Commonwealth v. Read — Trial ArchiveBrian Albert — Cross
2,536 linesPROCEEDINGS May 13, 2024
(Court in session at 9:10 a.m.)
(Defendant present. Jury not present.)
COURT CLERK: 22-117, the Commonwealth versus Karen Read. Could I have counsel identify themselves, please?
MR. LALLY: Adam Lally, for the Commonwealth. Good morning, Your Honor.
JUDGE CANNONE: Good morning, Mr. Lally.
MS. MCLAUGHLIN: Good morning, Your Honor. Laura McLaughlin, for the Commonwealth.
JUDGE CANNONE: Good morning, Ms. McLaughlin.
MR. JACKSON: Good morning, Your Honor. Alan Jackson, for Ms. Read.
JUDGE CANNONE: Good morning, Mr. Jackson.
MS. LITTLE: Good morning, Your Honor. Elizabeth Little, also on behalf of Ms. Read.
MR. YANNETTI: And good morning, Your Honor. David Yannetti, for Karen Read.
JUDGE CANNONE: Good morning, Mr. Yannetti. I am told there is an objection to something we introduced during cross?
MR. JACKSON: Yes.
JUDGE CANNONE: Do you want to come over?
MR. JACKSON: Sure.
Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: All right. So we are all set to begin?
MR. JACKSON: This is similar to the video that both counsel and the Court ended up indicating they have an objection to the bulkhead to fence to the front yard. I had my investigator go back out. The Court had indicated that we should have done it with the investigator and nobody else was in it. We did exactly that. All it is, is a video from the bulkhead. He opens up a bulkhead door.
JUDGE CANNONE: Is there sound? Is there audio?
MR. JACKSON: There is no audio. The audio has been stripped.
JUDGE CANNONE: Okay.
MR. JACKSON: He didn't talk on it, anyway. I wasn't there. He took the video from the bulkhead. He turns, walks to the fence, goes through the fence and walks to the front yard and that's it. It's probably 15, maybe 30 seconds long.
MR. LALLY: It's about 51 seconds long. Your Honor, the objection is -- and, obviously, this is within the discretion of the Court, but relevancy grounds. I don't know of any witness that puts Mr. O'Keefe in the house, let alone in the basement, in the area of the bulkhead, anything to do with that. So for that reason, the Commonwealth would object on relevancy as it really is just cause to confuse and mislead the jury about whether or not Mr. O'Keefe -- there is no indication that the bulkhead is at all relevant as Mr. O'Keefe wasn't in the house and wasn't near the bulkhead.
MR. JACKSON: Well, that's their theory, that he wasn't in the house.
JUDGE CANNONE: Explain the relevancy.
MR. JACKSON: We believe that there is evidence that Mr. O'Keefe was in the house. There is strong evidence that he was in the house. That's probably coming up either today or tomorrow.
JUDGE CANNONE: Make an offer of proof for me.
MR. JACKSON: Ryan Nagel and Heather Maxon both saw John O'Keefe, both saw John O'Keefe and Karen Read in the car together when they turned almost simultaneously onto Fairview from the adjoining street to the north. When they pulled up, both witnesses will testify that based on their looking at the phones, they started paying attention to the house. It was Julie Nagel who started to make her way out of the house. They were there for about five minutes, 10 minutes, talking about Julie Nagel. Julie Nagel then goes back into the house, decides to stay. She doesn't want a ride home. And, as they leave, both Ryan Nagel and Heather Maxon indicate they looked into the interior of Ms. Read's SUV. John O'Keefe was not there. Ms. Read was sitting alone with nobody else in the passenger compartment. They will both say they did not see him standing outside the compartment. He wasn't on the street. He wasn't on the sidewalk. He wasn't in the yard. The only other place he could have been is in the house. If he was in the house then there is reason to believe that he was in the basement. There is an exit from the basement to the backyard, serving the very area on the same side of the house where John O'Keefe's body was found. That is the defense's theory. That's been the defense's theory from the beginning. The Commonwealth has a different theory, that there is seven witnesses, nine witnesses, all of whom walked out of the house or in the same way looked out of the house, and no one saw John O'Keefe's body in the lawn, which is where they claim he would have been at the time every single one of these people passed by the lawn or looked out onto the lawn. The only other place he could have been is in the house.
JUDGE CANNONE: And what about him being in the house? If that's true, then what? You need to give me some more.
MR. JACKSON: If he was in the house, then the most reasonable place for him to be and be injured is down in the basement. There is a slab flooring down in the basement that's made out of concrete. That would answer the question how he got the fracture on the back of his head. The lacerations to his eyes, the black eyes, the bloody nose will indicate a fight. We've got evidence and we've got experts who are going to say that he looks like he was ina physical altercation, not hit by a car. If he was in a physical altercation that nobody else in the ground floor saw, the only other place he could have been is upstairs or downstairs such that they would not have witnessed the actual fight or the physical altercation. The most reasonable place for him to be is down in the basement, and the basement services the very side of the house where John O'Keefe's body was found. We would want to be able to show that and establish that the bulkhead is a place where if you wanted to remove something large and heavy, you could easily do it. And, if you did do it, that would end up right on the same side of the house where John O'Keefe's body was found.
JUDGE CANNONE: All right. So apparently there is third-party culprit inside the house?
MR. JACKSON: Correct.
JUDGE CANNONE: And who might that be?
MR. JACKSON: It's unknown. It could be one of several people.
JUDGE CANNONE: So under the third-party culprit doctrine, I do think this is speculative. But I am going to let counsel explore this. So I am going to let the video in.
MR. LALLY: I understand.
JUDGE CANNONE: Okay? So the Commonwealth's objection is noted, but he has to authenticate it.
MR. JACKSON: Understood.
COURT CLERK: This wouldn't pertain to you guys, but Mr. Kearney is in the courtroom. He cannot view this witness, correct?
JUDGE CANNONE: Correct.
COURT CLERK: Okay.
JUDGE CANNONE: So we will bring the witness in, and he's going to be removed. All right.
MR. JACKSON: Thank you.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: All right. So we are all set to begin?
MR. JACKSON: Yes, Your Honor.
(Whereupon, the jury is escorted into the courtroom and seated in the jury box.)
JUDGE CANNONE: Good morning again, counsel, and Ms. Read. Good morning, jurors. Let's wait for the ambulance. 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? Everyone said "yes" or nodded affirmatively. Were you also able to follow the instructions and refrain from doing any independent research or investigation into this case since we met on Friday? Everyone said "yes" or nodded affirmatively. Did anyone happen to see, hear or read anything about this case since we left here on Friday? All right. Thank you very much. We will bring Mr. Albert back in, please.
Whereupon, BRIAN ALBERT, Sr., Resuming having been first previously Sworn, was examined and testified under oath as follows:
JUDGE CANNONE: Whenever you are ready, Mr. Jackson.
MR. JACKSON: Thank you, Your Honor.
CROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: 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 that you have testified in a court of law in any capacity?
MR. ALBERT: I would say a hundred, perhaps.
MR. JACKSON: So you'd consider yourself to be an experienced witness?
MR. ALBERT: In what aspect? In --
MR. JACKSON: You've experienced --
MR. ALBERT: As far as being a witness as a police officer?
MR. JACKSON: You've experience testifying in a courtroom?
MR. ALBERT: Yes.
MR. JACKSON: 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.
MR. JACKSON: Which would have been 2022?
MR. ALBERT: Yes.
MR. JACKSON: April of 2022?
MR. ALBERT: Yes.
MR. JACKSON: So 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.
MR. JACKSON: And that was back in April of 2022?
MR. ALBERT: No. That was for the prep for this trial.
MR. JACKSON: 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, this proceeding. 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.
MR. JACKSON: So when I said "spoke with Mr. Lally," since I didn't say "prep with Mr. Lally," your answer was, no, I didn't speak with him. I just prepped with him?
MR. ALBERT: Yes.
MR. JACKSON: What is the difference between speaking and prepping?
MR. ALBERT: 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, 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 D.A.'s office?
MR. ALBERT: Yes, but it wasn't at the D.A.'s office. No. I believe it was somewhere else, but I can't remember if it was here or the D.A.'s office. I'm not sure.
MR. JACKSON: I also asked you a couple of 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: I said I reviewed the video.
MR. JACKSON: Well, now you are 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, correct?
MR. ALBERT: No. I believe I said I saw a video.
MR. JACKSON: Did you misunderstand my question when I asked it the first time as well?
MR. ALBERT: No.
MR. JACKSON: Okay. I am going to try to be clearer with my questions.
MR. ALBERT: Okay.
MR. JACKSON: 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.
MR. JACKSON: Which is prior testimony, correct?
MR. ALBERT: Yes.
MR. JACKSON: 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 of the 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: It means we were just fooling around. That's it.
MR. JACKSON: Fooling around, like, I don't know, playing 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: So play fighting?
MR. ALBERT: I don't think I would call it play fighting. No.
MR. JACKSON: Do you remember seeing 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: No. Do you remember a part of the video where Brian Higgins took a fighting stance, sort of like this?
MR. ALBERT: Maybe, yes.
MR. JACKSON: The two of you approached one another?
MR. ALBERT: I don't think I saw that whole video. No.
MR. JACKSON: Practicing fighting techniques?
MR. ALBERT: I wouldn't call it that.
MR. LALLY: Objection.
JUDGE CANNONE: No. He can have that. I'm sorry. What was your answer to that, Mr. Albert?
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: So what you reviewed with Mr. Lally was the portion of the video where you and Mr. Higgins were somehow fooling around and -- how would you describe it? If it's not fighting techniques, how would you describe it?
MR. ALBERT: Just joking, being silly. Just fooling around.
MR. JACKSON: Okay. Doing what physically?
MR. ALBERT: Doing --
MR. JACKSON: What were you doing physically? I mean, you can joke with words.
MR. ALBERT: Right.
MR. JACKSON: Were you just joking with words like a stand- up 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, no.
MR. JACKSON: Did you squat down, show him how you want to get low when you're either aggressive or defending an aggression?
MR. ALBERT: I don't remember that exact pose, 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 and grab him in a wrestling hold?
MR. ALBERT: I may have. I just don't remember exactly.
MR. JACKSON: Do these things sound familiar when you reviewed -- as to your review of the video that you saw with Mr. Lally?
MR. ALBERT: No. I didn't see all those in the video with Mr. Lally.
MR. JACKSON: Did you discuss with Mr. Lally the questions that you might be asked by him on direct examination? Did he go through here are the topics of conversation we're 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. dHe 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: Not 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: Given the fact that you've now reviewed that testimony?
MR. ALBERT: No.
MR. JACKSON: You'll stick by that testimony?
MR. ALBERT: Yes.
MR. JACKSON: Have you watched any of these proceedings on any platform before your testimony?
MR. ALBERT: No.
MR. JACKSON: You've never tuned in to anything that's 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: I don't 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 two never brought it up?
MR. ALBERT: No. I just asked her how she was doing, and that was it.
MR. JACKSON: 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: He works for the ATF?
MR. ALBERT: He does.
MR. JACKSON: The Department or 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: 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: It'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 now if it was probably somewhere around four hours, maybe.
MR. JACKSON: Once you got back from New York back up to Boston or 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 four-hour long trip, four-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.
