Commonwealth v. Read — Trial ArchiveJennifer McCabe — Cross (Part 2)
614 lines(Court in session.)
(Defendant is present with counsel.)
COURT CLERK: Judge, would you like the jury?
JUDGE CANNONE: Well, I understand counsel wants to see me, but can it wait? Can we get started with the testimony? It's already --
MR. YANNETTI: We can with regard to three of the four issues, but with regard to one of them, it applies to this witness's testimony.
JUDGE CANNONE: All right. So I'll hear from Mr. Jackson about that since it's his witness.
MR. YANNETTI: That's fine.
JUDGE CANNONE: Why don't we come over here and do it while we bring the jurors in, okay?
(Sidebar commences:
JUDGE CANNONE: I really just like to get moving if we can. So there's one issue, it will be fine.
MR. JACKSON: Super brief. The Court has some impounded phone records that we've never been provided.
JUDGE CANNONE: Okay.
MR. JACKSON: I just want to go through about 12 or 13 calls that are only in those phone records.
COURT CLERK: They're right there.
MR. JACKSON: That's it. So if you could just make those available to me and unimpound them for purposes of --
MR. YANNETTI: They're unimpounded with regard to the attorneys, anyway. We'd like to make copies of those so that they'd potentially be highlighted or used.
MR. JACKSON: There's about, well, maybe a dozen calls in here that she's not going to know unless she is presented with (indiscernible) so I just want permission to use these with her.
JUDGE CANNONE: You can use these.
MR. JACKSON: Okay. But it looks like -- so let's mark these, please.
(Whereupon Exhibit OO, Phone Records, was marked for identification.)
JUDGE CANNONE: All right. So you can use this original, but before -- if you put it in evidence, do you intend to put something in evidence --
MR. JACKSON: No.
JUDGE CANNONE: I was going to say, it looks like there's a lot of redactions that need to be made.
MR. JACKSON: Some were to refresh her recollection or see if she adopts them.
JUDGE CANNONE: Okay. Is there any objection? Only Mr. Jackson.
MR. YANNETTI: I'm sorry.
MR. LALLY: No.
JUDGE CANNONE: Okay.
MR. JACKSON: It would be a lot easier if I had permission to highlight. If you want me to ask Ms. Little to make a copy real quick? We've got a copy machine right there.
JUDGE CANNONE: Yeah, so we can't highlight.
MR. JACKSON: Okay. Then while I start with the witness, she can just -- if she has permission to leave counsel table and just make a quick copy.
JUDGE CANNONE: Sure. And then when you finish with this - - so I noticed yesterday I think you asked for one of the exhibits before it was raised. I don't have a problem with that, but the exhibits are to stay with the clerk.
MR. JACKSON: Understood.
JUDGE CANNONE: So for this for what has been marked OO for identification, you can make a copy, Ms. Little, and you'll need both, correct, the unredacted or are you just --
MR. JACKSON: No, I just need the copy.
JUDGE CANNONE: Okay. So then if you could give it back --
MS. LITTLE: Sure.
JUDGE CANNONE: -- to Mr. Clerk.
MS. LITTLE: No problem.
MR. JACKSON: I'm ready.
end of sidebar.)
COURT CLERK: 22-117, the Commonwealth versus Karen Read. Can I have counsel identify themselves for the record.
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 on behalf of Ms. Read.
JUDGE CANNONE: Good morning, Mr. Jackson.
MS. LITTLE: Good morning, Your Honor. Elizabeth Little also on behalf of Ms. Read.
JUDGE CANNONE: Good morning, Ms. Little.
MR. YANNETTI: And good morning, Your Honor. David Yannetti for Karen Read.
JUDGE CANNONE: Good morning, Mr. Yannetti. Good morning, Ms. Read. Good morning, jurors. The county was kind enough to come in last night and make sure that the air conditioning was working. They were here late. They did a really terrific job so I think everybody should be comfortable today. I do have to ask you those same three questions. Were you all able to follow the instructions and refrain from discussing this case with anyone since we left yesterday? Everyone said yes or nodded affirmatively. Were you also able to refrain from doing any independent research or investigation into this case? Everyone said yes or nodded affirmatively. Did anyone happen to see, hear, or read anything about this case since we left yesterday? Everyone said no or shook their heads. All right. May we have Ms. Read -- Ms. -- sorry -- Ms. McCabe, please? JENNIFER MCCABE, sworn
JUDGE CANNONE: All right, Mr. Jackson, whenever you are ready.
MR. JACKSON: Thank you, your Honor.
CROSS-EXAMINATION BY MR. JACKSON (continued):
MR. JACKSON: Ms. McCabe, as a matter of housekeeping I wanted to show you a quick set of documents that I think you saw yesterday that I just wanted to make sure that we’re talking about the same thing. With the Court’s permission may I approach?
JUDGE CANNONE: Sure.
MR. JACKSON: Can you just take a look at that and tell me if that appears to be the same set of documents that we talked about yesterday that included the group chats, for lack of a better term?
MS. MCCABE: Yes.
MR. JACKSON: May I approach, your Honor? THE COURT? Yes.
MR. JACKSON: (By Mr. Jackson) I don’t mean to rush you.
MS. MCCABE: That’s okay.
MR. JACKSON: Your Honor, with the Court’s permission I ask that this set of group chats that has been authenticated be marked and moved into evidence?
JUDGE CANNONE: Is there any objection?
MR. LALLY: No, your Honor.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
COURT REPORTER: Exhibit 98, for the record.
(Document containing printout of chat group, Marked, Exhibit 98.)
JUDGE CANNONE: Does it cover more than what you covered yesterday?
MR. JACKSON: This is the exact same document. I just failed to do it yesterday. My fault.
JUDGE CANNONE: All right. So is there still more? I’m just curious if my form is different than.
MR. JACKSON: Yours should be the exact same.
