Commonwealth v. Read — Trial ArchiveBrian Higgins - Cross (Part 1)
1,899 linesJUDGE CANNONE: All right, Mr. Jackson, whenever you're ready.
MR. JACKSON: Thank you, your honor. Who did you come here today with, Mr. Higgins?
MR. HIGGINS: Who did I travel to the courthouse with?
MR. JACKSON: Who did you meet here?
MR. HIGGINS: An attorney. My attorney.
MR. JACKSON: Is there a reason that you felt compelled to bring an attorney with you for your testimony as a witness in a homicide investigation—
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Trial, I should say.
JUDGE CANNONE: Sustained.
MR. JACKSON: You brought your attorney with you, who's sitting right behind you, correct?
MR. HIGGINS: That is not my attorney.
MR. JACKSON: Oh, I'm sorry — I thought you were his attorney. My mistake. Where is your attorney?
MR. HIGGINS: I don't know, he might be in the courthouse.
MR. JACKSON: Is he in the building?
MR. HIGGINS: I don't know where he physically is right now.
MR. JACKSON: Okay. Without telling me anything that you said to your attorney, did you meet with him this morning before your testimony?
MR. HIGGINS: Yes.
MR. JACKSON: Did you meet with him during the break — again, don't tell me what you talked about, but did you meet with him during the break, when we took a break a few minutes ago?
MR. HIGGINS: Yes, I did.
MR. JACKSON: Okay. And obviously the subject matter — again, without telling me any communication — the subject matter was your testimony here today, correct?
MR. HIGGINS: No.
MR. JACKSON: How many conversations have you had with Mr. Lally about your testimony, or your proposed testimony, in anticipation of you testifying today?
MR. HIGGINS: One.
MR. JACKSON: When was that?
MR. HIGGINS: That was on Monday.
MR. JACKSON: How long was that conversation?
MR. HIGGINS: I would say under an hour and a half.
MR. JACKSON: In person or over the phone?
MR. HIGGINS: In person.
MR. JACKSON: Where was that conversation?
MR. HIGGINS: That was at the DA's office.
MR. JACKSON: Who else was there?
MR. HIGGINS: My attorney, a victim-witness advocate — I believe her name is Christen Collins — ADA McLaughlin, ADA Lally, and Lieutenant Brian Tully from the Massachusetts State Police.
MR. JACKSON: Anybody taking notes?
MR. HIGGINS: I did not. I don't know if anybody was taking notes.
MR. JACKSON: Well, you were sitting there watching. Lieutenant Tully — did he take notes?
MR. HIGGINS: Not that I saw.
MR. JACKSON: No. So you had an hour to hour-and-a-half-long conversation with the prosecution team and a police officer witness, and you're telling me that you did not see anybody taking a single note down. Is that right?
MR. HIGGINS: That's correct. I did hand something to Lieutenant Tully, but he didn't take any notes in reference to what I handed him.
MR. JACKSON: What did you hand him?
PARENTHETICAL: [sidebar]
MR. HIGGINS: I handed him a piece of mail that I got at my residence.
MR. JACKSON: Anything having to do with this case?
MR. HIGGINS: Oh, I believe so.
MR. JACKSON: Was that turned over to Mr. Lally?
MR. HIGGINS: No. I turned it over to State Police.
MR. JACKSON: May we approach for a second?
JUDGE CANNONE: Yes.
MR. JACKSON: Other than that piece of mail that you handed to Lieutenant Tully, was there any other exchange of documents, or anything like that — were you shown anything in anticipation of your testimony?
MR. HIGGINS: The only thing I can recall being shown was a photograph of the exterior of 34 Fairview Road in Canton.
MR. JACKSON: What about the text messages that you just went over extensively — were you shown those?
MR. HIGGINS: I was shown a pile of papers, and I was advised those text messages were going to be — they were put into another format so they were easier to read. And these are the screenshots that you just described on the exhibit. As I said, he showed me the stack, said they were the text messages — they were in a different format, but I'm assuming that's what they were.
MR. JACKSON: What was your assignment with the ATF back in 2022?