MR. JACKSON: But Brian did? Brian Higgins did?
MR. ALBERT: 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, never.
MR. JACKSON: 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 thereto, right?
MR. ALBERT: Yes.
MR. JACKSON: How long after?
MR. ALBERT: Approximately 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 people were standing when they arrived.
MR. JACKSON: Well, you remember being -- you saw a video, correct?
MR. ALBERT: Not of -- I don't believe there is any -- I saw video of them walking into Waterfall, no.
MR. JACKSON: 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 of the camera angles at the Waterfall.
MR. JACKSON: Brian Higgins is the guy with the sweatshirt with maybe a Harley Davidson emblem on the back or something?
MR. ALBERT: I'm not sure what he had on 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 turned 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 the 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 co- worker, 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, meaning a couple of 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: Mr. Lally and his colleagues were not there; is that right?
MR. ALBERT: Yes.
MR. JACKSON: I was not there and Mr. Yannetti was not there?
MR. ALBERT: Yes.
MR. JACKSON: Or Ms. Little?
MR. ALBERT: Right.
MR. JACKSON: At that June 2023 -- and I'm going to talk about6 a couple of dates. So I don't want to be confusing. At that June 2023 non-Commonwealth hearing, you were asked some guestions about whether or not you knew Karen Read before January 28th, 2022, before that night in question?
MR. ALBERT: I believe so, yes.
MR. JACKSON: And you testified -- before you testified, you were sworn an oath?
MR. ALBERT: Yes.
MR. JACKSON: The same oath that you swore in this trial, correct?
MR. ALBERT: Yes.
MR. JACKSON: You 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, "believed Karen was with John the night he came into 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. Do 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 on 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 that you just testified -- I'm sorry -- that you reviewed your grand jury testimony in anticipation for 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.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes. And I'll see counsel at sidebar when you're done with the witness.
BY MR. JACKSON:
MR. JACKSON: Would you please take a look at that?
MR. ALBERT: Sure.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Okay. So I allowed the motion to stay away from the Federal Grand Jury and we were here at sidebar. I instructed Mr. Yannetti that he could say the grand jury, different date, and Mr. Lally wasn't there. Do you want me --
MR. JACKSON: Is that not accurate? It's a non -- grand jury.
JUDGE CANNONE: But it gives the impression. I have already ruled on it.
MR. JACKSON: All right. I --
JUDGE CANNONE: Well, that's why I'm telling you.
MR. JACKSON: Okay.
JUDGE CANNONE: So it's grand jury, date. And I'd let you get into Mr. Lally wasn't the prosecutor.
MR. JACKSON: If I am consistently asking about both grand juries, can I say "the other grand jury"?
JUDGE CANNONE: Yes. Just not "Commonwealth."
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, have you had an opportunity to review that?
MR. ALBERT: I have. Thank you.
MR. JACKSON: Does that refresh your recollection as to what you said before the grand jury in April of 2022?
MR. ALBERT: Yes, but you didn't read the whole quote, though.
MR. JACKSON: Right. The whole quote is the following: (As read), "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. 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. That's not what you read earlier, but yes.
MR. JACKSON: Well, what I read earlier was (as read), "I've never seen" -- I'm sorry -- "I've never met or seen her before." Those words came out of your mouth, correct?
MR. ALBERT: That's not my whole sentence, no.
MR. JACKSON: You've said (as read), "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," correct?
MR. ALBERT: Right. Yes. That's my sentence.
MR. JACKSON: 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'd 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 (as read), "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 this 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 of what I was thinking at the time that I said that.
MR. JACKSON: Isn't it true, Mr. Albert, not only had you met Ms. 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, six days before January 28, 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: There were 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: A 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: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: I'd like you to take a look at a photograph. Just look at that to yourself for a second and familiarize yourself with it and then look up when you're ready.
MR. ALBERT: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Actually, I don't need to. Mr. Albert, you can stay there.
BY MR. JACKSON:
MR. JACKSON: Do you recognize the photograph that is before you?
MR. ALBERT: Yes.
MR. JACKSON: How do you recognize it?
MR. ALBERT: Well, I recognize the people within the photograph and then the background of the photograph looks like the Hillside.
MR. JACKSON: Does that appear to be a photograph that was taken on January 22nd, 2022?
MR. ALBERT: Yes.
MR. JACKSON: When you were at the Hillside bar?
MR. ALBERT: Yes.
MR. JACKSON: May I publish this, Your Honor?
JUDGE CANNONE: Is it already in evidence?
MR. JACKSON: It is not, Your Honor. I'm sorry.
JUDGE CANNONE: So you put it in evidence first.
MR. JACKSON: May I have that marked as the next in order?
JUDGE CANNONE: Yes.
COURT REPORTER: That will be Exhibit 67, Your Honor.
JUDGE CANNONE: Thank you.
(Whereupon, photograph was entered and marked Exhibit No. 67 in Evidence.)
MR. JACKSON: Permission to publish, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Do 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 Daily.
MR. JACKSON: And this was on January 22nd, 2022 at about 11:00 p.m., correct?
MR. ALBERT: Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
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 who took that photo.
MR. JACKSON: If Karen Read 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 it could have been?
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.
JUDGE CANNONE: Would you turn the lights back on, please? You can take the photo down.
BY MR. JACKSON:
MR. JACKSON: 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.
MR. ALBERT: Right.
MR. JACKSON: Tim didn't take it. He's in it.
MR. ALBERT: Right.
MR. JACKSON: You obviously didn't take it.
MR. ALBERT: Right.
MR. JACKSON: And who is the guy on the far right?
MR. ALBERT: Tim.
MR. JACKSON: That was Tim. Who's the guy next to Tim?
MR. ALBERT: John.
MR. JACKSON: So who do you think --
JUDGE CANNONE: Do you still need the photo up? I'm sorry. I thought you were done.
BY MR. JACKSON:
MR. JACKSON: Do you remember?
MR. ALBERT: Yeah. It was John. Yeah.
MR. JACKSON: Okay.
MR. ALBERT: Yes.
MR. JACKSON: So given the fact that you were never shown that photo -- you've never seen that photo before today, correct?
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: Got it. So given what you now know about that night and 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 on.
BY MR. JACKSON:
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?
MR. ALBERT: Sometimes. Perhaps not maybe all the times I was talking to him, no.
MR. JACKSON: So you were socializing not exclusively with her.
MR. ALBERT: Right.
MR. JACKSON: But 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. 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, no.
MR. JACKSON: That's what you said immediately upon that question, sir.
MR. ALBERT: That's the beginning of my response, yes.
MR. JACKSON: 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 asked, what was your impression of Ms. 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," correct?
MR. ALBERT: I don't know what that question is referring to. Is that for the Waterfall or is that for Hillside?
MR. JACKSON: Hillside.
MR. ALBERT: Okay. Yes.
MR. JACKSON: All right. So in June of '23, a little overa 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 testimony.
MR. JACKSON: When you were asked in the other proceeding, and this is about the Waterfall (as read), "Question: 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: Are you referring to the state grand jury?
MR. JACKSON: No. I'm sorry. That's why I'm using dates. I'm trying to be careful.
MR. ALBERT: Right. I'm just not clear on what all the dates were.
MR. JACKSON: I'll see if I can clarify.
MR. ALBERT: Okay.
MR. JACKSON: April 2022, state grand jury; June of 2023, a different grand jury.
MR. ALBERT: Okay.
MR. JACKSON: Okay? When you were asked at the June of 2023 grand jury (as read), "Did you ever talk with Karen Read at the Waterfall that night," your answer was, "I did not," correct?
MR. ALBERT: Yes. Yes.
MR. JACKSON: With the Court's permission, could I play a small clip from Exhibit 53?
JUDGE CANNONE: Okay.
BY MR. JACKSON:
MR. JACKSON: Starting at timestamp 11:53:15, if we could jut play this, and I would direct your attention, sir, to the upper right-hand corner.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Do you recognize the individuals in this clip?
MR. ALBERT: Yes.
MR. JACKSON: Do you recognize that person?
MR. ALBERT: Yes. I believe that's me.
MR. JACKSON: Do you recognize that person?
MR. ALBERT: I do. I believe that's the defendant.
MR. JACKSON: Ms. Read?
MR. ALBERT: Yes.
MR. JACKSON: What does it appear you are doing as it relates to Ms. Read in this clip?
MR. ALBERT: It appears I am talking at the table. I don't know if it's specifically to her.
MR. JACKSON: Go ahead and play.
(Whereupon, the video is played.)
MR. JACKSON: Stop.
(Whereupon, the video is paused.)
MR. JACKSON: Did you see the part of the clip starting at 11:53:15, going back about 30 seconds?
MR. ALBERT: Yes.
MR. JACKSON: Okay. Who did it appear you were talking directly to and who did it appear 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 you?
MR. ALBERT: I was definitely looking that way. I don't remember the conversation.
MR. JACKSON: The reality is -- you can take that down. The reality is, Mr. Albert, you had many conversations with her throughout the night like you would with anybody else that you were socializing with, correct?
MR. ALBERT: No.
MR. JACKSON: It is not like you ignored her through that evening, was it?
MR. ALBERT: No. I just -- I think the positioning of 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 says the whole night. I'm talking about right then. That's just an example.
MR. ALBERT: Right. What's your question? Rephrase your question.
MR. JACKSON: Did you or did you not have conversations with Karen Read that night, socializing with her?
MR. ALBERT: I do not recall having a conversation 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 video shows that.
MR. LALLY: Objection.
JUDGE CANNONE: I'm going to let that stand. Next question, please.
BY MR. JACKSON:
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, six days later?
MR. ALBERT: 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, quote, "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 Ms. Read had a photograph of you at the Hillside bar, correct? You didn't know that photograph existed, did you?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Sir, you were trying to distance yourself from Ms. Read in your interview with Michael Proctor, weren't you?
MR. LALLY: Objection.
JUDGE CANNONE: Were you?
MR. ALBERT: No, I was not.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, you were trying to distance yourself from knowing Ms. Read in your grand jury testimony with -- 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 Ms. 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.
BY MR. JACKSON:
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.
BY MR. JACKSON:
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? There would be questions?
MR. LALLY: Objection.
JUDGE CANNONE: You can ask it a different way. Sustained.
BY MR. JACKSON:
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, is pretty unequivocal, isn't it?
MR. ALBERT: That was not the context of my whole sentence.
MR. JACKSON: But those are the words that came out of your mouth, right?
MR. ALBERT: Initially, and then I remembered that I had met her once.
MR. JACKSON: Let me just ask it this way.
MR. ALBERT: Sure.
MR. JACKSON: 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?
MR. LALLY: Objection.
BY MR. JACKSON:
MR. JACKSON: Correct?
JUDGE CANNONE: Sustained. You can ask it differently, Mr. Jackson.
BY 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 this 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, no.
MR. JACKSON: You've had an opportunity to review the Waterfall video. You did it with Mr. Lally, correct?
MR. ALBERT: 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 sure. I don't recall exactly. But I'm sure that was going on, yes.
MR. JACKSON: It's not that unusual to say, hey, I'll get this round, correct?
MR. ALBERT: Yes.
MR. JACKSON: Okay. 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 upon leaving the Waterfall?
MR. ALBERT: Whoever wanted to, really.
MR. JACKSON: You'd been drinking since about what time in the evening or in the afternoon.