JUDGE CANNONE: Why don’t I take a look at the exhibit, please. Why don’t you come to sidebar, please.
(Sidebar commences:
MR. LALLY: My apologies, Your Honor. I should say no objection other than the repeated objections that we made as far as --
JUDGE CANNONE: Yeah, so you're not waiving any objections that you made. So there were some that you didn't cover yesterday, and I'm just wondering if there's an objection from the Commonwealth. I checked off the ones that you specifically went over with her. Are there others that you didn't like that were beyond -- I put them in groups. So not all of them were covered, but if there's not -- that's why I was wondering if you're putting in the whole document even though you don't cover them.
MR. JACKSON: I am because she indicated that all of it was correct, although I didn't highlight certain of them because they're, quite frankly, sort of irrelevant.
JUDGE CANNONE: Okay.
MR. JACKSON: But I haven't (indiscernible) jurors seen all of it because it's all part of the same --
JUDGE CANNONE: So that's why I just wanted to make sure we're all on the same page because there were several that were violated. You were on the same page with if it's coming in, all of these come in?
MR. LALLY: Sure.
JUDGE CANNONE: So I'll quickly just remind them of the digital evidence instruction.
MR. JACKSON: Thank you.
MR. LALLY: Thank you.
end of sidebar.)
JUDGE CANNONE: All right, so that will come into evidence, and, jurors, sometimes I do have to repeat myself a bit but again before you can consider any electronic communication in your deliberations you must first find that it’s more likely true than not that the person who authored or sent these messages was, in fact, the person identified as doing so. If you do not find that it’s more likely true than not that the person who was identified as doing so was the person who authored or sent or transmitted the electronic communication you may not consider that electronic communication in your deliberations. All right, Mr. Jackson, go right ahead.
MR. JACKSON: Thank you, your Honor.
MR. JACKSON: (By Mr. Jackson) Ms. McCabe, you recall yesterday we talked about the twelve times in your grand jury transcript that you talked about statements that you attributed to my client, do you remember that conversation?
MS. MCCABE: Yes.
MR. JACKSON: And in those dozen times you never used the word or the words or the phrase, “I hit him” correct?
MS. MCCABE: Correct.
MR. JACKSON: And your explanation for that was, Well, I wasn’t asked that specific question, correct?
MS. MCCABE: Correct.
MR. JACKSON: You were, in fact, on January 29th, let me rephrase that just a little bit. You did, in fact, on January 29th, seek to ask an officer to come back to 34 Fairview for the specific purpose of telling that officer something that you thought was important, correct?
MS. MCCABE: Correct.
MR. JACKSON: Which officer was that?
MS. MCCABE: Michael Lank.
MR. JACKSON: About what time did you ask Officer Lank to join you back at 34 Fairview?
MS. MCCABE: I’m not sure. I know it was in the a.m. I’m just not sure what time exactly.
MR. JACKSON: Somewhere around 9:00 a.m., does that sound about right?
MS. MCCABE: Possibly.
MR. JACKSON: Literally, we’re talking about just a couple of hours after the incident in question?
MS. MCCABE: Correct.
MR. JACKSON: Sergeant Lank came with Sergeant Gallaher, I believe, correct?
MS. MCCABE: Correct.
MR. JACKSON: Came back to the location at 34 Fairview and gave you an opportunity to provide whatever information you deemed relevant at that time to impart to him, correct?
MS. MCCABE: Correct.
MR. JACKSON: And isn’t it true that at that time you didn’t tell Sergeant Lank that my client said, I hit him, what you said was that my client said I hope I didn’t hit him, correct?
MS. MCCABE: No.
MR. JACKSON: May I approach, your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: (By Mr. Jackson) Could you take a look at that report, just the face page and tell me if that appears to be an incident report associated with this case? I know you didn’t draft it but you recognize the incident report from the police, Canton Police, specifically?
MS. MCCABE: Yes.
MR. JACKSON: Could you turn to the tab, the light blue tab maybe three pages from the end of that report?
MS. MCCABE: Yes.
MR. JACKSON: I’d like you to read that paragraph to yourself if you wouldn’t mind, please. Do you have that in mind?
MS. MCCABE: I do, yes.
MR. JACKSON: May I approach, your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: What you read just now appears to be a report of the incident in which Sergeant Lank came back to 34 Fairview to give you an opportunity to tell him whatever it was that you thought was important, correct?
MS. MCCABE: Was that a full report or is that just an excerpt from it, that paragraph?
MR. JACKSON: Well, that right there is a full report of that incident of Sergeant Lank going back to 34 Fairview, would you agree?
MS. MCCABE: Well, that’s not a full report of what I said but if that’s his full report it’s his full report.
MR. JACKSON: Okay, and in this report --
MS. MCCABE: Uh-huh.
MR. JACKSON: -- what he writes that you said to him --
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained.
MR. JACKSON: (By Mr. Jackson) Isn’t it true that what you actually told Sergeant Lank when he returned is that while driving around with her and Ms. Roberts looking for the victim Ms. Read said something to the effect of Quote: “I hope I didn’t hit him” end quote. Isn’t that what you told them?
MS. MCCABE: Yes, because she said that when we were driving around.
MR. JACKSON: And then you went on to say --
MS. MCCABE: Uh-huh.
MR. JACKSON: -- that Quote, “She” Karen Read, “made these statements again at the scene when the victim was discovered,” correct?
MS. MCCABE: Correct.
MR. JACKSON: And then you went on to say, “She” Karen Read, I’m sorry, that you thought that Read may have made these same statements in front of a police officer but she was not sure, meaning you were not sure, correct?
MS. MCCABE: I was not sure if she said what the police officers may have heard. That report is his recollection. My recollection is I told him that she said, “I hit him, I hit him, I hit him” and I told him that he should ask responders if they heard that because it was a great possibility that they heard it, as well.
