Commonwealth v. Read — Trial ArchiveBrian Albert - Cross
1,912 linesCOURT CLERK: 22-217, the Commonwealth versus Karen Read. Can I have counsel identify themselves, please?
MR. LALLY: Adam Lally for the Commonwealth. Good morning.
JUDGE CANNONE: Good morning, Mr. Lally.
MS. MCLAUGHLIN: Laura McLaughlin for the Commonwealth. Good morning.
JUDGE CANNONE: Good morning, Miss McLaughlin.
MR. JACKSON: Alan Jackson for the defense. Good morning.
JUDGE CANNONE: Good morning, Mr. Jackson.
MS. LITTLE: Elizabeth Little. Good morning.
JUDGE CANNONE: Good morning, Miss Little. Mr. Yannetti, I'm told there's an objection to something you intend to use during cross.
MR. YANNETTI: Yes.
JUDGE CANNONE: Do you want to come over?
MR. YANNETTI: Sure.
PARENTHETICAL: [Sidebar — approximately 29 minutes, inaudible]
COURT OFFICER: Rise! Hear ye, hear ye, hear ye! All parties having anything to do before the Honorable First Justice Cannone, now sitting in the Dedham Superior Court within for the county of Norfolk, draw near, give your attendance, you shall be heard. God save the Commonwealth. This good court.
COURT CLERK: Thank you. May be seated. Now in session.
PARENTHETICAL: [Jurors respond affirmatively]
JUDGE CANNONE: Everyone said yes and nodded affirmatively. Were you also able to follow the instructions and refrain from doing any independent research or investigation into this case since we left here on Friday?
PARENTHETICAL: [Jurors respond affirmatively]
JUDGE CANNONE: Everyone said yes and nodded affirmatively. Did anyone happen to see, hear, or read anything about this case since we left here on Friday? Thank you very much. We'll bring Mr. Albert back in, please.
JUDGE CANNONE: Thank you. Good morning again, counsel and Ms. Read. Good morning. So I do have to ask you those three questions. Were you all able to follow the instructions and refrain from discussing this case with anyone over the weekend?
COURT OFFICER: Just watch your step for me. Stand. [unintelligible oath preamble] — the truth, the whole truth, and nothing but the truth, so help you?
MR. ALBERT: I do.
COURT OFFICER: Thank you. Take the stand.
JUDGE CANNONE: Okay, whenever you're ready, Mr. Jackson.
MR. JACKSON: Thank you. Mr. Albert, this is not — this process is not the first time you've testified in a court of law, is it?
MR. ALBERT: No.
MR. JACKSON: In fact, you were a police officer for either just under or just over 30 years, is that right?
MR. ALBERT: Yes.
MR. JACKSON: During that time, how many times would you say you testified in a court of law in any capacity?
MR. ALBERT: I would say 100, perhaps.
MR. JACKSON: So you consider yourself to be an experienced witness?
MR. ALBERT: In what aspect?
MR. JACKSON: In — in as far as police, as far as being a witness. As a police officer, you've experienced testifying in a courtroom.
MR. ALBERT: Yes.
MR. JACKSON: Okay. So you understand the oath?
MR. ALBERT: Yes.
MR. JACKSON: You understand the gravity of perjury?
MR. ALBERT: Yes.
MR. JACKSON: When was the last time you spoke to Mr. Lally before Friday, when you began testifying?
MR. ALBERT: Before Friday, the last time I spoke to Mr. Lally was — I believe on a conference call around the time of my grand jury testimony, which would have been 2022.
MR. JACKSON: Yes. April of 2022?
MR. ALBERT: Yes.
MR. JACKSON: You've not spoken with Mr. Lally since that time?
MR. ALBERT: I don't remember speaking with Mr. Lally since that time, no.
MR. JACKSON: What about anybody else from the District Attorney's Office?
MR. ALBERT: No.
MR. JACKSON: Have you gone over the facts — or what you believe to be the facts of your testimony — with anybody before you testified on Friday, not including any lawyer that you may have —
MR. ALBERT: No.
MR. JACKSON: Did you discuss any questions that you may be asked on direct examination, or questions that you may be posed on cross-examination, with any member of the district attorney's office?
MR. ALBERT: No.
MR. JACKSON: Were you told about any exhibits or documents that you might be shown?
MR. ALBERT: Just in the prep, I believe I was shown a video of the Waterfall Bar, and that was back in April of 2022.
MR. JACKSON: No — that was for the prep for this trial. With whom did you prep for this trial?
MR. ALBERT: Mr. Lally.
MR. JACKSON: I'm confused. I thought you said you had not spoken with Mr. Lally since April of 2022.
MR. ALBERT: Except for the prep for this trial, I had not.
MR. JACKSON: Okay, that was my question, Mr. Albert.
MR. ALBERT: Okay, I misunderstood your question. I apologize.
MR. JACKSON: Did you prep for this trial with Mr. Lally?
MR. ALBERT: Yes.
MR. JACKSON: When?
MR. ALBERT: Approximately a few weeks ago.
MR. JACKSON: Okay, Mr. Albert, about 45 seconds ago I asked you: have you spoken with Mr. Lally before your testimony in this process? And your answer was: "No, I have not." Did you not understand my question?
MR. ALBERT: I did not.
MR. JACKSON: What was confusing about it?
MR. ALBERT: I was expecting you to ask if I had prepped with Mr. Lally. I didn't hear "prep with Mr. Lally," so I didn't know what you were referring to. So I said no, I had not spoken with Mr. Lally — since you didn't say "prep with Mr. Lally" — so your answer was: "No, I didn't speak with him, I just prepped with him."
MR. JACKSON: Yes. What's the difference between speaking and prepping?
MR. ALBERT: No — there is no — There is no difference. I just misunderstood your question, that's all.
MR. JACKSON: Tell me about that prep with Mr. Lally.
MR. ALBERT: Sure. I prepped with Mr. Lally about this trial, with Mr. Lally and my attorney.
MR. JACKSON: Where did that preparation take place?
MR. ALBERT: The preparation took place — I believe, I'm trying to remember exactly where it was. I actually don't recall where it was.
MR. JACKSON: Could it have been at the DA's office?
MR. ALBERT: Yes, but it wasn't — it wasn't at the DA's office, no. I believe it was somewhere else, but I can't remember if it was here or the DA's office. I'm not sure.
MR. JACKSON: I also asked you a couple minutes ago: did you review any documents or any evidence in preparation for your testimony? And to that question you also answered no.
MR. ALBERT: What? I said I reviewed a video.
MR. JACKSON: Well, now you're saying you reviewed a video. But when I asked you did you see any evidence or documents, anything in preparation for your testimony, you said no. Right?
MR. ALBERT: No, I believe I said I saw a video.
MR. JACKSON: Did you misunderstand my question when I asked that the first time as well?
MR. ALBERT: No.
MR. JACKSON: Okay. I'm going to try to be clearer with my questions. Let me try it again. What, if anything, have you reviewed in anticipation of your testimony in this trial?
MR. ALBERT: So I reviewed a video of the Waterfall.
MR. JACKSON: Anything else?
MR. ALBERT: I reviewed my transcript from the grand jury.
MR. JACKSON: So you have reviewed your prior testimony?
MR. ALBERT: My transcript of the grand jury, yes, which is prior testimony.
MR. JACKSON: Correct. When did you do that?
MR. ALBERT: I did that during the prep.
MR. JACKSON: What part of the Waterfall video did Mr. Lally show you?
MR. ALBERT: It was a small snippet of the video — just one, about 20 seconds of video during that night.
MR. JACKSON: Which part? There's a lot of video there. Which part, if you can tell us, which part did you review with Mr. Lally?
MR. ALBERT: It just showed the Waterfall. It showed patrons. It showed myself and the other people I was with.
MR. JACKSON: What were you doing in that 20-second snippet of that video?
MR. ALBERT: I believe in one portion of it I was fooling around with Brian Higgins.
MR. JACKSON: Fooling around?
MR. ALBERT: Yes.
MR. JACKSON: What does that mean?
MR. ALBERT: Means we were just fooling around. That's it.
MR. JACKSON: Fooling around like arm wrestling?
MR. ALBERT: No, I don't think we were arm wrestling. I think we were just pushing each other, fooling around.
MR. JACKSON: Oh, so play fighting?
MR. ALBERT: I don't think I would call it play fighting, no.
MR. JACKSON: Do you remember seeing the part of the video where you took a fighting stance, sort of like this?
MR. ALBERT: I actually don't remember that part, no.
MR. JACKSON: Do you remember the part of the video where Brian Higgins took a fighting stance, sort of like this?
MR. ALBERT: Maybe, yes.
MR. JACKSON: Did you approach one another?
MR. ALBERT: I don't think I saw that whole video.
MR. JACKSON: No. Practicing fighting techniques?
MR. ALBERT: I wouldn't call that —
MR. JACKSON: You can have that. I'm sorry, what was your answer to that, Mr. Albert?
MR. ALBERT: No.
MR. JACKSON: So what you reviewed with Mr. Lally was the portion of the video where you and Mr. Higgins were somehow fooling around — well, how would you describe it if it's not fighting techniques?
MR. ALBERT: Just joking, being silly, just fooling around.
MR. JACKSON: Okay. Doing what, physically? I mean, you can joke with words, right? Just joking with words like a standup comedian, or were you doing something physically?
MR. ALBERT: No, I think we were pushing each other, fooling around, joking.
MR. JACKSON: Okay. Did you ever show him how to throw a punch?
MR. ALBERT: Did I what?
MR. JACKSON: Did you show him how you would throw a punch?
MR. ALBERT: I don't remember that.
MR. JACKSON: Did you squat down, show him how you want to get low when you're either being aggressive or defending an aggression?
MR. ALBERT: I don't remember that exactly, no.
MR. JACKSON: Did he walk over to you and grab you and act like he was going to drive a knee into your stomach?
MR. ALBERT: I'm not sure.
MR. JACKSON: At some point, did you flip him around, grab him in a wrestling hold?
MR. ALBERT: I may have. I just don't remember exactly.
MR. JACKSON: Do these things sound familiar, as to your review of the video that you saw with Mr. Lally?
MR. ALBERT: No, I didn't see all those on the video.
MR. JACKSON: Did you discuss with Mr. Lally the questions that you might be asked by him on direct examination? Did he go through the topics of conversation that you were going to have?
MR. ALBERT: No, not like that.
MR. JACKSON: Did he go over with you what he believed the topics of conversation might be on cross-examination, by either myself or Mr. Yannetti?
MR. ALBERT: I believe so, yes.
MR. JACKSON: What did he tell you you might be asked?
MR. ALBERT: I don't remember exactly what he told me. He said we could be asked about the night at the Waterfall, we could be asked about back at the house, things like that.
MR. JACKSON: Anything else?
MR. ALBERT: Nothing that I can remember.
MR. JACKSON: Is there anything — given your conversation with Mr. Lally — is there anything that you want to change about the testimony that you previously gave under oath in April of 2022?
MR. ALBERT: No.
MR. JACKSON: The fact that you now reviewed that testimony — no? You stick by that testimony?
MR. ALBERT: Yes.
MR. JACKSON: Okay. Have you watched any of these proceedings on any platform before your testimony?
MR. ALBERT: No.
MR. JACKSON: Never tuned in to anything — live-streaming, any of the media coverage?
MR. ALBERT: No.
MR. JACKSON: You're aware that your wife testified before you?
MR. ALBERT: Yes.
MR. JACKSON: Did you — I just want to know what the words were — did you discuss her testimony with her before you testified?
MR. ALBERT: No.
MR. JACKSON: So she came home after testifying in this trial and you never brought it up?
MR. ALBERT: No, I just asked her how she was doing, and that was it.
MR. JACKSON: Just asked her how she was doing and that was it. Mr. Albert, are you close friends with Brian Higgins?
MR. ALBERT: I wouldn't describe it as close friends, no.
MR. JACKSON: He's a fellow law enforcement officer, correct?
MR. ALBERT: Yes.
MR. JACKSON: Works for the ATF — the Bureau of Alcohol, Tobacco, Firearms and Explosives, correct?
MR. ALBERT: Yes.
MR. JACKSON: How long have you known Mr. Higgins?
MR. ALBERT: I think I first met Mr. Higgins about 15 years ago.
MR. JACKSON: How did you meet him?
MR. ALBERT: It was a professional — something at work. We may have worked together. I think at the time he was a Cambridge arson squad member and I think he came into the city of Boston to do something for work.
MR. JACKSON: So you've known him for 15 years. And you were with him on January 28th, 2022, correct?
MR. ALBERT: Yes.
MR. JACKSON: And he's the person that you were quote joking and fooling around with, right?
MR. ALBERT: Yes.
MR. JACKSON: You had a long road trip with Mr. Higgins on January 28th, 2022, didn't you?
MR. ALBERT: Is there — what's the question?
MR. JACKSON: You had a long road trip with Mr. Higgins on January 28th, 2022, correct?
MR. ALBERT: We drove from New York to Boston, yes.
MR. JACKSON: That's a pretty good drive, you'd say?
MR. ALBERT: Yes.
MR. JACKSON: Consider that a road trip?
MR. ALBERT: Yes.
MR. JACKSON: How long?
MR. ALBERT: I don't know — it was probably somewhere around 4 hours, maybe.
MR. JACKSON: Once you got back from New York, back up to the Boston area, the two of you stopped at a location, correct?
MR. ALBERT: Yes.
MR. JACKSON: What was the location?
MR. ALBERT: The Hillside.
MR. JACKSON: And what did you two do at the Hillside?
MR. ALBERT: We went into the Hillside, had a drink, talked, and I think Brian may have ordered food.
MR. JACKSON: So once you got back from that relatively long road trip — that 4-hour-long road trip, I apologize — you stopped at a bar and started drinking, correct?
MR. ALBERT: Yes.
MR. JACKSON: Did you have anything to eat at the Hillside?
MR. ALBERT: I did not, but Brian did. Brian Higgins did. I left prior to Brian Higgins eating.
MR. JACKSON: During the course of that road trip or at the Hillside, did the two of you discuss Karen Read — my client?
MR. ALBERT: No.
MR. JACKSON: Did her name ever come up?
MR. ALBERT: No.
MR. JACKSON: Without telling me anything that he may have actually said, did he mention Karen Read or the topic of Karen Read?
MR. ALBERT: No.
MR. JACKSON: Never. Did he mention the fact that he had been texting and flirting with Karen Read two weeks prior?
MR. ALBERT: No.
MR. JACKSON: So that subject, according to you, was never addressed or broached by Mr. Higgins or you?
MR. ALBERT: No.
MR. JACKSON: During that entire day?
MR. ALBERT: No.
MR. JACKSON: After you arrived at the Waterfall, John O'Keefe arrived subsequent to that, right?
MR. ALBERT: Yes.
MR. JACKSON: How long after, approximately?
MR. ALBERT: 45 minutes, maybe.
MR. JACKSON: And Karen Read was with him, is that right?
MR. ALBERT: Yes.
MR. JACKSON: Brian Higgins was standing right next to you when she came in along with John O'Keefe, correct?
MR. ALBERT: I'm not sure where people were standing when they arrived.
MR. JACKSON: Well, you remember — you saw video, correct? Not
MR. ALBERT: I don't believe there's any — I saw a video of them walking into the Waterfall.
MR. JACKSON: Now fair enough, but you saw at least a clip — according to you, you saw a clip of that video of you at the Waterfall, correct?
MR. ALBERT: Yes.
MR. JACKSON: You were situated at a high-top table, right?
MR. ALBERT: Yes.
MR. JACKSON: Your back is sort of to the camera, is that right?
MR. ALBERT: I'm not sure of the camera angles. The video that I saw, I was at the high-top table, but I'm not sure of all the camera angles of the Waterfall.
MR. JACKSON: Brian Higgins is the guy with the sweatshirt — maybe had a [unintelligible] on the back or something?
MR. ALBERT: I'm not sure what he wore that night. I'm sure he had a sweatshirt on, but I don't know what the emblem was.
MR. JACKSON: Okay. He was standing right next to you in the video clip that you saw?
MR. ALBERT: Yes.
MR. JACKSON: Okay. In other words, that was the video where he was standing right next to you and you two turn to each other and start this play-fighting thing?
MR. ALBERT: Yes.
MR. JACKSON: So if it's that time, or sometime around there at the high-top, you were in proximity of Brian Higgins when Karen Read and John O'Keefe came into the bar, correct?
MR. ALBERT: I just don't recall that timing of when they came into the bar.
MR. JACKSON: All right. Mr. Albert, did Mr. Higgins say anything to you at that time about John O'Keefe arriving with Karen Read at his side?
MR. ALBERT: No.
MR. JACKSON: Did Mr. Higgins say anything to you about being upset that Karen Read had shown up with John O'Keefe?
MR. ALBERT: No.
MR. JACKSON: Describe your relationship with John O'Keefe, if you would.
MR. ALBERT: So I didn't know John that well. I had only met him a few times, but every time I met him it was cordial, pleasant. I would consider him to be a coworker, even though I never really worked with him directly. He seemed like a nice guy. I knew his whole story about the fact that he had taken his niece and nephew after a tragedy in the family, and I had an unbelievable amount of respect for him doing that. But I can't say that we were good friends because I didn't really know him all that well.
MR. JACKSON: You were far better friends with Brian Higgins than you were with John O'Keefe — that's fair to say?
MR. ALBERT: Yes.
MR. JACKSON: On Friday you were asked whether or not you knew my client Karen Read, correct — this meeting a couple days ago, during your direct examination?
MR. ALBERT: I believe so, yes.
MR. JACKSON: You were also asked the same series of questions at another grand jury not involving the Commonwealth — remember that — in June of 2023?
MR. ALBERT: Yes.
MR. JACKSON: I want to be clear about this other hearing. That was a non-Commonwealth hearing in front of a grand jury, correct?
MR. ALBERT: Yes.