MR. ALBERT: Nineish.
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.
MR. JACKSON: Black?
MR. ALBERT: Yes.
MR. JACKSON: Who rode -- 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' 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 him in?
MR. ALBERT: I didn't want to block him in.
MR. JACKSON: Right. Right. So you waited until he moved his Jeep out of the way?
MR. ALBERT: Yes.
MR. JACKSON: And then you pulled in?
MR. ALBERT: Yes.
MR. JACKSON: 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 percent.
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.
MR. JACKSON: A snow plow on the front?
MR. ALBERT: Yes.
MR. JACKSON: 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 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 maybe 10 past 12:00.
MR. JACKSON: Okay. 12:10 or so?
MR. ALBERT: That would just be a guess.
MR. JACKSON: Okay. So it could have been 12:15?
MR. ALBERT: Yeah, and it could have been 12:07.
MR. JACKSON: 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 Sara 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, weight.
MR. ALBERT: So two and a half years ago. So he was probably five-eleven, maybe six feet, and probably, you know, I'm guessing, 175 pounds.
MR. JACKSON: A big boy? I mean, not a small kid?
MR. ALBERT: Right.
MR. JACKSON: Bigger than me significantly?
MR. ALBERT: Yes.
MR. JACKSON: Athletic guy?
MR. ALBERT: Yes.
MR. JACKSON: Played football?
MR. ALBERT: Yes.
MR. JACKSON: He was good at football?
MR. ALBERT: Yes.
MR. JACKSON: You testified that you went to the bathroom after you arrived home, correct?
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 downstairs and -- not downstairs but on that floor and then upstairs. So I'm not sure which one I went to. I think it was upstairs.
MR. JACKSON: When you came back out of -- I'm sorry. I didn't mean to interrupt you.
MR. ALBERT: I think it may have been upstairs, but I'm not sure.
MR. JACKSON: When you came back downstairs from the bathroom or came out of the bathroom, wherever it was, you no longer saw Colin?
MR. ALBERT: Yes. Prior to going to the bathroom, Colin had said that he was getting picked up.
MR. JACKSON: 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: Okay. You did give an initial statement on the morning of the 29th to Michael Lank at about 7:00 a.m.; is that right?
MR. ALBERT: Officer Lank was in the house at that time, 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: A conflict of interest?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: I'll let him have it. Did you see that as a conflict?
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: You were asked who was present at the house that night, the night before, right?
MR. ALBERT: Yes.
MR. JACKSON: You stated the following people were at the house that night in response to Officer Lank's question (as read), "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, no.
MR. JACKSON: You knew that he was asking who was in the house, right?
MR. ALBERT: Right. Yes.
MR. JACKSON: So you mentioned Brian Albert, Jr., your son?
MR. ALBERT: Yes.
MR. JACKSON: You mentioned Caitlin 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 Caitlin 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.
MR. JACKSON: If I may have just a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
JUDGE CANNONE: Show Mr. Lally.
MR. JACKSON: I'm sorry.
BY MR. JACKSON:
MR. JACKSON: Sir, you don't have to sit and read the entire thing. Right at the top of this Post-it, there isa word that says "next." If you were to read that area, the next few sentences? Let me know when you're finished.
MR. ALBERT: (Witness complies.)
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, 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.; Caitlin Albert; Julie Nagel and 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 (as read), "They advised me that their daughter, Caitlin, 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: So you think Officer Lank got it wrong?
MR. ALBERT: Perhaps, yes.
MR. JACKSON: Okay. Did you say that Caitlin left about 12:15?
MR. ALBERT: No.
MR. JACKSON: Did Nicole say in your presence that Caitlin left about 12:15?
MR. ALBERT: She did not.
MR. JACKSON: At any point, did Officer Lank ask you what time Caitlin 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 making that up?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
MR. JACKSON: I'll ask it a different way.
BY MR. JACKSON:
MR. JACKSON: If that's what Officer Lank recalls, he's just wrong, right?
MR. ALBERT: Yes.
MR. JACKSON: Okay. 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 Caitlin 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 Caitlin 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.
JUDGE CANNONE: Sustained.
MR. JACKSON: I'll ask it a different way.
BY MR. JACKSON:
MR. JACKSON: 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 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 that you never saw him leave, correct?
MR. ALBERT: Well, 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 regular floor of the house, according to you, correct?
MR. ALBERT: Right.
MR. JACKSON: The ground floor of the house?
MR. ALBERT: Right. He was no longer in my house. So he left.
MR. JACKSON: Well, you didn't search the house, did you, at that time?
MR. ALBERT: No. Right.
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, about noon? Maybe it was in the afternoon, noon, 12:30, something like that?
MR. ALBERT: Are you asking --
MR. JACKSON: On the 29th, you later -- after you spoke with Officer Lank, you later were interviewed by Trooper Michael Proctor over 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, you talked about Brian Albert, Caitlin Albert?
MR. ALBERT: Yes.
MR. JACKSON: Other folks in the house?
MR. ALBERT: Yes.
MR. JACKSON: Julie Nagel?
MR. ALBERT: Yes. And there were other people in the house prior to us arriving. I didn't mention them, either.
MR. JACKSON: Who was that?
MR. ALBERT: There were some females, friends that were over prior to our arrival.
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 there before you got there?
MR. ALBERT: No. I know that there were people at the house prior to me getting there.
MR. JACKSON: Mr. Albert, the question that has been posed to you by several officers was who did you see in your home when you got there, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. ALBERT: I don't believe that's how it was asked, no.
BY MR. JACKSON:
MR. JACKSON: But Colin's name was never mentioned, was left out?
MR. ALBERT: I testified multiple times that Colin was there when we arrived.
MR. JACKSON: Oh, you did after the fact, right?
MR. ALBERT: Yes.
MR. JACKSON: After you knew that the defense knew that Colin was there?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: In your initial reports to the police, his name was never mentioned, was it?
MR. ALBERT: I did not mention it, no.
MR. JACKSON: And Nicole did not mention it in your presence, did she?
MR. ALBERT: In my presence, no.
MR. JACKSON: Let's talk about Caitlin 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 that she was gone by 12:15, correct?
MR. ALBERT: That's what he wrote in the report, yes.
MR. JACKSON: If Caitlin was gone by 12:15, she would not have been there when John and Karen arrived to the house, correct, because they didn't arrive until 15 minutes later?
MR. ALBERT: But she was at the house. So that would be a hypothetical.
MR. JACKSON: Okay. Fine. Hypotheticals. Let me ask you a hypothetical. If, in fact, Caitlin was gone by 12:15, that would mean, hypothetical, she would not have been there when John and Karen arrived 15 minutes later?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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.
MR. JACKSON: More of a conversation?
MR. ALBERT: Yes.
MR. JACKSON: During that conversation, Nicole was there?
MR. ALBERT: Yes.
MR. JACKSON: And 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.
MR. JACKSON: But he was there for part of the morning?
MR. ALBERT: Yeah, but I'm not sure that he was there at the time Lank, Officer Lank, was asking questions.
MR. JACKSON: The fact of the matter is, notwithstanding what Officer Lank wrote that you said about Caitlin 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, Caitlin was the very last person to leave that location that morning, correct?
MR. ALBERT: I believe so, yes.
MR. JACKSON: And she has admitted that she did not leave until nearly 2:00 a.m., 1:45, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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 Caitlin 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?
MR. LALLY: Objection.
JUDGE CANNONE: We've gone over that. Next question, please. Sustained.
BY MR. JACKSON:
MR. JACKSON: If Colin was gone, just like Caitlin was gone, that would eliminate them from ever being at the house at the same time as John O'Keefe and Karen Read, right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: On January 29th about 11:30 or 12:00, 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?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You were notified that the state police were going to interview Jen McCabe?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it. Were you notified that?
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: You knew the subject matter of an interview with Jen McCabe was going to happen over —-- the subject matter the night before was going to happen over at Jen McCabe's house. That's why you went there, right?
MR. LALLY: Objection.
MR. ALBERT: No.
JUDGE CANNONE: Overruled.
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: Isn't it true that you knew you had been notified 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: I don't know what you mean by "official reason."
MR. JACKSON: You were not working the investigation, yourself?
MR. ALBERT: No.
MR. JACKSON: You were a witness, 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?
MR. LALLY: Objection.
JUDGE CANNONE: No. I'll allow it. Can you answer that, sir?
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: But before she gave her statement, you made sure that you were right there to monitor that interview and exactly what was said, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Were you in her house when Jen McCabe was interviewed by Michael Proctor?
MR. ALBERT: Her house, yes.
MR. JACKSON: You had gone to her house, correct?
MR. ALBERT: Yes.
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 that 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: I 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: You walked -- even though there was some moving of cars, you were the first one to walk into the house and Brian Higgins followed you?
MR. ALBERT: Yes.
MR. JACKSON: All right. Nicole and Caitlin came in shortly after that?
MR. ALBERT: I think Nicole and Caitlin probably came in around the same time as me.
MR. JACKSON: Did you make another drink --
MR. ALBERT: And then Brian Higgins.
MR. JACKSON: Sorry. Did you make another drink once you walked into the house?
MR. ALBERT: Did I make a drink?
MR. JACKSON: Did you make a drink, grab a beer?
MR. ALBERT: Yes.
MR. JACKSON: When I say "make a drink," did you get a drink?
MR. ALBERT: Yes.
MR. JACKSON: What drink did you get?
MR. ALBERT: I don't know. It probably just would have been 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 and Brian Higgins do once you were inside the house?
MR. ALBERT: 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 to 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?
MR. ALBERT: Prior to that night?
MR. JACKSON: 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've 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: Well, she did that night?
MR. ALBERT: Yeah. I think she wanted to use the bathroom.
MR. JACKSON: Well, that's not what you said in your testimony. You said (as read), "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, Your Honor.
JUDGE CANNONE: Sustained. You can ask it differently.
BY MR. JACKSON:
MR. JACKSON: Obviously, if Chloe hears commotion and people, she's apt to bark? That's the only question.
MR. ALBERT: No.
MR. JACKSON: So just that night, out of nowhere, the first time ever, Chloe starts barking when people walked 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 why she was barking.
MR. ALBERT: 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, not mine.
MR. ALBERT: Okay.
MR. JACKSON: Do 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 (as read), "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. 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.
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, did you not?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can ask it differently.
BY MR. JACKSON:
MR. JACKSON: At some point, your family got rid of Chloe?
MR. ALBERT: Chloe was rehomed in May.
MR. JACKSON: We can use whatever words we want to: 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 will allow that.
MR. ALBERT: Right.
BY MR. JACKSON:
MR. JACKSON: When did you get rid of her?
MR. ALBERT: So Chloe was rehomed in I believe May.
MR. JACKSON: Of 2022?
MR. ALBERT: Of 2022.
MR. JACKSON: Just months after the incident that we are discussing?
MR. ALBERT: Well, after it was involved -- she was involved ina dog fight with another dog out front.
MR. JACKSON: Right. But that's also after the incident that we are discussing?
MR. ALBERT: Yes, in May.
MR. JACKSON: That's a family pet that you had had for six years or seven years?
MR. ALBERT: Approximately six or seven years.