MR. JACKSON: But none of that, you’ll agree, you just read the report, none of that is in his report?
MS. MCCABE: That’s a very brief report.
MR. JACKSON: I didn’t ask you if it was brief, I asked you if it was in it, correct?
MS. MCCABE: Correct.
MR. JACKSON: And that’s a report of a conversation that he had at 34 Fairview with you for the specific purpose of memorializing what you told him, correct?
MS. MCCABE: Correct.
MR. JACKSON: And what you told him according to Sergeant Lank is she said one phrase, “I hope I didn’t hit him” correct?
MS. MCCABE: That’s what’s in the report.
MR. JACKSON: All right. And again, this was two-and-a-half, three hours after the incident, not two-and-a-half years later, correct?
MS. MCCABE: Correct.
MR. JACKSON: Ms. McCabe, we talked yesterday about this unrecorded meeting that you had in front of Sergeant Lank’s home on January 30th, do you remember that conversation?
MS. MCCABE: I remember the conversation, yes.
MR. JACKSON: Have you had any other home visits with any other police officers involved in this case?
MS. MCCABE: I went to drop off. It was not a visit. It was myself with Kerry Roberts dropping her daughter off. There was no involvement of Mike Lank on this day.
MR. JACKSON: Have you been to the home, the personal residence of any other police officer involved in this case, ever?
MS. MCCABE: Yes.
MR. JACKSON: Tell me who?
MS. MCCABE: Kevin Albert.
MR. JACKSON: Who else?
MS. MCCABE: I went to Elizabeth Proctor, the wife of Michael Proctor’s house.
MR. JACKSON: Who does Elizabeth Proctor live with?
MS. MCCABE: Michael Proctor.
MR. JACKSON: So you actually went to Michael Proctor’s personal residence, didn’t you?
MS. MCCABE: I did, yes.
MR. JACKSON: That was in September of what year?
MS. MCCABE: ’23 I went over.
MR. JACKSON: September of 2023?
MS. MCCABE: Yes.
MR. JACKSON: Why did you go to Michael Proctor’s house in September of 2023?
MS. MCCABE: I met Elizabeth Proctor in approximately July or August of 2023. We are two mothers that are being viciously terrorized and harassed by social media. Things that were stated in this courtroom and allegations that were made have torn our lives upside-down. We receive hate letters, letters saying that they hope things --
MR. JACKSON: I’m asking you why, I know you want to give a narrative.
MS. MCCABE: Yes.
JUDGE CANNONE: She gets to answer this. The door is wide open.
MR. JACKSON: Your Honor, if she could answer the question why she went to the house as opposed to the narrative behind her motivation.
JUDGE CANNONE: It sounds to me like she’s explaining why she went to the house. The door was opened, Mr. Jackson.
MR. JACKSON: (By Mr. Jackson) Go ahead.
MS. MCCABE: We receive letters. We receive emails. We receive calls, people drive by our house. There was a rolling rally outside of my house where people just screamed at us. They take pictures of our children. They took a picture of my daughter and put semen on it and said, property of some named blogger that I think the defense is very familiar with. So that is why myself and Elizabeth Proctor and I got together. Michael Proctor was not home. We are two mothers trying to get through the unthinkable together.
MR. JACKSON: So you were upset about the public outrage concerning your family’s involvement in the death of John O’Keefe?
MS. MCCABE: I was outraged because I am a state witness that is being tortured because of lies.
MR. JACKSON: Because of public outrage concerning your family’s involvement in the death of a police officer, correct?
MS. MCCABE: No, it’s a social media witch hunt.
MR. JACKSON: I see. So you decided that the best way for you to address that angst that you were feeling is to go to the lead investigator’s home, personal home in this case, correct?
MS. MCCABE: I went to visit Elizabeth Proctor. Michael Proctor was not home.
MR. JACKSON: So just like when you went to Sergeant Lank’s house and the only person you met with was his wife when you went to Michael Proctor’s house your claim is the only person you met with was his wife?
MS. MCCABE: I personally did not go to Mike Lank’s. It was not Jen going to Michael Lank’s. It was Kerry Roberts dropping her daughter off and I happened to be in the car with her. Elizabeth Proctor I met with because we couldn’t take the torture any longer.
MR. JACKSON: And you were later asked about this unrecorded visit at Trooper Proctor’s home by Massachusetts State Police, correct?
MS. MCCABE: Can you remind me?
MR. JACKSON: Sure. Did you have a conversation with a trooper by the name of Tully who interviewed you specifically about your contact with Michael Proctor?
MS. MCCABE: Could I see the report to refresh my memory?
MR. JACKSON: Do you not remember having a conversation with Trooper Tully?
MS. MCCABE: I’ve had many conversations over the last two years.
MR. JACKSON: With Trooper Tully?
MS. MCCABE: Over the last two years with a number of troopers.
MR. JACKSON: Okay, all I’m asking you is, and I’ve got a report to refresh your recollection. I want to know, first of all, do you remember having a conversation about your relationship with Michael and Elizabeth Proctor with Trooper Tully?
MS. MCCABE: I know I had a conversation with a trooper about it. I don’t remember exactly which trooper.
MR. JACKSON: Fair enough. May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: (By Mr. Jackson) Take a look at the face page of that. Read it to yourself and then I’d ask you to turn to the tab, page, which is paragraph 27.
MS. MCCABE: Okay.
MR. JACKSON: Do you have that in mind?
MS. MCCABE: Yes.
MR. JACKSON: May I approach, your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: (By Mr. Jackson) Does that refresh your recollection, Ms. McCabe, that you had a conversation or interview, a formal interview with Trooper Tully about your relationship with Elizabeth and Michael Proctor?
MS. MCCABE: Yes.
MR. JACKSON: And you told, actually, let me back up for a second. Was that somewhere in the vicinity of late September, early October when you had that conversation?
