Loading summary
Transcript96 lines
- [00:00]
Kristen Thorne
Wondery subscribers can binge all episodes of Karen early and ad free right now. Join Wondery in the Wondery app, Apple podcasts, or Spotify.
- [00:10]
Narrator
This podcast is a law and crime production. It may contain harsh language and references to violence and death. Please listen with care. Six weeks of testimony, thousands of data points, and a question that still Did Karen Reed back into John o' Keefe with her suv? Or is the Commonwealth building a digital illusion one frame at a time? The prosecution says the answer is in the numbers. They brought jurors deep into a reconstruction engineered from scratch and played out frame by frame. They showed broken tail light fragments, vehicle RPMs accelerate, acceleration patterns, and a timeline narrowed down to the second. But for all the science, one thing is still missing. Certainty. The medical examiner wouldn't call it a homicide. The prosecution never called the lead investigator to testify. And when the defense had their chance to dismantle the Commonwealth's star expert, they fumbled. Now, as the prosecution rests, the burden shifts, and with it, the entire narrative. We're in the eye of the storm, and the question is, are we looking at a mountain of evidence or a fog machine? This week, we break down the prosecution's case, witness by witness. What they argued, what they left out, and what it all means as the defense steps up in the fight of Karen Reed's life for law and crime. I'm Kristen Thorne, and this is Karen. The retrial. Let's get into it. From the moment prosecutors began their case and the retrial of Karen Reed, it was clear they had recalibrated. This wasn't a rerun of the first trial. It was something more precise, pared down, methodical and forensic. For first, Instead of leading with emotion or with the tangled web of relationships inside 34 Fairview, they built a case from the outside in. No Proctor, no Higgins, no Albert, no house party drama. And that absence wasn't an oversight. It was a strategy. Because in this version of events, prosecutors didn't need to place John o' Keefe in Inside the House. Their case doesn't hinge on a conspiracy. It hinges on data vehicle telemetry, phone logs, digital timelines, and Karen Reed's own statements. Here's how trial lawyer Rich Showenstein sees it.
- [02:55]
Rich Showenstein
Whatever you think of this case, I think if you're being fair about it, you have to agree that this is a superior presentation by the prosecution. Compared to the last trial, it's been tighter, better narrative. The witnesses have generally been better. It's just been better all around. And what the prosecutors have done this Time around is a magnificent job of merging the scientific evidence with Karen Reid's own statements to paint a portrait for the jury of her guilt. By doing the case that way, the prosecution has basically tried to eliminate law enforcement. Michael Proctor is not necessary to their case, nor are most of the other police officers. And most of the people who were inside the house are not necessary to the case because it is the prosecution's theory and it seems corroborated by the evidence that John o' Keefe never stepped foot in the house.
- [03:59]
Narrator
That focus has allowed the Commonwealth to sidestep the weaknesses that plagued the first trial. They've silenced the noise. And for defense attorney Matt Timpanik, that may be what makes this presentation more persuasive.
- [04:15]
Matt Timpanik
You don't need to tell the story with them. They're not integral witnesses. They were mostly just being offered to prove that Officer o' Keefe didn't enter the residence. And calling them just allows Alan Jackson to cross examine them and take the case where it doesn't need to go, which is down the conspiracy rabbit hole. If the defense wants to call them, they're more than welcome to. But they can't call them as witnesses simply to impeach them.
- [04:38]
Narrator
In other words, the prosecution didn't just present a different narrative. They reshaped the battlefield. And they've done so with a quiet confidence, one that suggests they believe the evidence speaks for itself, that the path of reverse gear, RPMs and forensic impact data will take jurors further than any allegation of a botched cover up. But that omission may cut both ways, because when prosecutors silence witnesses who were central to the original theory of the case and who are still at the heart of public suspicion, it invites jurors to wonder why. If you believe in your evidence, why not show it all? Here's criminal defense attorney Ian Runkle.
- [05:27]
Ian Runkle
Properly speaking, the prosecution should be bringing forth all of the relevant information, good and bad. If the prosecution thinks that there's something that is, you know, a potential problem, they should probably present that to the jury anyway. Just in the interest of justice, let's make sure that the jury sees this.
