An Open Letter to Brian Walshe's Defense Counsel

This open letter to Brian Walshe's defense attorney highlights that the Norfolk County District Attorney used two contradictory standards for Cellebrite digital evidence in the cases of Karen Read and Brian Walshe. I urge Walshe’s defense to employ judicial estoppel to stop the Commonwealth from benefiting from inconsistent forensic stances.

Judicial estoppel, arises from the conflicting positions taken by the Norfolk County District Attorney’s Office on the reliability of digital forensic evidence, particularly Cellebrite-derived data, in the high-profile cases of Commonwealth v. Read and Commonwealth v. Walshe.

Before we jump into this argument; I want to explain what judicial estoppel is.

The Piscataqua River border dispute between Maine and New Hampshire dates back to a royal decree issued by King George II in 1740, when colonial boundaries were still defined under British maritime law.

The King’s decree declared that the border followed the middle of the main channel of navigation, a principle known as the thalweg rule, a maritime boundary concept still used today.

When New Hampshire later tried to claim that the riverbank and the Portsmouth Naval Shipyard belonged to them, the U.S. Supreme Court said no. Justice Ginsburg’s 2001 opinion invoked judicial estoppel, ruling that New Hampshire couldn’t reverse the position it had previously taken and won under that same 1740 decree.

That’s what makes the Cellebrite contradiction so damning: the Commonwealth is doing the exact same thing New Hampshire did, invoking one standard of truth when it helps them, and abandoning it when it doesn’t. In the Karen Read trial, Cellebrite was discredited as unreliable; in Brian Walshe’s case, it is being used as gospel.

This letter is to serve as a reminder of judicial estoppel to challenge the Commonwealth's digital evidence in the Brian Walshe case.

This method goes beyond typical suppression motions and challenges the prosecution's integrity itself. It isn't about a single piece of evidence in one case. It concerns the foundational integrity of all cases within the same investigative framework.

The Commonwealth's use of a variable standard for forensic truth, applying one reliability standard when it clears a witness and another when it implicates a defendant, reflects a broader institutional issue.

When standards shift, credibility is compromised.

This is the Proctor Fallout, and it necessitates judicial action.

1. The Foundational Precedent: The Commonwealth’s Position in Commonwealth v. Karen Read

This judicial estoppel argument is grounded in the official stance taken by the Norfolk County District Attorney’s Office concerning digital forensic evidence in the Karen Read trial.

In that situation, the prosecution faced seemingly incriminating digital evidence against one of its main witnesses.

To counter this evidence, the Commonwealth carefully established a standard of unreliability and caution in open court for the same type of evidence it now presents as unquestionable in the prosecution of Brian Walshe.

1.1. Analyzing the “2:27 A.M. Search” Story

The key digital evidence issue in the Karen Read case revolved around the Google search “how long to die in cold,” found on witness Jennifer McCabe’s phone with a 2:27 a.m. timestamp, hours before John O’Keefe was found.

To refute the defense’s claim that this search indicated Jennifer McCabe’s prior knowledge of the victim’s fatal situation, the Commonwealth presented its own digital forensics expert, Ian Whiffin from Cellebrite.

Ian Whiffin’s testimony was clear. He concluded that the 2:27 a.m. timestamp, recorded in the BrowserState.db database, did not reflect when the search actually happened. Instead, he explained, it showed the time a specific Safari browser tab was simply “brought into focus.”

He stated that this timestamp had “no relevance when the actual web query [was] made.” Based on his analysis of more reliable data sources on the device, such as the Mobile Safari.plist file,  Ian Whiffin determined the actual searches occurred much later, at 6:23:51 a.m. and 6:24:18 a.m.

1.2. The Prosecution’s Effective Argument Against Forensic Artifacts

Through Ian Whiffin’s testimony, the Commonwealth effectively argued that Cellebrite-derived artifacts, specifically precise timestamps, are not definitive and can be highly misleading, necessitating thorough expert validation for accurate interpretation.

The prosecution demonstrated that a timestamp, when presented without context, might be completely disconnected from the action it claims to represent.

Cellebrite itself ultimately validated this stance.

Due to the confusion caused by this data point, Cellebrite confirmed  Ian Whiffin’s findings and subsequently removed the misleading “last viewed time stamp” from newer software versions to prevent future misinterpretation, explicitly acknowledging the data point's inherent unreliability.

The Commonwealth’s meticulously developed position in the Karen Read case, therefore, directly conflicts with their current stance in the prosecution of Brian Walshe.

2. The Commonwealth’s Stance in Commonwealth v. Walshe

In a significant change of position, the Commonwealth now uses Cellebrite-derived data as the “core factual spine” of its case against Brian Walshe.

This same type of digital evidence, previously deemed unreliable and requiring extreme caution, is now presented as definitive and conclusive proof of intent, timeline, and action, processed by the same forensic vendor.

2.1. Cellebrite as Conclusive Evidence

The prosecution's case against Brian Walshe is heavily based on a series of highly incriminating Google searches allegedly made on his son's iPad. This data, extracted by Cellebrite, is presented as direct evidence of Brian Walshe's mindset and criminal activities.

These searches include:

• “how long before a body starts to smell”

• “dismemberment and best ways to dispose of a body”

• “how long for someone to be missing to inheritance?”