MS. MCCABE: Is there a date on it?
MR. JACKSON: May I approach your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: (By Mr. Jackson) There’s a date stamp on the bottom. Take a look at that date stamp on the bottom and tell me if that refreshes your recollection of about the time that that conversation would have taken place?
MS. MCCABE: Well, the date stamp on the bottom is when it was, I’m assuming, entered into evidence.
MR. JACKSON: Right.
MS. MCCABE: But that doesn’t say when the interview itself was.
MR. JACKSON: Right, if you’ll agree with me you know that you had the meeting with Elizabeth, I’m sorry, at Elizabeth and Michael Proctor’s home sometime in September 2023, correct?
MS. MCCABE: Correct.
MR. JACKSON: If that’s dated October of 2023, that’s what I’m trying to get to. I don’t know the date because it’s not dated.
MS. MCCABE: So I don’t either.
MR. JACKSON: So do you think that it was between September and October?
MS. MCCABE: It must have been.
MR. JACKSON: Had to have been, right?
MS. MCCABE: Correct.
MR. JACKSON: Okay, thank you. Before I get to that I’ve got a couple of other questions. You had at some point multiple phone calls with Michael Proctor after January 29th, 2022, correct?
MS. MCCABE: I believe so.
MR. JACKSON: Okay. Do you remember all the phone calls that you had with him?
MS. MCCABE: No, I don’t.
MR. JACKSON: Would it refresh your recollection to take a look at a log of your phone calls?
MS. MCCABE: Yes, that’d be great, thank you.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes. Is this what was marked zero-zero earlier this morning?
MR. JACKSON: It’s not. That will be next.
JUDGE CANNONE: Okay.
MS. MCCABE: Thank you.
MR. JACKSON: (By Mr. Jackson) Take a look at that and tell me if you, specifically there’s a log call there. There are blue tabs. Take a look at those blue tabs and then tell me when you’ve taken a look at those.
MS. MCCABE: Okay.
MR. JACKSON: May I have just a moment, your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: (By Mr. Jackson) Thank you.
MS. MCCABE: You’re welcome.
MR. JACKSON: Having looked at this set of records does this appear to be an accurate reflection of the phone calls that you shared with Michael Proctor at some point after, on and after January 29?
MS. MCCABE: Yes.
MR. JACKSON: Just to summarize those and I don’t want to belabor this but there was a call on the 29th at 10:55 a.m. with Trooper Proctor, correct?
MS. MCCABE: Correct.
MR. JACKSON: There was a call on the 29th at 12:49 p.m., correct?
MS. MCCABE: I didn’t memorize them.
MR. JACKSON: I understand.
MS. MCCABE: If you could give me the paper back then I could probably answer correctly.
MR. JACKSON: Sure, if you want to do it that way you certain can. May I?
JUDGE CANNONE: Yes.
MS. MCCABE: Thank you.
MS. MCCABE: Thank you.
MR. JACKSON: Okay, first call, January 29th, 10:55 a.m. Trooper Proctor calls you for a minute and seventeen seconds?
MS. MCCABE: Correct.
MR. JACKSON: Next tab: January 29th, 12:49 p.m. Trooper Proctor calls you for a minute and 8 seconds?
MS. MCCABE: Correct.
MR. JACKSON: January 30th at 9:51 a.m. you called Trooper Proctor, a four second call, probably a voice mail or something?
MS. MCCABE: Correct.
MR. JACKSON: January 30th, a minute later, 9:52 a.m. you then call Trooper Proctor again, 21 minutes and 31 seconds for that call?
MS. MCCABE: Correct.
MR. JACKSON: January 30th, the same day, 4:45 p.m. Trooper Proctor calls you for 9 minutes and 43 seconds?
MS. MCCABE: Correct.
MR. JACKSON: January 31st, the next day at 11:51 a.m. you called Trooper Proctor for 2 minutes and 53 seconds?
MS. MCCABE: Correct.
MR. JACKSON: And that is the sum of those calls, correct?
MS. MCCABE: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: (By Mr. Jackson) Those aren’t all the calls that you had with Trooper Proctor, that didn’t stop, it’s just where these logs stop, correct?
MS. MCCABE: I’d have to see my further call logs.
MR. JACKSON: Do you believe that you had additional phone calls with Trooper Proctor after that last call on the 31st?
MS. MCCABE: I know I did in 2023.
MR. JACKSON: In 2022 did you have additional phone calls with him?
MS. MCCABE: I’m not sure.
MR. JACKSON: Okay.
MS. MCCABE: I’d have to look at call records.
MR. JACKSON: May I have a moment, your Honor?
JUDGE CANNONE: You may.
MR. JACKSON: May we approach briefly?
JUDGE CANNONE: All right. Jurors, feel free to stretch up and stretch while we do this.
(Sidebar commences:
MR. JACKSON: I did not realize this, but these calls end on February 1, there should be additional call records which I'm not going to worry about. It's too laborious.
JUDGE CANNONE: Okay.
MR. JACKSON: That go through all of February, all of March. I'm just going to ask her about those, if she doesn't remember them, she doesn't remember them. But these are -- I didn't realize these are not the full panoply of calls. The Court probably has them, but these aren't it. So that's okay.
MR. LALLY: That's what the Court has.
MR. JACKSON: There's nothing else.
MR. LALLY: As far as my recollection, that's what I received.
MS. MCLAUGHLIN: We have notes that we took from the ones that were in the Court's possession that go months after this.
MR. JACKSON: So we have one of our associates come and look at the court file. He couldn't take them. But he actually scribed notes that go all the way through March. So I know they've been in the court file. Your Honor, I honestly don't want to --
JUDGE CANNONE: I'll ask Jim to go see if he can go find them.
MR. JACKSON: I mean, I would love that, but I don't want to bog this cross down any further. It is important.