- [05:47]
Narrator
And yet the prosecution offered no opportunity for jurors to hear from Michael Proctor, Brian Higgins, or Brian Alpert directly, or to weigh whether their involvement taints the case they're being asked to convict on. That may have helped the Commonwealth avoid distractions, but it also risks undermining their credibility.
- [06:09]
Ian Runkle
If the jury doesn't believe you. If they think that as a lawyer, you're trying to trick them or mislead them. It can be very damaging to any chance the jury's going to give you credit when you're, for instance, making your closing arguments. So I have some serious concerns. I think these people should have been brought forward. And if the Commonwealth is confident in their case, they should be confident in their case, warts and all.
- [06:34]
Narrator
Prosecutors might argue they've built a case that didn't need those guys, that they relied on neutral data, scientific modeling and Karen Reed's own statements, not on potentially compromised investigators or shaky recollections. But in doing so, they've handed the defense a powerful rhetorical tool, the ability to say they don't want you to see the whole picture. It's a gamble, but it's a calculated one. Because with fewer witnesses come fewer, fewer vulnerabilities. And as Showenstein notes, the defense now has a choice. Meet this case on the ground where it's been built, or try to pull the jury somewhere else.
- [07:18]
Rich Showenstein
Proctor's not relevant. Higgins is not relevant. Brian Albert is not relevant. Chris Albert is not relevant. What the defense decides to do with that will be fascinating.
- [07:32]
Narrator
The courtroom may have been quieter this time around. Less theatrics, fewer flashpoint witnesses. But the prosecution's case didn't lack drama. It just moved in a different register. In place of emotional testimony and interpersonal intrigue, prosecutors brought charts, diagrams, simulations and synchronized data. Over the course of several days, they constructed a moment in time, engineered it down to the second, arguing that Karen Reed reversed her SUV into Officer John o' Keefe with enough force to knock him unconscious, possibly kill him and leave him to die in the snow. To tell that story, they leaned on two key witnesses from Aperture LLC, digital forensic expert Shannon Burgess and crash reconstructionist Dr. Judson Welcher. Burgess decoded the digital trail, the timestamps from Okeefes phone, the call logs, and the vehicle telemetry from Reed's Lexus.
- [08:36]
Shannon Burgess
This is the first power on event after 12 o' clock on January 29th. That power event is happening at 121236 up here in the top. And the vehicle is powered on, and it's not powered off until 12 hours, 42 minutes and 8. In reference to location data, Mr. O' Keeffe's iPhone is recording timestamps, GPS position, speed and heading. So heading is going to be the direction that the iPhone is facing. After that time of 12 hours, 23 minutes and 59 seconds, the speed recorded is zero. The course heading is 3:52, and at time 12:24:07 you see the speed pick back up and the course heading is around 179 degrees. So that's going to be in a southern direction. So based on this information, we can tell that the vehicle, between 12 hours, 23 minutes and 59 seconds and 12.24.07, made a three point turn maneuver, changing from the northern direction of heading to the southern direction.
- [09:39]
Narrator
Welcher gave it shape and speed, how fast the vehicle was moving, how far it reversed, and and what kind of impact it would take to cause the injuries o' Keeffe sustained.
- [09:50]
Attorney (Questioner)
Do you have an opinion whether, based on the data and based on the physical damage and your testing, whether that is consistent with a collision or a impact with Mr. John O'? Keefe?
- [10:04]
Dr. Judson Welcher
It is consistent with the collision as long as it's greater than approximately eight miles an hour.
- [10:09]
Attorney (Questioner)
In your testing, did you consider, or do you have an opinion, to a reasonable degree of engineering certainty, whether John o' Keeffe's injuries on his arm and never really in the back of his head are consistent with being struck by Alexis identical to the Defendant's Lexis on January 29, 2022?
- [10:32]
Dr. Judson Welcher
Yes.
- [10:32]
Attorney (Questioner)
What's your opinion?
- [10:33]
Dr. Judson Welcher
That it is. It is consistent with being struck by Alexis and ultimately contacting a hard surface such as frozen ground.
