Norfolk County prosecutors are urging a justice of the state’s highest court not to pause or delay Brian Walshe’s October trial to review his claims that police illegally obtained Google searches he made on his son’s iPad.
Not long after prosecutors say Walshe killed his wife, Ana, he searched, “how long before a body starts to smell,” “how long for someone to be missing to inheritance?” and “dismemberment and best ways to dispose of a body,” among other terms. Walshe is charged with murder in connection with his wife’s death. Her body has never been found.
Walshe’s lawyers filed motions to suppress the evidence pulled from his phone and his son’s iPad, as well as evidence prosecutors obtained after several search warrants. They claim police investigating Walshe went beyond the scope of an agreement with his lawyer about searching the devices.
But the judge presiding over his trial, Diane Freniere, denied those motions, a setback for Walshe’s defense.
In the wake of the denial, Walshe’s lawyers petitioned a single justice of the Supreme Judicial Court to review the lower court judge’s decision — a process that would likely delay the start of his Oct. 20 trial.
Prosecutors urged Justice Scott Kafker to deny the appeal without reviewing it on its merits.
“This defendant has failed to show how the administration of justice would be facilitated, or how he could be prejudiced more than any other defendant awaiting the ordinary course of appeal,” Assistant Norfolk District Attorney Tracey Cusick wrote, noting that if Walshe is convicted, he could appeal the judge’s decision at that point.
Even on the merits, Walshe’s petition should be denied, prosecutors argued.
They urged Kafker to credit Freniere’s finding that a “reasonable person would have understood the search as including all data” between Dec. 25, 2022 and Jan. 6, 2023. Freniere found that police investigators who testified at several hearings on the issue were more credible about the terms of the agreement than Walshe’s previous lawyer.
It is up to the lower court judge to make such determinations, Cusick wrote.
“The weight and credibility to be given to oral testimony at the motion hearing is for the judge who had the opportunity to observe the witnesses,” the filing reads.
Freniere also ruled that the discovery of the information on the devices was inevitable, and police would have been able to obtain search warrants for them and for Walshe’s home based on other evidence they collected.
“There was ample probable cause to believe that the devices contained evidence of a crime,” the filing reads.
Cusick points to the fact that by the time police began searching Walshe’s phone and his son’s iPad, they had already determined he had misled investigators about his whereabouts following his wife’s disappearance. Walshe told police he went to a CVS and Whole Foods in Swampscott, where his mother lived, but surveillance video showed he was not there when he claimed he was.
Kafker could decide to hear the appeal himself, or send it to the full court or the Appeals Court for a determination. Or, Kafker could decide to deny the request to appeal entirely.
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