MR. JACKSON: All right. Mr. Lally and his colleagues were not there, is that right?
MR. ALBERT: Yes.
MR. JACKSON: I was not there. Mr. Yannetti was not there?
MR. ALBERT: Yes.
MR. JACKSON: Or Miss Little?
MR. ALBERT: Right.
MR. JACKSON: Okay. At that June 2023 — and I'm going to talk about a couple of dates so I don't want to be confusing — at that June 2023 non-Commonwealth hearing, you were asked some questions about whether or not you knew Karen Read before January 28th, 2022?
MR. ALBERT: I believe so, yes.
MR. JACKSON: And you testified — before you testified, you were sworn under oath?
MR. ALBERT: Yes.
MR. JACKSON: Same oath that you swore in this trial, correct?
MR. ALBERT: Yes.
MR. JACKSON: Swore to tell the truth, the whole truth, and nothing but the truth?
MR. ALBERT: Yes.
MR. JACKSON: And you knew that you were testifying under penalty of perjury in that hearing as well, correct?
MR. ALBERT: Yes.
MR. JACKSON: And you testified at that non-Commonwealth grand jury that you quote, believe Karen was with John the night she came into the Hillside — a female that looked similar to Karen from the Waterfall came in with him on that night, and I assume that was her but I can't say for sure, end quote. That was your testimony before that grand jury?
MR. ALBERT: Yes.
MR. JACKSON: But you were also asked a similar question in April of 2022 by Mr. Lally at his grand jury. You remember that?
MR. ALBERT: No.
MR. JACKSON: Let's start at the beginning. Before you testified in the April 2022 grand jury — more than a year earlier and just three months after this incident — you were sworn under oath, correct?
MR. ALBERT: Yes.
MR. JACKSON: The same oath that you took in June of 2023, right?
MR. ALBERT: Yes.
MR. JACKSON: And the same oath you took on Friday?
MR. ALBERT: Yes.
MR. JACKSON: Isn't it true that you were asked the question whether or not you knew Karen Read on January 28th, 2022, and you testified quote, I've never met or seen her before, end quote?
MR. ALBERT: No, I don't recall that.
MR. JACKSON: Didn't you indicate — I'm sorry — that you reviewed your grand jury testimony in anticipation of this trial?
MR. ALBERT: Yes.
MR. JACKSON: You would have read the whole thing?
MR. ALBERT: Yes.
MR. JACKSON: And you don't recall making that statement?
MR. ALBERT: No — maybe.
JUDGE CANNONE: Yes, I'll see counsel at sidebar. When you leave that with the witness — just please take a look at that.
MR. ALBERT: Sure.
MR. JACKSON: Yes. Have you had an opportunity to review that?
MR. ALBERT: I have.
MR. JACKSON: Thank you. Does that refresh your recollection as to what you said before the grand jury of April of 2022?
MR. ALBERT: Yes.
MR. JACKSON: But you didn't read the whole quote, though, right? The whole quote is the following — question: so the female, you had never met before, is that fair to say? Answer: no, I've never met her or seen her before. Period. Maybe once, but I don't think I've ever had a conversation with her. That was the entire quote, correct?
MR. ALBERT: That's the entire quote, yes.
MR. JACKSON: That's not what you read earlier.
MR. ALBERT: But yes — well, what I read earlier was — I've never — I'm sorry — I've never met or seen her before.
MR. JACKSON: Those words came out of your mouth, correct?
MR. ALBERT: That's not my whole sentence.
MR. JACKSON: No — you said "I've never met or seen her before" and then you said "maybe once, but I've never had a conversation with her, I don't think," right?
MR. ALBERT: Yes.
MR. JACKSON: That's my sentence. Okay, so which is it, Mr. Albert? What were you saying? Were you saying you met her and had a conversation with her, or were you saying "I've never met or seen her before"? Which one of those two things was true?
MR. ALBERT: I was saying that I met her maybe once.
MR. JACKSON: Actually, what you said was "I've never met her or seen her before" — your words, not my words, sir. Isn't that right?
MR. ALBERT: No, because in the next sentence I say I met her maybe once.
MR. JACKSON: So you literally changed your testimony within your own testimony?
MR. LALLY: Objection.
JUDGE CANNONE: No — can you answer that, Mr. Albert?
MR. ALBERT: I believe I qualified my first sentence with a second sentence.
MR. JACKSON: So what changed between the first sentence where you indicated unequivocally "I've never met or seen her before," and the second sentence when you said "maybe once"?
MR. ALBERT: I'm not sure what I was thinking at the time that I said that.
MR. JACKSON: Isn't it true, Mr. Albert, not only had you met Miss Read, but you had spent several hours with Karen Read and John O'Keefe six days before this incident? Isn't that true?
MR. ALBERT: No.
MR. JACKSON: In fact, on January 22nd, 2022 — 6 days before January 28th — you socialized with Karen Read at the Hillside bar for several hours, didn't you?
MR. ALBERT: I was at the Hillside bar the week prior, yes.
MR. JACKSON: It was a Saturday night, correct?
MR. ALBERT: Yes.
MR. JACKSON: You were at the bar?
MR. ALBERT: Yes.
MR. JACKSON: Several other folks at the bar, correct?
MR. ALBERT: Several people, yes.
MR. JACKSON: That included Chris Albert, your brother?
MR. ALBERT: Yes.
MR. JACKSON: Guy named Tim Daily?
MR. ALBERT: Yes.
MR. JACKSON: D-A-I-L-Y, is that right?
MR. ALBERT: I'm not sure how to spell his last name.
MR. JACKSON: Julie Albert was there?
MR. ALBERT: Yes.
MR. JACKSON: Jen McCabe was there?
MR. ALBERT: Yes.
MR. JACKSON: Matt McCabe was there?
MR. ALBERT: Yes.
MR. JACKSON: John O'Keefe was there?
MR. ALBERT: Yes, he was.
MR. JACKSON: And Karen Read was there, correct?
MR. ALBERT: Yes, she was.
MR. JACKSON: In fact, correct. I'd like you to take a look at a photograph — just confine that to yourself for a second, tell me if you can familiarize yourself with it, and look up when you're ready.
MR. ALBERT: Yes.
MR. JACKSON: May I approach? Actually, I don't need to. Mr. Albert, you can stay there. Do you recognize the photograph before you?
MR. ALBERT: Yes.
MR. JACKSON: How do you recognize it?
MR. ALBERT: Well, I recognize the people within the photograph, and the background of the photograph looks like the Hillside. That appeared to be a photograph that was taken on January 22nd, 2022, at the Hillside.
MR. JACKSON: Yes. I'd like to publish this.
JUDGE CANNONE: Is it already in evidence? Or — I'm sorry — you put it in evidence first, and then you publish it.
MR. JACKSON: I have that marked as next in order.
JUDGE CANNONE: Yes — and then 67. Thank you. Permission to publish?
MR. JACKSON: Yes. Thank you. You see that photograph — is it the same photograph that you're looking at in front of you?
MR. ALBERT: Yes.
MR. JACKSON: Describe who the people are, going from left to right, sir.
MR. ALBERT: Chris Albert, myself, John O'Keefe, and Tim Daly.
MR. JACKSON: And this was on January 22nd, 2022, about 11:00 p.m., correct?
MR. ALBERT: Yes.
MR. JACKSON: Mr. Albert, who took the photo?
MR. ALBERT: I don't know.
MR. JACKSON: Karen Read took the photo, didn't she?
MR. ALBERT: I have no idea.
MR. JACKSON: Who here took the photo? You're literally staring right at her, correct?
MR. ALBERT: I don't know who took the photo.
MR. JACKSON: Well, who else do you think could have?
MR. ALBERT: Well, there were a lot of people there. You mentioned my sister, two sister-in-laws, a brother-in-law — I'm not sure.
MR. JACKSON: We can turn the lights back on, please, and take the photo down. Did you ever see this photo from Jen McCabe?
MR. ALBERT: No.
MR. JACKSON: Did you ever see it from Julie Albert?
MR. ALBERT: No.
MR. JACKSON: Chris Albert didn't take it — he's in it, right?
MR. ALBERT: Right.
MR. JACKSON: Tim didn't take it — he's in it, right?
MR. ALBERT: Right.
MR. JACKSON: You obviously didn't take it, right?
MR. ALBERT: Right.
PARENTHETICAL: [unclear]
MR. JACKSON: : Do you still need the photo up? I'm sorry — you were done with it. Okay. Yes — I don't — okay. So given the fact that you had never seen that photo before today, right?
MR. JACKSON: And who's the guy on the far right?
MR. ALBERT: Tim.
MR. JACKSON: That was Tim. Who's the guy next to Tim?
MR. ALBERT: John, right?
MR. JACKSON: So who do you think took the photo?
MR. ALBERT: I saw a photo that was sent to me in discovery, or to my attorney, that showed only — I believe me and John in the picture. I think it's the same photo, only that's blown up to show everybody.
MR. JACKSON: So given what you now know about that night — who was there, the fact that John is posing for a photo right next to you — who do you think took the photo, sir?
MR. ALBERT: I have no idea who took the photo.
MR. JACKSON: Could it have been Karen Read?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. Let's move along from that.
MR. JACKSON: In fact, you were interacting with Karen Read and John O'Keefe throughout that evening, correct?
MR. ALBERT: I remember having conversations with John that evening. I don't necessarily remember speaking to Karen that evening.
MR. JACKSON: Irrespective of whether or not you spoke to her, you obviously saw her there.
MR. ALBERT: Yes.
MR. JACKSON: You were there with her for a couple of hours.
MR. ALBERT: Well, I wasn't there with her for a few hours. I was there with other people.
MR. JACKSON: Okay, so without splitting hairs, she was there, correct?
MR. ALBERT: Yes.
MR. JACKSON: John was there?
MR. ALBERT: Yes.
MR. JACKSON: You were socializing with John?
MR. ALBERT: Yes.
MR. JACKSON: She was right next to him sometimes?
MR. ALBERT: Perhaps — not all the times I was talking to him. No.
MR. JACKSON: So you were socializing — not exclusively with her, certainly socializing with her — six days before John O'Keefe ended up dead on your lawn, correct?
MR. ALBERT: We were there at the same time. Yes.
MR. JACKSON: And yet when you were asked three months later — "Do you know Karen Read?" or "How do you know Karen Read?" — the actual question was, "So the female — you've never met before?" — is that fair to say? That was Mr. Lally's question?
MR. ALBERT: Yes.
MR. JACKSON: And your immediate response was, "No, I've never met her or seen her before," correct? That's what you said.
MR. ALBERT: That's not my whole response.
MR. JACKSON: No — that's what you said immediately upon that question, sir.
MR. ALBERT: That's the beginning of my response.
MR. JACKSON: Yes — that was the first sentence out of your mouth.
MR. ALBERT: Yes.
MR. JACKSON: You also testified at the subsequent grand jury in June of 2023. When I asked, "What was your impression of Miss Read?" — you said, quote, "I honestly didn't really have one. I didn't have any conversation with her. I just kind of saw her from across the table. I didn't really think of it either way."
MR. ALBERT: Correct. I don't know what that question is referring to. Is that for the Waterfall or is that for the Hillside?
MR. JACKSON: Hillside.
MR. ALBERT: Okay. Yes.
MR. JACKSON: All right. So in June of '23, a little over a year later, your testimony significantly changed — from "No, I've never met or seen her before" to "I really didn't have a conversation with her, I saw her across the table, I didn't really think of it either way" — correct?
MR. ALBERT: No, I think those are very similar testimonies.
MR. JACKSON: When you were asked in the other proceeding — and this is about the Waterfall — "Did you talk to Karen Read at the Waterfall that night?" — you answered unequivocally, "I did not." Is that right?
MR. ALBERT: Yes.
MR. JACKSON: And that's what you told the June grand jury — June of '23 — correct?
MR. ALBERT: You're referring to the State Grand Jury?
MR. JACKSON: I'm sorry — that's why I'm using dates. I'm trying to be careful.
MR. ALBERT: April — I'm just not clear on what all the dates were.
MR. JACKSON: I'll see if I can clarify. Okay — April 2022, State Grand Jury; June of 2023, a different grand jury. Okay?
MR. ALBERT: Okay.
MR. JACKSON: When you were asked at the June 2023 grand jury, "Did you ever talk with Karen Read at the Waterfall that night?" — your answer was "I did not," correct?
MR. ALBERT: Yes.
MR. JACKSON: Okay. With the Court's permission, can I play a small clip from Exhibit 53?
JUDGE CANNONE: Okay.
MR. JACKSON: Starting at timestamp 11:53 and 15 seconds — if we could just play this — and I would direct your attention, sir, to the upper right-hand corner. Pause it. Do you recognize the individuals in this?
MR. ALBERT: Yes.
MR. JACKSON: Recognize that person?
MR. ALBERT: Yes. I believe that's me.
MR. JACKSON: Recognize that person?
MR. ALBERT: I do. I believe that's the defendant, Miss Read.
MR. JACKSON: Yes. What does it appear you are doing as it relates to Miss Read in this clip?
MR. ALBERT: It appears that I'm talking at the table. I don't know if it's specifically to her.
MR. JACKSON: So did you see the part of the clip starting at 11:53 and 15 seconds, going back about 30 seconds?
MR. ALBERT: Yes.
MR. JACKSON: Okay. Who did it appear you were talking directly to, and who it appeared was answering directly to you?
MR. ALBERT: I looked like I was speaking, but I can't say for sure that I was directly talking to the defendant.
MR. JACKSON: Even though it looked like you were looking right at her, and leaning toward her, and she was answering?
MR. ALBERT: I was definitely looking that way. I just — I don't remember the conversation.
MR. JACKSON: Can we take that down? The reality is, Mr. Albert, you had many conversations with her throughout the night — like you would with anybody else you were socializing with — correct?
MR. ALBERT: No.
MR. JACKSON: It's not like you ignored her that evening.
MR. ALBERT: No, I just — no. I think just the positioning — me on the other side of the table — I didn't have really much contact.
MR. JACKSON: There was only one person between you, and that was Mr. Higgins.
MR. ALBERT: No, I don't think that was the setup for the whole night.
MR. JACKSON: I didn't say the whole night — I'm talking about right then.
MR. ALBERT: So that's an example. What's your question?
JUDGE CANNONE: Rephrase your question, please.
MR. JACKSON: Did you or did you not have conversations with Karen Read that night?
MR. ALBERT: I do not recall having conversations with Karen Read that night at all. No.
MR. JACKSON: And that's what you told the grand jury under oath — notwithstanding this video evidence to the contrary?
MR. ALBERT: Yes. I don't think that that video shows that.
JUDGE CANNONE: I'm going to let that stand. Next question, please.
MR. JACKSON: You were interviewed by Michael Proctor on January 29th — the day after this incident — correct?
MR. ALBERT: Yes.
MR. JACKSON: And that was six days after you spent several hours with Karen Read at this event, correct?
MR. ALBERT: Six days later, yes.
MR. JACKSON: You were asked by Michael Proctor whether or not you knew, or what your relationship was with Karen Read, correct?
MR. ALBERT: I don't recall if he asked me that.
MR. JACKSON: Did you say to Michael Proctor, quote, that you "did not know Karen Read," end quote?
MR. ALBERT: I may have. Yes.
MR. JACKSON: But when you made that statement, you did not know that Miss Read had a photograph of you at the Hillside bar, correct? You didn't know that photo existed, sir. You were trying to distance yourself from Miss Read in your interview with Michael Proctor, weren't you?
MR. LALLY: Objection.
MR. ALBERT: No, I was not.
MR. JACKSON: Mr. Albert, you were trying to distance yourself from knowing Miss Read in your grand jury testimony — well, I'll use the date — in your April 2022 grand jury testimony, weren't you?
MR. ALBERT: No.
MR. JACKSON: You were further trying to distance yourself from Miss Read in your June 2023 grand jury testimony as well, correct?
MR. ALBERT: No.
MR. JACKSON: You thought that it was important to try to deny knowing John O'Keefe and Karen Read during those interviews and/or that testimony.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Mr. Albert, you knew that if you admitted having a relationship with John O'Keefe and Karen Read, you'd have a lot to answer for when Karen Read's boyfriend ended up dead on your lawn six days later, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can ask the question differently.
MR. JACKSON: You knew that there would be questions about your relationship with Karen Read if it were known that you knew her before her boyfriend ended up dead on your lawn six days later, correct?
MR. ALBERT: There would be questions.
JUDGE CANNONE: You can ask it a different way.
MR. JACKSON: So you lied under oath when you said "I've never met or seen her before," correct?
MR. ALBERT: No, because that wasn't my whole statement.
MR. JACKSON: The sentence "I've never met or seen her before" — it's pretty unequivocal, isn't it?
MR. ALBERT: That was not the context of my whole sentence.
MR. JACKSON: Those are the words that came out of your mouth, right?
MR. ALBERT: Initially — and then I remembered that I had met her once.
JUDGE CANNONE: Just ask it this way.
MR. JACKSON: Sure. Is that sentence true or false — that you had never met or seen her before? True or false?
MR. ALBERT: That portion of that sentence is false.
MR. JACKSON: Let's get this on the record. Did John O'Keefe come into your house at 34 Fairview at any time on January 29th, 2022?
MR. ALBERT: Absolutely not. I wished he had.
MR. JACKSON: And you're as sure about that as you are about the statement that you had never met or seen Karen Read in your life, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can ask it differently, Mr. Jackson.
MR. JACKSON: I want to get back to the Waterfall. I know I asked you this about the Hillside — I may not have asked you about ...the specific question about the Waterfall — did Brian Higgins say anything to you about John O'Keefe and Karen Read walking in together at the Waterfall?
MR. ALBERT: No.
MR. JACKSON: Did he say anything or give you any indication he was upset about Karen Read showing up with John O'Keefe?
MR. ALBERT: No, he did not.