MR. HIGGINS: I was assigned to the Bridgewater field office, but I was full-time with the United States Marshals Service doing fugitive apprehension.
MR. JACKSON: And where were you physically officing out of?
MR. HIGGINS: Well, I continued to maintain the office at Canton PD.
MR. JACKSON: Okay. But to be clear, you were a federal officer, not a Canton police officer, on some sort of task force with Canton PD, correct?
MR. HIGGINS: No. I was not on a task force with Canton PD. But you did have an office at Canton PD, based on a personal relationship that you had with the chief, correct?
MR. JACKSON: He gave you this office as a courtesy. Is that right?
MR. HIGGINS: So if I can explain—
MR. JACKSON: Yes or no: was it provided as a courtesy?
MR. HIGGINS: A working partnership, I would say.
MR. JACKSON: And you've been asked that specific question in a prior hearing, correct?
MR. HIGGINS: Yes.
MR. JACKSON: In June of 2023, right?
MR. HIGGINS: Yes.
MR. JACKSON: And you explained: "Look, there was a personal relationship that I had with Chief Berkowitz — it was born out of tragedy, a family tragedy that he was aware of. Horrible tragedy."
MR. HIGGINS: Yes.
MR. JACKSON: And based on that personal friendship and that personal relationship, he offered you the convenience of officing out of Canton PD.
MR. HIGGINS: I would say that's a good summary.
MR. JACKSON: And in addition to just having an office there, you also had key card access, correct?
MR. HIGGINS: I did, to get in and out.
MR. JACKSON: What was the name that you used — you said it was a proxy card?
MR. HIGGINS: I think it's called — I think in the IT world it's probably called a proxy card. That's what I know it to be.
MR. JACKSON: So you had both a physical office and full access to Canton PD, all based on the friendship and relationship you had with Chief Berkowitz, and the convenience that he wanted to give you for having that office there, correct?
MR. HIGGINS: No, I wouldn't say full access. I had access to certain areas within the department.
MR. JACKSON: Well, you certainly had access to and from your office, yes?
MR. HIGGINS: Yeah.
MR. JACKSON: Ingress and egress to the Canton Police Department.
MR. HIGGINS: Yes.
MR. JACKSON: You could go in and out of the sallyport.
MR. HIGGINS: I could.
MR. JACKSON: You could go upstairs to Chief Berkowitz's office.
MR. HIGGINS: Yes.
MR. JACKSON: You could go downstairs to the dispatch area, which is on the first floor, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And then you could go out to the sallyport, into the sallyport, across that garage, those two bay doors, at your leisure.
MR. HIGGINS: Well, that would exclude the evidence room, the arms room, and places like that. I didn't have access to those places.
MR. JACKSON: Right, but the places that I just mentioned, you did have access to.
MR. HIGGINS: Yes, absolutely.
MR. JACKSON: You had that office for — what — back in January of 2022, probably had that office for more than three years?
MR. HIGGINS: I would estimate probably sometime around 2018.
MR. JACKSON: 2018. Okay, not 18 years — 2018.
MR. HIGGINS: No, 2018.
MR. JACKSON: I'm sorry, my apologies. Yeah, maybe close to four years?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. I want to turn your attention, Mr. Higgins, to January 28, January 29, 2022. By the way, I should ask another foundational question: are you currently still at ATF?
MR. HIGGINS: Am I employed by ATF? Correct. Yes, I am. Special agent. Yes.
MR. JACKSON: What is your current billet, or your assignment?
MR. LALLY: Objection. Is that something you're free to discuss?
MR. HIGGINS: I'm assigned to division operations at this time.
MR. JACKSON: Okay. What does that mean?
MR. HIGGINS: That's — you're taken out of the field.
MR. JACKSON: Were you taken out of the field?
MR. HIGGINS: Yes.
MR. JACKSON: Are you no longer on the field?
MR. LALLY: Objection. Move to strike.
JUDGE CANNONE: Sustained. Let's move on. You may be able to come back to this.
MR. JACKSON: Thank you, your honor. I want to turn your attention now to January 28–29 of 2022. You recall those dates?
MR. HIGGINS: I do.