- [10:42]
Attorney (Questioner)
And does that specifically pertain to January 29, 2022, around 12:30am yes, it does. Dr. Welch, would you have an opinion, to a reasonable degree of engineering certainty, whether the absence of lower body breaks to Mr. O' Keefe is consistent with the defendant's Lexus impacting in a Sideswipe or clipping? Mr. O'? Keefe?
- [11:09]
Dr. Judson Welcher
Yes. You could definitely have this type of impact and not have anything beyond, say, red marks to the lower extremity.
- [11:15]
Narrator
Matt Timpanik breaks down how those pieces lock together.
- [11:19]
Matt Timpanik
So it's kind of like two part testimony. Shannon Burgess, part one, Dr. Welch's part two. Shannon Burgess laid out that the vehicle, Karen Raine's vehicle, went into reverse and was right on top of Officer o' Keefe's phone the last time he used it, which was right outside 34 Fairview, near the street. And you put that together with the black box. Findings from Dr. Welcher was stated that the Lexus was put in reverse and went back approximately 53ft at a speed of 24 miles an hour with RPMs hitting 3500. So that goes to the intent to cause serious bodily injury. Nobody goes in reverse that fast and nobody does that in the snow unless they're trying to do something. And when the vehicle's in the exact same spot is where the phone is. And now you have the testimony that Dr. Welcher said the officer O' Keeffe's injuries are consistent with a pedestrian strike. Put it all together, you have Karen Reed, striking officer John o' Keefe with her vehicle.
- [12:20]
Narrator
It was, in effect, a digital autopsy. Each data point, every throttle position, reverse gear and timestamp stacked atop the other until the theory no longer lived in speculation. It had coordinatess, speed, force, direction, and to a jury, it looked like science. But as Ian Runkle points out, looking like science and being science are not always the same thing.
- [12:52]
Ian Runkle
Scientific information, if it's not actually scientific, can be exceedingly dangerous. And so the accident reconstruction may be compelling to a jury. Ultimately, the jury are the people who decide that. But the decision of the reconstructionist to use himself as a model is a problem, because in psychology, you want to double blind an experiment that's true, really, of anything, because a researcher who knows what you're looking for can even unconsciously tweak and tip the scales. And there's already videos out there of people noting this with respect to Mr. Welcher and how he's holding his arm and how he leans and so forth.
- [13:36]
Narrator
That unorthodox method. Welcher, using himself as a stand in for o', Keeffe, raised concerns not just about credibility, but about protocol. In court, he demonstrated the angle of impact using blue paint and his own arm. The goal was to replicate how tail light fragments could have embedded in okeefes sleeve. But the speed of the demonstration didn't match the black box data. There was no dummy, no double blind test, no independent modeling. Still, none of that may matter if the jury found the visuals persuasive. That's part of what makes this chapter of the prosecution's case so potent and so risky. Because while the expert testimony provided a clean, compelling visual narrative, the defense now must either dismantle that scene frame by frame or offer one more convincing. Rich Showenstein agrees. This portion of the prosecution's case is where they've sharpened their edge, but it's not unassailable.
- [14:40]
Rich Showenstein
The very good expert, really good expert who testified about the head injury was asked a question on direct examination which was, can you get that kind of injury just by falling backwards on something hard? And he said, yes. And to me, that almost opened up the possibility that this was a simple slip and fall, that no one got beat up in the basement, no one got attacked by a dog, no one got hit by a car, that the Guy just slipped walking to the house, fell and bumped his head and died. Or possibly that he did get clipped by the suv, but that was not the cause of death. After that, he slipped and fell and hit his head and died. That's where I think the defense should go and focus its presentation. That is where you might be able to convince the jury that there's some reasonable doubt.