MR. JACKSON: It appeared from your observations that John and Karen were getting along at the Waterfall?
MR. ALBERT: I didn't really notice, but I didn't notice anything was wrong.
MR. JACKSON: They appeared pleasant?
MR. ALBERT: Yes.
MR. JACKSON: Happy?
MR. ALBERT: I don't know if they appeared happy. I didn't really notice.
MR. JACKSON: They were interacting with others?
MR. ALBERT: Yes.
MR. JACKSON: You didn't notice any tension?
MR. ALBERT: No.
MR. JACKSON: No argument?
MR. ALBERT: No.
MR. JACKSON: No yelling or fighting?
MR. ALBERT: No.
MR. JACKSON: They looked like a normal happy couple?
MR. ALBERT: Yes.
MR. JACKSON: Did either of them appear to you to be completely drunk?
MR. ALBERT: I didn't have a ton of interaction with John or Karen that night, so I can't really say, but it didn't appear that they were drunk.
MR. JACKSON: No?
MR. ALBERT: No.
MR. JACKSON: You had an opportunity to review the Waterfall video — you did it with Mr. Lally, correct?
MR. ALBERT: Yeah, only a small portion of it.
MR. JACKSON: Right. But even in that small portion, and based on your memory, you don't remember anybody being stumbling drunk and falling down over stools and things of that nature?
MR. ALBERT: No.
MR. JACKSON: Okay. They appeared to be acting appropriately?
MR. ALBERT: Yes.
MR. JACKSON: And interacting with others appropriately?
MR. ALBERT: Yes.
MR. JACKSON: People were buying drinks for others, is that right?
MR. ALBERT: I'm — I'm sure. I don't recall exactly, but I'm sure that was going on.
MR. JACKSON: Yes. Not that unusual to say, "Hey, I'll get this round"?
MR. ALBERT: Correct, yes.
MR. JACKSON: You left the Waterfall at 11:58, is that right?
MR. ALBERT: Yes, approximately.
MR. JACKSON: Who was invited to come over to your house on leaving the Waterfall?
MR. ALBERT: Whoever wanted to, really.
MR. JACKSON: You had been drinking since about what time in the evening — or in the afternoon?
MR. ALBERT: 9-ish.
MR. JACKSON: That's when you went to the Hillside?
MR. ALBERT: Yes.
MR. JACKSON: That's when you had your first drink?
MR. ALBERT: Yes.
MR. JACKSON: And you continued drinking throughout the evening, consistently?
MR. ALBERT: Yes.
MR. JACKSON: Did you believe you were okay to drive?
MR. ALBERT: Yes.
MR. JACKSON: What kind of car did you have at the time?
MR. ALBERT: Ford Edge, black.
MR. JACKSON: Did you drive that car home from the Waterfall?
MR. ALBERT: Yes.
MR. JACKSON: Who rode with you?
MR. ALBERT: My wife and my daughter.
MR. JACKSON: What other cars were in the driveway when you got there?
MR. ALBERT: I don't recall. Brian Higgins's Jeep was in the driveway, backing up as we pulled in.
MR. JACKSON: So kind of in your way?
MR. ALBERT: Yes.
MR. JACKSON: In other words, you weren't going to park — you weren't going to park him in?
MR. ALBERT: I didn't want to block him in.
MR. JACKSON: Right. So you waited until he moved his Jeep out of the way?
MR. ALBERT: Yes.
MR. JACKSON: And then you pulled in. Where in the driveway did you pull in?
MR. ALBERT: I believe I pulled to the left side of the driveway.
MR. JACKSON: You would have been closest to the garage, or was there a car between you and the garage?
MR. ALBERT: I would have been closest to the left side walkway. I don't think there was a car in front of me, but I'm not 100%.
MR. JACKSON: Mr. Albert, did you move that black Ford Edge at any point that night after you got home?
MR. ALBERT: No.
MR. JACKSON: Brian Higgins was the first person to actually physically get to the house — he got there before you, correct?
MR. ALBERT: Yes.
MR. JACKSON: Describe his Jeep.
MR. ALBERT: He had a Jeep Wrangler. I believe it's white — I think it's white.
MR. JACKSON: Any appendage on it?
MR. ALBERT: A plow — a snow plow on the front.
MR. JACKSON: Yes. That can hydraulically go up and down?
MR. ALBERT: I didn't see it that closely. I'm assuming it can, but I don't know that for sure.
MR. JACKSON: After Mr. Higgins moved out of your way — out of the driveway — where did he put that Jeep?
MR. ALBERT: I don't know. I don't know where he parked.
MR. JACKSON: So you wouldn't have gotten to the house — if you left the Waterfall at 11:58, you have to get out to your car, get in your car, start it up, drive home, wait for Brian Higgins to move his Jeep, park your car, then get into the house — that's a fair assessment of the mechanism of you getting home that night, correct?
MR. ALBERT: Yes.
MR. JACKSON: You wouldn't have gotten into the house until what — 12:15? Maybe 15 minutes for all that?
MR. ALBERT: I would put it more like maybe 12:10.
MR. JACKSON: Okay, 12:10 or so?
MR. ALBERT: That would just be a guess.
MR. JACKSON: So it could have been 12:15?
MR. ALBERT: Yeah.
MR. JACKSON: And it could have been 12:07? Who was inside the house when you walked in?
MR. ALBERT: My nephew Colin, my son Brian, and then he had two friends — female friends — I believe it's Sarah and Julie.
MR. JACKSON: What were they doing inside the house?
MR. ALBERT: They were sitting at the kitchen table.
MR. JACKSON: And your nephew Colin — how old was he at the time?
MR. ALBERT: I believe 17 or 18.
MR. JACKSON: Describe him.
MR. ALBERT: In what way?
MR. JACKSON: Height and weight.
MR. ALBERT: So, two and a half years ago — he was probably 5'11", maybe 6 feet, and probably — I'm guessing — 175 pounds.
MR. JACKSON: Big boy.
MR. ALBERT: He's not a small — — right. I mean, bigger than me, significantly.
MR. JACKSON: Yes. Athletic guy?
MR. ALBERT: Yes.
MR. JACKSON: Played football?
MR. ALBERT: Yes.
MR. JACKSON: Good at football?
MR. ALBERT: Yes.
MR. JACKSON: You testified that you went to the bathroom after you arrived home, correct?
MR. ALBERT: Yes.
MR. JACKSON: After saying hi to everybody, you went to the bathroom?
MR. ALBERT: Yes, after saying hi to everybody, I went to the bathroom.
MR. JACKSON: Was that upstairs or downstairs?
MR. ALBERT: I'm not sure. I have a bathroom — not downstairs, but on that floor — and then upstairs, so I'm not sure which one I went to.
MR. JACKSON: When you — it was upstairs. I'm sorry — I didn't mean —
MR. ALBERT: I think it may have been upstairs, but I'm not sure.
MR. JACKSON: When you came back downstairs — or came out of the bathroom, wherever it was — you no longer saw Colin?
MR. ALBERT: Yes.
MR. JACKSON: Prior to going to the bathroom, Colin had said that he was getting picked up, but you never saw him leave?
MR. ALBERT: No.
MR. JACKSON: You didn't see him leave the house, and you didn't see him get picked up by anybody?
MR. ALBERT: I did not.
MR. JACKSON: You didn't see a car outside waiting for him, correct?
MR. ALBERT: I didn't, no.
MR. JACKSON: You did give an initial statement on the morning of the 29th to Officer Lank about 7:00 a.m., is that right?
MR. ALBERT: Officer Lank was in the house at that time and speaking to all of us, really.
MR. JACKSON: And you've admitted that you have known Michael Lank for many years, is that right?
MR. ALBERT: Yes.
MR. JACKSON: Did you see that as a problem?
MR. ALBERT: In what way?
MR. JACKSON: Conflict of interest.
JUDGE CANNONE: Mr. Jackson, I'll — I'll let him have it.
MR. JACKSON: Did you see that as a conflict?
MR. ALBERT: No.
MR. JACKSON: You were asked who was present at the house that night — the night before — right?
MR. ALBERT: Yes.
MR. JACKSON: He stated the following people were at the house that night, quote — in response to Officer Lank's question, "at some point during the time in question," that's how he phrased the question — who was at the house at some point during the time in question. You understood that, right?
MR. ALBERT: I don't recall his question.
MR. JACKSON: No?
MR. ALBERT: No.
MR. JACKSON: You knew that he was asking who was in the house?
MR. ALBERT: That's right, yes.
MR. JACKSON: So you mentioned Brian Albert Jr.?
MR. ALBERT: Yes.
MR. JACKSON: Your son. You mentioned Caitlyn Albert — your eldest?
MR. ALBERT: Yes.
MR. JACKSON: You mentioned Julie Nagel?
MR. ALBERT: Yes.
MR. JACKSON: You mentioned Brian Higgins?
MR. ALBERT: Yes.
MR. JACKSON: And then you added the detail that Caitlyn Albert had left your house about 12:15 a.m., correct?
MR. ALBERT: No.
MR. JACKSON: You didn't say that?
MR. ALBERT: I did not. I may have — just — —unintelligible—
MR. JACKSON: — I'm sorry. So you don't have to sit and read the entire thing — there's a — right at the top of this page, there's a word that says "next." If you would read that area, next few sentences, let me know when you're finished.
MR. ALBERT: Yes, thank — — you.
MR. JACKSON: Did you have an opportunity to review that portion of a report?
MR. ALBERT: I did.
MR. JACKSON: Did that refresh your recollection about a conversation that you had, along with your wife, with Officer Lank?
MR. ALBERT: Yes.
MR. JACKSON: Isn't it true that Officer Lank asked you — asked you and your wife — who else was in the house that night, aside from the names already mentioned? And the names mentioned were Brian Albert Jr., Caitlyn Albert, Julie Nagel, Brian Higgins — quote, "who is a friend of Brian Albert Sr." — end quote. Is that right?
MR. ALBERT: That's what the report says, yes.
MR. JACKSON: And then the report goes on to say they advised me that their daughter Caitlyn left the house around 12:15 a.m. when she was picked up by her boyfriend Tristin Morris. Right?
MR. ALBERT: That's what the report says, yes.
MR. JACKSON: Do you think Officer Lank got it wrong?
MR. ALBERT: Perhaps.
MR. JACKSON: Yes?
MR. ALBERT: Yes.
MR. JACKSON: Did you say that Caitlyn left about 12:15?
MR. ALBERT: No.
MR. JACKSON: Did Nicole say, in your presence, that Caitlyn left about 12:15?
MR. ALBERT: She did not.
MR. JACKSON: At any point, did Officer Lank ask you what time Caitlyn left?
MR. ALBERT: I don't recall him asking that. It was a very chaotic morning, and I don't remember him saying that.
MR. JACKSON: So in fact, if he wrote that sentence in the report — which you just read — he's just picking that up —
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: I'll ask a different way. If that's what Officer Lank recalls, he's just wrong, right?
MR. ALBERT: Yes.
MR. JACKSON: Anything else that he's wrong about — in there?
MR. ALBERT: I didn't read the whole report.
MR. JACKSON: At no point — isn't it true that at no point during that interview did you admit or mention that Colin Albert had been at the house that night?
MR. ALBERT: I don't believe I did, no.
MR. JACKSON: At no point during that interview did your wife Nicole, in your presence, admit or mention that Colin Albert was in the house that night?
MR. ALBERT: No.
MR. JACKSON: So did both of you conveniently forget that Colin was there?
MR. LALLY: Objection.
MR. JACKSON: I'll ask. Did you forget that Colin had been there?
MR. ALBERT: No.
MR. JACKSON: Is there a reason that you left his name out?
MR. ALBERT: Because he — he wasn't there. He left when we got there. He wasn't there for the duration of the time that we had that night.
MR. JACKSON: Except for the fact that you just testified you never saw him.
MR. ALBERT: He said he was getting picked up, and then he was gone, so I assumed he left.
MR. JACKSON: People say a lot of things. But you didn't see him leave, and you didn't see him in the — the rest of the house, according to you, correct?
MR. ALBERT: Right.
MR. JACKSON: Or in the house, right?
MR. ALBERT: He was no longer in my house, so he left.
MR. JACKSON: Well, you didn't search the house, did you?
MR. ALBERT: No.
MR. JACKSON: And you never saw him leave?
MR. ALBERT: I didn't physically see him leave, no.
MR. JACKSON: You also gave a statement to Michael Proctor later that morning — it was about noon, maybe — it was in the afternoon, noon, 12:30, something like that?
MR. ALBERT: Are you asking about the 29th?
MR. JACKSON: Later, after you spoke with Officer Lank, you were interviewed by Trooper Michael Proctor over at Jen McCabe's house. Do you remember that?
MR. ALBERT: Yes.
MR. JACKSON: Colin's name was never mentioned then either?
MR. ALBERT: No, because Colin wasn't at the house for the duration of the night.
MR. JACKSON: So when they said who was in the house — talked about Brian Albert, Caitlyn Albert — yes, folks in the house — yes, there were other people in the house prior to us arriving. I didn't mention them either.
MR. ALBERT: Who? Uh, there were some females, um, friends that were over prior to our arrival. And I—
MR. JACKSON: But you never even saw them.
MR. ALBERT: No.
MR. JACKSON: So you have no idea who was there and who wasn't
MR. ALBERT: ...there before you got there. No. I know that there were people at the house prior to me getting there.
MR. JACKSON: Mr. Albert, the question that had been posed to you by several officers was: who did you see in your home when you got there? Correct?
JUDGE CANNONE: Jackson, I'll allow it.
MR. ALBERT: I don't believe that's how it was asked.
MR. JACKSON: No. But Colin's name was never mentioned — left out.
MR. ALBERT: Um, I testified multiple times that Colin was there when we arrived.
MR. JACKSON: Oh, you did — after the fact. Right?
MR. ALBERT: Yes — when I was asked. I knew that the defense knew that Colin was there.
JUDGE CANNONE: Sustained.
MR. JACKSON: In your initial reports to the police, his name was never mentioned, was it?
MR. ALBERT: I did not mention it. And Nicole did ...not mention it.
MR. JACKSON: In your presence?
MR. ALBERT: In my presence? No.
MR. JACKSON: Let's talk about Caitlyn Albert — your eldest. You told Officer Lank that your daughter — well, according to Officer Lank, let me rephrase the question — based on our colloquy back and forth — according to Officer Lank, you're aware that he wrote he was told she was gone by 12:15. Correct?
MR. ALBERT: That's what he wrote in the report. Yes.
MR. JACKSON: If Caitlyn was gone by 12:15, she would not have been there when John and Karen arrived to the house. Correct?
MR. ALBERT: Because they didn't arrive for 15 minutes later. But she was at the house, so that would be hypothetical.
MR. JACKSON: Okay, so — fine — hypotheticals. Let me ask you ...hypothetically: if in fact Caitlyn was gone by 12:15, that would mean hypothetically she would not have been there when John and Karen arrived 15 minutes later.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: When you were interviewed by Officer Lank that morning, other people were in the room — not just you and Officer Lank — correct?
MR. ALBERT: Yes. I wouldn't consider that morning to be an interview with Officer Lank — more of a conversation.
MR. JACKSON: Yes. During that conversation, Nicole was there?
MR. ALBERT: Yes.
MR. JACKSON: She was in earshot?
MR. ALBERT: Yes.
MR. JACKSON: When she was involved in the conversation, you were within earshot?
MR. ALBERT: Yes.
MR. JACKSON: Brian Jr. would have been within earshot?
MR. ALBERT: Brian Jr. wasn't downstairs most ...of that morning — so he may not have been. But he was there part of the morning. Yeah, but I — I'm not sure that he was there at the time, like, um — Officer Lank was asking questions.
MR. JACKSON: The fact of the matter is — notwithstanding what Officer Lank wrote — that you said about Caitlyn leaving at 12:15 — she did not leave at 12:15. Isn't that right?
MR. ALBERT: She did not. No.
MR. JACKSON: As a matter of fact, in truth — except for the people who lived there — Caitlyn was the very last person to leave that location that morning. Correct?
MR. ALBERT: I believe so. Yes.
MR. JACKSON: And she's admitted that she did not leave until nearly 2 a.m. — 1:45. Correct?
JUDGE CANNONE: Sustained.
MR. JACKSON: You're aware that she ...did not leave until 1:45 or thereafter — is that right?
MR. ALBERT: I believe that's around the time. Yes.
MR. JACKSON: Were you trying to cover for Caitlyn so your daughter would not be wrapped up in this investigation?
MR. ALBERT: No.
MR. JACKSON: But as a reminder — when you were spoken to by the first two officers who discussed who was in the house, you never mentioned Colin was even there. Correct?
JUDGE CANNONE: Jackson, we've gone over that. Next question, please.
MR. JACKSON: If Colin was gone — just like Caitlyn was gone — that would eliminate them from ever being at the house at the same time as John O'Keefe and Karen, right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: On January 29th, about 11:30 or 12 — we talked about the fact that you were interviewed by Michael Proctor at Jen McCabe's house. Correct?
MR. ALBERT: Yes.
MR. JACKSON: You knew at the time that the state police were looking to interview Jennifer McCabe about her understanding of what had happened the night before.
JUDGE CANNONE: Sustained.
MR. JACKSON: You were notified that the state police were going to interview Jen McCabe.
JUDGE CANNONE: Jackson, I'll allow it.
MR. JACKSON: Were you notified that?
MR. ALBERT: No.
MR. JACKSON: You knew the subject matter of an interview with Jen McCabe was going to happen — at Jen McCabe's house — that's why you went there, right?
JUDGE CANNONE: Sustained.
MR. JACKSON: Isn't it true that you knew — you had been notified, uh, ...or at least you believed — that an interview with Jen McCabe, as part of an official police investigation, was going to occur at her house?
MR. ALBERT: Yes.
MR. JACKSON: You were not asked by the police to join her. Correct?
MR. ALBERT: No.