MR. JACKSON: You've been living with those dates for the last couple of years — like a nightmare. John O'Keefe's body was found outside your friend Brian Albert's house on the morning of January 29, 2022, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You've previously testified that on January 28th, you had gone to New York for this memorial service, correct?
MR. HIGGINS: Funeral service.
MR. JACKSON: Yes, the funeral service, not the memorial. You separate the two.
MR. HIGGINS: So, well, the wake would be the night before. Funeral — it was — I call them "the services." It wasn't a memorial. A memorial, to me, would be more of like an annual thing. This was the services.
MR. JACKSON: Just want to be clear. So you went with Brian Albert, Kevin Albert, and Eddie Hernandez, is that right?
MR. HIGGINS: I traveled down there myself, but I met up with them to go to the services, yes.
MR. JACKSON: Is it fair to say that you and Brian Albert and Kevin Albert sort of— —run in the same social and professional circles?
MR. HIGGINS: I mean, without speaking for anybody else, I think we know a lot of the same people, go to some of the same holiday parties, for instance. Yes.
MR. JACKSON: Go to some of the same events, whether they're law enforcement events or otherwise — retirement parties, yes, things like that?
MR. HIGGINS: Yes.
MR. JACKSON: Might meet up at a bar and have a social drink together?
MR. HIGGINS: Yes.
MR. JACKSON: Might share a meal together?
MR. HIGGINS: Correct. Yes.
MR. JACKSON: And you would agree that you particularly are pretty well connected to the Canton law enforcement community?
MR. HIGGINS: Could you qualify that? Explain that.
MR. JACKSON: You know quite a few cops, right?
MR. HIGGINS: Well, it's a small department, so I do know everybody in the building in some capacity.
MR. JACKSON: Okay. So my question is, you know quite a few cops in Canton?
MR. HIGGINS: I do.
MR. JACKSON: You're pretty good friends — a matter of fact, maybe best friends — with the chief of police, the former chief of police, Kenny Berkowitz?
MR. HIGGINS: Correct. Yes.
MR. JACKSON: You know Brian Albert, he's a Boston police officer?
MR. HIGGINS: Yes.
MR. JACKSON: You know his brother and work with his brother at Canton PD?
MR. HIGGINS: Correct. Yes.
MR. JACKSON: So it's fair to say, back to my original question, you're relatively well connected in the law enforcement community — the fabric of that community in Canton — is that right?
MR. HIGGINS: Well, I think that comes with working with people.
MR. JACKSON: Is that yes or no?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. As a matter of fact, you've even given a personal toast at one of these events — these retirement events, et cetera — correct?
MR. HIGGINS: Chief Berkowitz. Yes.
MR. JACKSON: And during the course of that toast, you even said, "If you want to hide a body, Kenny Berkowitz is your man," correct? Did you say that? Did you say that?
MR. HIGGINS: I don't recall that.
MR. JACKSON: You don't remember telling that joke in front of a room full of folks?
MR. HIGGINS: I don't.
MR. JACKSON: "If you want to hide a body, Kenny Berkowitz is your man?"
MR. HIGGINS: I don't.
MR. JACKSON: You will agree that some of your closest friends are some of the more powerful people in Canton in terms of politics and law enforcement, right?
JUDGE CANNONE: Jackson, ask it differently.
MR. JACKSON: At that same retirement dinner, there were members of the DA's office, correct?
MR. HIGGINS: Yes.
MR. JACKSON: As a matter of fact, the DA, Michael Morrissey, was there?
MR. HIGGINS: I believe he was at one point.
MR. JACKSON: All right. And that was the same event where you gave either a keynote speech or some sort of a speech for Chief Berkowitz's retirement, is that right?
MR. HIGGINS: Yes.
MR. JACKSON: How long have you known Brian Albert specifically?
MR. HIGGINS: I think I had some interaction with him when I was on the Cambridge Fire Department in my capacity in fire investigations, and then I would say pretty much through my entire career at ATF I came into contact with Brian. Give me a number of years — well, I've been with ATF now for 15 years. I've probably known him at least that whole time.
MR. JACKSON: You'd say that you have both a social and professional working relationship with him?
