light shattered in an instant and could cause these parallel wounds [Warning: Autopsy photo]:

Boston Globe. Getty Images.

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… will be entirely up to the 12 people who are selected to deliberate and the six alternates. But at least Brennan got Welcher to present a theory that is somewhat plausible for the jury to debate behind closed doors. 

What Welcher also did, he cannot do. Which is argue exactly what he thinks happened. Which made the honorable profession that is America's class of YouTube lawyers lose their minds:

And was immediately stricken from the record by the judge. And with good reason. An expert can raise their hand and swear an oath that this is what they believe to the best of their knowledge and honest they're honest and all that. But if one is going to draw conclusions and say that yes, to a scientific certainty that this is what's what, then why are we bothering with any of this? Why drag 18 good people away from their homes and their jobs and order them not to talk to anyone about the case they've been listening to for almost six weeks if some lab guy playing dress up and smearing blue goo all over a perfectly good upscale SUV gets to decide? 

Like I said, it's stricken from the record and the jurors were ordered not to consider it. But like the lawyers are fond of saying, "You can't unring a bell." 

I suspect that now we're just about the end of the prosecution's case. Which means we could start hearing from defense witnesses before the week is out. And I suspect even strongly that this is where things are going to really kick into high gear. Now before we go, one more reference:

Even with people's lives on the line, the internet remains undefeated.