MR. JACKSON: You had no official reason to be at Jen McCabe's house. Correct?
MR. ALBERT: What do you — I don't know what you mean by official reason.
MR. JACKSON: You were not working the investigation yourself. Correct?
MR. ALBERT: Right.
MR. JACKSON: So you had no official reason to be at Jen McCabe's house during an interview with Jen McCabe.
JUDGE CANNONE: Jackson, I'll allow it.
MR. ALBERT: No.
MR. JACKSON: So — but before she gave her statements, you made sure that you were right there to monitor that interview and exactly what was said. Correct? Were you in her house when Jen McCabe was interviewed by Michael Proctor?
MR. ALBERT: Yes.
MR. JACKSON: You had gone to her house. Correct?
MR. ALBERT: I did.
MR. JACKSON: You went there before she gave the interview?
MR. ALBERT: Yes.
MR. JACKSON: So you were there in her house during the entirety of her interview. Correct?
MR. ALBERT: I believe so. Yes.
MR. JACKSON: And importantly, Jen McCabe knew you were in her house during that interview. Correct?
MR. ALBERT: I assume she knew. Yes.
MR. JACKSON: I mean, you're in her house after all.
MR. ALBERT: Yes.
MR. JACKSON: Want to get back to 34 Fairview, if I could. In the early morning hours of January 29th, Brian Higgins directly followed you into the house after you walked in. Correct?
MR. ALBERT: Could you rephrase that?
MR. JACKSON: Sure. You walked — even though there were some ...moving of cars — you were the first one to walk into the house, and Brian Higgins followed you.
MR. ALBERT: Yes. Um, Nicole and Caitlyn then came in shortly after that. I think Nicole and Caitlyn probably came in around the same time as me, and then Brian — and then Brian Higgins. Sorry.
MR. JACKSON: Did you make a drink once you walked into the house?
MR. ALBERT: Did I make a drink?
MR. JACKSON: Did you get a drink?
MR. ALBERT: Yeah. Yes.
MR. JACKSON: What drink did you get?
MR. ALBERT: I don't know — probably just whatever was at the house, a beer or something.
MR. JACKSON: Did Higgins have another drink?
MR. ALBERT: I don't ...know.
MR. JACKSON: What did you do — what did you and Brian Higgins do once you were inside the house?
MR. ALBERT: We just kind of hung out, talked.
MR. JACKSON: At any point, did you and Brian Higgins go down to the basement?
MR. ALBERT: No. I don't remember going to the basement.
MR. JACKSON: You don't remember going to the basement, or you didn't go to the basement?
MR. ALBERT: No, I didn't go to the basement.
MR. JACKSON: Did Brian Higgins go to the basement?
MR. ALBERT: Not that I know of.
MR. JACKSON: And you didn't go upstairs — the second floor — did you?
MR. ALBERT: I think I did go upstairs. Yes.
MR. JACKSON: Isn't it true that Brian Higgins has never been upstairs in your house — prior to that night, ever, including that night specifically?
MR. ALBERT: I don't think that's true. No.
MR. JACKSON: You owned a dog at the time. Correct?
MR. ALBERT: Yes.
MR. JACKSON: A German Shepherd named Chloe?
MR. ALBERT: Yes.
MR. JACKSON: You described that dog as being not great with strangers. Isn't that true?
MR. ALBERT: I did describe it that way. Yes.
MR. JACKSON: You testified that, quote, "it started barking because it realized that people were downstairs," end quote. Right?
MR. ALBERT: Yes.
MR. JACKSON: Chloe had a penchant for barking when she heard people. Correct?
MR. ALBERT: No, not necessarily.
MR. JACKSON: She did bark, yeah.
MR. ALBERT: I think she wanted to use the bathroom.
MR. JACKSON: Well, that's not what you said in your testimony. You said it started barking because it realized there were people downstairs. Right?
MR. ALBERT: Right.
MR. JACKSON: So your German Shepherd — probably a decent guard dog — if she heard commotion and ...people, she would bark.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can ask it differently.
MR. JACKSON: Obviously, if Chloe hears commotion and people, she's apt to bark.
MR. ALBERT: No.
MR. JACKSON: So just that night — out of nowhere — first time ever, Chloe starts barking when people walk into the house?
MR. ALBERT: No, it's not the first time ever. But she didn't bark often.
MR. JACKSON: Okay, but she did bark that night. Right?
MR. ALBERT: Yes.
MR. JACKSON: And the reason that you gave under oath for why she started barking was because there were people downstairs milling about. Right?
MR. ALBERT: Yes.
MR. JACKSON: So in that instance, on January 29th in the early morning hours, she was barking because she heard people.
MR. ALBERT: Well, I can't say why she was barking.
MR. JACKSON: Well, you did say
MR. ALBERT: Why she was barking — I let her out to use the bathroom, so I think that's probably why.
MR. JACKSON: Except your testimony was, "it started barking because it realized there were people downstairs." Those are your words, Mr. Albert.
MR. ALBERT: Okay.
MR. JACKSON: You stand by those?
MR. ALBERT: Yes.
MR. JACKSON: Okay. You ultimately did let Chloe out to go to the bathroom. Correct?
MR. ALBERT: Yes.
MR. JACKSON: And then you allowed her to stay downstairs and you monitored her with the others who were in the house. Isn't that right?
MR. ALBERT: Yes.
MR. JACKSON: As a matter of fact, you testified in that state grand jury — the same April grand jury, April of 2022 — "So I let it go out to the bathroom, I let it back in, I kind of monitored it a ...little, because we usually don't have people over the house and the dog's not great with strangers, period. So I was just making sure that the dog was all right with the people that were over." End quote. Correct?
MR. ALBERT: Yes.
MR. JACKSON: So in fact, you did keep Chloe downstairs at least for a period of time with people that were over. Right?
MR. ALBERT: Yes, for a few minutes, I think.
MR. JACKSON: Mr. Albert, after you learned that there were questions being raised about John's injuries and dog bites and scratches in May of 2022, you got rid of that dog.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can ask it differently.
MR. JACKSON: At some point, your family got rid of Chloe.
MR. ALBERT: Chloe was rehomed in May 2022— [cut off]
MR. JACKSON: — words we want. Rehomed. Rehoused. Whatever. But you got rid of her. She's no longer part of the Albert family. Right?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that.
MR. JACKSON: Right? When did you get rid of her?
MR. ALBERT: So Chloe was rehomed in — I believe May of 2022.
MR. JACKSON: Of 2022. Just months after the incident we were discussing.
MR. ALBERT: Well, after — it was involved — she was involved in a dog fight with another dog out front, right? But that's also after the incident.
MR. JACKSON: Yes. May. That's a family pet that you had had for six or seven years.
MR. ALBERT: Approximately six or seven years. Not sure.
MR. JACKSON: Your explanation just now for having gotten rid of that dog is because it bit another dog and ultimately sent two women to the hospital. Correct?
MR. ALBERT: I believe two women went to the hospital. Yes.
MR. JACKSON: But you took no action to get rid of Chloe until after you knew that serious questions were being raised about John O'Keefe's —
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: At some point you did realize there were questions being raised about John O'Keefe's injuries on his arm. Correct?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that.
MR. JACKSON: Did you realize that?
MR. ALBERT: I heard some talk about it. Yes.
MR. JACKSON: As of January of 2022, John O'Keefe had never been in your house.
MR. ALBERT: John O'Keefe was never in my house, before or after that date. Certainly.
MR. JACKSON: John O'Keefe — you would agree with me — he would count, were he in your house, he would count as a stranger to Chloe. Never met. Hypothetically, yes?
MR. ALBERT: Yes.
MR. JACKSON: I want to ask a couple of questions about your house. I know there's multiple bedrooms. Are all the bedrooms on the top floor?
MR. ALBERT: Yes.
MR. JACKSON: Okay. How many bedrooms?
MR. ALBERT: Five.
MR. JACKSON: We're looking at your house from the street. Looking at your house — are your bedroom windows, yours and Nicole's bedroom windows, visible from the street?
MR. ALBERT: Yes.
MR. JACKSON: Which windows would they be, if you were facing the house?
MR. ALBERT: They would be far left corner, upper.
MR. JACKSON: Upper or lower?
MR. ALBERT: Upper.
MR. JACKSON: Upper left corner. Yes. How many windows — two?
MR. ALBERT: Two.
MR. JACKSON: With the Court's permission, could I display Exhibit 66?
JUDGE CANNONE: Okay.
MR. JACKSON: Do you see what is displayed on that — on that television?
MR. ALBERT: Yes.
MR. JACKSON: What does that appear to be to you?
MR. ALBERT: The house at 34 Fairview Road.
MR. JACKSON: Okay. Understanding this is a graphic representation, not a photograph — do you see the windows that you just described servicing your bedroom on that, uh, graphic?
MR. ALBERT: Yes.
MR. JACKSON: Are they — this, yes?
MR. ALBERT: Yes.
MR. JACKSON: Okay. Upper left, two windows. Correct?
MR. ALBERT: Yes.
MR. JACKSON: And those overlook what part of the lawn?
MR. ALBERT: The front lawn.
MR. JACKSON: Okay. Front lawn — for the left side of the house, not toward the driveway. Correct?
MR. ALBERT: Right. I mean, it's the whole front lawn, but, yeah.
MR. JACKSON: Right. But they're toward the left side of the house — the windows are.
MR. ALBERT: Yes.
MR. JACKSON: Are they — are they — asked about the V— Right, so the view is the whole front yard. I'm just trying to make the record — the spoken record — as clear as possible.
MR. ALBERT: They're on the left side of the house.
MR. JACKSON: Yes. They directly overlook — they directly overlook this portion of the lawn — the left side of the lawn.
MR. ALBERT: Yes.
MR. JACKSON: Furthest from the driveway.
MR. ALBERT: Yes.
MR. JACKSON: We can take that down. Where's your bed — or where was your bed — inside that room, as relates to the windows?
MR. ALBERT: I'm just trying to think of how to describe it. So the bed would be in the middle of the bedroom.
MR. JACKSON: Okay. It's a bad question on my part because we haven't done that. Let's do it this way. How many feet from the windows would the closest part of your bed be to those windows?
MR. ALBERT: Maybe 5 to 6 feet.
MR. JACKSON: You indicated that Nicole came to bed about 2:00 in the morning.
MR. ALBERT: Yes.
MR. JACKSON: Where was the dog?
MR. ALBERT: The dog was in my room and she was sleeping on a mat.
MR. JACKSON: In your room.
MR. ALBERT: Yes.
MR. JACKSON: And that mat is also about 6 feet from the windows?
MR. ALBERT: Yes. 6 feet being from me to this — maybe this far, could be.
MR. JACKSON: Yes. Maybe a little further, but yes. Maybe this far. A relatively quiet street, generally. Fair to you?
MR. ALBERT: Yes.
MR. JACKSON: Not an enormous amount of through traffic.
MR. ALBERT: No.
MR. JACKSON: Not a busy freeway or a highway.
MR. ALBERT: Correct.
MR. JACKSON: Not an especially noisy street.
MR. ALBERT: The street? No.
MR. JACKSON: Especially at 6:00 a.m. on a Saturday morning. Right?
MR. ALBERT: Right.
MR. JACKSON: Where were you at 6:03 on the morning of January 29th, 2022?
MR. ALBERT: I was sleeping in my room, 6 feet from that window.
MR. JACKSON: Yes. Was Nicole in bed with you?
MR. ALBERT: Yes.
MR. JACKSON: Had you taken any medication the night before?
MR. ALBERT: No.
MR. JACKSON: Were you on any sedatives?
MR. ALBERT: No.
MR. JACKSON: Sleeping pills?
MR. ALBERT: No.
MR. JACKSON: Were you wearing a sleep apnea machine?
MR. ALBERT: No.
MR. JACKSON: Were you wearing an eye mask?
MR. ALBERT: No.
MR. JACKSON: Were you wearing earplugs?
MR. ALBERT: No.
MR. JACKSON: You shortly thereafter became aware that six emergency vehicles — including a fire engine, police cruisers, and unmarked police vehicles, civilian SUV — were all parked in front of your house that morning. Correct?
MR. ALBERT: Uh, I'm not aware of what type of vehicles were parked.
MR. JACKSON: Though you've seen photographs since this incident of the vehicles out front. Right?
MR. ALBERT: No.
MR. JACKSON: Are you aware that all of those vehicles had their engines running?
MR. ALBERT: No.
MR. JACKSON: Are you aware that all the emergency vehicles at least had their lights on — flashing lights?
MR. ALBERT: No.
MR. JACKSON: Were you aware that there were First Responders outside their vehicles, chasing around your lawn?
MR. ALBERT: Was I aware —
MR. JACKSON: Were you aware at the time?
MR. ALBERT: No.
MR. JACKSON: Were you aware that there were emergency responders — First Responders — who were talking to each other over the din of the wind and the snow, to communicate with each other?
MR. ALBERT: No.
MR. JACKSON: You're aware that there were three women on your lawn at one point?
MR. ALBERT: Only after the fact. And at least one of those women was screaming to the top of her lungs at 6:03. No.
MR. JACKSON: Again, your German Shepherd was 6 feet from the window. Correct?
MR. ALBERT: I don't know that for sure — that's where the mat was, but —
MR. JACKSON: Well, that doesn't mean that's where she always is.
MR. ALBERT: Chloe sleeps in the closet area sometimes.
MR. JACKSON: Oh, so now Chloe's in the closet?
MR. ALBERT: I didn't say she was in the closet. I said she sleeps in the closet area sometimes.
MR. JACKSON: Was she sleeping in the closet area that morning?
MR. ALBERT: I don't remember.
MR. JACKSON: Likelihood is she's sleeping on that mat, 5 or 6 feet from that window. Correct?
MR. ALBERT: [unintelligible] I don't know.
MR. JACKSON: And your explanation — and by the way, we've already talked about this earlier — that day, you've already indicated she was barking because she heard people and noises downstairs, when you guys came in the house.
MR. ALBERT: Yes.
MR. JACKSON: Okay. And your explanation is that you and Nicole and Chloe the German Shepherd all slept through the entirety of that commotion on your front lawn.
MR. ALBERT: Yes.
MR. JACKSON: To be clear, you are a trained first responder.
MR. ALBERT: Yes.
MR. JACKSON: Yet during that entire event — after you were awakened — all that chaos on your front lawn — you never came out of your house to assist or investigate in any manner whatsoever. Did you, Mr. Albert?
MR. ALBERT: Once I was awakened, correct.
MR. JACKSON: No. We've talked about this a little bit, but I want to ask you a couple of other questions about the layout of the house. The house is sitting on top of a basement. Correct?
MR. ALBERT: Yes. Or was, at the time.
MR. JACKSON: Describe how you get to the basement from inside the house. If you come in the front door — and when I say — I'm sorry to do this — I don't need to interrupt you. There's two front doors that you go in. Correct?
MR. ALBERT: Yes.
MR. JACKSON: For purposes of my question, Mr. Albert, I'm going to talk about the one that's right in front of you — the obvious one — as the front door, and the one to the right of it as you're looking at the house as the side door. Okay?
MR. ALBERT: Okay.
MR. JACKSON: Because I don't know how else to describe it. If you come in the front door, describe for the jurors where the basement door is, as compared to that.
MR. ALBERT: So you walk straight ahead, you pass the kitchen dining room area, opening on your right-hand side, and there's a door on the left.
MR. JACKSON: How many paces — the door opens — how many paces to walk over and grab that door handle?
MR. ALBERT: I'm not sure. Maybe 10.
MR. JACKSON: 10 full paces, maybe.
MR. ALBERT: Yeah, so maybe eight. Maybe eight.
MR. JACKSON: It's about four long steps. Correct?
MR. ALBERT: Well, I don't know. You asked paces.
MR. JACKSON: So, you know, six feet. Six feet.
MR. ALBERT: Six to eight feet, maybe.
MR. JACKSON: Got it. What was the basement used for in January of 2022?
MR. ALBERT: So the basement had a weight room in one of the rooms, and the other room was nothing at the time. It had been damaged — water damaged — due to an overflowed toilet. So part of the flooring had been ripped up.
MR. JACKSON: Yes.
MR. ALBERT: And that opened up some slab — concrete — downstairs.
MR. JACKSON: Yes.
MR. ALBERT: There was also some plywood downstairs.
MR. JACKSON: Yes.
MR. ALBERT: There were a couple of mats where the actual weights were, so they're not slamming down onto concrete.
MR. JACKSON: Yes. But there was a good amount of that floor that was just exposed concrete.
MR. ALBERT: Yes.
MR. JACKSON: The workout equipment would include things like what?
MR. ALBERT: Barbells, dumbbells.
MR. JACKSON: Yes. Heavy weights.
MR. ALBERT: Yes.
MR. JACKSON: Heavy bars.
MR. ALBERT: Yep.
MR. JACKSON: Made from metal.
MR. ALBERT: Yep.
MR. JACKSON: Once you're down in the basement — by the way, there's two flights that you go down at angles to get there — a series of steps, a landing, take a left, another series of steps, and you're in the basement.
MR. ALBERT: Yes.
MR. JACKSON: Not a — not a long staircase. Very small. But — right? I mean, it's narrow and tight. In other words, you don't just walk straight down a staircase. You go down to a landing, turn left — turns a little — go down, turn left again, and now you're in the basement.
MR. ALBERT: Yes.
MR. JACKSON: If you wanted to move something large or heavy out of that basement without having to go through the house, could you do that?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it. Could you rephrase the question? Say it again.
MR. JACKSON: If you wanted to move something large or heavy out of that basement without having to go through the main house, could you do that?
MR. ALBERT: Yes. I — — it would depend what it was, obviously. How big it was. How would you do — there's a bulkhead door you can use.
MR. JACKSON: Where does that bulkhead door come out?
MR. ALBERT: It comes out to the backyard, right at the kitchen area. You can — you can see it from the kitchen. And right to the left of that is the side fence.
