Zombie "Facts"

A lot has been written in recent years about social media, the fragmentation of the media environment, and how the combination of these factors has made it increasingly difficult to debunk misinformation. We certainly see this phenomenon in politics, but it’s not just a political problem. Trust in (and utilization of) mainstream media sources has dwindled to such an extent that even pretty blatant misinformation is nearly impossible to kill. These zombie “facts” just keep staggering around from receptive ear to receptive ear and people keep believing (and spreading) things that just aren’t grounded in any factual universe.

The Karen Read case is a perfect example of this phenomenon. In the last week or two, I’ve increasingly found myself on the radar of Turtleboy and various other “leaders” of the FKR movement, and the result has been an avalanche of comments and replies on my Twitter feed. Almost all of these replies contain one or more of these zombie beliefs, things that are demonstrably untrue, deeply misleading, or totally unfounded, and yet nevertheless continue to be fervently believed within that echo chamber.

I wish that the persistence of these zombie beliefs didn’t matter outside of Twitter and YouTube, but it seems pretty clear that, in the first Karen Read trial, at least a couple of the empaneled jurors came into the case heavily infected by these kinds of beliefs. Indeed, this appears to have been the defense’s strategy from the beginning. And no matter how strong a case the prosecution puts on in the second trial, if a couple of Turtleriders manage to get onto the jury again, we could be headed toward another hung jury.

Based on my interactions with the FKR online crowd, the most persistent and problematic of the zombie facts relate to the (now closed) federal investigation. Here are some of the more frequent examples.

The federal investigation is still active

This one is perhaps the most frustrating and emblematic of the FKR zombie beliefs. The USAO directly communicated the closure of the investigation to numerous parties and gave Hank Brennan permission to relay that message in open court (which he did last week). Numerous mainstream media outlets have reported that the investigation is closed, including FKR friendly reporters like Ted Daniels, who confirmed on Twitter that he is 100% certain the investigation is closed. The new U.S. Attorney did an unusual interview where she went out of her way to try to confirm the news as best she could without violating DOJ policy (she said that while DOJ policy prevents her from publicly confirming the news, it’s not unusual for the office to communicate such closures to local law enforcement partners).

There is just no question that the investigation is closed. Moreover, as I wrote even before that news broke, it’s been pretty clear for a long time that the investigation was not active. There have been no credible reports since very early 2024 of any grand jury activity, any subpoenas, or any witness interviews. The ARCCA contract was not renewed. The investigation clearly did not go anywhere.

Not only that, but no one on Read’s defense team is even suggesting that the investigation is still open. They know it’s not.

But despite all of that, it doesn’t seem that anyone in the FKR world is willing to acknowledge that the investigation is closed. They insist that Hank Brennan must be lying to the court and that they won’t believe the investigation is closed until the DOJ publicly confirms it (something that won’t happen because it goes against agency policy).

The federal investigation concluded/proved that John O’Keefe was not hit by a vehicle

This is the most common and fervently held zombie belief I see repeated among the FKR crowd. It seems to be a core shibboleth, central to their identity. The way they arrive at this belief is by vastly overstating the findings of the ARCCA team and then attributing those beliefs to the U.S. Attorney’s Office itself.

As I’ve explained previously, the ARCCA witnesses’ testimony and findings have been consistently overstated. While it’s certainly fair to conclude that the two ARCCA witnesses who testified at Read’s first trial were skeptical of the Commonwealth’s specific theory of the case, the reality is that their actual findings were very narrow. They only tested a couple of theories (neither of which were the prosecution’s) and, by their own testimony, did not come anywhere close to establishing that John O’Keefe was not hit by a vehicle. On top of that, they did their work based only on information provided by the defense and did not have access to the techstream data or any of the other evidence utilized by the prosecution. In the second trial, we will likely see more competent and articulate expert testimony from the prosecution on this subject and will be able to weigh that testimony against that of the ARCCA witnesses.

Moreover, it’s a big mistake to attribute the views of the ARCCA witnesses to the U.S. Attorney’s Office. In investigations, the USAO or FBI will often ask technical experts to look into something. They give them a discrete question, some limited information, and see what the experts have to say about it. That doesn’t mean that they then wholesale adopt as true whatever the experts come back with. The investigators have a lot more information at their disposal than their hired experts and take a much wider view of the facts and the case. The views of the ARCCA guys were just one data point the USAO used to reach their ultimate conclusions.