In this case, the Commonwealth claims that these digital artifacts are not misleading timestamps or ambiguous data points, but rather an authoritative and definitive record of Brian Walshe's intent, timeline, and actions regarding disposal.

2.2. Comparing the Two Positions

The contrasting standards used by the Norfolk County District Attorney’s Office can be illustrated through this narrative of two standards:

🠆 Position in Commonwealth v. Karen Read

Jennifer McCabe (star witness): Cellebrite timestamps are deceptive artifacts that necessitate thorough expert validation.

Jennifer McCabe: A single digital artifact, when taken at face value, is fundamentally unreliable.

🠆 Position in Commonwealth v. Walshe

Brian Walshe: A collection of digital artifacts, when taken at face value, constitutes the essential factual basis of the case.

Brian Walshe: Cellebrite search history serves as definitive evidence of intent and timeline.

This stark contradiction is not simply a difference in interpretation; it is a deliberate manipulation of evidentiary standards that the courts have the authority to prevent.

3. The Legal Remedy: Applying the Doctrine of Judicial Estoppel

Judicial estoppel is an equitable doctrine intended to safeguard the integrity of the judicial process by preventing parties from “playing fast and loose with the courts.”

And, we all know that Michael Morrisey’s office is not afraid to play “fast and loose” with the truth. It prevents a litigant from taking a position in one legal case that contradicts a stance they successfully advocated in a previous case.

The primary objective of this doctrine is to maintain the integrity of the legal system and prevent the strategic manipulation of evidentiary standards.

3.1. Formulating the Three-Part Argument

A motion to exclude the Commonwealth’s evidence based on judicial estoppel should focus on the doctrine’s three essential elements:

1. Their Inconsistent Position

The Commonwealth’s current stance, asserting that Cellebrite data is reliable and definitive evidence of Brian Walshe’s actions and intent, directly contradicts the position it successfully argued in the Karen Read case.

In that instance, it claimed that such digital artifacts are inherently unreliable, misleading, and not definitive. The table in Section 2.2 clearly highlights this inconsistency.

2. Success in the Previous Proceeding

The Commonwealth’s stance in Karen Read was clearly “successful.” This was not merely accepting a court decision; it was a fundamental part of their proactive trial strategy.

The Commonwealth actively engaged and presented its own expert, Ian Whiffin from Cellebrite, specifically to challenge a digital artifact that was detrimental to their witness.

Their position was successfully maintained because their expert’s testimony was admitted, used to craft the narrative presented to the jury, and convinced the court to adopt their interpretation of the digital evidence, thereby neutralizing evidence harmful to their case.

3. Unfair Advantage and Judicial Integrity

Allowing the Commonwealth to use a “situational standard of reliability” for forensic evidence would give it an unjust and unacceptable advantage.

This would enable the prosecution to apply standards selectively, depending on whether the evidence supports or undermines its case.

Such behavior significantly undermines public trust in the judicial system’s consistency and fairness, and it compromises the integrity that the doctrine of judicial estoppel aims to uphold.

This legal argument offers a clear transition from theory to practical action, urging the court to address the prosecution’s inconsistent stances.

4. Recommended Course of Action: A Motion to Preclude

Following this analysis, the defense should promptly submit a formal motion to prevent the Commonwealth from presenting its conflicting evidentiary stance under the doctrine of judicial estoppel. 

This motion should aim to obtain specific relief to address the prejudice resulting from the Commonwealth’s inconsistent use of forensic standards.

4.1. Primary Relief: Exclusion of Evidence

The main relief requested should be an order preventing the Commonwealth from using the Cellebrite-derived Google search history as definitive or conclusive evidence of Brian Walshe’s criminal intent, timeline, or actions. I mean, he did go to Home Depot and buy $450 worth of suspicious stuff.

The motion should contend that, having previously demonstrated the unreliability of such artifacts in an earlier case, the Commonwealth is now barred from claiming the opposite in this situation.

4.2. Alternative Relief: A Limiting Jury Instruction

If the court chooses not to grant full preclusion, the motion should propose a compelling alternative measure: a specific and limiting jury instruction.

This instruction should explicitly state that the Norfolk County District Attorney’s Office, in a different high-profile case, has previously argued that the type of digital evidence presented is inherently unreliable, susceptible to misinterpretation, and that its timestamps should not be accepted at face value.

This would enable the jury to assess the evidence properly, taking into account the Commonwealth’s documented skepticism.

5. Conclusion: Upholding the Integrity of the System

This issue extends beyond a technical debate about digital artifacts. It poses a fundamental challenge to the consistency, fairness, and integrity of the justice system in Norfolk County. 

The “Proctor Fallout”, arising from the documented misconduct of Trooper Michael Proctor, the lead investigator in this case, has exposed an investigative environment where standards seem to be manipulated for strategic gain. 

The DA’s situational standard of reliability for digital evidence is not an isolated mistake; it aligns with a broader pattern of systemic failure that has affected the county.

The court must act as a guardian of its own integrity, ensuring that the Commonwealth adheres to a single, consistent standard of truth and accountability.

By submitting this motion, the defense will not only support Brian Walshe but also call for accountability and uphold the principle that justice should be delivered impartially and without contradiction.