MR. JACKSON: Yes.
MR. ALBERT: And directly through that side fence is the front yard.
MR. JACKSON: Yes. The same side of the front yard as John O'Keefe's body was found.
MR. ALBERT: Yes.
MR. JACKSON: Right. I would ask, at this point, to mark a video.
JUDGE CANNONE: Yes. Mr. Jackson, would you like to take the morning recess?
MR. JACKSON: That'd be great, good time. Yes, thank you.
COURT OFFICER: Rise please. Put down your notebook, follow me please.
MR. JACKSON: Do you anticipate having it — having it all on a flash drive to put in?
PARENTHETICAL: [recess]
JUDGE CANNONE: All right, are we all squared away?
MR. JACKSON: Yeah. Okay. Mr. Albert, did you speak with anybody at the break?
MR. ALBERT: Just my attorney.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Mr. Albert, if you could please tell me what's depicted in that photograph.
MR. ALBERT: Yes, it's the bulkhead stairway.
MR. JACKSON: Is that the stairway that you earlier described for the jurors as servicing the basement, going into the backyard?
MR. ALBERT: Yes.
MR. JACKSON: I would ask to have this marked as next in order, and to publish. [exhibit marked and published] Okay. Do you see what's depicted on the television screen?
MR. ALBERT: Yes.
MR. JACKSON: Does that appear to be the same as what you're holding right there, that exhibit?
MR. ALBERT: It does, yes.
MR. JACKSON: Okay, I'm going to direct your attention, if I could, to the lower left portion of this photograph — right there. You see that? Tell me what that is.
MR. ALBERT: I can't.
MR. JACKSON: Let me highlight one more time — right there. Maybe it's easier if you look on your photograph. Are you referring to the door?
MR. ALBERT: I got it here. Yes. I'm sorry, it's sort of hidden on that photograph, so I apologize.
MR. JACKSON: Is that the door that swings open or closed to close off the basement?
MR. ALBERT: Yes.
MR. JACKSON: Then if you open that door — it's in the open position now — correct?
MR. ALBERT: Yes.
MR. JACKSON: So the photographer is standing in the basement looking toward the doorway, correct?
MR. ALBERT: Yes.
MR. JACKSON: Then you climb seven or eight stairs?
MR. ALBERT: Yes.
MR. JACKSON: And that bulkhead door, which is where all the light is emanating — how does that open?
MR. ALBERT: So the bulkhead door opens straight up.
MR. JACKSON: Okay.
PARENTHETICAL: [video plays, then paused]
MR. ALBERT: At least in that photograph, it was hinged toward the house, and it would open up like — I don't know, like a sandwich or something. It opens straight up to the bay windows that are in the kitchen.
MR. JACKSON: Okay. Okay, that's all I need for that photograph. Your Honor, I have a flash drive with a video on it. I'd ask that this be marked as next in order.
JUDGE CANNONE: With the court's permission — assuming it's the same one?
MR. LALLY: No objection. It's the same one.
PARENTHETICAL: [video plays, then paused]
MR. JACKSON: Now do you recognize what's depicted in the video?
MR. JACKSON: Mr. Albert, I want to ask you to take a look in just a second at a video, and then describe if you recognize what's in that video. I'll probably play maybe five or ten seconds of it and then pause it.
MR. ALBERT: That's okay.
JUDGE CANNONE: Permission. Yes.
MR. JACKSON: Do you recognize what's depicted in that video, at least up to that point?
MR. ALBERT: No.
MR. JACKSON: Does that look like your basement door?
MR. ALBERT: Although the bulkhead doors have been replaced — different — the whole thing looks different to me.
MR. JACKSON: Let's go play the video.
MR. ALBERT: Yes.
MR. JACKSON: What is that?
MR. ALBERT: So that's my — that was my backyard.
MR. JACKSON: Okay, and what area is over to the left here?
MR. ALBERT: That's a gate.
MR. JACKSON: Okay, and what does that gate open up to?
MR. ALBERT: To the front yard.
MR. JACKSON: So the area that we're looking at right now, where the photographer is standing, is the backyard?
PARENTHETICAL: [video plays to completion]
MR. JACKSON: Did you recognize what was depicted in the video?
MR. ALBERT: Yes.
MR. JACKSON: Now, having seen that — notwithstanding the way the bulkhead doors open now — do you recognize what was depicted at the beginning of the video, which was that staircase?
MR. ALBERT: Yes. The downstairs door — the door itself, the wooden door itself — also looks different.
MR. JACKSON: Okay. So but it is the stairway, going into the basement?
MR. ALBERT: Yes.
MR. JACKSON: Or coming out of the basement?
MR. ALBERT: Yes.
MR. JACKSON: So in other words, another way to put that is: that represented the ingress and egress through the bulkhead to the basement?
MR. ALBERT: Yes.
MR. JACKSON: Okay. Let's go ahead and play this out.
COURT OFFICER: Bring your lights up. Thank you.
MR. JACKSON: Thank you, Your Honor. Did you recognize what was depicted in the video as it continued to play?
MR. ALBERT: Yes.
MR. JACKSON: Describe that for the jurors, please.
MR. ALBERT: It looked like the video was from walking from the backyard towards the front yard.
MR. JACKSON: So the video started at the door, turned toward the fence, went through the fence, and right up toward the flagpole?
MR. ALBERT: Correct. Yes.
MR. JACKSON: Is that an accurate representation of the layout of the house when you lived there on January 28th/29th, 2022?
MR. ALBERT: Yes, with the exception of the bulkhead door having been replaced, and maybe the basement door.
MR. JACKSON: Yes. By the way, 34 Fairview had been in your family — at that time in 2022 — for generations?
MR. ALBERT: My parents built the house in the late '70s, '79 maybe.
MR. JACKSON: So if your parents are one generation and you and your family are another generation — two generations, right? Nearly — maybe actually a little more than 50 years, half a century. It was the Albert home.
MR. ALBERT: Yes.
MR. JACKSON: The fact is, you listed that house for sale for the first time ever in November of 2022, correct?
MR. ALBERT: That's the time we listed it. Yes.
MR. JACKSON: Just months after John O'Keefe was found on your lawn—
MR. LALLY: Objection.
MR. JACKSON: Mr. Albert, is that timing — according to you — a coincidence? Is that timing a coincidence?
MR. ALBERT: Well, that's not the timing, actually. We contacted the realtor in 2021, finally listed it in 2022, so that would be pre-incident.
MR. JACKSON: So the listing coming nine months after John O'Keefe was found dead on your lawn, dying on your lawn — that's just a coincidence? You had this in place long before that?
JUDGE CANNONE: I'll sustain. You can ask it differently.
MR. JACKSON: Sure. All I'm asking is: the timing — November 2022, listing that house for sale for the first time in November — in your mind, it's just a coincidence?
MR. ALBERT: It's not a coincidence because we started trying to look into selling the house in 2021, which was a few months prior to the incident.
MR. JACKSON: On January 28th, 2022, you were still an active Boston police officer, correct?
MR. ALBERT: Yes.
MR. JACKSON: What was your job title in January 2022?
MR. ALBERT: Sergeant detective.
MR. JACKSON: That means you not only respond to incidents, you actually conduct investigations as a detective, correct?
MR. ALBERT: Yes. Primarily fugitive investigations.
MR. JACKSON: You have additional training in order to hold the title and hold a position as a detective. Is that right?
MR. ALBERT: Yes.
MR. JACKSON: Not just a regular patrol officer — you have to have special training to get to the rank of detective. Is that right?
MR. ALBERT: Yes.
MR. JACKSON: As a sergeant detective, that's above a regular detective — indeed, because you're a supervising detective. Is that right?
MR. ALBERT: Yes.
MR. JACKSON: You have experience and training in order to hold that position as a supervisor in the detective spot as well?
MR. ALBERT: Yes. There are Civil Service tests for the rank, but yes.
MR. JACKSON: And you've investigated crimes — I mean, I'm guessing just a ton of different types of crimes, including assaults, manslaughters, homicides, kidnappings, things of that nature?
MR. ALBERT: No.
MR. JACKSON: You've never investigated anything like that?
MR. ALBERT: No.
MR. JACKSON: So what are the parameters of your investigative skills as you held that title of sergeant detective?
MR. ALBERT: So my parameters were investigating fugitive investigations — that was my specialty, I guess you could say.
MR. JACKSON: So you've responded to countless incidents and scenes as both the patrol officer and as the detective?
MR. ALBERT: Yes.
MR. JACKSON: You've supervised the investigation of at least the fugitive type of crimes, correct?
MR. ALBERT: Yes.
MR. JACKSON: Fugitives trying to thwart investigators to find them, right?
MR. ALBERT: Yes. That's — that's their whole — it's the cat and mouse thing, right.
MR. JACKSON: You being the cat?
MR. ALBERT: Sometimes. Yes.
MR. JACKSON: You're also trained in techniques — obviously any detective would be trained in techniques that culprits might use or suspects might use to cover up crimes, to thwart investigations, correct?
MR. LALLY: Objection.
MR. JACKSON: Do you have that training, sir?
MR. ALBERT: No.
MR. JACKSON: So in all of your training — 30 years as a Boston officer and as a sergeant detective — you don't have any training in what techniques criminals might use to cover up their conduct?
MR. ALBERT: No. I've never gone to a training for criminals to cover up conduct. No.
MR. JACKSON: Never been trained in — I don't know — somebody might want to clean up blood at a scene?
MR. ALBERT: No.
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. JACKSON: What about sanitizing a location?
MR. ALBERT: No.
MR. JACKSON: What about getting rid of electronic data? You've got to have training in that.
MR. ALBERT: No.
MR. JACKSON: In other words, the fugitives that you chase down and try to find — you don't try to utilize electronic data to go after them?
PARENTHETICAL: [sidebar]
MR. ALBERT: Sometimes we do, but I don't have any training in it per se.
MR. JACKSON: Things like GPS data and phone calls, text messages, communications — things of that nature?
MR. ALBERT: Obviously. Yes. Yes.
MR. JACKSON: These are all things that — if you didn't have formal training, you have on-the-job training and just common sense about how to go after this type of evidence, correct?
MR. ALBERT: Yes, sir.
MR. JACKSON: You had an iPhone with a number ending in 0888 back in January 2022, did you not?
MR. ALBERT: Yes.
MR. JACKSON: How many years did you have that iPhone as of January 28th, 2022?
MR. ALBERT: Several years. I'm not sure how many, but multiple years.
MR. JACKSON: And Mr. Albert, you were notified by the Commonwealth — on September 23rd, 2022, in the fall of 2022 — a judge specifically ordered that you were to preserve that phone.
JUDGE CANNONE: I'll see counsel at sidebar.
COURT OFFICER: Please follow me.
JUDGE CANNONE: Thank you, may be seated. All right, and I am going to see if his counsel — he has a right to be present.
MR. ALBERT: May I step out for a moment?
JUDGE CANNONE: Sure. I'll go after — bench. All right. So, Mr. Jackson, you can have a voir dire here. You are currently represented by Mr. Henning?
MR. ALBERT: Yes, seated behind me.
JUDGE CANNONE: Gentleman right in the gallery. Correct?
MR. ALBERT: Yes.
JUDGE CANNONE: Okay. Without telling me anything you've ever communicated with him — when did you hire him? [unintelligible]
MR. ALBERT: I'm not exactly sure of the date.
MR. JACKSON: Give me a time frame. Let's see if you can narrow it down.
MR. ALBERT: 2022. I'm just not sure of the exact date or even the month. Toward the end of 2022, I'm not sure. I believe prior to some of the other testimony that I gave.
MR. JACKSON: So prior to — prior to April of 2022, at the state grand jury?
MR. ALBERT: No, prior to the — the other testimony.
MR. JACKSON: Okay. That was — — in June of 2023. That's my question. Did you hire Mr. Henning in 2023, in anticipation of giving testimony in June of 2023?
MR. ALBERT: I'm not sure of the exact date. I believe it was maybe the end of '22. I'm not sure.
MR. JACKSON: Well, did you get a subpoena for the other hearing?
MR. ALBERT: I did.
MR. JACKSON: Okay. Did you hire Mr. Henning after you got that subpoena?
MR. ALBERT: I can't say. I believe so, right around that time, yes. I'm just trying to remember the time and I can't remember it.
MR. JACKSON: Okay. So you did not hire — well, you're under oath, right?
JUDGE CANNONE: I think that answers the question. [unintelligible] I'm going to see you at sidebar about the extent of the inquiry.
MR. JACKSON: You have received — I want to draw your attention to — I'm sorry, now I'm doing it — the fall of 2022. September of 2022. Did you receive a notice on Commonwealth letterhead indicating that you were not to destroy or in any way manipulate any data on your cell phone, destroy the phone itself, or to manipulate or destroy any data on that cell phone?
MR. ALBERT: I do not remember getting that letter.
MR. JACKSON: I'm going to read this for the record, Your Honor, if I may, with the Court's permission.
JUDGE CANNONE: Yes.
MR. JACKSON: Did you receive a letter that said — not even in essence, it should be quoted as the following. Quote: "You, Mr. Albert, are hereby notified — — that the defense in the case of Commonwealth versus Karen Read, Norfolk Superior Court criminal case number 22-17, has filed a motion pursuant to Mass. R. Crim. P. 17 for the production of any cell phone or phones that you used between January 28, 2022 and February 28, 2022, and/or any data associated with those cell phones. The hearing on this Read's motion will be held on October 3, 2022 at 2:00 p.m. in Courtroom 1 of the Norfolk Superior Court. You may be heard on the motion at that time.
MR. JACKSON: You are hereby placed on notice that these cell phones are the subject of pending litigation and you must not alter, delete, destroy, or in any way manipulate any of these — — electronic data associated with the cell phones at issue. Period, end quote." Did you receive a notice from the Commonwealth with that language?
MR. ALBERT: I don't remember receiving that document.
MR. JACKSON: Now, when were you told, in any other capacity, that you were not to get rid of or delete your cell phone — in other words, preserve your phone?
MR. ALBERT: Subsequent to upgrading my phone, I spoke with the DA's office. So after that, they told me via a phone call that that was the case.
MR. JACKSON: So your testimony is you never received the notice that I just read, but you did talk to the DA and he told you to preserve — you were on notice that you were to preserve your phone?
MR. ALBERT: After I — I —
MR. JACKSON: You want to say that, Mr. Albert? My question is: did you have the conversation with Mr. Lally?
MR. ALBERT: Yes.
MR. JACKSON: Okay. When was that conversation, sir?
MR. ALBERT: I don't have the exact date of the conversation. I'm not sure.
MR. JACKSON: Who did you talk to on the phone exactly? Was it Mr. Lally alone or was it a conference call?
MR. ALBERT: It was a conference call.
MR. JACKSON: Who else was on that conference call?
MR. ALBERT: I believe Steve Nelson, and other witnesses in the case were on the conference call.
MR. JACKSON: Can you name those witnesses for us?
MR. ALBERT: I believe it was Brian Higgins, I believe Jen McCabe, Matt McCabe, and maybe somebody else, but I can't recall. Who initiated that — — conference call? I believe it was somebody in the DA's office, so either Mr. Lally or Steve Nelson, somebody like that.
MR. JACKSON: Did everybody just call into a central number, a conference line?
MR. ALBERT: Yes.
MR. JACKSON: And what exactly did Mr. Lally say to you during the course of that conversation about preserving your phone?
MR. ALBERT: During the conversation, Mr. Lally said that the defense had filed a motion to ask for the phones to be preserved.
MR. JACKSON: And anything else?
MR. ALBERT: That's what I remember him saying.
MR. JACKSON: Did you volunteer — "Oh my goodness, I just upgraded my phone last week — I don't have that phone anymore"?
MR. ALBERT: No.
MR. JACKSON: You didn't say that to — — Mr. Lally? He just took the information that he gave you and hung up the phone. Without notifying him that the very phone that he had just ordered you to preserve had just been destroyed days earlier?
MR. ALBERT: No. The phone wasn't destroyed. I upgraded the phone.
MR. JACKSON: The data was destroyed, sir. Correct?
MR. ALBERT: I did not destroy any data on any phone. I upgraded my phone.
MR. JACKSON: When you upgrade a phone, you know that the phone is set back to factory reset before your new phone is handed to you. Correct? Happens every time.
MR. ALBERT: I don't know that.
MR. JACKSON: So if you have personal texts with your doctor, personal communications with Mr. Henning, your lawyer — you're just going to hand that to a pimply-faced kid at Best Buy and say "Here's my phone"? You know that data is destroyed when you upgrade your phone. Right?
MR. ALBERT: I think some things come over — contacts, things like that — so I don't know that for sure.
MR. JACKSON: You can back up your data, sir, but the phone data is destroyed for all purposes. It's factory reset. Correct?
MR. ALBERT: I don't know that.
MR. JACKSON: How long have you had a phone? That's an iPhone. Years. How many times have you upgraded your iPhone?
MR. ALBERT: Multiple times.
MR. JACKSON: Every single time you upgrade it, you know that the data on the prior phone is destroyed.
MR. ALBERT: Usually my contacts come over, my photos come over — so that's a backup. I don't think I have that on backup, but okay.
MR. JACKSON: Irrespective, you didn't tell Mr. Lally that you had gotten rid of that phone.
MR. ALBERT: I was not asked that, and I didn't tell him that.
MR. JACKSON: I see. You felt like if you weren't asked that, you didn't need to volunteer it — even though the conference call was specifically about preserving your phone pursuant to a judge's order. Correct?
MR. ALBERT: What was the question?
MR. JACKSON: You didn't offer to Mr. Lally that you had gotten rid of the very phone that he was telling you had to be preserved due to a judge's order.
MR. ALBERT: I did not.
MR. JACKSON: And you didn't — — seek any advice from — I'm not asking you for the communications — you did not seek any advice from counsel at that time for those purposes?