MR. JACKSON: And 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 guestions were being raised about John O'Keefe's injuries, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: At some point, you did realize that there were questions being raised about John O'Keefe's injuries on his arm, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I will allow that. Did you realize that?
MR. ALBERT: I heard some talk about it, yes.
BY MR. JACKSON:
MR. JACKSON: As of January of 2022, John O'Keefe had never been in your house, had he?
MR. ALBERT: John O'Keefe was never in my house before or after that date.
MR. JACKSON: Certainly John O'Keefe, you would agree with me, he would count, were he in your house, he would count, as a stranger to Chloe, wouldn't he? He'd never met her before?
MR. ALBERT: Hypothetical, yes.
MR. JACKSON: I want to ask you a couple of questions about your house. Where are -- I know there are multiple bedrooms. Are all the bedrooms on the top floor?
MR. ALBERT: Yes.
MR. JACKSON: How many bedrooms?
MR. ALBERT: Five.
MR. JACKSON: As we are looking at your house from the street, looking at your house, are your bedroom windows, your and Nicole's bedroom windows, visible from the street?
MR. ALBERT: Yes.
MR. JACKSON: Which windows would they be?
MR. ALBERT: If you were facing the house, they would be the far left corner.
MR. JACKSON: Upper or lower?
MR. ALBERT: Upper.
MR. JACKSON: Upper left corner?
MR. ALBERT: Yes.
MR. JACKSON: How many windows? Two or three, sir?
MR. ALBERT: Two.
MR. JACKSON: Your Honor, with the Court's permission, could I display Exhibit 66 to the witness?
JUDGE CANNONE: Okay.
BY MR. JACKSON:
MR. JACKSON: Do you see what is displayed 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: Understanding this is a graphic representation, not a photograph, do you see the windows that you just described servicing your bedroom on that graphic?
MR. ALBERT: Yes.
MR. JACKSON: Are they right there?
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: The front lawn, toward 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: But toward the left side of the house?
MR. ALBERT: The windows are, yes. You asked about the view.
MR. JACKSON: Right.
MR. ALBERT: So the view is the whole front yard.
MR. JACKSON: I'm just trying to make the spoken record as clear as possible.
MR. ALBERT: Right.
MR. JACKSON: They're on the left side of the house.
MR. ALBERT: Yes.
MR. JACKSON: And they overlook directly, they directly overlook this portion of the lawn on the left side of the lawn, correct?
MR. ALBERT: Yes.
MR. JACKSON: Furthest from the driveway?
MR. ALBERT: Yes.
MR. JACKSON: We can take that down. Thank you.
MR. JACKSON: 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: That was a bad question on my part because we haven't been there. 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 five feet. Six feet.
MR. JACKSON: You indicated that Nicole came to bed about 2:00 o'clock in the morning?
MR. ALBERT: Yes.
MR. JACKSON: Where was the dog?
MR. ALBERT: The dog was in my room.
MR. JACKSON: And she was sleeping on a mat in your room?
MR. ALBERT: Yes.
MR. JACKSON: And that mat is also about six feet from the windows?
MR. ALBERT: Yes.
MR. JACKSON: Six feet being from me to Ms. Little, maybe this far?
MR. ALBERT: It could be, yes. Maybe a little further, but yes.
MR. JACKSON: Maybe this far?
MR. ALBERT: Maybe.
MR. JACKSON: Okay. It's a relatively quiet street generally on Fairview?
MR. ALBERT: Yes.
MR. JACKSON: Not an enormous amount of through traffic?
MR. ALBERT: No.
MR. JACKSON: It's not a busy freeway or a highway, correct?
MR. ALBERT: No.
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.
MR. JACKSON: Six feet from that window?
MR. ALBERT: Yes.
MR. JACKSON: 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, a civilian SUV, were all parked in front of your house that morning, correct?
MR. ALBERT: I'm not aware of what type of vehicles were parked there, no.
MR. JACKSON: You've seen photographs since this incident?
MR. ALBERT: the vehicles out front?
MR. JACKSON: 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 a number of first responders outside their vehicles, traipsing 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, the wind and the snow to communicate with each other?
MR. ALBERT: No.
MR. JACKSON: Are you aware that there were three women on your lawn at one point?
MR. ALBERT: Just only after the fact.
MR. JACKSON: And at least one of those women was screaming to the top of her lungs at 6:03?
MR. ALBERT: No.
MR. JACKSON: Again, your German Shepherd was six feet from the window, correct?
MR. ALBERT: I don't know that for sure.
MR. JACKSON: Well, that's where her mat was.
MR. ALBERT: Well, that's doesn't mean that's where she always is. She also sleeps in the closet area sometimes.
MR. JACKSON: Oh, so now Chloe is 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: The likelihood is she was sleeping on that mat five or six feet from that window, correct?
MR. LALLY: Objection.
MR. ALBERT: I don't know.
JUDGE CANNONE: Sustained. Sustained.
BY MR. JACKSON:
MR. JACKSON: And your explanation -- and, by the way, and 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: 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?
MR. JACKSON: Correct.
MR. ALBERT: No.
MR. JACKSON: 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. Your house is sitting on top of a basement, correct?
MR. ALBERT: Yes.
MR. JACKSON: Or was at the time. 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 mean 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 is the basement door 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 is 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: Ten full paces?
MR. ALBERT: Maybe, yeah.
MR. JACKSON: So --
MR. ALBERT: Maybe eight.
MR. JACKSON: Mr. Albert, it's about four long steps, correct?
MR. ALBERT: Well, I don't know. You asked paces. So --
MR. JACKSON: Right.
MR. ALBERT: You know, six feet.
MR. JACKSON: Six to eight feet, maybe.
MR. ALBERT: Got it. What was the basement used for in January of 2022? A 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 damage due to an overflown toilet.
MR. JACKSON: So part of the flooring had been ripped up?
MR. ALBERT: Yes.
MR. JACKSON: And that opened up some slab concrete downstairs?
MR. ALBERT: Yes.
MR. JACKSON: There was also some plywood downstairs?
MR. ALBERT: Yes.
MR. JACKSON: There were a couple of mats where the actual weights were so they were not slamming down onto concrete?
MR. ALBERT: Yes.
MR. JACKSON: 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, barbells, dumbbells?
MR. ALBERT: Yes.
MR. JACKSON: Heavy weights?
MR. ALBERT: Yes.
MR. JACKSON: Heavy bars?
MR. ALBERT: Yes.
MR. JACKSON: Made from metal?
MR. ALBERT: Yes.
MR. JACKSON: Once you're down in the basement -- by the way, there's two flights that you go down at angles to get to the basement, a series of steps, a landing, take a left, another series of steps and you stand on the basement?
MR. ALBERT: Yes. Not a long staircase. A very small one.
MR. JACKSON: Right. I mean it's narrow and tight. But, in other words, you don't just walk straight down a staircase. You go down to a landing, turn left?
MR. ALBERT: It turns a little.
MR. JACKSON: You 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: T'll allow it.
MR. ALBERT: Could you rephrase the question?
BY MR. JACKSON:
MR. JACKSON: I'll say it again. 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. And it would depend what it was, obviously, how big it was or --
MR. JACKSON: How would you do that?
MR. ALBERT: There is a bulkhead door you could use.
MR. JACKSON: Got it. Where does that bulkhead door come out of?
MR. ALBERT: It comes out to the backyard right at the kitchen area. You can see it from a kitchen.
MR. JACKSON: And right to the left of that is the side fence?
MR. ALBERT: Yes.
MR. JACKSON: And directly through that side fence is the front yard?
MR. ALBERT: Yes.
MR. JACKSON: The same side of the front yard as John O'Keefe's body was found?
MR. ALBERT: Yes.
MR. JACKSON: Your Honor, I would ask at this point to mark a video. If I may have just a moment, Your Honor?
JUDGE CANNONE: Yes. Mr. Jackson, would you like to take a morning recess?
MR. JACKSON: That would be great. It's a good time. Yes. Thank you, Your Honor.
JUDGE CANNONE: All right, folks. Why don't we take about 20 minutes.
(Whereupon, the jury is escorted from the courtroom at 10:35 a.m. for the morning recess.)
JUDGE CANNONE: Do you anticipate having it?
MR. JACKSON: Yes.
(Whereupon, there was a brief recess taken.)
(Court resumes at 11:00 a.m.)
(Defendant present. Jury present.)
JUDGE CANNONE: All right. Are you all squared away?
MR. YANNETTI: We are.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, did you speak with anybody at the break about your testimony?
MR. ALBERT: Just my attorney.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes
BY MR. JACKSON:
MR. JACKSON: Take a look at this photograph, Mr. Albert, and, if you could, please, tell me if you recognize 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: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: I would ask to have this marked as the next in order.
JUDGE CANNONE: Mr. Lally, any objections?
MR. LALLY: No, Your Honor.
COURT REPORTER: That will be Exhibit 68, Your Honor.
(Whereupon, photograph was entered and marked Exhibit No. 68 in Evidence.)
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Move to publish, Your Honor.
JUDGE CANNONE: Okay.
BY MR. JACKSON:
MR. JACKSON: 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: I'm going to direct your attention, if I could, to the lower left portion of this photograph, right there. Do you see that? Can you tell 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.
MR. ALBERT: Are you referring to the doorknob?
MR. JACKSON: That's right.
MR. ALBERT: I've got it here. Yes.
MR. JACKSON: I'm sorry. It's sort of hidden on that photograph. So I apologize. 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. At least in that photograph, it was hinged towards the house and it would open up like, I don't know, a sandwich or something?
MR. ALBERT: It opened straight up to the bay windows that are in the kitchen.
MR. JACKSON: Okay. Got it.
MR. JACKSON: Okay. That's all I need from 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 with the Court's permission?
MR. LALLY: Assuming it's the same one, no objection.
MR. JACKSON: It's the same one.
COURT REPORTER: That will be Exhibit 69, Your Honor.
(Whereupon, video of bulkhead on flash drive was entered and marked Exhibit No. 69 in Evidence.)
BY MR. JACKSON:
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 is in that video. I'll probably play maybe five or 10 seconds of it and then pause it if that's okay.
MR. ALBERT: Okay.
MR. JACKSON: With the Court's permission?
JUDGE CANNONE: Yes.
(Whereupon, the video is played.)
MR. JACKSON: Pause.
(Whereupon, the video is paused.)
MR. JACKSON: Do you recognize what's depicted in that video at least up to that point?
MR. ALBERT: No.
MR. JACKSON: Okay. Does that look like your basement door, although the bulkhead doors have been replaced and are different?
MR. ALBERT: The whole thing looks different to me.
MR. JACKSON: Let's play the video.
(Whereupon, the video is played.)
MR. JACKSON: Pause.
(Whereupon, the video is paused.)
MR. JACKSON: Now do you recognize what is depicted in the video?
MR. ALBERT: Yes.
MR. JACKSON: What is that?
MR. ALBERT: So that is my backyard, was my backyard.
MR. JACKSON: Okay. And what area is over to the left, over here?
MR. ALBERT: That is 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 are looking at right now where the photographer is standing is the backyard?
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. But it is --
MR. ALBERT: But it is the stairway, yes.
MR. JACKSON: 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.
(Whereupon, the video is played.)
MR. JACKSON: Pause.
(Whereupon, the video is paused.)