JUDGE CANNONE: Jim.
COURT CLERK: Yes.
JUDGE CANNONE: It appears that there may be additional impounded records. Could you call down and see if there are or go down and see if there are?
COURT CLERK: There's about 700 impounded stuff --
JUDGE CANNONE: No, that came in with this.
COURT CLERK: All right. That's the only thing that came in. That.
JUDGE CANNONE: Oh.
MR. LALLY: It would have been that same batch. They all came in that one. It should have been in one on both.
MR. JACKSON: It appears they've been misplaced then. Your Honor, with the Court's permission, I'll just go ahead, and like I said, I don't want to bog down the cross. I'll go ahead and forge ahead.
JUDGE CANNONE: Okay. So do whatever you want to do, but Mr. McDermott is leaving the courtroom now to go look.
MR. JACKSON: Okay.
JUDGE CANNONE: All right. So I'll give you back this.
end of sidebar.)
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: (By Mr. Jackson) Ms. McCabe, I don’t have the records in front of me, they’ll be found before the end of our conversation but in the meantime for expedition do you remember a call on February 14th with Trooper Proctor lasting about seventeen minutes?
MS. MCCABE: I don’t, no.
MR. JACKSON: Do you remember a call on February 17th lasting about two minutes?
MS. MCCABE: I don’t, no.
MR. JACKSON: Do you remember a call on February 28th lasting about 2 minutes?
MS. MCCABE: I don’t recall, again it’s hard.
MR. JACKSON: I expect that your answer is going to be I don’t recall, but I want to make a record if I could. This is not a test of your memory at this point. I don’t expect you to have it memorized. I just want to ask if maybe one of these stands out in your mind or all of them. What about a second call on February 28th lasting about a minute?
MS. MCCABE: I don’t recall.
MR. JACKSON: On March 1st another call with Trooper Proctor lasting about a minute?
MS. MCCABE: I do not recall.
MR. JACKSON: Apparently a second call on March 1st lasting about two minutes and a few seconds?
MS. MCCABE: I don’t recall.
MR. JACKSON: On March 11th another call in the afternoon lasting about twelve minutes?
MS. MCCABE: I don’t recall.
MR. JACKSON: And finally a call towards the end of March, March 29th lasting about four minutes?
MS. MCCABE: Again, I don’t recall.
MR. JACKSON: Okay, understood that this is not a memory test and I don’t have the records in front of me so I apologize about that. Based on the conversation that we’ve just had does that jog your memory that you had multiple calls in February and March with Trooper Proctor as well as the calls we’ve gone over with the records in January?
MS. MCCABE: To be honest I had calls with many people. I was in a state of shock for months following this so if you have the record I can answer off of that but besides just reading them to me does not jog my memory, I’m sorry.
MR. JACKSON: That’s okay. You wouldn’t quarrel with the idea, I don’t want to hold you to a number, you wouldn’t quarrel with the idea that you had multiple calls with Trooper Proctor in January, in February, in March, correct?
MS. MCCABE: Well, the ones I just saw in the record, yes. There were multiple calls there.
MR. JACKSON: And of course you met him in your home on January 29th?
MS. MCCABE: Yes, I did.
MR. JACKSON: And he came into your living room, you had a conversation with him?
MS. MCCABE: In my dining room, yes.
MR. JACKSON: I’m sorry, your dining room?
MS. MCCABE: Uh-huh.
MR. JACKSON: And also Kerry Roberts was there?
MS. MCCABE: Kerry Roberts was not there.
MR. JACKSON: On the 29th?
MS. MCCABE: Kerry Roberts was not at my house on the 29th, no.
MR. JACKSON: When was she at your house when she was interviewed?
MS. MCCABE: I believe that was the Tuesday, whatever the date was.
MR. JACKSON: Maybe the 1st, does that sound right? The 1st or 2nd?
MS. MCCABE: Yes, something, it was the Tuesday following.
MR. JACKSON: Was that with Trooper Proctor or a different trooper?
MS. MCCABE: A different trooper.
MR. JACKSON: With Trooper Proctor on the 29th when he was interviewing you in your dining room that was the day that Brian Albert was also there?
MS. MCCABE: Correct.
MR. JACKSON: Was Brian Albert also interviewed on that day?
MS. MCCABE: I believe so.
MR. JACKSON: So Trooper Proctor was in your house for gosh, it had to have been an hour?
MS. MCCABE: I’m not sure. After I interviewed I went upstairs and then my children started waking up and I was tied up upstairs for a while. I’m not sure how long or when he was there.
MR. JACKSON: But your memory is clear that not only did you meet Trooper Proctor on that day you had a full conversation with him. It was in your house. That was in your dining room and another witness was interviewed by Trooper Proctor in your home, as well?
MS. MCCABE: Correct.
MR. JACKSON: And then you had multiple conversations with him in January on that day, the day after, and the day after that? You’ve already seen those records, correct?
MS. MCCABE: Yes, correct.
MR. JACKSON: Then in either September or October you were interviewed by Lieutenant Tully, that’s the report that you’ve already seen?
MS. MCCABE: Correct.
MR. JACKSON: And in that interview you were asked specifically whether or not you had a relationship with Trooper Proctor and when that relationship started, correct?
MS. MCCABE: Correct.
MR. JACKSON: And you said, Quote: You had never met Elizabeth Proctor or Michael Proctor prior to September 2023, correct?
MS. MCCABE: I did not say that.
MR. JACKSON: So yet again this is another example of a trooper completely getting it wrong, is that right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. Ask it differently.
MR. JACKSON: (By Mr. Jackson) In your view, did Lieutenant Tully get your statement wrong that you had never met Trooper Proctor before September of 2023?
MR. LALLY: Objection.
JUDGE CANNONE: Is that true or is that wrong?