- [15:35]
Narrator
But so far, prosecutors have managed to bypass the messy complications of what may or may not have happened inside the house. They've made the outside, the driveway, the car, the phone, the black box, the whole case. In this version of the story, there's no need to explain motive, relationships, or who may have been protecting whom. The just a vehicle, a man, and a brief violent motion captured in digital trace. But if the digital narrative is so strong, why has the manner of death never been medically confirmed as homicide? And if the impact data is so precise, why do the injuries on o' Keefe still seem to tell a murkier story? That tension between what the data suggests and what the medical evidence confirms will be the pressure point in the trial going forward. Because in the absence of definitive cause, the jury isn't just weighing science. They're weighing how much certainty they need to convict. The prosecution's digital reconstruction may have traced every move of Karen Reed's suv, but when it came to John Okeefes body, the wounds, the timeline, the physical aftermath, things got much less certain. And in a case where prosecutors must prove intent to kill, that uncertainty isn't just inconvenient, it's potentially fatal to their theory. Because while Dr. Erini Scordibello, the medical examiner, ruled Okeefes cause of death as blunt force trauma, which, with hypothermia as a contributing factor, she couldn't or wouldn't declare the manner of death a homicide. She listed it as undetermined.
- [17:35]
Attorney (Questioner)
At some point when you were conducting your autopsy or even at the end when you drew your conclusions, were you able to reach a conclusion as to the manner of Mr. O' Keefe's death? To a reasonable degree of medical certainty?
- [17:50]
Narrator
No, I was not. This is the final or amended death certificate for Mr. O', Keefe stating that the cause of death is blunt impact injuries of head and hypothermia and that the manner of death could not be determined, forensic experts say that ambiguity is no small detail. Peter Valentin, a former state trooper and professor of forensic science, flagged it as possibly a major liability for the commonwealth.
- [18:21]
Peter Valentin
The first place you would attack it is you're missing the manner of death as being homicide. And if you were going to charge somebody with murder or manslaughter, the first place that you would look to attack that case would be the manner of death. So not having that on the death certificate presents the commonwealth with, to me, a very significant challenge. How do you overcome the, I think a juror's natural sort of reluctance to accept a narrative that doesn't even include a. A medical examiner saying that they understood conclusively that this person's death was caused by the hands of another.
- [18:54]
Narrator
But for coroner and nurse practitioner nada Rutherford, the problem runs deeper than ambiguity. She believes the entire forensic investigation was compromised from the beginning and in her opinion, was rushed, sloppy and incomplete.
- [19:12]
Kristen Thorne
As a medical examiner or coroner, you're assessing the body, you're looking at the injuries, but you cannot ignore the investigative components of this case. You cannot ignore the circumstances surrounding how this body came to be outside, how it came to have the types of injuries that it has, how the cause of death in the determination of that. You can't ignore the other things that are on the body. Yes, there was blunt force trauma to the head, but there were also other wounds. The wounds to the face, the raccoon eyes, where there was this edema to the eyelids, the scar, skull fractures and the way it was described as multiple skull fractures, the multiple abrasions. But when they show these pictures from the courtroom, these aren't just little scrapes like these don't look like they are caused by a human hand at all. And no, you may not be able to see muscle and fat exposed within those wounds because she talks specifically about not recording the depth of those wounds. But you can't ignore that these wounds on this part of the body, you just can't ignore that. And it just seems like it was just passed off as, oh, that's not important. But I think it's very important to the circumstances of this case. And what could have happened to Mr. O'. Keefe.
- [20:31]
Narrator
One of Rutherford's central concerns is that okeefes clothing, potentially containing vital forensic evidence, wasn't even submitted to a crime lab until six weeks after his death.
- [20:45]
Kristen Thorne
Where was the chain of custody and was the chain of custody maintained during this time? So much could have happened. Those are things that should be secured right away, immediately. This is a person who presented to the ER with all of these different things. The ER doctor specifically stated that the wounds on his arm seem to be related to an animal attack and not by human hand. Like they believe that an assault of some sort that could have taken place. And so the fact that there was this huge delay in the clothing and the other things, for him to have been a police officer and a public servant, I just felt like they did Mr. O' Keefe a huge disservice by not processing these items right away.
- [21:30]
Narrator
That delay casts a shadow over the commonwealth's forensic claims, because if blood, DNA or trace evidence had been present and preserved, it might have offered more clarity. Instead, the prosecution is forced to lean on what little they have. Partial matches, faint impressions, ambiguous wounds.