MR. JACKSON: Did you recognize what was depicted in the video -- we can bring the lights up. Thank you. Thank you. 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 bulkhead door, turned toward the fence, went through the fence and right up toward the flagpole, correct?
MR. ALBERT: Yes.
MR. JACKSON: Is that an accurate representation of the layout of the house when you lived there on January 28- 29th, 2022?
MR. ALBERT: Yes.
MR. JACKSON: With the exception of the bulkhead door having been replaced and maybe the basement door?
MR. ALBERT: Yes.
MR. JACKSON: By the way, the 34 Fairview house had been in your family at that time, in 2022, for two 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?
MR. ALBERT: Right.
MR. JACKSON: Nearly or maybe actually a little more than 50 years, half a century?
MR. ALBERT: That what?
MR. JACKSON: That 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 is the time we listed it, yes.
MR. JACKSON: Just months after John O'Keefe was found on your lawn?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, is that timing, according to you, a coincidence?
MR. ALBERT: Is what?
MR. JACKSON: Is that timing a coincidence?
MR. ALBERT: It's not the timing, actually. We contacted the realtor in 2021 and finally listed it in 2022. So that would be pre-incident.
MR. JACKSON: So in other words, the listing coming nine months after John O'Keefe was found dead on your lawn or dying on your lawn, that's just coincidence? You had this in place long before that? Is that what you're saying?
MR. LALLY: Objection.
JUDGE CANNONE: So I'll sustain the question. You can ask it differently.
BY MR. JACKSON:
MR. JACKSON: All I'm asking is the timing, November of 2022, listing that house for sale for the first time in November, that, in your mind, is 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 of 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 the 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 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's 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 responded, obviously, to countless incidences and scenes as both a patrol officer as well as a 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 try to find them, right?
MR. ALBERT: Yes.
MR. JACKSON: I mean, that's the whole -- it's the cat-and- mouse thing, right?
MR. ALBERT: Right.
MR. JACKSON: You being the cat, correct, trying to find the mouse?
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 sort of cover up investigations, I'm sorry, to cover up crimes to thwart investigations, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Do you have that training, sir?
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: So in all of your training, 30 years as a Boston police officer and as a sergeant detective, you don't have any training in what techniques criminals might use to try to cover up their conduct?
MR. ALBERT: No. I've never gone to a training for criminals to cover up conduct. No.
MR. JACKSON: You've never been trained in the fact that, I don't know, somebody might want to clean up blood ata scene?
MR. ALBERT: No.
MR. LALLY: Objection.
JUDGE CANNONE: I'll let the answer stand.
BY MR. JACKSON:
MR. JACKSON: What about sanitizing a location?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. ALBERT: No.
BY MR. JACKSON:
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 trace down and try to find, you don't try to utilize electronic data to go after them?
MR. ALBERT: Sometimes we do, but I don't have any training in it, per se.
MR. JACKSON: I mean, things like GPS data and phone calls and text messages and communications and things of that nature, obviously, right?
MR. ALBERT: Yes. Yes.
MR. JACKSON: Clearly. These are all things, at least those things, are things if you didn't have formal training, you got on-the-job training and just have common sense about how to go after these type of -- this type of evidence, correct?
MR. ALBERT: Yes.
MR. JACKSON: Sir, you had an iPhone with a number ending in 0888 back in January of 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 that on September 23rd, 2022, in the fall of 2022, a judge specifically ordered that you were to preserve that phone and all of its data, correct?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: I'll see counsel at sidebar. Jurors, feel free to stand up if you'd like.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So the nature of the objection?
MR. LALLY: Your Honor, again, I think it's relevancy and hearsay. That's all.
MR. JACKSON: It goes to his state of mind, Your Honor. The Commonwealth actually was the entity that gave him notice that he was not to get rid of his phone or any of its electronic data. His state of mind and do so anyway, not withstanding that notice is highly relevant. He's been questioned --
JUDGE CANNONE: Is he going to have to talk about he did this with advice or consent of his lawyer?
MR. JACKSON: I have no information about that. I can tell the Court he's testified to this before and he never mentioned anything about that.
JUDGE CANNONE: But I'm wondering if that's part of it. I know he didn't mention it before, but I'm wondering if that's part of it. He's got a lawyer here.
MR. LALLY: I don't know.
MR. JACKSON: I would maneuver around that. If he says, I had a conversation with my lawyer, I'd say, don't tell us anything that your lawyer said. It's not up to his lawyer to thwart a judicial order.
JUDGE CANNONE: You know what? I want a short voir dire on this.
MR. JACKSON: Okay.
JUDGE CANNONE: And we can bring his counsel in if he's here.
MR. JACKSON: Can we wait until he invokes his counsel? I don't think he's going to.
JUDGE CANNONE: Let's have a voir dire on this. I'm going to send the jury out. But that's the issue on this.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Jurors, we are going to send you back to the jury room for a few minutes.
(Whereupon, the jury is escorted from the courtroom for a brief recess.)
JUDGE CANNONE: And I am going to see if his counsel is here. He has a right to be present.
(Whereupon, a brief recess is taken.)
(Court resumes.)
(Defendant present. Jury not present.)
JUDGE CANNONE: All right. So, Mr. Jackson, if you want to voir dire?
MR. JACKSON: Thank you, Your Honor. VOIR DIRE EXAMINATION BRIAN ALBERT, SR.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, you are currently represented by Mr. Henning?
MR. ALBERT: Yes.
MR. JACKSON: Seated behind me? The gentleman in the gray suit?
MR. ALBERT: Yes.
MR. JACKSON: Correct?
MR. ALBERT: Yes.
MR. JACKSON: Without telling me anything you've ever communicated with him, when did you hire him as your lawyer?
MR. ALBERT: I'm not exactly sure of the date.
MR. JACKSON: Give me a time frame. Let's see if we can narrow it down.
MR. ALBERT: 2022. I'm just not sure of the exact date or even a month.
MR. JACKSON: The end of 2022?
MR. ALBERT: I'm not sure. I believe prior to some of the other testimony that I gave. So prior to --
MR. JACKSON: Prior to April of 2022 at the state grand jury?
MR. ALBERT: No. Prior to the other testimony.
MR. JACKSON: Okay. That was in June of 2023. That is 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: 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 for -- I believe so. Right around that time, yes.
MR. JACKSON: Okay.
MR. ALBERT: I'm just trying to remember the time, and I can't remember it.
MR. JACKSON: So you did not hire --
MR. JACKSON: Well, Your Honor, I think that answers the question. He did not represent him in 20 --
JUDGE CANNONE: I will see you at sidebar about the extent of the inquiry.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Just so we can complete a record. So if you put the dates on and your concerns -- I'm have a concern about a Fifth Amendment issue. He's got a lawyer, if he's going to sit here and say, I was told I had to keep my phone and I didn't do it. So let's lay out the dates and have a more complete record.
MR. JACKSON: Yes, Your Honor. The dates as I know them is the subpoenas went out for the -- I'm going to continue to call it "the other grand jury."
JUDGE CANNONE: I think we should call it "another proceeding." And then that will differentiate it with the jurors, as well. I think that was my original ruling on the motions.
MR. JACKSON: Okay. The other proceeding, subpoenas went out in the spring of 2023, maybe the late spring of 2023, at which point many of the individuals, again, giving them lawyers, they did not have lawyers that I know of in April of 2022 when they testified with Mr. Lally at the state court grand jury. This particular incident, this particular notice was signed by Judge Krupp on September 23rd, 2022. And I believe his testimony is going to be something along the lines of toward the end of that month, without a specific date, he got rid of his phone in September of '22, well before he would have had any opportunity to or reason to hire Mr. Henning.
JUDGE CANNONE: Okay. So it wouldn't have been after consulting counsel. But, there is still the Fifth Amendment issue now, right, not a court order.
MR. JACKSON: I agree.
JUDGE CANNONE: So I just -- I'd like it if you intend to do that question, I'd like you to do that for purposes of voir dire.
MR. JACKSON: Okay.
JUDGE CANNONE: Just in case his lawyer says he should take the Fifth.
MR. JACKSON: Understood.
JUDGE CANNONE: All right.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: You had received -- and I want to draw your attention to 2023 now. I'm sorry. Now I'm doing it. The fall of 2022, September of 2022.
MR. ALBERT: Yes.
MR. JACKSON: 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. No.
MR. JACKSON: I am going to read this for the record, Your Honor, if I may, with the Court's permission.
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Did you receive a letter that said, in essence -- not even in essence, it should be quoted -- as the following: (As read), Quote, "You, Mr. Albert, are hereby notified that the defense in the case of Commonwealth versus Karen Read, Norfolk Superior Court Criminal Case No. 22-117 has filed a motion pursuant to Mass. R. Crim. P. 17 for the production of any cell phones that you used between January 28th, 2022 and February 28th, 2022 and/or any data associated with those cell phones. "The hearing on Ms. 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. 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 this 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, no.
MR. JACKSON: 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 me upgrading my phone, I spoke with the D.A.'s office. So after that, they told me via 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 D.A. and he told you to preserve -- you were on notice that you were to preserve your phone?
MR. ALBERT: After.
MR. JACKSON: I know you want to say that, Mr. Albert. My question is, did you have the conversation with Mr. Lally?
MR. ALBERT: Yes.
MR. JACKSON: When was that conversation, sir?
MR. ALBERT: So 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 conversation call.
MR. JACKSON: Can you name those witnesses for us, please?
MR. ALBERT: I believe it was Brian Higgins. I believe Jen McCabe, Matt McCabe, and maybe somebody else. But I can't recall.
MR. JACKSON: Who initiated that conference call?
MR. ALBERT: I believe it was somebody in the D.A.'s office. So either Mr. Lally or Steve Nelson. Somebody like that.
MR. JACKSON: Did everybody just call in to a central number or 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 there was -- 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 that, oh, my goodness, I just upgraded my phone last week conveniently. I don't have that phone anymore?
MR. ALBERT: No.
MR. JACKSON: You didn't say that to Mr. Lally?
MR. ALBERT: No.
MR. JACKSON: You just took the information that he gave you and hung up the phone and went about your business?
MR. ALBERT: Yes.
MR. JACKSON: 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.
MR. JACKSON: Mr. Albert --
MR. ALBERT: I upgraded my --
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? It 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 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, across. 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, an iPhone?
MR. ALBERT: Years.
MR. JACKSON: How many times have you upgraded your iPhone?
MR. ALBERT: Multiple times.
MR. JACKSON: Every single time you upgraded, you know that the phone prior to the date is destroyed on it, correct?
MR. ALBERT: Usually my contacts come over and my photos come over. So --
MR. JACKSON: Sir, that's a backup.
MR. ALBERT: No. I don't have -- 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, no.
MR. LALLY: May I have just a moment, Your Honor?
JUDGE CANNONE: sure.
BY MR. JACKSON:
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 (as read), "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." Do you remember saying that under oath at another hearing?
MR. ALBERT: Yes.
MR. JACKSON: You literally admitted at that hearing there is personal, private data on that phone. Hence, you got rid of it, right?
MR. ALBERT: No.
MR. JACKSON: You certainly wouldn't allow some kid at the AT&T store to have your personal, private data. You're a cop. You were a cop.
MR. ALBERT: No. I assume he doesn't have it.
MR. JACKSON: Why would you assume that?