MS. MCCABE: Lieutenant Tully knew I met Proctor prior to that because Proctor was the one who did the initial interview on January 29th.
MR. JACKSON: Does it make you wonder why he wrote in his statement, Quote: You --
MR. LALLY: Objection, your Honor.
MR. JACKSON: -- had never met Elizabeth Proctor or Michael Proctor prior to September 2023?
JUDGE CANNONE: So the objection is sustained.
MR. JACKSON: (By Mr. Jackson) If you indicated that you had never met Trooper Proctor before September of 2023 that would be a false statement, correct?
MR. LALLY: Objection.
JUDGE CANNONE: You can answer that, Ms. McCabe.
MS. MCCABE: I met Proctor January 29th. It’s everywhere.
MR. JACKSON: Would that have been a false statement, if you said it, would it have been false, that’s all I’m asking?
MS. MCCABE: Yes.
MR. JACKSON: Okay. On January 29th in the early morning hours I want to take you all the way back to 1:30-1:45 a.m. when you left 34 Fairview on the 29th after you dropped off the girls where did you and Matt McCabe go?
MS. MCCABE: We came home.
MR. JACKSON: After you got home you indicated that you went upstairs, correct?
MS. MCCABE: Correct.
MR. JACKSON: After you went upstairs you indicated that you got on the phone?
MS. MCCABE: Correct.
MR. JACKSON: On your cell phone, correct? After you got on your cell phone you indicated that you started searching for stuff?
MS. MCCABE: Correct.
MR. JACKSON: So if there’s GPS that you’ve seen the forensic extraction or part of it, correct?
MS. MCCABE: Which one are you referring to?
MR. JACKSON: Of your phone, the forensic extraction of your phone?
MS. MCCABE: I saw what you showed me yesterday from Cellebrite?
MR. JACKSON: That’s what I mean.
MS. MCCABE: Okay.
MR. JACKSON: From Cellebrite and part of it.
MS. MCCABE: I saw it, yes, the phone calls, yes.
MR. JACKSON: Okay, you’re aware that that extraction shows that you got home after 2:00 a.m. or so, so that would be generally correct?
MS. MCCABE: Correct.
MR. JACKSON: The Cellebrite extraction shows from your Apple Health Data that you actually went up a set of stairs, that would be accurate, correct?
MS. MCCABE: Accurate.
MR. JACKSON: The Cellebrite data shows that you actually logged into your phone, did a log in, either Face ID or a passcode, opened up the phone, that would be accurate?
MS. MCCABE: Correct.
MR. JACKSON: The Cellebrite data shows that you were engaging with an app called Safari to engage some Google searches, correct?
MS. MCCABE: Yes.
MR. JACKSON: That would be generally accurate, as well, correct?
MS. MCCABE: Yes.
MR. JACKSON: So after you opened up Safari you indicated that you Google searched something about Ozone Basketball, is that right?
MS. MCCABE: Yes.
MR. JACKSON: That was sometime after 2:00 a.m., right?
MS. MCCABE: Yes.
MR. JACKSON: What was so important about Ozone Basketball at 2:00 a.m. that it couldn’t wait until the morning, why did you search it then?
MS. MCCABE: Well, first I was home, I was wide awake and I had been texting about a basketball chat and basketball was clearly on my mind. My daughter had been invited to join a team. I didn’t know much about the team so I just was like Googling to see, because the woman who had given my daughter the offer had wanted an answer.
MR. JACKSON: So you say that basketball was on your mind, correct?
MS. MCCABE: Yes.
MR. JACKSON: Was there anything else on your mind in that early morning hour timeframe?
MS. MCCABE: I don’t believe so.
MR. JACKSON: Ms. McCabe, if you wanted to know in general how long it takes for a human being to pass away because of exposure to extreme temperatures, right, if you wanted to know the answer to that, what would you Google search, what phrase would you use?
MS. MCCABE: I’m not sure. All I recall is what the defendant asked me to Google in the morning.
MR. JACKSON: If you wanted to know, I’m asking a different question.
MS. MCCABE: Uh-huh.
MR. JACKSON: If you personally wanted to know how long does it take for a person to die of exposure due to extreme temperatures what would you put in, what phrase would you use?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: (By Mr. Jackson) Well, we don’t have to guess at the phrase that you would use if you wanted to know something about dying of hypothermia, do we, because you actually Google searched it?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. Ask that differently, please.
MR. JACKSON: (By Mr. Jackson) Did you, in fact, use a phrase to Google search how long it takes for someone to die of extreme temperatures?
MS. MCCABE: I did in the morning at the request of your client.
MR. JACKSON: And what phrase did you use?
MS. MCCABE: I’m not sure.
MR. JACKSON: Really?
MS. MCCABE: Correct, I was --
MR. JACKSON: After two-and-a-half years of this you don’t know the phrase that you used?
MR. LALLY: Objection, your Honor.
JUDGE CANNONE: Sustained.
MS. MCCABE: There’s so many lies and misconceptions on social media.
MR. JACKSON: There’s no question. There’s no question.
MS. MCCABE: Oh, I apologize.
MR. JACKSON: Are you telling me you don’t remember what Google search you put in?
MS. MCCABE: Karen was screaming. My hands were shaking and she was saying, Google hypothermia, how long does it take to die in the cold.
MR. JACKSON: And what phrase did you put in your phone, I’m just asking you to say it?
MS. MCCABE: Why don’t you show me it?
MR. JACKSON: You literally don’t remember?
MS. MCCABE: Again, she was screaming, Google hypothermia, how long does it take to die in the cold.
MR. JACKSON: How about --
MS. MCCABE: And I picked up my phone and I started Googling.
MR. JACKSON: And you literally to this day right now under oath, you’re saying you don’t remember that phrase that you used?
MR. LALLY: Objection.
JUDGE CANNONE: I’ll allow it.