MR. HIGGINS: I would say yes. He's a friend.
MR. JACKSON: Frequently drink together?
MR. HIGGINS: We have drank together. I wouldn't say frequently, but yes, we've drank together.
MR. JACKSON: Break bread together, have meals together?
MR. HIGGINS: Absolutely. Had lunch.
MR. JACKSON: As a matter of fact, you were asked at a prior hearing whether or not you could put a number on the number of times that you've had drinks with Brian Albert, and you said somewhere around 50, or under — actually, you said under 50.
MR. HIGGINS: Under 50. I think I might have said 30.
MR. JACKSON: And that was in two years, correct?
MR. HIGGINS: Yes.
MR. JACKSON: So, not under 50 in the entirety of your relationship — a 15-year relationship with Brian Albert — literally, in the prior two years when you gave your testimony in June of 2023, in those two years, met up with him and had drinks under 50 times?
MR. HIGGINS: Was that a question?
MR. JACKSON: Yes.
MR. HIGGINS: Could you rephrase it?
MR. JACKSON: Sure. Is it true that you testified — quote, "I mean, in two years, I mean, maybe under 50" — end quote? That was your testimony to how often you socialize with Brian Albert, correct?
MR. HIGGINS: So we socialized more when I started working with his unit.
MR. JACKSON: Okay.
MR. HIGGINS: I don't know the exact number, but yes, we socialized. Absolutely.
MR. JACKSON: That's all I was getting at.
MR. HIGGINS: Okay. That's fine. I mean, there's — there's no secrets here. He's my friend.
MR. JACKSON: Mr. Higgins, let me ask the questions.
MR. HIGGINS: I get it. That's fine. I get it.
MR. JACKSON: You also know Brian Albert well enough to know what his relationship with — for instance, the other guy that you traveled back from New York with — Eddie Hernandez?
MR. HIGGINS: I do know Eddie Hernandez. I actually know Eddie the longest out of everybody.
MR. JACKSON: So you knew Eddie — Officer Hernandez —
JUDGE CANNONE: Ask the question.
MR. JACKSON: You knew Officer Hernandez before you ever knew Brian Albert?
MR. HIGGINS: Yes.
MR. JACKSON: You knew him before you even knew Kevin?
MR. HIGGINS: Yes.
MR. JACKSON: And you're aware that there was a physical altercation between Albert and Eddie Hernandez — that you're aware of, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Are you aware that Brian Albert had gotten into a fist fight with Eddie Hernandez?
JUDGE CANNONE: Jackson. Sustained.
MR. JACKSON: Were you at a Christmas party when that happened?
JUDGE CANNONE: Jackson —
MR. JACKSON: Your Honor —
JUDGE CANNONE: Sustained as to that form. You can be specific.
MR. JACKSON: Have you ever been at an event with Brian Albert and Eddie Hernandez and seen them fight?
MR. HIGGINS: Christmas, five years or so before 2022.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You do know that Brian Albert has a reputation for being a fighter?
MR. LALLY: Objection.
PARENTHETICAL: [sidebar]
JUDGE CANNONE: Sustained.
MR. JACKSON: You were asked in a formal interview — do you recall — I want to make sure I'm clear about some of your prior statements. You had a formal interview with some folks prior to your testimony at a prior proceeding. You understand what I'm talking about?
MR. HIGGINS: I'm tracking.
MR. JACKSON: Okay. At the formal interview — which is what I'm going to call that — the formal interview — you were asked about Brian Albert and his reputation, were you not? Yes or no.
MR. HIGGINS: Yes.
MR. JACKSON: You indicated in that formal interview that even Chief Berkowitz was a little afraid of Brian Albert.
MR. LALLY: Objection.
JUDGE CANNONE: Alright. Objection. Sustained. That's stricken. I'll see you at sidebar. [unintelligible]
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, Your Honor. You're also relatively close friends — in addition to being close friends with Brian Albert — you're also relatively close friends with his brother Kevin, correct?
MR. HIGGINS: I am.
MR. JACKSON: Kevin Albert is a detective with the Canton Police Department, is that right?
MR. HIGGINS: Yes.