MR. ALBERT: Because he took the phone and has it.
MR. JACKSON: 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's not there anymore.
MR. JACKSON: It's destroyed, sir, correct?
MR. ALBERT: I don't know that for a fact. I know that some things had transferred back to the new phone.
MR. JACKSON: You just said you know the data's not there.
MR. ALBERT: Some, some data, I guess, isn't. Yes.
MR. JACKSON: Your Honor, that's all I have.
JUDGE CANNONE: All right. Mr. Lally, any questions?
MR. LALLY: No, Your Honor.
JUDGE CANNONE: Okay. I am going to take a short recess, and we will let this witness, if he chooses, to have a few minutes.
MR. ALBERT: Yes.
(Whereupon, a brief recess is taken.)
(Court resumes at 11:40 a.m.)
(Defendant present. Jury present.)
JUDGE CANNONE: All right, Mr. Jackson. Go right ahead.
MR. JACKSON: Thank you, Your Honor. CONTINUED CROSS-EXAMINATION
BY MR. JACKSON:
MR. JACKSON: 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: At what time are you asking me that I was notified?
MR. JACKSON: That day or the next.
MR. ALBERT: On the 23rd?
MR. JACKSON: On the 23rd or the 24th of September?
MR. ALBERT: No.
MR. JACKSON: Isn't it true that you were provided a letter by the Commonwealth that stated the following.
MR. JACKSON: Your Honor, if I may read this?
MR. LALLY: No objection.
JUDGE CANNONE: Yes. There is no objection.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Quote (as read), "You are hereby notified that the defense in the case of Commonwealth versus Karen Read, Norfolk Superior Criminal Case -- sorry -- Norfolk Superior Court Criminal Case No. 22-117 has filed a motion pursuant to Mass. R. Crim. P. 17 for the production of any cell phones that you used between January 28th, 2022 and February 28, 2022 and/or any data associated with those cell phones. "The hearing on Ms. Read's motion will be held on October 3rd, 2022 at 2:00 p.m. in Courtroom 1 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," end quote. You received that notice on either the 23rd or the 24th; is that right?
MR. ALBERT: I did not.
MR. JACKSON: 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?
MR. JACKSON: We just determined -- I'm happy to approach.
JUDGE CANNONE: Yes. Why don't we approach quickly.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: What is the stipulation?
MR. JACKSON: Mr. Lally was kind enough to confirm that he and his office did send this notice either on the 23rd or the 24th of September.
JUDGE CANNONE: Okay. So that it was sent but not that it was received?
MR. JACKSON: Correct. I can't make him read it. They don't have a copy of the letter that was sent. I think a stipulation is cleaner. I simply want to enter into the record that the Commonwealth sent it. If he claims he never got it, so be it.
JUDGE CANNONE: Okay. So what exactly was the stipulation? What are you going to say?
MR. JACKSON: I would propose the following stipulation, that the Commonwealth on either September 23rd or September 24th, 2022 sent a letter on Commonwealth letterhead stating exactly what was just read into the record.
JUDGE CANNONE: Okay. Don't read it again.
MR. JACKSON: I won't. No, no, no, no. That what was just read into the record was sent to Mr. Higgins -- I'm sorry -- to Mr. Albert on either the 23rd or the 24th.
JUDGE CANNONE: Okay. That's the stipulation?
MR. JACKSON: That's it.
MR. LALLY: That's fine. I don't have an issue with that.
JUDGE CANNONE: Okay.
MR. JACKSON: Thank you.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: 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 23rd, 2022.
JUDGE CANNONE: Okay. Next question.
MR. JACKSON: Thank you, Your Honor.
BY MR. JACKSON:
MR. JACKSON: Isn't it true that you were, in fact, ordered to preserve your cell phone by the Commonwealth?
MR. ALBERT: At some point, I was made aware of that, yes.
MR. JACKSON: All right. Let's just get to the brass tacks. Where is your phone?
MR. ALBERT: My phone was upgraded and traded in for a new phone.
MR. JACKSON: Your phone was upgraded and traded in fora 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 in 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, the third week of September. Maybe around the 22nd.
MR. JACKSON: The 22nd of September?
MR. ALBERT: I believe so. I can't be sure of the exact date.
MR. JACKSON: So 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 is the-- rephrase the question, please?
MR. JACKSON: This order just stipulated -- this order is dated September 23rd, 2022. It was just stipulated that on the 23rd or 24th, you were then sent a notice to preserve the phone. And your testimony is on the 22nd, the day before this all 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?
MR. LALLY: Objection.
JUDGE CANNONE: Do you know that, sir?
MR. ALBERT: I do not know that.
BY MR. JACKSON:
MR. JACKSON: How many times have you upgraded your phone in your life, an 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: I'm 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? I don't --
MR. JACKSON: It becomes effectively a brick. There is no data left on the phone? I'm not talking about back-up data onto a cloud. I'm talking about that phone.
MR. ALBERT: So the old phone, yes.
MR. JACKSON: Yes. Everything on it is destroyed, correct?
MR. ALBERT: Right, although some of the data transfers to your new phone.
MR. JACKSON: And you're aware that the very data that you were ordered to preserve would have been destroyed, according to you, the day before, correct?
MR. ALBERT: Rephrase your question or ask me a question.
MR. JACKSON: If your -- are you claiming that you got rid of your phone on the 22nd of --
MR. ALBERT: I upgraded my phone around that. I'm not sure if that's the exact date, yes.
MR. JACKSON: So it could have been after the 22nd?
MR. ALBERT: I don't think it was after the 22nd.
MR. JACKSON: It could have been the 24th?
MR. ALBERT: No.
MR. JACKSON: It 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 this 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 would be committing a felony?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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 happens to be the day that I got it.
MR. JACKSON: Happy birthday. Was that a coincidence?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You were asked at another hearing in June of 2023 that exact question, correct, whether it was a coincidence. Do you remember that?
MR. ALBERT: I don't.
MR. JACKSON: Do you recall being asked, quote (as read), "So it's just a coincidence that within minutes, hours or days" --
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Let's hear the question first.
BY MR. JACKSON:
MR. JACKSON: -- "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.
BY MR. JACKSON:
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, it was just a coincidence?
MR. ALBERT: Yes.
MR. JACKSON: Did you and Brian Higgins agree with each other that you were both going to get rid of your phones?
MR. LALLY: Objection.
JUDGE CANNONE: T'1ll allow that.
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: You told -- you testified at the other hearing in June of 2022, quote (as read), "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, but I don't recall saying that to him. But I don't know. We had multiple conversations about things," end quote. Do you 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 (as read), "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, didn't you?
MR. ALBERT: Yeah. I had no idea of what he was going to do.
MR. JACKSON: I'm asking are those your words? Did you testify 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.
MR. ALBERT: No, not the day of the hearing but when they were asking if and when that conversation took place.
MR. JACKSON: Does it really matter when it took place?
MR. ALBERT: I think so, yes.
MR. JACKSON: Well, 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 (as read), "I know there were conversations about the phones, sir," correct?
MR. ALBERT: Correct, if that's what you're reading.
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 don't -- I can't remember that conversation specifically.
MR. JACKSON: Then why in June of 2023 did you testify (as read), "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. If you read the whole thing, I think I said I'm not sure, I don't remember.
MR. JACKSON: Your quote was (as read), "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.
MR. ALBERT: Right.
MR. JACKSON: Does that help refresh your recollection?
MR. ALBERT: Yes.
MR. JACKSON: So now as you sit here, can 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 also gotten rid of his phone, correct?
MR. ALBERT: I am not aware of that until after the time you're talking about.
MR. JACKSON: So without qualifying your answer, answer my question. As you sit here, are you aware that Brian Higgins has also gotten rid of his phone?
MR. ALBERT: I know at some point Brian Higgins --
MR. JACKSON: It's yes or no, Mr. Albert.
MR. ALBERT: Did he --
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Can you answer that yes or no, sir?
MR. ALBERT: Yes.
BY MR. JACKSON:
MR. JACKSON: Now I'd like to shift gears and talk a little bit about Michael Proctor. Did Michael Proctor come into your home at 34 Fairview on January 29th?
MR. ALBERT: Yes.
MR. JACKSON: Michael Proctor? Let me rephrase the question. I want to make sure -- I'm not talking about Officer Lank or Officer Goode.
MR. ALBERT: Right.
MR. JACKSON: Michael Proctor from the Massachusetts State Police. Did he come into your home on January 29th?
MR. ALBERT: He conducted an interview with my wife. And I don't remember if it was the 29th or the 30th.
MR. JACKSON: Okay.
MR. ALBERT: If 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, the 30th, the 31st, the lst or the 2nd?
MR. ALBERT: Right.
MR. JACKSON: And you know from your training, obviously, as a first responder, the first 48 hours of an investigation are absolutely critical, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Do you know that, sir?
MR. ALBERT: In that context, I don't.
JUDGE CANNONE: Okay. Next question.
BY MR. JACKSON:
MR. JACKSON: I mean, you're aware there's a T.V. show called The First 48?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Do you think the first 48 hours of a criminal investigation are critical?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You do know that the longer you wait to properly investigate anything the better chance that evidence 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 -- yeah. Me, too.
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did an investigator or a forensics team ever come into your house to search for physical evidence?
MR. ALBERT: No.
MR. JACKSON: Did an investigator or a forensics team ever come into your house to search for trace evidence?
MR. ALBERT: No.
MR. JACKSON: Did an investigator or a forensics 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.
MR. JACKSON: Sir, you were in the Marines before you were a police officer, correct?
MR. ALBERT: Yes.
MR. JACKSON: Are you 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?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. ALBERT: Yes.
BY MR. JACKSON:
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 technique, use of batons, things of that nature?
MR. ALBERT: Defensive tactics.
MR. JACKSON: Defensive tactics. Okay. That's fighting, right?
MR. ALBERT: Well, it's not hand-to-hand combat, no.
MR. JACKSON: Okay. Fair enough. I may be using the wrong word. It's physical -- it's training on how to either defend yourself or control 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? You're a boxer?
MR. ALBERT: Have I boxed before?
MR. JACKSON: Yes.
MR. ALBERT: Yes.
MR. JACKSON: Okay. And you've trained in boxing. It's not like you just walked up and smack a heavy bag, right?
MR. ALBERT: You'd have to rephrase. What --
MR. JACKSON: You've trained. 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.
MR. JACKSON: Yes. I mean, I've hit a heavy bag.
MR. ALBERT: Right.
MR. JACKSON: But I'm not a trained fighter. You're a trained fighter.
MR. LALLY: Objection.
JUDGE CANNONE: All right. So -- there's an objection? You were standing, Mr. Lally.
MR. LALLY: Yes, Your Honor.
JUDGE CANNONE: Jurors, disregard that. Mr. Jackson, no comments. Just questions, please.
MR. JACKSON: Yes, Your Honor.
BY MR. JACKSON:
MR. JACKSON: In fact, your boxing skills were featured ina T.V. show that you were featured in, as well, correct?
MR. LALLY: Objection.
JUDGE CANNONE: T'1ll allow that.
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: You were, in fact -- no?
MR. ALBERT: That they were featured ina show? No.
MR. JACKSON: You were never shown on T.V. 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. No.