MR. ALBERT: I don't believe I did.
MR. JACKSON: At some point, you indicated, Mr. Albert, at another proceeding, under oath, in relation to a conversation that you had with Brian Higgins about your phone — quote: "I don't recall saying I was going to get rid of my personal phone to Brian Higgins. I may have said that, you know, there's personal stuff on my phone, but I don't recall saying that to him. But I don't know, we had multiple conversations about things." You remember saying that, end quote, at another hearing?
MR. ALBERT: Yes.
MR. JACKSON: You literally admitted at that hearing there's personal private data on that phone — hence you got rid of it. Right?
MR. ALBERT: No.
PARENTHETICAL: [All rise.]
COURT OFFICER: All right. Same — Please be seated. [unintelligible]
MR. JACKSON: You certainly wouldn't allow some kid at the AT&T store to have your personal private data. You're a cop.
MR. ALBERT: No. I assume — I assume he doesn't have it.
MR. JACKSON: Why would you assume not? He took the phone and has it. And what do you think happens to the data on the phone, sir? Let's just use common sense. What do you honestly think happens to the data on the phone when you turn it in and upgrade your phone?
MR. ALBERT: I'm sure the data is not there anymore. I'm sure it's destroyed.
MR. JACKSON: Correct?
MR. ALBERT: I don't know that for a — — fact. I know that some things are transferred back to the new phone.
MR. JACKSON: You just said you know the data is not there. Some data, I guess, isn't?
MR. ALBERT: Yes.
MR. JACKSON: No. That's all I have.
PARENTHETICAL: [sidebar]
JUDGE CANNONE: All right, Mr. Lally, any questions?
MR. LALLY: No.
JUDGE CANNONE: You okay? All right, I'm going to take a short recess. I want to let this witness, if he chooses to, have a few minutes.
COURT OFFICER: Thank you.
JUDGE CANNONE: All right, Mr. Jackson, go right ahead.
MR. JACKSON: Thank you. Mr. Albert, you were notified by the Commonwealth that on September 23rd, 2022, a judge specifically ordered you to preserve that phone and all its data — the phone ending in 0888 — is that right?
MR. ALBERT: Yeah, at the time you're asking me — I was notified that day or the next.
MR. JACKSON: On the 23rd?
MR. ALBERT: On the 23rd or the 24th of September.
MR. JACKSON: No. Isn't it true that you were provided a letter by the Commonwealth that stated the following? Your Honor, if I may read this —
MR. LALLY: Yes, there's no objection.
MR. JACKSON: Thank you. Quote: "You are hereby notified that the defense in the case of Commonwealth versus Karen Read, Norfolk Superior Court criminal case number 22-17, has filed a motion pursuant to Mass. R. Crim. P. 17 for the production of any cell phones that you used between January 28, 2022 and February 28, 2022, and/or any data associated with those cell phones. The hearing on Miss Read's motion will be held on October 3rd, 2022, at 2 p.m. in courtroom one of the Norfolk Superior Court. You may be heard on the motion at that time. You are hereby placed on notice that these cell phones are the subject of pending litigation and you must not alter, delete, destroy, or in any way manipulate any of the electronic data associated with the cell phone at issue." You received that. End quote.
MR. JACKSON: You received that notice on either the 23rd or the 24th — is that right?
MR. LALLY: Your Honor, I would pose a stipulation. I spoke with counsel off the record, if I may.
JUDGE CANNONE: You both have a stipulation that I haven't seen? We just determined — I'm happy to approach. How about we approach quickly?
MR. JACKSON: Yes. I would offer the following stipulation: that on either September 23rd or September 24th, the Commonwealth sent a letter on Commonwealth letterhead to Mr. Albert's attention, stating exactly what was just read into the record, pursuant to the court order dated September 3rd, 2022.
JUDGE CANNONE: Okay. All right. Next question.
MR. JACKSON: Thank you. Your Honor, isn't it true that you were in fact ordered to preserve your cell phone by the Commonwealth at some point?
MR. ALBERT: I was made aware of that, yes.
MR. JACKSON: All right, let's just get to the brass tacks. Where's your phone?
MR. ALBERT: My phone was upgraded and traded in for a new phone.
MR. JACKSON: Your phone was upgraded and traded in for a new phone?
MR. ALBERT: Yes.
MR. JACKSON: Okay. Another way to say that is you traded your phone in and got rid of it, correct?
MR. ALBERT: I traded my phone and upgraded it, yes.
MR. JACKSON: When did you get rid of your phone ending in 0888?
MR. ALBERT: I upgraded my phone in September — 3rd week of September, maybe around the 22nd. The 22nd of September, I believe, so — I can't be sure of the exact date. So
MR. JACKSON: According to you, you got rid of the phone that was the subject of a court order preservation the day before it was ordered preserved, right?
MR. ALBERT: What's the — rephrase the question, please.
MR. JACKSON: This order — it was just stipulated — this order is dated September 23rd, 2022. It was just stipulated that on the 23rd or 24th you were then sent another notice to preserve the phone. And your testimony is that on the 22nd, the day before all this happened, you upgraded your phone and got rid of it in total, correct?
MR. ALBERT: I upgraded my phone on and around the 22nd, yes.
MR. JACKSON: And you knew that all of the data on that phone would be factory reset and destroyed — do you know that, sir?
MR. ALBERT: I do not know that.
MR. JACKSON: How many times have you upgraded your iPhone?
MR. ALBERT: I'm not sure — four or five times, maybe.
MR. JACKSON: You're aware that when you turn a phone in and you upgrade it, the phone that you turn in, that data is factory reset — meaning it's gone, it's destroyed off of that device — correct?
MR. ALBERT: Well, I think some data transfers and some doesn't.
MR. JACKSON: We're not talking about a backup. I'm talking about the physical phone. That physical phone becomes a brick when you turn it in, correct?
MR. ALBERT: Correct — that it becomes a brick.
MR. JACKSON: Effectively a brick. There is no data left on the phone. I'm not talking about backup data onto a cloud — I'm talking about that phone — the old phone.
MR. ALBERT: Yes. Yeah, it's just — everything on it, it's destroyed. Correct.
MR. JACKSON: Right. Although some of the data transfers to your new phone. And you're aware that the very data that you were ordered to preserve would have been destroyed — you, according to you — the day before, correct?
MR. ALBERT: Rephrase the question or ask me a question.
MR. JACKSON: Are you claiming that you got rid of your phone on the 22nd?
MR. ALBERT: I upgraded my phone around that — I'm not sure if that's the exact date, but yes.
MR. JACKSON: So it could have been after the 22nd?
MR. ALBERT: I don't think it was after the 22nd.
MR. JACKSON: Could have been the 24th?
MR. ALBERT: No.
MR. JACKSON: Could have been the 25th?
MR. ALBERT: No.
MR. JACKSON: So you're absolutely sure that you could not have upgraded your phone and gotten rid of it anytime after the 23rd, when a judge ordered that it be preserved?
MR. ALBERT: No.
MR. JACKSON: Because you know that if you got rid of that phone after you had been notified that you were ordered by a court to preserve it, you'd be committing a felony.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: So you now claim that you got rid of the phone on September 22nd, 2022, hours before you were ordered to preserve it — that's your testimony, correct?
MR. ALBERT: Yes.
MR. JACKSON: Is that just a coincidence?
MR. ALBERT: September 4th was my birthday. The phone was broken and failing. I had planned on getting a new phone, and that just happened to be the day that I got it.
MR. JACKSON: Happy birthday. Was that a coincidence?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You were asked at another hearing in June of 2023 that exact question, correct — whether it was a coincidence?
MR. ALBERT: I don't remember.
MR. JACKSON: You recall being asked — let's hear the question first — quote: "So it's just a coincidence that within minutes, hours, or days of you trading in your phone, that phone you had in January of 2022, that you were ordered to preserve it?" Answer: "Yes." Question: "That's a coincidence?" Answer: "Yes."
MR. LALLY: Objection — move to strike.
JUDGE CANNONE: I'll let that stand.
MR. JACKSON: That was your testimony, wasn't it?
MR. ALBERT: Yes.
MR. JACKSON: And that's what you're saying today to these jurors — just a coincidence?
MR. ALBERT: Yes.
MR. JACKSON: Did you and Brian Higgins agree with each other that you're both going to get rid of your phones?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that.
MR. ALBERT: No.
MR. JACKSON: You testified at the other hearing in June of 2023: quote, "I don't recall saying that I was going to get rid of my personal phone to Brian Higgins. I may have said that, you know, there's personal stuff on my personal phone. I don't recall saying that to him, but I don't know — we had multiple conversations about things." End quote. Remember testifying to that?
MR. ALBERT: Yes.
MR. JACKSON: So you're not ruling out the fact that you may have told Brian Higgins that you intended to get rid of your phone, correct?
MR. ALBERT: No.
MR. JACKSON: You're not ruling out the fact that Brian Higgins may have told you that he intended to get rid of his phone?
MR. ALBERT: No. I don't remember him saying that to me.
MR. JACKSON: Your testimony was, quote: "I know there were conversations about the phones. I just can't say if he was going to get rid of his phone or not." End quote. You testified to that under oath?
MR. ALBERT: Yes, although I don't know the context of the time that they were asking that question.
MR. JACKSON: June of 2023 — no, not the date of the hearing, but when they were asking if and when that conversation took place. Does it really matter when it took place?
MR. ALBERT: I think so, yes.
MR. JACKSON: When you talked to Brian Higgins about getting rid of your phones, when do you think you had that conversation?
MR. ALBERT: I don't think I talked to Brian Higgins about getting rid of my phones.
MR. JACKSON: Well, you just said you can't rule out the fact that you had conversations with Brian Higgins about your phones and possibly getting rid of your phones, right?
MR. ALBERT: No — I don't think that's what I said.
MR. JACKSON: You two discussed the fact that you both wanted to get rid of your phones.
MR. ALBERT: I don't remember having that conversation with Brian Higgins at all.
MR. JACKSON: Your testimony was, quote: "I know there were conversations about the phones," sir. Correct?
MR. ALBERT: Correct. That's what you read.
MR. JACKSON: So if you're having conversations with Brian Higgins about the phones, what the heck were you talking about?
MR. ALBERT: I don't know the timing of when they asked when those conversations were.
MR. JACKSON: Mr. Albert, I'm leaving it open to you. I don't care when it was. I'm asking you — have you ever had a conversation with Brian Higgins about your phones, respectively?
MR. ALBERT: We may have. I just — I can't remember that conversation specifically.
MR. JACKSON: Then why in June of 2023 did you testify, "I know there were conversations about the phones with Brian Higgins"? End quote.
MR. ALBERT: I'm not sure of the context of that.
MR. JACKSON: So now you just can't remember?
MR. ALBERT: No, I don't think I could remember during that testimony either. I think if you read the whole thing, I think I said I'm not sure, I don't remember.
MR. JACKSON: Your quote was: "I know there were conversations about the phones. I just can't say if he said he was going to get rid of his phone or not." End quote. Right? Does that help refresh your recollection?
MR. ALBERT: Yes.
MR. JACKSON: So now, as you sit here and you answer my question — did you and Brian Higgins have a conversation about your phones?
MR. ALBERT: I don't remember having that conversation with Brian Higgins.
MR. JACKSON: All right, let's shift gears. Before I shift gears, you're aware that Brian Higgins has
MR. ALBERT: He conducted an interview with my wife, and I don't remember if it was the 29th or the 30th— that's what you're asking.
MR. JACKSON: Wasn't that interview on February 3rd?
MR. ALBERT: I feel like it was earlier than that, but it could have been February 3rd.
MR. JACKSON: Okay. Presume for purposes of my question that it was February 3rd that Michael Proctor interviewed your wife. Then he would not have come into your home on the 29th, 30th, 31st, first, and second, right? And you know, from your training obviously— as a first responder— the first 48 hours of an investigation are absolutely critical, correct?
JUDGE CANNONE: Mr. Jackson.
MR. JACKSON: Do you know that? In that context?
MR. ALBERT: I don't.
MR. JACKSON: Next question. I mean, you're aware there's a TV show called "The First 48"?
JUDGE CANNONE: Mr. Jackson.
MR. JACKSON: Your Honor— do you think the first 48 hours of a criminal investigation are critical?
JUDGE CANNONE: Mr. Jackson.
MR. JACKSON: You do know that the longer you wait to properly investigate anything, the better chance it can be manipulated or destroyed, right? You would agree with that?
MR. ALBERT: Yes.
MR. JACKSON: Did an investigator or any forensics team ever come into your house, ever, to photograph your entire home?
MR. ALBERT: No. I wish they had.
MR. JACKSON: Did an investigator—
MR. ALBERT: Yeah, me too.
MR. JACKSON: Did an investigator or forensics team ever come into your house to search for physical evidence?
MR. ALBERT: No.
MR. JACKSON: Did an investigator or forensic team ever come into your house to search for trace evidence?
MR. ALBERT: No.
MR. JACKSON: Did an investigator or forensic team ever come into your house to take carpet samples, flooring samples from the basement, for instance?
MR. ALBERT: No.
MR. JACKSON: And to this day, you're aware that that's never happened?
MR. ALBERT: Yes, sir.
MR. JACKSON: You were in the Marines before you were a police officer, correct?
MR. ALBERT: Yes.
MR. JACKSON: You're a combat veteran?
MR. ALBERT: Yes.
MR. JACKSON: How long were you in the Marine Corps?
MR. ALBERT: Four years.
MR. JACKSON: During the course of your Marine and military training, did you have any training in hand-to-hand combat?
JUDGE CANNONE: Mr. Jackson— I'll allow it.
MR. ALBERT: Yes.
MR. JACKSON: In addition to your Marine training on the subject, did you also receive additional training from the police department through the academy or otherwise on basic hand-to-hand combat?
MR. ALBERT: No.
MR. JACKSON: So that's not part of the academy?
MR. ALBERT: Not hand-to-hand combat, no.
MR. JACKSON: Fighting techniques, use of batons, things of that—
MR. ALBERT: Defensive tactics.
MR. JACKSON: Defensive tactics. Okay. That's fighting, right?
MR. ALBERT: Well, it's not hand-to-hand combat.
MR. JACKSON: No. Okay, fair enough. I may be using the wrong word. It's physical. It's training on how to either defend yourself or controlling another person physically?
MR. ALBERT: Yes.
MR. JACKSON: I mean, they're not going to send you out there on the streets completely ill-equipped. They need to know that you know how to defend yourself and how to put somebody in custody that doesn't want to be in custody, correct?
MR. ALBERT: Yes.
MR. JACKSON: And that might include fighting?
MR. ALBERT: It could, yes.
MR. JACKSON: And beyond your Marine training and your police training, you're independently trained in techniques of fighting?
MR. ALBERT: Have I boxed before? Yes.
MR. JACKSON: Okay, and you've trained in boxing. It's not like you just walk up and smack a heavy bag, right? You're a trained boxer. You're a trained fighter.
MR. ALBERT: I've boxed in the past and I've trained to box, yes. I mean, I hit a heavy bag, right, but I'm not a trained fighter.
MR. JACKSON: You're a trained fighter. All right, so I'm going—
MR. LALLY: Objection.
JUDGE CANNONE: You were standing, Mr. Lally?
MR. LALLY: Yes.
JUDGE CANNONE: Jurors, disregard that. Mr. Jackson, no comments— just questions, please.
MR. JACKSON: In fact, your boxing skills were featured in a TV show that you were featured in as well, correct?
JUDGE CANNONE: Mr. Jackson— I'll allow that.
MR. ALBERT: No.
MR. JACKSON: You were, in fact— no, that they were featured in a show? No? You've never been shown on TV in a ring, sparring with somebody?
MR. ALBERT: I may have been shown training, but I don't think I was having a boxing match.
MR. JACKSON: Okay. That— I wasn't suggesting that you were having like a [unintelligible]. I was asking: is there a TV show that showed you in a ring, boxing?
MR. ALBERT: Well, that's not what you asked me. But if you're asking me that now— yes.
MR. JACKSON: I'm asking you that now. I apologize, my questions are— —somewhat inartful.
MR. ALBERT: Yes.
MR. JACKSON: You understand the question now?
MR. ALBERT: Yes.
MR. JACKSON: And you have been shown— I use the word "featured"— you've been shown on television in a boxing ring?
MR. ALBERT: Yes.
MR. JACKSON: Sparring?
MR. ALBERT: I haven't seen the video in a while. I'm not sure if I was sparring.
MR. JACKSON: If we can, your Honor— with the court's permission, can we take a look at Exhibit 53?
JUDGE CANNONE: Okay.
MR. JACKSON: There's a clip starting at— it's time of day 11:47 and 15 seconds to 11:48 and 35 seconds— maybe a minute and a half. [Exhibit 53 video plays — paused for questions] Do you see the two men in the foreground?
MR. ALBERT: Yes.
MR. JACKSON: Who are those two men?
MR. ALBERT: Looks like myself and Brian Higgins.
MR. JACKSON: Does it look like yourself and Brian Higgins, or is that yourself and Brian Higgins?
MR. ALBERT: Yes, it is.
MR. JACKSON: Okay. Would you go and play that? Sorry— I've got one more clip to play, but I have a couple of questions, your Honor. Would you— let's take it down, and you can put the other one up after the questions. Did you see what was displayed on that video?
MR. ALBERT: Yes.
MR. JACKSON: Had you seen that before?
MR. ALBERT: A part of it. Yes.
MR. JACKSON: Is that what you and Mr. Lally went over in your preparation for your testimony?
MR. ALBERT: I don't think that we went over it, but he showed me a quick— —clip of it.
MR. JACKSON: When you say he showed you a quick look, did he ask questions about it?
MR. ALBERT: I don't think so. No.
MR. JACKSON: Did you give him any answers about it?
MR. ALBERT: No.
MR. JACKSON: Any explanations?
MR. ALBERT: No.
MR. JACKSON: Just showed you the clip?