- [21:52]
Kristen Thorne
We don't need partials. You have clothing that has multiple DNA hits on it. But none of those people were questioned about their testimony. None of those people have written witness statements about what could have happened. Karen Reed dropped him off the night before, and he was discovered the next morning. Like, there's so many hours that something could have happened. We don't know if they got into an argument and he, you know, could have hit the car and had pieces of the tail light on him, if he kicked the car or whatever. Like, we don't know those things. And because there was a huge delay in getting these items tested and processed properly, we just have so many questions. So if I'm sitting in the jury, I'm thinking, why didn't you all do these things? And this is the second trial. You guys still have things that were not done. Why have they still not been done?
- [22:49]
Narrator
Even the wounds themselves, Rutherford argues, are inconsistent with being struck by a Lexus SUV in reverse at night in the snow with significant force.
- [23:01]
Kristen Thorne
If he was hit by a car, I would expect to see a little bit more injury to his lower extremities. The type of vehicle that she had, his height, his weight, all of those things come into play. Was the brain injury so severe with that initial impact that it would have prevented him from moving? Where are the significant injuries to his legs? He would have had to have been hit at a pretty good speed in order to cause him to have this level of injury to his head.
- [23:30]
Narrator
But perhaps the most glaring inconsistency in her view is the lack of clear explanation for okeeffes body temperature and survivability. She points out that the ER doctor said o' Keeffe was alive, his body still warm when he arrived at the hospital.
- [23:49]
Kristen Thorne
Why was his body temperature registering at 80.1 degrees when he gets to the hospital?
- [23:55]
Narrator
But Rutherford makes clear her questions go far beyond just how o' Keeffe died. She points to a series of troubling details that remain unexplained.
- [24:06]
Kristen Thorne
Was his blood alcohol level so high at the 0.21 or 0.28 that they found in the vitreous. Was this so high for Mr. O' Keefe that it rendered him unconscious and unable to move towards a safer environment? At some point, the alcohol metabolizes, right? He was not deceased upon on impact. So he lay there all this time. Do these things make sense for the story that is being told? And then how did this person actually die? This case should have been investigated as a possible homicide from the jump. Each case is different, but those things should happen every single time. I think this is why people are so fascinated by this, because how did she hit him?
- [24:53]
Narrator
What happened to Rutherford? The problem isn't just scientific, it's systemic.
- [25:01]
Kristen Thorne
Here's the saddest part about this. This is why people tend to have a distrust in investigations that involve police officers. Because what are you hiding? This is your comrade. This is your buddy. This is your brother in blue. And this is the level of care that you gave to his investigation.
- [25:21]
Narrator
For all the prosecution's reliance on digital evidence, the physical body remains the one thing that doesn't fit neatly into their timeline. The injuries don't confirm a vehicle strike. The medical examiner won't confirm homicide. And the apparent delays, inconsistencies, and unexplored alternatives have only compounded the doubt.
- [25:45]
Kristen Thorne
If you do not know for certain that she is the reason. See, in the legal province, they must prove that there was some sort of intentionality. That's where you get your second degree murder and all those things from. That's in the legal province. But in the medical examiner and coroner world, you just have to say that this person died as a result of a person or entity that caused their death. And I don't see how Mr. OKeefe's death was ruled as undetermined. We know that something happened to him, and we know that. That he did not cause these injuries to himself.
- [26:23]
Narrator
That's the contradiction now looming over the courtroom. The Commonwealth says the science proves what happened, but the medical evidence says we still don't know. The prosecution may have used digital forensics to chart movement, speed and impact, but for jurors, the big question still looms. Did Karen Reed kill John o'? Keefe? And if so, how? The medical examiner can't say. And in a second degree murder case, that creates a vacuum, one that the defense is likely to exploit. Rich Showenstein has been following the trial closely and says the medical testimony may ultimately undercut the narrative the Commonwealth spent weeks trying to construct.
- [27:12]
Rich Showenstein
I think that Is the best defense argument that they have not proven beyond a reasonable doubt that John o' Keefe was killed by being hit by an suv?