MR. JACKSON: (By Mr. Jackson) Is that what you’re saying?
MS. MCCABE: I’m saying that at her --
MR. JACKSON: Do you remember it or do you not, Ms. McCabe, that’s a simple question.
MS. MCCABE: That morning I don’t remember specifically what I Googled but I do know what you’ve put out to the social media.
MR. JACKSON: How about this, “hos long to die in cold” does that sound familiar?
MS. MCCABE: Yeah, it’s been everywhere.
MR. JACKSON: How does that sound so familiar?
MS. MCCABE: Because you’ve put it out in social media.
MR. JACKSON: Well, I haven’t put anything out in social media because I don’t personally have social media.
MS. MCCABE: I’m sorry, Turtleboy did.
MR. JACKSON: So if the world happens to know it --
MS. MCCABE: Uh-huh.
MR. JACKSON: -- that’s not on me, is it?
MS. MCCABE: I guess not.
MR. JACKSON: I guess not. “Hos long to die in cold” is what you put into the Google search, right?
MS. MCCABE: If you say so.
MR. JACKSON: Is there a reason that you don’t want to admit to that?
MS. MCCABE: Absolutely not.
MR. JACKSON: It’s a simple question, right?
MS. MCCABE: No reason.
MR. JACKSON: So say it, what Google search did you use?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: (By Mr. Jackson) You were seeking at some point to Google, “How long to die in the cold” correct?
MS. MCCABE: Correct.
MR. JACKSON: And you made a mistake and mistakenly typed, “Hos long to die in cold” correct?
MS. MCCABE: If you could show me it I’d appreciate it.
MR. JACKSON: You later Google searched, may I approach, your Honor?
JUDGE CANNONE: Yes.
MS. MCCABE: Thank you.
JUDGE CANNONE: While she looks at that, Mr. Jackson, can we bring our clerk back upstairs?
MR. JACKSON: Of course, yes. I think we’re - –
JUDGE CANNONE: Thank you very much. Can you text Jim and tell him?
MR. JACKSON: (By Mr. Jackson) Take a look at that report and tell me if that refreshes your recollection?
MS. MCCABE: Yes, it does.
MR. JACKSON: Does that appear to be an accurate page from a Cellebrite extraction from your phone?
MS. MCCABE: It does.
MR. JACKSON: Okay, may I have that back? I’m sorry, may I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: (By Mr. Jackson) May I have that back, Ms. McCabe?
MS. MCCABE: Yes.
MR. JACKSON: Did you see the actual search phrase?
MS. MCCABE: Yes.
MR. JACKSON: Does that now refresh your recollection?
MS. MCCABE: Yes.
MR. JACKSON: Your Honor, may I approach and have this marked as next in order, exhibit, please.
JUDGE CANNONE: Is there an objection, Mr. Lally?
MR. LALLY: No, your Honor.
(Extraction Report RE: Jennifer McCabe, Marked Exhibit No. 99.)
MR. JACKSON: May I?
JUDGE CANNONE: Yes. What was that, Madam Court Reporter?
COURT REPORTER: Exhibit 99, your Honor.
JUDGE CANNONE: Thank you.
MR. JACKSON: May I publish this, your Honor?
JUDGE CANNONE: Okay.
(Exhibit No. 99 was published to the jury)
MR. JACKSON: (By Mr. Jackson) Does this appear to be the document that was just marked as Exhibit 99?
MS. MCCABE: Yes.
MR. JACKSON: You see this column?
MS. MCCABE: Yes.
MR. JACKSON: The third column, actually the fourth column from the left -- dates, some data and then a Google search, correct?
MS. MCCABE: Correct.
MR. JACKSON: What does that Google search say?
MS. MCCABE: “Hos long to die in cold.”
MR. JACKSON: Now, you indicate that you did that, you made that search at 6:23 a.m., correct?
MS. MCCABE: Correct.
MR. JACKSON: And then you indicated that you did it again thereafter at 6:24, correct?
MS. MCCABE: Correct.
MR. JACKSON: At 6:24 you misspelled the phrase and you spelled it as follows: How long t-i die in c-i-k-d, correct?
MS. MCCABE: Correct.
MR. JACKSON: Now you claim that those two searches were at 6:23 and 6:24 a.m. respectively, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Phrase it differently.
MR. JACKSON: Sure.
MR. JACKSON: (By Mr. Jackson) You’ve indicated under direct examination that these two searches were at 6:23 and 6:24 a.m., right?
MS. MCCABE: I don’t know if I gave exact times but I said it was in the morning and Karen had asked me to do it.
MR. JACKSON: Exactly. You claim you searched it because Karen was screaming at you and yelling at you to Google hypothermia and you Googled how long does it take for a person to, I’m sorry. She said something like, how long does it take for a person to die of hypothermia and you Google searched it at 6:23 and 6:24, is that right?
MS. MCCABE: Again, I’m not sure about the exact times. I just did it after Karen asked me to do it.
MR. JACKSON: Would you quarrel with the idea that those were about thirty seconds apart?
MS. MCCABE: Okay.
MR. JACKSON: And you’re aware, Ms. McCabe, that both spellings, both misspellings of that phrase result in the exact same search results, don’t they?
MS. MCCABE: I’m not aware of that, no.
MR. JACKSON: Well, you Googled them, ma’am, you looked at them on your phone and you Googled them. Hos long to die in cold and how long to die in c-i-k-d, both of them? You Googled them, right?
MS. MCCABE: I did, yes.
MR. JACKSON: And they result in the exact same search results, don’t they?
MS. MCCABE: I have no idea.
MR. JACKSON: So my question to you is why the two searches?
MS. MCCABE: She was standing next to me screaming, shaking my hand. My hand was cold. I was trying to Google it. Obviously maybe whatever came up first didn’t make sense because I had some misspellings so I did it again.