And the reality is that we don’t know what those ultimate conclusions were. All we do know is that they decided to close their investigation without pursuing any charges. Is it possible that the USAO believes that Read is innocent but concluded that they don’t have enough evidence to pursue charges against anyone else? Possibly. Sometimes prosecutors (at all levels) believe that individuals are guilty of crimes but conclude that they don’t have enough evidence to charge them. But typically in those situations they leave the case open, hoping something will eventually surface that allows them to move forward. That posture would make a lot of sense in this situation, given that Read is still being actively prosecuted at the state level and her upcoming trial could stir up new information.

But instead the USAO closed the investigation and communicated that closure to the very agencies that were within its scope, prior to the second trial even commencing. While it’s admittedly just an inference, that move strongly suggests to me that the USAO came to the conclusion that there was no conspiracy to frame Read and no basis to continue investigating.

Federal experts have independently verified that the McCabe google search happened at 2:27 a.m.

This is perhaps the dumbest and most inane of the zombie FKR beliefs. The sole basis for this belief is something Alan Jackson said in court during a motion hearing and that he appears to have been later admonished for by the Court (Judge Cannone admonished the defense for misrepresenting the impounded federal materials). The claim here is that some unnamed federal IT expert independently validated that the infamous Jen McCabe google search took place at 2:27 a.m.

This is utter nonsense. While I’m sure there’s something somewhere in the impounded federal materials referencing the Cellebrite extraction of Jen McCabe’s phone that showed the 2:27 google search, we have no idea what it actually says. And we can be pretty sure there isn’t some mystery federal expert willing to validate Richard Green’s analysis because, if there was, that person would have been called by the defense as a witness in the first trial (like the ARCCA team).

But more importantly, this misapprehends the very nature of the issue with the google search. The only reason the google search ever became an issue in this case is because Cellebrite updated their software in 2023 and that updated version, for the first time, showed two timestamps related to the “hos long to die in the cold” google search from McCabe’s phone: one at 2:27 a.m. and one at 6:24 a.m.. That is not in dispute. If some IT expert working for the federal government ran an independent Cellebrite extraction on McCabe’s phone in 2023, it would have shown the exact same thing as Green’s extraction. And that would prove precisely nothing.

As the Commonwealth explained painstakingly at trial, the issue is that the Cellebrite software update erroneously characterized what that 2:27 timestamp meant. As Ian Whiffin of Cellebrite testified at Read’s first trial, when the company dug into this issue, they discovered the error. They subsequently updated their software to fix it. So if the federal government – like anyone else – were to run an extraction of McCabe’s phone today, it wouldn’t show the supposed 2:27 search.

There is no reason whatsoever to believe that the USAO currently believes that McCabe’s google search happened at 2:27 a.m. The only people sticking to their guns on this issue are the defense’s paid expert, Richard Green, and the members of the FKR community who have so internalized this zombie “fact” that they can’t bring themselves to see reality.

Implications for the Upcoming Trial

The dilemma the prosecution (and Judge Cannone) will face in the second trial is how best to combat the zombie beliefs that some jurors may bring with them to the trial, particularly with respect to the federal investigation.

In the first trial, Judge Cannone ruled that neither side could make reference to the existence of the federal investigation. It was an interesting ruling, but probably the right one. So little was known at that point about the federal investigation that there was literally no way to appropriately contextualize that information for the jury.

This time around, the defense is explicitly seeking to inform the jury about the existence of the federal investigation. Specifically, they’ve filed a motion to be allowed to elicit testimony from the ARCCA witnesses about the fact that they were originally retained by the U.S. Attorney’s Office. This is a smart move by the defense. It’s clearly factually true, easy to elicit at trial, and would likely increase the perceived credibility of the ARCCA witnesses by the jury.

But it would also open a can of worms. It doesn’t seem at all fair or reasonable for the jury to be informed of the existence of the federal investigation without being provided any relevant context, including such basic facts as whether the investigation is still open or whether it resulted in any charges.

Unlike the first trial, however, we do have at least some more context now. We know that the investigation is closed. We know that no charges were filed against anyone involved. It’s not clear to me, however, how this information could be conveyed to the jury in a way that’s consistent with the rules of evidence, at least barring some sort of stipulation by the parties.

Given that difficulty, I suspect that Judge Cannone will elect to handle the federal investigation in the same way she did at the first trial, by barring the parties from mentioning it. Allowing the defense to elicit testimony that ARCCA was hired by the USAO would be even more prejudicial this time around than it would have been the first time, at least if the jury isn’t also informed in some way that the investigation has been closed and no one was charged with anything.