Karen Read Retrial Week 7.5: As We Get Close to the End, it's All Out War Between the Commonwealth and the Defense

Boston Globe. Getty Images.

The Commowealth vs. Karen Read: The Next Generation is lurching ever closer to the end of the defense's presentation, followed by closing arguments and finally, being placed in the hands of the jury. To combine the usual go-tos of sports metaphors and movie references, let's quote that great law enforcement officer Lt. Frank Drebin when he said, "The gloves are off, Ludwig. It's 4th & 15 and you're looking at a full court press." 

In fact, Read herself - who for some inexplicable reason still being allowed by her defense team to run to the microphones every day like she's giving a postgame presser - suggested last week her side's last witness might wrap up by Tuesday the 10th. That window is closing as I type this. But we could still be looking at jury deliberations beginning in the next couple of days. 

And if you've been hoping that as we count down the final hours of this second two-month Jurispalooza that it would end with a bang, not a whimper, then you will not be disappointed. I can assure you that between the prosecution and the defense, tensions are high. Patience is low. Blood is bad. Nerves are shot. No love is lost. And it's basically the court equivalent of Game 7 of a series between the Larry Bird Celtics and the Bill Laimbeer Pistons.

In short, if you're one of the millions of Karen Read Trial obsessives who've been religiously dedicating hours of your weekdays watching this play out (you know who you are), the last couple of days have probably been the payoff you've been looking for. 

There's been a lot of legal maneuvering going on this week. A lot of minutiae. Motions to exclude certain expert witness opinions. And Judge Cannone splitting a lot of hairs; I'll allow this statement, but one statement can't come in, and so on. Sometimes literally one sentence of a report getting approved for the jury to consider, while the next is excluded.  I don't want to get my ball lost in the tall grass of too much of the legalese of the decisions. Instead I'm choosing to focus on how wild the proceedings have been. Starting with The Return of the Crash Daddy. 

Just to prove once again this thing is more like a great, ridiculous work of fiction than an actual criminal proceeding, Dr. Wolfe literally has women falling for him:

If this wasn't really happening, someone would've had to invent it. Moving on.

In one of the most intense developments in the case writ large, prosecutor Hank Brennan drilled down on Wolfe over whether or not the hoodie John O'Keefe was wearing when he was killed had holes in the back. The implication being that if there were, that might be consistent with him being hit by a car and landing hard on his back. At first Wolfe didn't see any. Then one. And when when Brennan started pointing them out, together they counted five:

Wolfe added that a small hole or five wouldn't be consistent with getting launched by a speeding two-ton motor vehicle and slammed to the ground. That would cause rips from the friction of a body in motion landing and sliding. 

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A couple of things about that. First, is that Brennan has had the entire seven-plus weeks of the trial to mention those holes, and waited until June 9th. The other, more problematic issue, is that he then had to admit to the court those holes weren't in O'Keefe's sweatshirt until the state crime lab investigator put them there as part of the examination. So disregard:

He requested - and was of course granted - that the jury be instructed that this was just a big whoopsie. To forget they ever heard it. No harm, no foul. Just an honest mistake. Could've happened to any sworn officer of the court. My bad. Whatareyagonnado? Or words to that effect. Predictably, the defense team wasn't having it. And by "not having it," I'm saying Robert Alessi asked for a mistrial and chewed the scenery like Pacino doing the "YOU'RE outta ordah! YOU'RE outta ordah!" thing. 

And Alessi was not alone is thinking this was more than just an honest mistake, but something intentional. Even sinister. At the very least, reversible error. And that the timing of it, coming as it has close to the end here, makes it all the more, as the kids say, sus:

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… testify again as a rebuttal witness. It is hard to fathom that he could have sincerely believed the holes came from an alleged car accident. If he did, this would have been a part of Dr. Wolfe's cross rather than re-cross. The holes would have been shown to the jury when he introduced the hoody. Mistakes do happen. But Brennan appears to have held this back and then pounced to give the jury the implication that the holes were consistent with an alleged car accident and that a key opinion of Dr. Wolfe was wrong. Put simply, he tried to end the examination with a huge "gotcha" moment but instead was caught red handed in conduct, that if unchecked, would have intentionally and materially mislead the jury. The instruction by the judge was rather weak and the jury should be told about the exhibits not offered into evidence and they should be allowed to conclude that that was a deliberate attempt by the prosecutor to mislead them. Finally, it was very telling that as Bob slammed Brennan with very serious ethical violations, the prosecutor never once tried to defend himself or push back other than sheepishly claiming he made a mistake. Attorneys whose ethics are unfairly maligned always push back--particularly when slammed publicly.