MR. JACKSON: So, hos long to die in cold results in articles concerning dying of exposure, doesn’t it?
MS. MCCABE: We never got the chance to read it.
MR. JACKSON: Well, you’re the one, when you say we, who is we?
MS. MCCABE: Karen and myself.
MR. JACKSON: Well, you’re the one holding the phone, Ms. Mcabe?
MS. MCCABE: Correct.
MR. JACKSON: So you’re looking down on your phone and you see exactly what comes up, correct?
MS. MCCABE: I don’t remember exactly what came up.
MR. JACKSON: Well, what came up was something about dying of hypothermia, didn’t it?
MS. MCCABE: That’s what she asked.
MR. JACKSON: So why do it again? Why do it again, Ms. McCabe? You had the result. Why the second search?
MS. MCCABE: I cannot answer that beyond telling you that my hands were frozen. She was shaking me and screaming at me.
MR. JACKSON: And we see the time, scroll up, again, according to this Cellebrite data, you see this first search, it says, Hos long to die in cold?
MS. MCCABE: I do.
MR. JACKSON: What’s that time?
MS. MCCABE: You’ve got the, it’s right over it. 2:27.
MR. JACKSON: A.M. or P.M.?
MS. MCCABE: A.M.
MR. JACKSON: Ms. McCabe, you made that search at 2:27 a.m. because you knew that John O’Keefe was outside on your sister’s lawn dying in the cold, didn’t you?
MS. MCCABE: Absolutely not. I did not make that search at that time, no.
MR. JACKSON: You realized the next morning after John was discovered after 6:00 a.m. that you had an incriminating search on your phone, didn’t you?
MS. MCCABE: Absolutely not.
MR. JACKSON: To cover your tracks you searched it again in order to overwrite your original search at 2:27, correct?
MS. MCCABE: Again, absolutely not.
MR. JACKSON: But you were nervous and you screwed it up so the first search you made at 6:23 was Hos long to die in c-i-k-d, wasn’t it?
MS. MCCABE: No.
MR. JACKSON: When you see the search right there, correct?
MS. MCCABE: I see the search but I disagree with your narrative.
MR. JACKSON: What’s the timeframe of that search?
MS. MCCABE: 6:23.
MR. JACKSON: And you agree that that timeframe is accurate, right?
MS. MCCABE: Again, it’s what the report says.
MR. JACKSON: That comports with your memory of that morning, about 6:23 in the morning and 51 seconds?
MS. MCCABE: Correct.
MR. JACKSON: There’s a second search, correct?
MS. MCCABE: Correct.
MR. JACKSON: And this one at 6:24 it says, Hos long to die in cold, 6:24:16, correct?
MS. MCCABE: Correct.
MR. JACKSON: I’m sorry, 18, and that comports with your memory, as well?
MS. MCCABE: I remember Googling it at the request of the defendant, yes.
MR. JACKSON: About 27 seconds apart, correct?
MS. MCCABE: Yes.
MR. JACKSON: But the reality is your first search didn’t comport with the 2:27 a.m. search, did it, it was a different spelling, wasn’t it?
MS. MCCABE: I never searched at 2:27. That is not reality.
MR. JACKSON: But the 6:24 search did exactly mirror the search that according to this report was placed at 2:27, correct?
MS. MCCABE: I’m sure Cellebrite will be able to explain it to you. I can’t.
MR. JACKSON: And then of those three searches one of them ended up deleted, is that right?
MS. MCCABE: I never deleted any search.
MR. JACKSON: Take a look at the Cellebrite report, the top search in the column marked “Deleted” what do you see?
MS. MCCABE: I see a “yes.”
MR. JACKSON: You can take that down.
MR. JACKSON: (By Mr. Jackson) Ms. McCabe, the reason you deleted that 2:27 a.m. call was because you realized that if you were caught Googling how long it takes a person to die in the cold three-and—a-half hours before John’s body was found that would incriminate you, wouldn’t it?
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained.
MR. JACKSON: (By Mr. Jackson) Did you delete that search because you knew that you would be implicated in John O’Keefe’s death if that search was found on your phone?
MR. LALLY: Objection.
JUDGE CANNONE: I’ll allow it. Could you answer that, please?
MS. MCCABE: I did not delete that search. I never made that search at 2:27. I never would have left John O’Keefe out in the cold to die because he was my friend that I loved.
MR. JACKSON: But he’s not your family, is he?
MS. MCCABE: Family and friends.
MR. LALLY: Objection.
MR. JACKSON: (By Mr. Jackson) He’s not your --
JUDGE CANNONE: Sustained.
MR. JACKSON: (By Mr. Jackson) You acknowledge that you made the search at 6:23, don’t you?
MS. MCCABE: In the morning I did, yes.
MR. JACKSON: You acknowledge that you made the search at 6:24?
MS. MCCABE: Multiple times in the morning, yes.
MR. JACKSON: Of the three searches that show up that were all found on your phone the one that you disavowed is the one that took place at 2:27 a.m. which would implicate you and exonerate my client, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. Can you ask it differently, Mr. Jackson.
MR. JACKSON: (By Mr. Jackson) Of those three searches there was only one that was deleted, is that right?
MS. MCCABE: Correct.
MR. JACKSON: That was the one at 2:27 a.m., correct?
MS. MCCABE: I wouldn’t even know how to go in and delete a search.
MR. JACKSON: That’s not what I asked you. The one according to the Cellebrite report that was deleted, is the one at 2:27 a.m., correct?
MS. MCCABE: Correct.
MR. JACKSON: Would you agree that that’s awfully convenient for you, isn’t it?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: That’s all I have, your Honor.
JUDGE CANNONE: Okay, Mr. Lally.
MR. LALLY: Thank you, your Honor. May I approach, briefly?
JUDGE CANNONE: Yes. Thank you.