- [27:23]
Narrator
For Showenstein, that contradiction is more than a problem of perception. It's a legal dilemma. Because no matter how visually convincing the forensic animation may be or how compelling the RPMs and black box data sound, it all crashes into the wall of medical uncertainty. And that wall may be where the defense chooses to lean.
- [27:48]
Rich Showenstein
They only have to get one juror to think there hasn't been enough proof. That's a much easier task than trying to get jurors to think that there's some grand conspiracy to pin this all on Karen Reid.
- [28:02]
Narrator
While the defense may still pursue the broader narrative about law enforcement corruption and withheld evidence, Showenstein suggests their most powerful argument lies in something quieter. The simple absence of certainty. The blank space on the death certificate. Ian Runkle takes it a step further. He views the prosecution's decision to move forward despite the undetermined manner of death as a fundamental misstep, one that might be difficult to justify in any legal context.
- [28:36]
Ian Runkle
If I'm the defense, basically, my arguments at a closing are probably going to be they don't know what happened. The medical examiner, with all of the information at this point, still says that she can't make the determination that this was a homicide. That in and of itself should have been a discontinuation of the prosecution.
- [28:56]
Narrator
Now, as the prosecution prepares to rest, it's that silence from the medical examiner that may echo the loudest. If the prosecution's case has a spine, it's Dr. Judson Welcher. He wasn't a detective. He didn't know the victim. He didn't respond to the scene. What he brought to the courtroom was data. Cold, calculated measurements collected, simulated, and rendered into a single cohesive story. Welcher charted the SUV's reverse path. Using animation software, he mapped the curve of its tires, the speed of its engine, the placement of taillight fragments. He calculated the RPMs, noted the slope of the street, and analyzed the injuries on John Okeefes body. To jurors, he offered a story told through physics that this wasn't a slow, careless bump. This was a fast, deliberate reverse, long enough and strong enough to kill.
- [30:01]
Attorney (Questioner)
Do you have an opinion, to a reasonable degree of engineering certainty as to the nature of the second triggering event? 1162. 2. Could you share your opinion with the jury?
- [30:11]
Dr. Judson Welcher
The triggering event was high throttle opening and a transition to reverse. It's a forward motion followed by a higher speed rear motion. And at the end of the trigger event, you're still at 74% throttle.
- [30:27]
Narrator
In other words, Welcher wasn't just testifying to mechanics, he was testifying to intent. That the acceleration was too fast to be a mistake, that the SUV traveled too far to be a tap, that the force was too much to be anything but deadly. And that, according to Matt Timpanik, is where his testimony hit hardest.
- [30:52]
Matt Timpanik
Now there is enough evidence to sustain murder two conviction. In the first trial, I actually acquitted the defendant because there wasn't enough. I knew what they were trying to argue, but the way it was presented, it was not proven beyond a reasonable doubt. Now there is enough evidence to sustain that murder two conviction, because now the intent exists. Whether a jury believes that, that's another story.
- [31:14]
Narrator
Intent, the word that elevates accident to crime. That separates negligence from murder. And if the jury believes him, if they trust the picture he painted, then the question may not be whether John o' Keefe was hit. It may be whether Karen Reed meant to do it. Welcher never said what was in Karen Reid's mind, but his numbers and the animation that came with them allowed the prosecution to argue that she must have known that. The data didn't just tell us what happened. It told us why. Rich Showenstein watched that testimony unfold and saw just how much weight the Commonwealth had placed on it. But there are still holes unanswered, unexplained, and hard to ignore.
- [32:03]
Rich Showenstein
It's got graphics, it's got reenactments. It's got the whole paint thing, thing with how the arm got injured. That is so much better than the first trial, but you can still attack it. No one really knows what the cause of death was. That is what I would go after as a defense lawyer.
- [32:24]
Narrator
Instead, when the defense finally took its swing, particularly during their cross of crash reconstructionist Dr. Judson Welcher, they misfired repeatedly. Matt Timpanik didn't mince words.
- [32:37]
Matt Timpanik
When you think of what a cross examination should be. A cross examination is intended to elicit facts that are favorable to your case. And you need to keep the jury's attention while you're doing that. That didn't really happen in day one of this cross examination.