MR. JACKSON: And you've worked in the same physical office with him for a number of years?
MR. HIGGINS: Physical building.
MR. JACKSON: Physical building — that's a better way to put it. It's different, is that right?
MR. HIGGINS: Yes.
MR. JACKSON: And it's fair to say that you've consulted with Kevin Albert on certain of his cases professionally, is that right?
MR. HIGGINS: I've assisted.
MR. JACKSON: And you've also socialized with him, shared drinks with him, gone to bars with him, is that right?
MR. HIGGINS: Yes, I have.
MR. JACKSON: It's fair to say that you know the Albert family relatively well?
MR. HIGGINS: I would say that I know Brian and Kevin the best.
MR. JACKSON: On January, you drove your Jeep Wrangler to the Hillside bar to meet up with Brian Albert for drinks, correct?
MR. HIGGINS: I did.
MR. JACKSON: You said you drank three to four whiskey sodas at the Hillside, is that right?
MR. HIGGINS: It'd be Jameson and ginger, not whiskey soda.
MR. JACKSON: My mistake. Jameson and ginger — Jameson is an Irish whiskey?
MR. HIGGINS: It is.
MR. JACKSON: And ginger is ginger ale?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. What was Brian Albert drinking?
MR. HIGGINS: If I was to guess, a beer.
MR. JACKSON: I don't want you to guess. Do you know what he was drinking?
MR. HIGGINS: No, I don't.
MR. JACKSON: He was drinking something?
MR. HIGGINS: He was drinking something.
MR. JACKSON: Alcoholic?
MR. HIGGINS: Yes.
MR. JACKSON: You two were probably going round for round — in other words, finish a drink, get another round for the two of you, finish it, get another round?
MR. HIGGINS: I don't think — no, I wouldn't say we were going round for round.
MR. JACKSON: So he was nursing one beer while you had four Jamesons?
MR. HIGGINS: Well, it would — it would have —
MR. JACKSON: Say that again. He was nursing one beer while you had four Jamesons? That's what you said.
MR. HIGGINS: No. He was probably — maybe he had more beers than I had Jamesons is more what I would say.
MR. JACKSON: Okay. So maybe he had five or six beers where you had four Jamesons?
MR. HIGGINS: I'm not going to put a number on it because I don't know, but it was more — more than you. Maybe he wasn't there that long.
MR. JACKSON: Well, it doesn't take that long to drink a beer, does it — if you're sort of thirsty and in a hurry?
MR. HIGGINS: Is that a question?
MR. JACKSON: Everything I say up here is a question. Okay, just presume that.
MR. HIGGINS: All right.
MR. JACKSON: So — well, that wasn't — so let's — yes, that would — all right, let me put a question mark at the end of that. Your memory is that Brian Albert had more drinks than you did, when you had those three to four Jameson and gingers?
MR. HIGGINS: To be honest with you, I wasn't keeping track.
MR. JACKSON: He left Hillside and you stayed, correct?
MR. HIGGINS: For a short time. Yes.
MR. JACKSON: You later changed your mind and ultimately decided to go to the Waterfall. You finished whatever you were eating or drinking, decided to go over to the Waterfall, right?
MR. HIGGINS: Yes. Because I'm always saying I'm going to show up and then I kind of do the Irish exit. So I decided — it was a long day, it was an emotional day, and I decided to join them.
MR. JACKSON: Did you drive your vehicle over there?
MR. HIGGINS: Yes, I did.
MR. JACKSON: After having as many as four whiskies?
MR. HIGGINS: Yes.
MR. JACKSON: Brian Albert — did he drive himself?
MR. HIGGINS: Well, I didn't see him. I dropped him off in the Boston PD district down there in Charlestown, and I'm assuming he drove back towards that way to meet me.
MR. JACKSON: He wasn't with anybody else?
MR. HIGGINS: Not that I know of.
MR. JACKSON: So he was drinking at the Hillside bar and then got in his car and drove over to the Waterfall as well?
MR. HIGGINS: I didn't see him drive over, but I assume that's what he did. Yes.