MR. JACKSON: Okay. I wasn't suggesting that you were having like a Pay-Per-View. I was asking is there a T.V. show that has 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: And you understand the question now?
MR. ALBERT: Yes.
MR. JACKSON: And you have been shown -- I used 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 awhile. 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 is a clip starting at -- it's time of day 11:47 and 15 seconds to 11:48 and 35 seconds. Maybe a minute anda half. Can you enhance that?
(Whereupon, the video is played.)
MR. JACKSON: Pause.
(Whereupon the video is paused.)
BY MR. JACKSON:
MR. JACKSON: Do you see the two men in the foreground?
MR. ALBERT: Yes.
MR. JACKSON: Who are those two men?
MR. ALBERT: It 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: Go ahead and play that.
(Whereupon, the video is played.)
MR. JACKSON: Okay.
(Whereupon, the video is paused.)
MR. JACKSON: One more clip to play, but I have a couple of questions, Your Honor.
JUDGE CANNONE: So let's take it down and you can put the other one up after the questions.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Did you see what was displayed on that video?
MR. ALBERT: Yes.
MR. JACKSON: Had you seen that before?
MR. ALBERT: Part of it, yes.
MR. JACKSON: Is that what you and Mr. Lally went over in 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 you questions about it?
MR. ALBERT: I don't think so, no.
MR. JACKSON: Did you give him any answer about it?
MR. ALBERT: No.
MR. JACKSON: Any explanations?
MR. ALBERT: No.
MR. JACKSON: So he just showed you the clip and --
MR. ALBERT: I just said, yeah, it looks like we were fooling around.
MR. JACKSON: Okay. So you did make an explanation, gave him an explanation for it?
MR. ALBERT: Right. I said, I think we were just fooling around.
MR. JACKSON: Okay. Well, it's the 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 and hanging out and fooling around.
MR. JACKSON: Absolutely. Describe what you were doing.
MR. ALBERT: Having fun with my friends, hanging out, just being silly.
MR. JACKSON: Okay. Describe physically what you were doing in the video.
MR. ALBERT: I was playing around, sort of getting ina boxing stance.
MR. JACKSON: Otherwise known as a fighting stance, correct?
MR. ALBERT: Yeah, for a second. Yes.
MR. JACKSON: And what did Brian Higgins do when you got into a fighting stance?
MR. ALBERT: It looked like he was kind of doing the same thing.
MR. JACKSON: Got into a fighting stance, as well, correct?
MR. ALBERT: Yeah.
MR. JACKSON: What were you two talking about? You can tell you were 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: Were you giving him some advice or 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 started walking towards you like a boxer might, correct?
MR. ALBERT: Yeah. Yes.
MR. JACKSON: And then you got down, pulled the pant legs up. And you squatted down to indicate getting low, having a low center of gravity, correct?
MR. ALBERT: No. That's indicating being silly.
MR. JACKSON: Okay. And, 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.
(Whereupon, the video is played.)
MR. JACKSON: Pause it and highlight it.
(Whereupon, the video is paused.)
MR. JACKSON: Okay. There are several individuals crowding around a table. Can you describe who, where you are and where Mr. Higgins is?
MR. ALBERT: Brian Higgins is the guy on the right with the hooded sweatshirt and the emblem on the back. I have a pointer Do you want me to use it?
MR. JACKSON: That would be great. That would be fine.
MR. ALBERT: So that's Brian Higgins and that's me.
MR. JACKSON: Go ahead and play this.
(Whereupon, the video is played.)
MR. JACKSON: Pause.
(Whereupon, the video is paused.)
MR. JACKSON: Did you see what you just did?
MR. ALBERT: Yes.
MR. JACKSON: What did 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'm going 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.
MR. JACKSON: Is that a control hold?
MR. ALBERT: No. I don't think so.
MR. JACKSON: Is that some sort of a control hold that you've used in the past?
MR. ALBERT: Bear-hugging somebody? No. It's just a silly -- fooling around with my buddy.
MR. JACKSON: Let's go ahead and play this.
(Whereupon, the video is played.)
MR. JACKSON: Stop it.
(Whereupon, the video is paused.)
MR. JACKSON: Do you see what Mr. Higgins just did?
MR. ALBERT: I did, yeah.
MR. JACKSON: When you let him go, what did he do?
MR. ALBERT: I don't know. He did some kind of -- he pretended to knee me or something.
MR. JACKSON: Right. A knee to the abdomen?
MR. ALBERT: Yeah. I don't know if it made contact or not, but --
MR. JACKSON: Mr. Albert, I'm not suggesting by my questions that you two are actually ina fight.
MR. ALBERT: Right.
MR. JACKSON: I'm asking what he's doing, does it seem to -- does it appear to you --
MR. ALBERT: Yeah. I don't --
MR. JACKSON: -- that he's playing like or practicing like techniques in fighting?
MR. ALBERT: I don't know what his intent is. It looks like he's just fooling around, just like I was.
MR. JACKSON: But, if a grown man walks up to you, grabs you from behind and puts a knee up to your solar plexis, that's probably not the same as a high five, right?
MR. ALBERT: What is your question?
MR. JACKSON: In other words, it looks like he's practicing some sort of fighting technique?
MR. ALBERT: Practicing? That's not how I see that.
MR. JACKSON: How would you describe it?
MR. ALBERT: I would just describe it as him fooling around. We are in the bar together. We're good friends. We're just being silly and fooling. That's all.
MR. JACKSON: There's a number of people in that bar. You'd agree with that?
MR. ALBERT: Yes.
MR. JACKSON: Do you see anybody else in that video at any time getting physical with one another?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: How much of this video have you actually watched?
MR. ALBERT: Not much.
MR. JACKSON: Okay. Then let me ask you a different question. From your memory of that night, who were the only two people in the bar who seemed to be getting physical with one another?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that?
MR. ALBERT: Sure. The only person I remember being physical with was fooling around with Brian.
MR. JACKSON: Okay. Play it just a little bit longer. We're almost finished.
(Whereupon, the video is played.)
MR. JACKSON: Okay.
(Whereupon, the video is paused.)
MR. JACKSON: Did you see the rest of that video?
MR. ALBERT: Yes.
MR. JACKSON: There's 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 is also no question that of all the people in that bar, the only two people that appeared to be imitating fighting are you and Mr. Higgins, correct?
MR. ALBERT: In that video, yes.
MR. JACKSON: 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 --
MR. ALBERT: I don't remember.
MR. JACKSON: -- into a scrap with someone?
MR. ALBERT: No.
MR. JACKSON: Just you two, correct?
MR. ALBERT: Yes.
MR. JACKSON: 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, everyone had left your location. This is after you'd already arrived, had a couple of beers and people started leaving. Everybody was gone from your location 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: I went upstairs and just laid in bed. The T.V. was on. I was just kind of watching T.V.
MR. JACKSON: Do you have a night stand?
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: Did you put your phone on your night stand?
MR. ALBERT: No.
MR. JACKSON: Where did 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 a phone in bed with you?
MR. ALBERT: We have five kids and, you know, if somebody was trying to call or 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, no.
MR. JACKSON: So you're worried about having your kids out and 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: Well, what about that night?
MR. ALBERT: That night, the phone was on the bed.
MR. JACKSON: How do you know?
MR. ALBERT: 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 that it was in your bed that night?
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 as to whether or not you charge it.
MR. ALBERT: My answer is that sometimes I, of course, charge my battery.
MR. JACKSON: Of course you have to.
MR. ALBERT: But I sleep with the phone in my bed.
MR. JACKSON: Every single night?
MR. ALBERT: Yes. Mostly every night.
MR. JACKSON: Okay. 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: You had been on a road trip most of the day, correct?
MR. ALBERT: Yes.
MR. JACKSON: You'd been out to bars that night, correct?
MR. ALBERT: Uh-huh.
MR. JACKSON: Is that a yes?
MR. ALBERT: Yes.
MR. JACKSON: You weren't charging your phone. We just saw the video. You weren't charging your phone at the bar.
MR. ALBERT: Right.
MR. JACKSON: So when you got home, you clearly put your phone on a charger, didn't you?
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 any assistance to you instead of just on the charger on the night stand?
MR. ALBERT: That's just what I've always done. I just keep it in my bed. My wife does the same thing.
MR. JACKSON: Okay. So now you've got two phones in the bed?
MR. ALBERT: Yes.
MR. JACKSON: And your glasses?
MR. ALBERT: Yes.
MR. JACKSON: Right between the two of you?
MR. ALBERT: Yes.
MR. JACKSON: Got it. Does 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 on you. You can just put it on ringer. Wouldn't that make more sense to go to bed and put it on ringer?
MR. LALLY: Objection.
JUDGE CANNONE: 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.
BY MR. JACKSON:
MR. JACKSON: And you know what I'm about to ask you, which is why you say you sleep with the phone in the bed, correct?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: So that's sustained. That's stricken. Move on, Mr. Jackson.
BY MR. JACKSON:
MR. JACKSON: All right. What else is in the bed with you? Your keys, your wallet? Any other pocket items?
MR. ALBERT: No.
MR. JACKSON: Just the phone and your glasses?
MR. ALBERT: Yes.
MR. JACKSON: 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.
MR. JACKSON: Sir, 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. After two.
MR. JACKSON: 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.
MR. JACKSON: You have to explain that.
MR. ALBERT: Well, it's kind of like a butt-dial.
MR. JACKSON: Kind of like a butt-dial. All right. How long have you used an iPhone?
MR. ALBERT: It's been a long time.
MR. JACKSON: 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. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
MR. JACKSON: I'll withdraw it.
BY MR. JACKSON:
MR. JACKSON: 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 (as read), "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?
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 said, and I don't mean to be indelicate, but your testimony was then that you were having -- you were in an intimate Situation, 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.
MR. JACKSON: That's the time --
MR. ALBERT: I think I said there was a time frame that that was close.
MR. JACKSON: Okay.
MR. ALBERT: So I didn't say that, no.
MR. JACKSON: All right. What you said was you were in an intimate situation with Nicole at the time that the butt-dial occurred, correct?
MR. ALBERT: I'm not sure. If you have something that you can read me or show me?
MR. JACKSON: Is it your testimony -- let me just ask.
MR. ALBERT: Sure.
MR. JACKSON: 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.?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: I'd like to show you an exhibit briefly.
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: May I approach briefly?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, 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.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Does that refresh your recollection that you indicated at the other hearing that --
JUDGE CANNONE: Just the first part of that first. Does that refresh your recollection?
MR. ALBERT: It does.
JUDGE CANNONE: Okay. Now you can ask.
MR. JACKSON: Thank you, Your Honor.
BY MR. JACKSON:
MR. JACKSON: 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, please, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Well, with the Court's permission, let me ask a couple of questions.
BY MR. JACKSON:
MR. JACKSON: Do you recall every call that you made between, say, 1:45 a.m. and the next couple of days? Do 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 are going to discuss those?
MR. ALBERT: Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: 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 but do it as you ask?
MR. JACKSON: Correct. Correct. Yes. No. You don't need to read it right now. I just wanted to have it in front of you. By the way, you've seen these records before, correct, at the other hearing/proceeding?
MR. ALBERT: I've seen some records before, yes. I don't know if these exact records or not.
MR. JACKSON: 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.
MR. JACKSON: That would be the call, 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 and then you immediately hung up?