- [32:52]
Narrator
Instead of challenging Welcher's conclusions, the cross got stuck in the weeds.
- [32:58]
Defense Attorney (Cross Examiner)
So the primary goal of forensic science is to uncover the truth and to provide objective evidence that can be presented.
- [33:08]
Dr. Judson Welcher
In court that is generally correct. Again, there are elements, for example, this analysis that are relying sort of on subjective evidence, like the testimonial, the witness statements so it's not solely based, but ideally, you'd want it as much as possible based on objective data.
- [33:25]
Defense Attorney (Cross Examiner)
So you would agree that truth and objective evidence is part of the presentation in terms of information for forensics, in.
- [33:35]
Dr. Judson Welcher
A court of law, certainly objective information, truth sometimes, again, can be subjective.
- [33:41]
Defense Attorney (Cross Examiner)
Oh, so you don't believe truth. You believe sometimes truth applies, sometimes it.
- [33:47]
Dr. Judson Welcher
Doesn'T if you know for a fact it is true. But if you take someone's deposition testimony, you have to look at it relative to the evidence, and it's either consistent with the evidence or not.
- [33:57]
Matt Timpanik
A lot of it was spent arguing semantics. When you're doing a cross examination, you need to get that jury's attention and keep it through the entirety of the cross. You never want them thinking about other things or thinking, what's going on? What are they doing tonight? You want their focus entirely on what the witness is saying and what you want the witness say. In your case, you can't spend four hours trying to lay the foundation. You need to get to the point really quickly.
- [34:25]
Narrator
There were moments to pounce. Gaps in methodology, questions about the science, even the fact that Welcher had used himself as a crash dummy.
- [34:35]
Matt Timpanik
He said he got hit at like eight miles an hour to show what the injury sustained is, that it's consistent with a pedestrian strike. So if you wanted to attack something, that's probably where you start, where they're using, like, face paint or whatever, and he looks like somebody from the Blue man group, maybe that's coming.
- [34:55]
Narrator
But those moments never came. Instead, the defense let Welcher steer the conversation.
- [35:02]
Defense Attorney (Cross Examiner)
You don't believe it's possible for the vehicle to, under your scenario, to have gone up on the lawn.
- [35:07]
Dr. Judson Welcher
That's not. So your first question was reasonable, and I said no. Now you're asking possible, of course, is possible. Whether it's reasonable or not, I'd have to know the starting position. If it's very close to the side, then it could be reasonable. If it's further towards the middle of the road because snow is building up on the side of the road, then it's probably not as reasonable. I would need more information to be able to determine whether it's reasonable or not. It's certainly possible. It's possible it could have shot off into space. As an engineer, but not probable.
- [35:41]
Defense Attorney (Cross Examiner)
You could have done other tests where the vehicle was going at 20 miles per hour if you used a crash test dummy.
- [35:50]
Attorney (Questioner)
Correct.
- [35:51]
Dr. Judson Welcher
You could have done that if you use the right crash test dummy and then to set up the test, because generally you only get one or two shots at it. If you damage the car, you have to know everything about the parameters. And so again, pedestrian impacts are so very sensitive to initial angles. If I were to do a test and it was off a tiny, tiny bit and we got some different results, I would be in here having to defend it. Well, your own testing didn't show it. Point is is we don't have enough information to be able to conduct that testing.
- [36:26]
Defense Attorney (Cross Examiner)
Isn't it true that if Mr. OKeefe's arm were to be flexed like it was with the test subject in your blue paint test, the lacerations on Mr. OKeefe's forearm would be oriented in a vertical direction?
- [36:45]
Dr. Judson Welcher
Absolutely not. If you pull up my slide 117 it'll show exactly that. It is like perfectly horizontal when you're standing like this and this is the tail light. The laceration, when it comes across here and pushes my body, it's going to make a horizontal laceration because the 6,000 pound vehicle is going to push me out of the way. As this pushes me out of the way, it's going to drag and create a horizontal laceration across my arm. This is exactly what you'd expect.
