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.