MR. ALBERT: No. I don't recall if it -- I don't recall, no.
MR. JACKSON: So according to you, it was a butt-dial that went to his phone that somehow lasted one second?
MR. ALBERT: Right.
MR. JACKSON: Okay. Then there is a second call. If you look at the second line down, there is 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.
MR. JACKSON: So it would have been a missed call?
MR. ALBERT: I just know I didn't answer the call.
MR. JACKSON: So it would have been a missed call by definition?
MR. ALBERT: I don't know. I don't know that to be a fact. I just know that I didn't answer the phone. I missed the call, yes.
MR. JACKSON: That's what I mean. You missed the call.
MR. ALBERT: Right. Right.
MR. JACKSON: You did something on your phone and you just didn't answer it, according to you?
MR. ALBERT: Right.
MR. JACKSON: And, again, you were 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?
MR. LALLY: Objection.
JUDGE CANNONE: Do you know that?
MR. ALBERT: I don't know that.
BY MR. JACKSON:
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 and your kids call you?
MR. ALBERT: I don't think I've ever noticed that it's in red. So no. I don't know that to be true.
MR. JACKSON: You're certainly alerted to the fact that it's a missed call, that you missed a 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. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you tell anyone in law enforcement that 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? You would get notice of it?
MR. ALBERT: 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, correct?
MR. ALBERT: Right.
MR. JACKSON: Which would suggest that you answered the call, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Let's talk for a second about this butt-dial. You went to bed and 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 fora 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 and you have to use the four-digit passcode to unlock it, correct?
MR. ALBERT: Well, no. I also have voice -- I mean, face recognition too. So it 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, then you have to tap on the phone app in order to open up the phone app, correct?
MR. ALBERT: Yes. I believe so.
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: That's where your contacts are?
MR. ALBERT: Yes.
MR. JACKSON: They are 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?
MR. ALBERT: Right.
MR. JACKSON: You didn't do that, did you?
MR. ALBERT: No.
MR. JACKSON: If you tap "favorites," if you have favorites listed, there is 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.
MR. JACKSON: And, if you tap on "recent," those are the recent calls that you've have, you've ever received or made. And, of course, you have to tap on the contact in the recents 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've got to say "goodbye" and hang up. You've got to tap it to hang it up?
MR. ALBERT: Right.
MR. JACKSON: So would you agree 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. LALLY: Objection.
JUDGE CANNONE: Sustained. You can ask it differently.
BY MR. JACKSON:
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?
MR. LALLY: Objection.
JUDGE CANNONE: Is that what you're saying?
MR. ALBERT: No, it's not what I'm saying.
BY MR. JACKSON:
MR. JACKSON: Tell me what you're saying. How did you butt-dial Brian Higgins at 2:22 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 did you miss the call 17 seconds later?
MR. ALBERT: My wife is 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.
MR. JACKSON: But it didn't go to voicemail?
MR. ALBERT: Well, I didn't get a voicemail from him, no.
MR. JACKSON: So it didn't go to voicemail because you didn't --
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.
MR. JACKSON: So if you -- okay. You're saying --
MR. ALBERT: I mean, we are guessing here. But I mean, he could have called voicemail --
MR. JACKSON: No. Actually, we are not all guessing here.
MR. ALBERT: 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.
MR. JACKSON: I think one of us is trying to guess.
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained. You know what? I want to see counsel at sidebar for just a second, please.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: I'm giving you a lot of leeway with your questions. Please calm down.
MR. JACKSON: Yes, ma'am.
(Whereupon, the sidebar conference concluded.)
BY MR. JACKSON:
MR. JACKSON: Are you now saying that your phone was open and unlocked at 2:22 a.m.?
MR. ALBERT: I'm saying it 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: Can you answer that?
MR. ALBERT: Sure. I don't know.
BY MR. JACKSON:
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 hit -- I think it comes up green or red for the phone call whether it's locked or not. You can hit green.
MR. JACKSON: Right. But you have to hit a button?
MR. ALBERT: Yes.
MR. JACKSON: Did you hit a button to answer a call from Brian Higgins --
MR. ALBERT: I don't --
MR. JACKSON: 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?
MR. LALLY: Objection.
JUDGE CANNONE: Do you agree with that?
MR. ALBERT: No.
BY MR. JACKSON:
MR. JACKSON: Who else was in the room?
MR. ALBERT: Just myself and my wife.
MR. JACKSON: And Chloe?
MR. ALBERT: Yes. But Chloe's not a human. So it was myself and my wife.
MR. JACKSON: By process of elimination, Nicole didn't answer that call, did she?
MR. ALBERT: No.
MR. JACKSON: Chloe, the nonhuman, 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: Can you answer that?
MR. ALBERT: I don't remember answering that call. I could have hit the phone by accident, causing it to answer.
JUDGE CANNONE: Move on, please, Mr. Jackson.
MR. JACKSON: Your Honor, if I could have one or two more questions?
JUDGE CANNONE: One more question.
BY MR. JACKSON:
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 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 (as read), "Yeah. It's only possible that it's me," end 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, quote --
MR. LALLY: Objection.
MR. JACKSON: -- (as read), "I guess I could have talked to him," meaning Mr. Higgins, correct?
JUDGE CANNONE: I'll allow this answer.
MR. ALBERT: I don't recall saying that, no.
JUDGE CANNONE: Let's move on.
BY MR. JACKSON:
MR. JACKSON: Did you have any conversation with Brian Higgins about a 2:22 a.m. phone call?
MR. ALBERT: That next morning while everything was going on, I mentioned to Brian that I may have butt-dialed you 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.
BY MR. JACKSON:
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. And 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: I'm sorry. That wasn't my question. After you're awake and you're up, you started making calls?
MR. ALBERT: Right.
MR. JACKSON: My question is, what was the first call you made at 7:20?
MR. ALBERT: Can I look at this?
MR. JACKSON: If that refreshes your recollection.
MR. JACKSON: With the Court's permission?
JUDGE CANNONE: Yes.
MR. ALBERT: At 7:20, I called Brian Higgins.
BY MR. JACKSON:
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: I thought you just said that you told him, oh, I think I may have butt-dialed you?
MR. ALBERT: Yeah. That was later in the morning when he came to the house.
MR. JACKSON: Not on that 7:20 a.m. call?
MR. ALBERT: No.
MR. JACKSON: 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: Mr. Albert, I have a couple more questions of the phones or the phone usage that morning and throughout the day. You called Brian Higgins at 7:20 a.m. for one minute and 56 seconds, correct?
MR. ALBERT: Yes.
MR. JACKSON: Brian Higgins called you at 7:30 for five minutes and 47 seconds?
MR. ALBERT: Yes.
MR. JACKSON: You called Brian Higgins at 7:57 a.m. and spoke for 12 minutes and 33 seconds?
MR. ALBERT: Yes.
MR. JACKSON: You then called your brother, Kevin Albert, at 9:40 a.m and spoke for one minute and five 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 four 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: And Jen McCabe called you back at 12:20 p.m., and you spoke for seven minutes and 52 seconds?
MR. ALBERT: Yes.
MR. JACKSON: You called Kevin Albert again at 2:01 in the afternoon and spoke for eight minutes?
MR. ALBERT: Yes.
MR. JACKSON: You called Kevin Albert at 6:45 -- I'm sorry. You called Brian Higgins at 3:24 p.m. and spoke for six minutes and five seconds; is that right? And, if it refreshes your recollection, there is a second page, a second log. If you'll turn your attention to the 3:24 p.m. time frame.
MR. ALBERT: I'm trying to find it.
MR. JACKSON: Take your time.
MR. ALBERT: What time are you referring to?
MR. JACKSON: 3:24 p.m.
MR. ALBERT: I see it. Yes.
MR. JACKSON: And there is a second call. You call Brian Higgins at 6:12 p.m. and speak for a minute and seven seconds, right?
MR. ALBERT: Yes.
MR. JACKSON: And then the third one on that page, you called Brian Higgins at 6:35 p.m. and 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 and 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, who called you at 8:04 p.m., correct?
MR. ALBERT: Yes.
MR. JACKSON: And then, finally, Chief Berkowitz called you at 1:48 p.m. on February lst, 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 yard, on your lawn, on January 29th, 2022; isn't that right?
MR. ALBERT: I don't know the subject of all 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.
MR. JACKSON: No, it doesn't.
MR. ALBERT: There were 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 --
JUDGE CANNONE: So I'm going to interrupt. We are going to send the jury out. Jurors, actually, why don't we take the luncheon recess. I'll see counsel at sidebar.
(Whereupon, the jury is escorted from the courtroom for the luncheon recess and there was a sidebar conference as follows:)
COURT CLERK: Folks, sidebar.
MR. JACKSON: I wish I had told you. I have two questions left. It's okay. It happens. thank you. I appreciate it.
JUDGE CANNONE: And they come over to sidebar as quickly as they can.
MR. JACKSON: I get it. I've got two more questions and I'm done.
JUDGE CANNONE: Great.
MR. JACKSON: Thank you, Your Honor.
JUDGE CANNONE: We will take our luncheon break.
(Whereupon, the sidebar conference concluded and the luncheon recess was taken.)
AFTERNOON SESSION
(Court resumes.)
(Defendant present. Jury present.)
JUDGE CANNONE: Mr. Jackson, if I had realized that you only had a couple of questions, we would not have taken the break when we did.
MR. JACKSON: Quite all right, Your Honor. May I resume?
JUDGE CANNONE: Please.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, I want to address a couple of quick things that we talked about a little bit earlier. The September 22nd, 2022 date. Do you 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: Yes.
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 date that I appeared on this case and it was nationally televised?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Were you aware that that hearing date of September 22nd, 2022 was a televised hearing?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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: You knew nothing about it?
MR. ALBERT: No.
MR. JACKSON: Okay. Let me ask you a different question, and this is going to dovetail into an earlier conversation you and I had concerning the statement that you gave in June of 2023 in the other hearing. Do 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. Do you remember saying that, that you didn't recall that?
MR. ALBERT: Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, there is a highlighted portion of that transcript. If you would just take a look at that and when you're finished reviewing it, just look up at me and let me know.
MR. ALBERT: Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Mr. Albert, did that refresh your recollection as to the colloquy that you had with someone guestioning you about this issue in June of 2023?
MR. ALBERT: Yes.
MR. JACKSON: And, in fact, you testified as follows: (As read), "Question: Is there -- can you just -- but." Then you.
MR. LALLY: Objection, Your Honor, as far as the reading.
JUDGE CANNONE: As far as what?
MR. LALLY: Reading from the transcript. He's asking if his memory is refreshed.
JUDGE CANNONE: All right. So go ahead and ask him a question.
BY MR. JACKSON:
MR. JACKSON: Did you, in fact, say in answer to the question (as read), "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 say 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. Do you recall that?
MR. ALBERT: Yes.
MR. JACKSON: Were those many calls an effort to get your stories straight about how you were going to -- 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 or those mini-calls an effort to coordinate narratives between you and your friends and your family?
MR. ALBERT: No.
MR. JACKSON: Were those mini-calls in any way discussing the fact of creating a story of mysterious butt-dials?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May I have one moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, Your Honor. I have nothing further.
JUDGE CANNONE: Okay. Mr. Lally?
MR. LALLY: Thank you, Your Honor.