But most of the oxygen in the courtroom so far this week has been taken up by the issue of the defense calling Dr. Elizabeth Laposata to the stand as an expert witness. Including the sort of "What the definition of 'is' is" question of whether she is, in fact, qualified to be an expert witness in a trial that involves a dead body. You might thing that given the fact she was the chief Medical Examiner for the great (parts of it, anyway) state of Rhode Island and has examined over 10,000 such dead bodies, that would be a moot point. That "chief Medical Examiner" and "qualified to be considered an expert" would be a distinction without a difference. If so, welcome to the Karen Read trial. Where nothing is off the table. 

Yup. The two sides and the judge actually invested a lot of time hashing this question out. Despite there being very little resistance to other expert witnesses less experty than her:

… knows better!  

2) She’s worked on approximately 50 cases with dog bite injuries  

3) She uses the same methodology as Dr. Marie Russell, who corrupt Cannone already qualified as a dog bite expert 

4) Judge Bev’s own reasoning here would unequivocally exclude the Commonwealth’s non-medical doctor dog behaviorist, Dr. Crosby, from providing expert testimony on medical causation of the injuries on John’s arm

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… such an awful ruling, even by her standards.

But as you can see, the judge threaded the needle to rule Lopasata isn't qualified to talk about whether those marks on O'Keefe's arm are from a dog:

Which might have felt like a win for the prosecution. If so, it didn't feel like one of for long. 

First, there was the moment when the gloves came off when Alan Jackson spat Brennan's own words back at him as he tried to get a previous witness to preemptively discredit Lapsosata's opinons:

Which would be a tough trick for Brennan to pull off, since he's used the exact same witness to help his cases in the past:

… attended to showing negligence, if not malfeasance" 

Jackson responds saying criticism of Laposata was "politically" motivated:

 AJ:  "Mr. Brennan himself has hired Doctor Laposata… He knows her qualifications. He knows the quality of her work."

Then because all the other things she was allowed to testify to, might very well have sunk their case:

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…  from hitting his head on ground that was "hard as a rock." 

And no bomb she dropped landed with more explosive force than her instance that, simply put, John O'Keefe was not hit by a car:

Unless you count the one where he didn't die from being left out in the cold for hours after being struck by the vehicle she believes didn't hit him. And I suggest you should count it:

… levels, and his lack of weather appropriate clothing, and the fact that he was wet.  

How long do you think this could have taken? do you think his body could have been warmed to 80°F by arrival to the ER? 

After 5 hours it would be typical under the aforementioned circumstances to be around  60s or lower. 

- EMS uses passive warming and sometimes active warming. - Core temp typically rises 1-2°F per hour, depending on method and severity.  Y

ou want me to believe a man was immobile, laying in the snow-  soaked, drunk, and exposed in subfreezing temps for hours and hours…and his body just forgot to die of cold??? T

he science doesn’t lie. 

So again, are you listening

To quote Laposata's last answer, "He died of brain injuries and skull fractures due to blunt force trauma to the head." 

Make of her conclusions what you will. The Commonwealth would prefer that you don't make much of them:

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That's what all 12 jurors will be asked to do. But just try and do what the jurors will also do, which is add her findings to the pile of civilians and professionals who've previously testified. I mean, this is a one hell of a graphic:

And to the prosecution expert who admitted there was no mention of O'Keefe's arm being fractured in the autopsy report. By allegedly getting hammered by a Lexus SVU:

Or simply boil all of the past couple days to this piece of testimony:

It's hard to argue with her. In spite of what the court thinks, Dr. Laposata is an expert, after all. 

It's not to the jury yet. But we're getting there. Stay tuned.