- [37:16]
Matt Timpanik
When you are crossing somebody, you need to keep yourself in control. You need to ask leading questions to elicit answers that you, you want. You don't ask open ended questions, you don't ask questions. You don't know the answers to.
- [37:31]
Narrator
Why the misfire Timpanic points to a possible over reliance on what's coming next. Testimony from arca, the defense's own expert reconstruction team.
- [37:43]
Matt Timpanik
I definitely think they were trying to lay the foundation for ARCA and to show like the discrepancies with what they know ARCA is going to say and what this will witnesses saying. The problem is their best chance at being able to get that acquittal was in the first case when Trooper Paul got filleted by the defense.
- [38:01]
Narrator
He argues the defense missed the moment to press Welcher directly on how he interpreted the data and whether others in the field would agree.
- [38:11]
Matt Timpanik
Talk about how you came to these conclusions. That's where it should be. So the jury thinks like well maybe the data's right, maybe the findings are right, aren't correct and how he interpreted it. That's where this cross examination should have been. But unfortunately that's not where it was.
- [38:26]
Narrator
Instead the jury watched the commonwealth's expert walk away largely unchallenged. Unusual for a defense team that's become known for their piss and vinegar strategy.
- [38:37]
Matt Timpanik
Is let's go at the findings. Let's ask relevant questions. Let's ask questions that the jury will wants answers to that the commonwealth may not have elicited. That's where this cross should be. Where are the holes in their findings? They're not finding any.
- [38:53]
Narrator
And that, timpanic warns, could be devastating.
- [38:56]
Matt Timpanik
Dr. Welcher is perfectly content, as is the commonwealth filibustering. Because if that happens, his findings are going to be accepted as fact.
- [39:05]
Narrator
The implication is clear. If the defense can't discredit the science, the science stands and with it the prosecution's theory of a deliberate deadly strike. If the prosecution's case is about proof, the defense's case may be about possibility. Because in cross examining Dr. Judson Welcher, they didn't just fail to dismantle the commonwealth's version of events. They also didn't clearly present their own. And that raises the question, what exactly is the defense building toward?
- [39:43]
Matt Timpanik
So there's two options to go with this trial. Option A is continue third party culprit. I don't think that's their best angle. I think they're going to have to take their chances with option B, which would be do a battle of the experts, ARCA versus A Pentcher. And basically our witnesses are going to make more sense about that. There wasn't a pedestrian strike. If they believe that that may be the reasonable doubt to get the defendant acquitted. However, that comes with real risk because they're going to try to make ARCA out to be independent witnesses. We know that's not the case. They're going to argue that what their data is is based on incomplete information. So both ways have risks. Third party culprit seems ridiculous and outlandish. And placing your hands into ARCA is equally as risky because you just don't know how Hank Brennan's going to cross him and what's going to be left after he's done.
- [40:35]
Narrator
The time to pick a lane is running out because the burden isn't just on the commonwealth to prove guilt. It's on the defense to give the jury a reason to doubt. Next week, the burden shifts. It's the defense's turn to pull apart the prosecution scaffolding to argue that the data doesn't tell the whole story, that the injuries don't match the impact, that the evidence was shaped or mishandled to serve a theory that what looks like intent may actually be something else entirely. They'll point to gaps, they'll point to delays, they'll point to everything the prosecution didn't show and they'll offer their own version of what happened in the early morning hours of January 29th 9th, 2022. Because in the end, this case may not hinge on what the jury has seen. It may hinge on what they haven't. This has been a Law and Crime production. I'm your host, Kristen Thorne. This episode was written and produced by Cooper Maul. Our executive producer is Jessica Lowther. Our editor is Anna McLean. Our associate producer is Tess Jagger Wells. Guest booking by Diane Kay and Alyssa Fisher. Legal review by Elizabeth Voulai. Key art designed by Sean Penzerra.
- [41:59]
Kristen Thorne
Follow Karen in the Wondery app. You can binge the entire series early.
- [42:04]
Narrator
And ad free right now by joining.
- [42:06]
Kristen Thorne
Wondery in the Wondery App, Apple Podcasts or Spotify.