MR. ALBERT: Yeah. He just said— yeah, it looks like we were fooling around.
MR. JACKSON: Okay. So you did make an explanation— given a— yeah, explanation for it?
MR. ALBERT: I said I think we were just fooling around.
MR. JACKSON: Okay. Same thing you told us this morning, right?
MR. ALBERT: Right.
MR. JACKSON: Just fooling around?
MR. ALBERT: Yeah, just having fun with my friends, hanging out, and fooling around.
MR. JACKSON: Absolutely. What were you doing— describe, what were you doing?
MR. ALBERT: Having fun with my friends, hanging out, just being silly.
MR. JACKSON: Describe physically what you were doing in the video.
MR. ALBERT: I was playing around, sort of getting in a boxing stance.
MR. JACKSON: Otherwise a fighting stance, correct?
MR. ALBERT: Yeah, for a second. Yes.
MR. JACKSON: And what did Brian Higgins do? You got into a fight stance.
MR. ALBERT: It looked like he was kind of doing the same thing— fighting stance— as well, correct. Yeah.
MR. JACKSON: What were you two talking about? You're talking, right?
MR. ALBERT: Yeah. I don't know what we were talking about. We were just being silly, fooling around, having fun.
MR. JACKSON: Were you giving him advice on the proper way to get into a fighting stance, or a boxing stance?
MR. ALBERT: No.
MR. JACKSON: You giving him some advice, or some— some indicators about how to best position himself if someone is taking an aggressive stance against him?
MR. ALBERT: No. No.
MR. JACKSON: Is he telling you what he thought was a good technique for fighting or boxing?
MR. ALBERT: I don't think it was that serious. We were just playing, fooling around.
MR. JACKSON: But both of you were in fighting stances, facing off against each other, correct?
MR. ALBERT: Yeah, for a second or two.
MR. JACKSON: And Mr. Higgins— you saw him bob his head and start walking up toward you like a boxer, correct?
MR. ALBERT: Yeah. Yes.
MR. JACKSON: And then you got down, pulled your pant legs up, and you squatted down to indicate getting low, having low center of gravity, correct?
MR. ALBERT: That would not— that— that's indicating being silly, that.
MR. JACKSON: At some point, while you're being silly, you then faked a right punch toward him, correct?
MR. ALBERT: I didn't notice that, but I'm not sure.
MR. JACKSON: Can we take a look at the next part of this clip, which is at time of day— 11:55 and 51 seconds— I'm sorry, 11:54 and 52 seconds? [Exhibit 53 second clip — paused for identification] Highlight it. Okay, there are several individuals crowded around a table. Can you describe— where you are and where Higgins is?
MR. ALBERT: Brian Higgins is the guy on the right with the hooded sweatshirt and the emblem on the back.
MR. JACKSON: I have a pointer— do you want me to use it?
MR. ALBERT: That'd be great. That'd be great.
MR. JACKSON: So that's Brian Higgins and that's me. Okay, go and play this. Second clip plays — paused You see what you just did?
MR. ALBERT: Yes.
MR. JACKSON: What'd you do? When you slapped his right arm—
MR. ALBERT: What did I do?
MR. JACKSON: What did you do? What are you doing?
MR. ALBERT: It looks like I'm just being silly, fooling around.
MR. JACKSON: Okay. I got to ask you for a little bit more physical description. What are you doing? Why are you grabbing him from behind?
MR. ALBERT: I don't really know.
MR. JACKSON: Is that a wrestling hold?
MR. ALBERT: No, I think— hold— no, I don't think so.
MR. JACKSON: Is that some sort of a control hold that you've used in the past— bear hugging somebody?
MR. ALBERT: No, that's just— silly fooling around with my buddy.
MR. ALBERT: —technique.
MR. JACKSON: Practicing?
MR. ALBERT: That's not how I see that.
MR. JACKSON: How would you describe it? Just describe it.
MR. ALBERT: I'd just describe it as him fooling around. We're in the bar together, we're good friends, and we're just being silly and fooling around. That's all.
MR. JACKSON: There's a number of people in that bar. You would agree with that?
MR. ALBERT: Yes.
MR. JACKSON: You see anybody else in that video at any time getting physical with one another?
MR. ALBERT: Jackson, how much of this video have you actually watched?
MR. JACKSON: Uh, not much.
MR. ALBERT: Okay.
MR. JACKSON: But let me ask a different question. From your memory of that night, who are the only two people in the bar that seem to be getting physical with—
JUDGE CANNONE: Jackson, can you answer that?
MR. ALBERT: Sure. The only person I remember being physical with was fooling around with Brian.
MR. JACKSON: Okay. Play just a little bit longer. Almost finished. Take that. Did you see the rest of that video?
MR. ALBERT: Yes.
MR. JACKSON: No question that you two are being friendly with one another, correct?
MR. ALBERT: Yes.
MR. JACKSON: You would agree with that?
MR. ALBERT: Yes.
MR. JACKSON: But there's also no question that of all the people in that bar, the only two people who appear to be imitating fighting are you and Mr. Higgins — correct? In that video?
MR. ALBERT: Yes.
MR. JACKSON: And is there another video?
MR. ALBERT: Well, no. I just don't know what everybody else was doing in the bar.
MR. JACKSON: Do you remember anybody else — you know, Julie Albert, or Nicole — getting into a scrap with someone?
MR. ALBERT: I don't remember.
MR. JACKSON: No. Just the two of you.
MR. ALBERT: Correct.
MR. JACKSON: Yes. Mr. Albert, this is minutes before everybody headed to your house at 34 Fairview, correct?
MR. ALBERT: Yes.
MR. JACKSON: Including John O'Keefe?
MR. ALBERT: Yes.
MR. JACKSON: Going back to the morning of January 29th — uh, everyone had left your location. This is after you had already arrived, had a couple of beers, people started leaving. Everybody was gone from your location at about 1:45 a.m., maybe a little thereafter.
MR. ALBERT: That seems right.
MR. JACKSON: Caitlin being the last person to leave.
MR. ALBERT: I believe so, yes.
MR. JACKSON: What did you do to get ready for bed — to settle in?
MR. ALBERT: Um, I went upstairs and just lied in bed. The TV was on. I was just kind of watching TV.
MR. JACKSON: You have a nightstand?
MR. ALBERT: I do.
MR. JACKSON: Is it on your side of the bed or Nicole's, or do you have one on each?
MR. ALBERT: We may have had one on each in that house.
MR. JACKSON: Put your phone on your nightstand?
MR. ALBERT: No.
MR. JACKSON: Would you put your phone—
MR. ALBERT: The phone was in bed with me.
MR. JACKSON: So your testimony is that you get in bed after being on a road trip all day long, then at restaurants and at bars, then at a get-together at your house, and when you go to bed you don't charge your phone?
MR. ALBERT: No. I had the phone in the bed with me.
MR. JACKSON: Why would you have the phone in the bed with you?
MR. ALBERT: Um, we have five kids, um, and you know, if somebody was trying to call, if I needed to reach them, it's just kind of a habit I do. I put my reading glasses and my phone in bed with me.
MR. JACKSON: And you don't charge it?
MR. ALBERT: Sometimes I charge it, but not as a routine.
MR. JACKSON: Now, so you're worried about having your kids out — they might need to get a hold of Dad — so you make sure that your phone is nice and close, but it can just run out of batteries?
MR. ALBERT: Well, if it's dying then I'll put it in the charger, but if not I just leave it on the bed.
MR. JACKSON: What about that night?
MR. ALBERT: That night the phone was on the bed.
MR. JACKSON: How do you know?
MR. ALBERT: Well, I remember the phone being on the bed.
MR. JACKSON: You have a specific recollection from two and a half years ago about the state of the battery charge on your phone, such that you know it was in your bed?
MR. ALBERT: No. I just know as a routine I keep my phone in the bed with me.
MR. JACKSON: That's not what you just said. You just said it depends on whether or not the battery needs to be charged — whether or not you charge it.
MR. ALBERT: My answer is that sometimes I — of course I charge my battery.
MR. JACKSON: Of course. But you sleep with the phone in your bed every single night?
MR. ALBERT: Yes. Mostly every night.
MR. JACKSON: I thought you just said four questions ago it depends on whether or not the phone needs to be charged. Sometimes you keep it in the bed, sometimes you put it on the charger.
MR. ALBERT: If the phone needs to be charged, I charge it. But I sleep in bed with my phone.
MR. JACKSON: Mr. Albert, did your phone need to be charged that night?
MR. ALBERT: I don't remember if it did, but I slept in bed with the phone.
MR. JACKSON: We've been on a road trip most of the day, correct?
MR. ALBERT: Yes.
MR. JACKSON: You've been out at bars that night, correct?
MR. ALBERT: Mm-hmm.
MR. JACKSON: Is that a yes?
MR. ALBERT: Yes.
MR. JACKSON: Weren't charging your phone — we just saw the video, you weren't charging your phone at the bar, right?
MR. ALBERT: Right.
MR. JACKSON: So when you got home, clearly you put your phone on the charger?
MR. ALBERT: I did not.
MR. JACKSON: So if your kids needed to get a hold of you, why would the phone being in your bed be of assistance to you instead of just on the charger on the nightstand?
MR. ALBERT: That's just what I've always done. I just keep it in my bed. My wife — my wife — my wife does the same thing.
MR. JACKSON: So now you've got two phones in the bed?
MR. ALBERT: Yes.
MR. JACKSON: Okay. And your glasses?
MR. ALBERT: Yes.
MR. JACKSON: Right. Between the two of you?
MR. ALBERT: Yes.
MR. JACKSON: Got it. Um, your phone — have a ringer on it?
MR. ALBERT: It does.
MR. JACKSON: Ever thought about maybe turning the ringer on just in case the kids need to get a hold of you?
MR. ALBERT: Sometimes it's on vibrate, sometimes it's on ring. It depends.
MR. JACKSON: Yeah, it depends. You just put it on ringer — wouldn't that make more sense? To go to bed, put it on ringer?
JUDGE CANNONE: Jackson, can you answer that?
MR. ALBERT: All I can answer is that I sleep with my phone in my bed. That's just what I do.
MR. JACKSON: And you know what I'm about to ask you. This is why you're saying you sleep with the phone in the bed, correct?
MR. ALBERT: All right.
JUDGE CANNONE: That's sustained. That's sustained. Mr. Jackson.
MR. JACKSON: All right. Uh, what else is in the bed with you? Your keys? Your wallet? Any other pocket items?
MR. ALBERT: No. Just the phone and my glasses.
MR. JACKSON: Yes. And Nicole's phone?
MR. ALBERT: Yes.
MR. JACKSON: Right between the two of you?
MR. ALBERT: Usually, yes.
MR. JACKSON: What about that night?
MR. ALBERT: Yes, sir.
MR. JACKSON: Did you make any phone calls after you went to bed, between the hours of 1:45 a.m. and 6:30 a.m.?
MR. ALBERT: Yes.
MR. JACKSON: Who did you call?
MR. ALBERT: I inadvertently called Brian Higgins.
MR. JACKSON: What time?
MR. ALBERT: I don't recall the exact time.
MR. JACKSON: After — after two? 2:22 and 35 seconds — does that sound familiar?
MR. ALBERT: Yes.
MR. JACKSON: Did you speak to Brian Higgins at any point between 1:45 a.m. and 6:30 a.m. that night?
MR. ALBERT: No.
MR. JACKSON: You say you inadvertently called him— —at 2:22 in the morning?
MR. ALBERT: Yes.
MR. JACKSON: How did you inadvertently call him?
MR. ALBERT: Well, I don't know, because it was inadvertent. So I have to explain that, though.
MR. JACKSON: Well, it's kind of like a butt dial?
MR. ALBERT: Like a butt dial.
MR. JACKSON: All right. How long have you used an iPhone?
MR. ALBERT: A long time.
MR. JACKSON: Um, as a matter of fact, you've been asked this question before, haven't you?
MR. ALBERT: Yes.
MR. JACKSON: Hence my question. You knew what I was going to ask you.
MR. ALBERT: Jackson. Oh.
MR. JACKSON: Oh. Um — you indicated previously at a different hearing in June of 2023 that you were, quote, "hanging out with your wife and you must have butt-dialed Mr. Higgins," correct?
MR. ALBERT: Yes.
MR. JACKSON: At 2:22 and 35 seconds on January 29th, 2022, correct?
MR. ALBERT: Yes.
MR. JACKSON: You were asked how that could have happened — much like I just asked — how that could have happened, right?
MR. ALBERT: Yes.
MR. JACKSON: And in that hearing you said, quote, "I'm not totally sure" — similar to what you just said here?
MR. ALBERT: Yes.
MR. JACKSON: And here you added that it could have been a butt dial?
PARENTHETICAL: [pause]
MR. ALBERT: Yes.
MR. JACKSON: You were then called back to that same hearing, but at a different date — an ongoing hearing — right?
MR. ALBERT: Yes.
MR. JACKSON: That was in July of 2023, correct?
MR. ALBERT: Yes.
MR. JACKSON: You then changed your testimony — and I don't mean to be indelicate — your testimony was then that you were in an intimate situation, I'll put it that way, with Nicole at the time, and that's how you butt-dialed Brian Higgins, correct?
MR. ALBERT: I don't believe I said that's how I butt-dialed Brian Higgins. That's the time — I think I said there was a time frame that that was close.
MR. JACKSON: Okay. So — I didn't say that?
MR. ALBERT: No.
MR. JACKSON: What you said was you were in an intimate situation with Nicole at the time that the butt dial occurred, right?
MR. ALBERT: I'm not sure. If you have something you can read me or show me—
MR. JACKSON: Is it your testimony — let me just ask — is it your testimony that you and your wife were in the middle of some sort of sexual or intimate situation, and that's what caused you to butt-dial the phone, at that time, at 2:22 a.m.? I'd like to show it to you briefly.
JUDGE CANNONE: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: I'm not going to mark this, sir. I just want to find out if this— —refreshes your recollection. Look at lines 11 through 13, and then let me know when you're prepared.
MR. ALBERT: Yes. Yeah.
MR. JACKSON: Does that refresh your recollection?
MR. ALBERT: It does.
MR. JACKSON: Now you can— Thank you, Your Honor. Um, isn't it true that at the other hearing you indicated that at or around the 2:22 time frame, you and your wife were in bed together in an intimate situation?
MR. ALBERT: Yes, around that time. I think it reads—
MR. JACKSON: May I approach briefly?
JUDGE CANNONE: Yes.
MR. JACKSON: Well, with the Court's permission, let me ask a couple of questions. Do you recall every call that you made between, say, 1:45 a.m. and the next couple of days? You remember every single one of those calls?
MR. ALBERT: No.
MR. JACKSON: Do you think it would refresh your recollection to look at a log of those calls during that time frame, if we're going to discuss those?
MR. ALBERT: Yes.
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: I may not even— — show you that. That's two pages worth of documents. If it refreshes your recollection as we walk through this, with the Court's permission, let me know if you need to refer to that.
MR. ALBERT: I'm not going to be able to read it right now. I'll do it as you ask.
MR. JACKSON: Correct. Yeah. No, you don't need to read it right now, just wanted to have it in front of you. By the way, you've seen these records before, correct?
MR. ALBERT: At the other — at the other hearing proceeding, I've seen some records before, yes. I don't know if these exact records or not.
MR. JACKSON: All right. And you've acknowledged that at least the first page, these are your phone records for the number ending 0888, correct?
MR. ALBERT: Yes.
MR. JACKSON: Okay. And these are call records from January 29th?
MR. ALBERT: Yes.
MR. JACKSON: At 2:22 and 35 seconds in the morning, correct?
MR. ALBERT: Yes.
MR. JACKSON: Whose number ends in 5421?
MR. ALBERT: According to this, it's Brian Higgins.
MR. JACKSON: The call at 2:22 and 35 seconds appears to be one second in length, and that's from you to him, correct?
MR. ALBERT: It says one second. I don't — that would be the call.
MR. JACKSON: The initial call from you to him — the one that you claim is a butt dial — is that right?
MR. ALBERT: Yes.
MR. JACKSON: Did that call roll to voicemail when you immediately hung up?
MR. ALBERT: No. I don't — I don't recall if it — I don't know.
MR. JACKSON: So according to you, it was a butt dial that went to his phone, and it somehow lasted one second. Right. Okay. Then there's a second call — if you look at the second line down, there's a second call at 2:22 and 52 seconds, 17 seconds later, correct?
MR. ALBERT: Yes.
MR. JACKSON: That call is actually from Brian Higgins to you, isn't it?
MR. ALBERT: Yes.
MR. JACKSON: And that call doesn't last one second — that call lasts 22 seconds, correct?
MR. ALBERT: Yes.
MR. JACKSON: Obviously you know how long 22 seconds is.
MR. ALBERT: What's that?
MR. JACKSON: You know how long 22 seconds lasts.
MR. ALBERT: Yes.
MR. JACKSON: So according to your phone records, you placed a call to him, and then 17 seconds later he returned a call to you that lasted 22 seconds, correct?
MR. ALBERT: That's what the records reflect, yes.
MR. JACKSON: When you woke up in the morning, you obviously checked your phone, did you not?
MR. ALBERT: I don't know if I did.
MR. JACKSON: Are you telling this jury that the call that came into your phone was a missed call, or did you answer it?
MR. ALBERT: I did not answer it, so it would have been a missed call. I just know I didn't answer the call. So it would have been a missed call. I don't know that to be a fact. I just know I didn't answer the phone call.
MR. JACKSON: You missed the call. Right?
MR. ALBERT: That's what I mean. Right.
MR. JACKSON: You missed the call. Right. It did something on your phone and you just didn't answer — is that right? Okay. And again, you're using an iPhone?
MR. ALBERT: Yes.
MR. JACKSON: If you butt dialed Brian Higgins and he called you back and you didn't answer, you would have a very bright red missed call in your call log, correct? Do you know that?
MR. ALBERT: I don't know that.
MR. JACKSON: Have you ever missed a call on your iPhone before?
MR. ALBERT: Yes.
MR. JACKSON: And when you go to your call logs, it says "missed call" in red, correct? If your wife calls you, your kids call you?
MR. ALBERT: I don't think I've ever noticed that it's in red. So now I don't know that to be true.
MR. JACKSON: You're certainly alerted to the fact that it's a missed call — you missed the call, correct?
MR. ALBERT: If I were to go back and look at my incoming calls, it would probably say missed call. Yes.
MR. JACKSON: And of course, if we asked you to show us your phone and show that that was a missed call, you couldn't do that, because you've gotten rid of that phone, correct?
MR. ALBERT: Correct.
MR. JACKSON: Did you tell anyone in law enforcement the next day that, oddly, Brian Higgins was calling you at 2:22 a.m. and you missed a call?
MR. ALBERT: No. I wasn't aware of that call.
MR. JACKSON: If a call went to voicemail on your phone, you would get that voicemail, correct?
MR. ALBERT: You'd get notice of it. If I checked my voicemails and there was a voicemail, I would get it. Yes.
MR. JACKSON: That's my question. Did you get a voicemail from Brian Higgins?
MR. ALBERT: No.
MR. JACKSON: Which means he didn't leave a voicemail, right? Would suggest that you answered the call, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Let's talk for a second about this butt dial. You went to bed, and you closed — your phone was — you closed and locked your phone, correct?
MR. ALBERT: Yes.
MR. JACKSON: I don't want you to tell me what the passcode is, Mr. Albert — that's important, I want to make sure you understand. I'm not asking you to tell me what the passcode is. But at the time, was your passcode a four-digit or six-digit passcode?
MR. ALBERT: Four, I believe.
MR. JACKSON: And that locks the phone when it's not in use, correct?
MR. ALBERT: The phone will lock after it's not used for a while. I don't know the exact timing of it.
MR. JACKSON: You're exactly right, Mr. Albert. I said it backward — the phone automatically locks. You have to use the four-digit passcode to unlock it, correct?
MR. ALBERT: Well, no. I also — a voice — I mean, face recognition too. So we can open that way without any passcode.
MR. JACKSON: We'll get to that in a second. The phone locks when it's not in use, correct?
MR. ALBERT: Yes.
MR. JACKSON: And then to make a call, once you open the phone — either through facial recognition or through the passcode — you have to tap on the phone app in order to open up the phone app, correct?
MR. ALBERT: Yes. I believe so.
PARENTHETICAL: [objection]
MR. JACKSON: Are you saying that from your closed and locked phone, you inadvertently tapped your phone one time and that initiated a butt dial to Brian Higgins? Is that what you're saying?
MR. JACKSON: Once you open up that phone app, there are only three ways that you can initiate a phone call: favorites, recents, and contacts, correct?
MR. ALBERT: I don't know that.
MR. JACKSON: If you tap on a contact, that opens up the contact page, or the contact app, right? You know that?
MR. ALBERT: Yes.
MR. JACKSON: Where all your contacts are?
MR. ALBERT: Yes.
MR. JACKSON: They're alphabetized?
MR. ALBERT: Yes.
MR. JACKSON: You have to either scroll through or do a search and type in the name of the person you're looking for, right? You didn't do that, did you?
MR. ALBERT: No.
MR. JACKSON: If you tap favorites — if you have favorites listed — there's a list of favorites you have to scroll through and tap the one that you want to call, correct?
MR. ALBERT: I think so, yes. I'm not totally aware of that, but —
MR. JACKSON: And if you tap on recents, those are the recent calls that you've had — you've either received or made — and of course you have to tap on the contact in the recent list that you want to call, right?
MR. ALBERT: Yes.
MR. JACKSON: And then of course you would have to tap again to end whatever call you initiated, right?
MR. ALBERT: Yes.
MR. JACKSON: I mean, you don't just say goodbye — you got to say goodbye and hang up, you got to tap it to hang it up, right? So would you agree that from a closed and locked phone, there is no physical mechanism by which a person can hit one button and make a phone call?
MR. ALBERT: No, that's not what I'm saying.
MR. JACKSON: Tell me what you're saying. How did you butt dial Brian Higgins in the morning?
MR. ALBERT: I don't know that the phone was locked. I could have been looking through my phone. I butt dial people often and make inadvertent calls. I could have hit a last call from him by accident, thus calling his phone.
MR. JACKSON: So you were actually awake and on your phone at the time?
MR. ALBERT: I was awake and I could have been looking at my phone.
MR. JACKSON: So, Mr. Albert, how'd you miss the call 17 seconds later?
MR. ALBERT: Well, my wife was in the room with me and we were hanging out, and I never got the second call from him. So I'm not sure what time he called. I'm not sure what I was doing at that second. But I don't know. But it didn't go to voicemail. I didn't get a voicemail from him.
MR. JACKSON: No, so it didn't go to voicemail?
MR. ALBERT: Well, I don't know that it didn't go to voicemail. I just know that I didn't receive a voicemail from him. So — okay. I mean, we're all guessing here. But I mean, he could have called, gotten voicemail —
MR. JACKSON: We're not all — well, you are, because you don't know if he left a voicemail or didn't, or at least got voicemail and then hung up the phone. I think one of us is trying to guess.
JUDGE CANNONE: Counsel, sidebar.
MR. JACKSON: Are you now saying that your phone was open and unlocked at 2:22 a.m.?
MR. ALBERT: I'm saying I could have been.
MR. JACKSON: Are you saying that it was?
MR. ALBERT: I don't know.
MR. JACKSON: Mr. Albert, you were the only person that was there with your phone. Was the phone unlocked and did you make a call?
MR. LALLY: Objection.
JUDGE CANNONE: You can answer that.
MR. ALBERT: Sure. I — I don't know.
MR. JACKSON: And 17 seconds later — again, presuming you're the only person there with the phone — did you answer that call?
MR. ALBERT: I did not.
MR. JACKSON: You would agree that in order to answer a call, you can't just look at your phone to answer it — it has to be swiped physically, correct?
MR. ALBERT: I think you can — you can hit — I think it comes up green or red for the phone call, whether it's locked or not, and you can hit green, right. But you have to hit a button. Yes.
MR. JACKSON: Did you hit a button to answer a call — Brian, I don't mean to talk over you. Please let me finish my question. Did you hit a button to answer a phone call from Brian Higgins at 2:22 and 52 seconds in the morning?
MR. ALBERT: Not that I know of.
MR. JACKSON: You do know that that phone will not answer on its own, correct?
MR. ALBERT: Yes.
MR. JACKSON: And simply touching your butt will not answer that phone — it has to be swiped?
MR. ALBERT: No, I don't think it has to be swiped.
MR. JACKSON: You would agree that a 22-second call from Brian Higgins had to have been answered by you. Isn't that right? Do you agree with that?
MR. ALBERT: No.
MR. JACKSON: Did Nicole — who else was in the room?
MR. ALBERT: Just myself and my wife and Chloe. Yes.
MR. JACKSON: But Chloe's not a human. So it was myself and my wife. By process of elimination, Nicole didn't answer that call, did she?
MR. ALBERT: No.
MR. JACKSON: Chloe the non-human didn't answer that call, did she?
MR. ALBERT: No.
MR. JACKSON: So who had to have answered the call, sir?
MR. LALLY: Objection.
JUDGE CANNONE: You can answer that.
MR. ALBERT: I don't remember answering that call. Could have hit the phone by accident, causing it to answer.
MR. JACKSON: Okay. Let's move on from this, Mr. Albert. If I could have one or two more questions —
JUDGE CANNONE: One more question.
MR. JACKSON: Now, your testimony is you could have answered the call, correct?
MR. ALBERT: No. My testimony is that I don't know. You're asking me how it could have answered and I'm trying to answer your question.
MR. JACKSON: At a prior hearing in June of 2022, you were asked this exact question and you answered, quote, "Yeah, it's only possible —" ...that it's me, in quote, correct?
MR. ALBERT: I don't recall answering that way, but I'm not sure.
MR. JACKSON: And you were also asked, after being confronted with these records, "I guess I could have talked to him," meaning Mr. Higgins, correct?
MR. ALBERT: I don't recall saying that.
MR. JACKSON: Now let's move on. Did you have any conversation with Brian Higgins about a 2:22 a.m. phone call that next morning while everything was going on?
MR. ALBERT: I mentioned to Brian that I may have butt dialed him last night, sorry about that.
MR. JACKSON: Did the two of you agree that you were going to both say those calls were butt dials in order to cover up those calls?
MR. LALLY: Objection.
JUDGE CANNONE: You can answer that.
MR. ALBERT: We did not say that.
MR. JACKSON: But let's be clear — since then and now you've gotten rid of your phone, correct?
MR. ALBERT: I upgraded my phone, yes.
MR. JACKSON: And since then and now Brian Higgins has gotten rid of his phone — you're aware of that as well?
MR. ALBERT: Yes.
MR. JACKSON: By the way, you indicated that you were awakened in the morning by Jen McCabe about 6:30, correct?
MR. ALBERT: Yes.
MR. JACKSON: And when you woke up, you said you grabbed your phone to make a call, is that right?
MR. ALBERT: No.
MR. JACKSON: Isn't it true that you grabbed your phone and made a call at 7:20 in the morning?
MR. ALBERT: Yes, but that's not when I was awoken by my sister-in-law.
MR. JACKSON: Sorry, that wasn't my question. After you awoke and you're up, right — started making calls, right — my question is: what was the first call you made? At 7:20, can I —
MR. ALBERT: If that refreshes your recollection — with the Court's permission — yes, at 7:20 I called Brian Higgins.
MR. JACKSON: Mr. Albert, you have six siblings and five kids, right?
MR. ALBERT: Yes.
MR. JACKSON: You have in-laws, cousins, huge family, correct?
MR. ALBERT: Yes.
MR. JACKSON: But on the morning you find out that John O'Keefe is laying dead or dying on your lawn, the first call you made at 7:20 was to Brian Higgins, is that right?
MR. ALBERT: Yes.
MR. JACKSON: The same person you had a call with — or at least the logs indicate you had a call with — at 2:22 in the morning, correct?
MR. ALBERT: Yes.
MR. JACKSON: During that 7:20 a.m. call, did you two discuss the 2:22 a.m. calls?
MR. ALBERT: No.
MR. JACKSON: Thought you just said that you told him, "Oh, I think I made a butt dial."
MR. ALBERT: Yeah, that was later in the morning when he came to the house, not on that 7:20 a.m. call.
MR. JACKSON: No. What did you talk about on that 7:20 a.m. call?
MR. ALBERT: I informed him of what was going on at my house. We were out the night before and I thought it was important for him to know what had happened.
MR. JACKSON: I have a couple more questions about the phones and the phone usage that morning and throughout the day. He called Brian Higgins at 7:20 a.m. for 1 minute and 56 seconds, correct?
MR. ALBERT: Yes.
MR. JACKSON: Brian Higgins called you at 7:30 — 5 minutes and 47 seconds?
MR. ALBERT: Yes.
MR. JACKSON: You called Brian Higgins at 7:57 a.m., spoke for 12 minutes and 33 seconds?
MR. ALBERT: Yes.
MR. JACKSON: You then called your brother Kevin Albert at 9:40 a.m., spoke for one minute and 5 seconds?
MR. ALBERT: Yes.
MR. JACKSON: Chief Berkowitz called you at 9:50 a.m. and left a voicemail, is that right?
MR. ALBERT: He didn't leave me a voicemail, but I think he called me.
MR. JACKSON: You called Chief Berkowitz back at 9:54, four minutes later, and spoke for 4 minutes and 40 seconds, right?
MR. ALBERT: Yes.
MR. JACKSON: You called Jen McCabe at 11:30 a.m., is that right?
MR. ALBERT: Yes.
MR. JACKSON: Jen McCabe called you back at 12:02 p.m., you spoke for 7 minutes and 52 seconds?
MR. ALBERT: Yes.
MR. JACKSON: Called Kevin Albert again at 2:01 in the afternoon and spoke for 8 minutes?
MR. ALBERT: Yes.
MR. JACKSON: You called Brian Higgins at 3:24 p.m. and spoke for 6 minutes and 5... ...seconds, is that right? And if it refreshes your recollection, there's a second page — second log — you'll turn your attention to the 3:24 p.m. time frame.
MR. ALBERT: Trying to find it.
MR. JACKSON: Take your time. What time are you referring to?
MR. ALBERT: 3:24 p.m. I see it, yes.
MR. JACKSON: And there's a second call — you call Brian Higgins at 6:12 p.m., speak for a minute and 7 seconds, right?
MR. ALBERT: Yes.
MR. JACKSON: And then the third one on that page, you call Brian Higgins at 6:35 p.m., spoke for 10 minutes and 12 seconds, correct?
MR. ALBERT: Yes.
MR. JACKSON: Turning back to your call logs, you called Kevin Albert at 6:45 on that same day, spoke for about 16 minutes?
MR. ALBERT: Yes.
MR. JACKSON: Then on the next day, January 30th... ...you called Chief Berkowitz and spoke for a minute and six seconds?
MR. ALBERT: Yes.
MR. JACKSON: And the following day, you spoke with Jen McCabe — she called you at 8:04 p.m., correct?
MR. ALBERT: Yes.
MR. JACKSON: And finally, [unintelligible — "CH Fitz"] called you at 1:48 p.m. on February 1st, right?
MR. ALBERT: Yes.
MR. JACKSON: Three days later, you spoke again to Brian Higgins at 8:48 a.m., is that right?
MR. ALBERT: Yes.
MR. JACKSON: The subject of these calls, Mr. Albert, were all about the fact that John O'Keefe was found dying on your lawn on January 29th, 2022, isn't that right?
MR. ALBERT: I don't know the subject of all of these calls, no.
MR. JACKSON: You had to have been talking about that event.
MR. ALBERT: Of course it was a horrible situation that was going on. Everybody was distraught and there... ...were a lot of phone calls. This call log doesn't encompass all the phone calls, no. There are a lot of phone calls being made to a lot of people because of this horrible situation.
MR. JACKSON: And the point is, Mr. Albert, those many calls that you've just described — especially as they pertain to Brian Higgins, Jen McCabe, Kenny Berkowitz, your brother Kevin Albert — were those many calls an effort to get stories straight at the time?
MR. ALBERT: No, absolutely not.
MR. JACKSON: Were those many calls an effort going into — up to a jury —
JUDGE CANNONE: We're going to send the jury out, actually. Why don't we — why don't we take the lunch recess. I'll see counsel. All right. Please — she never asks me. All right, so we'll have the lunch recess. [lunch recess — stream muted] Please be seated. Court is back in session. Mr. Jackson, if I had realized that you only had a couple of questions left, we would not have taken the break when we did.
MR. JACKSON: May I proceed, please? Thank you. Mr. Albert, I want to address a couple of quick things that we talked about a little bit earlier. The September 22nd, 2022 date — recall that date?
MR. ALBERT: Yes.
MR. JACKSON: That's the date that you indicate that you believe you got rid of your phone or turned your phone in for an upgrade.
MR. ALBERT: Yeah.
MR. JACKSON: Did you watch the proceedings on this case — the Commonwealth versus Karen Read — on September 22nd, 2022?
MR. ALBERT: No.
MR. JACKSON: You were not aware that that was the first time I appeared on this case and it was nationally televised?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: What did you know about the hearing date of September 22nd, 2022?
MR. ALBERT: I didn't know anything about it.
MR. JACKSON: Knew nothing about it?
MR. ALBERT: No.
MR. JACKSON: Okay. Let me ask a different question. This is going to dovetail into an earlier conversation you and I had concerning a statement that you gave in June of 2023, in the other hearing. You understand what I'm saying?
MR. ALBERT: Yes.
MR. JACKSON: I'm fumbling the language a little bit, but you understand the hearing that I'm talking about?
MR. ALBERT: Yes.
MR. JACKSON: You had indicated a little bit earlier in my questioning that you did not recall saying something to the effect of, "Yeah, it's only possible that it was me who answered the phone." You remember saying — that you didn't recall that?
MR. ALBERT: Yes.
MR. JACKSON: Okay. May I approach, your honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Mr. Albert, there's a highlighted portion of that transcript. If you just take a look at that — when you've finished reviewing it, just look up at me and let me know.
MR. ALBERT: Yes. I got it. Yes.
MR. JACKSON: Mr. Albert, did that refresh your recollection as to the answers you gave when someone was questioning you about this issue in June of 2023?
MR. ALBERT: Yes.
MR. JACKSON: And in fact, you testified as follows — question: "Is there..." —
MR. LALLY: Objection, your honor. As far as reading from the transcript — he's asked him if his memory is refreshed. All right, so go ahead and ask him a question. Don't read from the transcript.
JUDGE CANNONE: Go ahead.
MR. JACKSON: Did you in fact say, in answer to the question, "If it's not your wife and it's not your dog, who else is it possible on Earth to answer this phone?" — answer: "Yeah, it's only possible that it's me." Did you see that?
MR. ALBERT: Yes.
MR. JACKSON: Just before the break I was asking you about those — as you indicated — many phone calls that you traded between and among your family members and friends, including Brian Higgins. You recall that?
MR. ALBERT: Yes.
MR. JACKSON: Were those calls an effort to get your stories straight about what statements you were going to give to law enforcement and how you were going to testify if this case ever went to trial?
MR. ALBERT: No, absolutely not.
MR. JACKSON: Were those calls an effort to coordinate narratives between you and your friends and your family?
MR. ALBERT: No.
MR. JACKSON: Were those many calls in any way discussing the fact of creating a story of mysterious butt dials?
MR. LALLY: Objection.
MR. ALBERT: No.
MR. JACKSON: May I have one moment, your honor.
MR. JACKSON: Thank you, your honor. I have nothing further.