MR. JACKSON: You went to John O'Keefe's house — I'm going to shift gears for a second — you went to John O'Keefe's house at some point to watch the Patriots game on January 16th, right?
MR. HIGGINS: Yes.
MR. JACKSON: That was the time when you indicated that when you left, Karen gave you a kiss goodbye, correct?
MR. HIGGINS: Yes.
MR. JACKSON: It's safe to say that that was not some hot, passionate, long kiss, but you think it was more than just a friendly peck, correct?
MR. HIGGINS: I wouldn't describe it as a peck. I describe it as more than friends. It was a kiss.
MR. JACKSON: Well, you did describe it as a peck, didn't you, when you texted Karen Read and she said it— ...was just a peck, and then you texted back "I agree, figure of speech." What's the truth? Right? "Figure of speech." After that incident — it's safe to say we've just gone through a number of them — you exchanged flirtatious texts with Miss Read. Is that right?
MR. HIGGINS: Is the incident you're referring to when she kissed me?
MR. JACKSON: No, I'm saying after that. After that incident.
MR. HIGGINS: Yes.
MR. JACKSON: After the Patriots game?
MR. HIGGINS: Okay, yeah.
MR. JACKSON: You exchanged flirtatious texts?
MR. HIGGINS: We did.
MR. JACKSON: With Miss Read?
MR. HIGGINS: I did.
MR. JACKSON: And that was over the course of a few weeks?
MR. HIGGINS: A couple of weeks.
MR. JACKSON: But just nine days — is that right?
MR. HIGGINS: So it was between January 12th and, I would say, before the 28th, because the 28th she... ...didn't respond, and the 29th she sent that last text that John died.
MR. JACKSON: Those weren't— You've looked at the texts, right?
MR. HIGGINS: I have.
MR. JACKSON: You just looked at the last couple of texts?
MR. HIGGINS: I did.
MR. JACKSON: The last text that she sent of any substance was January 23rd, right?
MR. HIGGINS: Almost. Well, I think the text — I think the text on the 29th, "John died" — there's substance there.
MR. JACKSON: Okay, I'm not suggesting— I'm talking about after— you said— well, the 28th, right? The text of substance between the two of you — talking between the two of you, not the "John died" text — that substance ended on the 23rd, didn't it?
MR. HIGGINS: I'd have to have the text in front of me to agree with you.
MR. JACKSON: I think it's right here, Mr. Higgins — right in front of the exhibits, right there.
MR. HIGGINS: Thank you.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. HIGGINS: Okay. Wait — are you directing me to the 23rd?
MR. JACKSON: I'm directing you to the last page. Just look at everything on it and tell me if that refreshes your recollection. This is the last substantive text about you and Karen before your— well—
MR. HIGGINS: Yes, it'd be the 23rd at 9:40 PM, yes.
MR. JACKSON: So it was nine days of texting between the two of you, correct?
MR. HIGGINS: I believe so, yes.
MR. JACKSON: And aside from the kiss goodbye, you two never had any sort of physical contact with one another?
MR. HIGGINS: Do you mean intimate when you say physical?
MR. JACKSON: Correct. I'm not talking about shaking her hand, Mr. Higgins.
MR. HIGGINS: Well, I just — I want to answer your question truthfully.
MR. JACKSON: I would like you to, too. You didn't have any physical intimate contact with [unintelligible], correct?
MR. HIGGINS: No, I did not.
MR. JACKSON: There was no other hugs or kisses, or certainly no sex?
MR. HIGGINS: No.
MR. JACKSON: And when she said "I'm glad you came over tonight" in one of those texts that you just read a few minutes ago, she was referring to the Patriots game — with John there and a big crowd there — correct?
MR. HIGGINS: Yes.
MR. JACKSON: Over the course of that week or so, Miss Read did explain her feelings about her relationship with Mr. O'Keefe, correct — in text messages, during the pendency of your communication?
MR. HIGGINS: She did express, yes.
MR. JACKSON: And she indicated that there's a difference between being married to someone and dating someone, et cetera — we saw those texts — is that right?
MR. HIGGINS: Yes.
MR. JACKSON: She also indicated that in terms of the situation in Aruba, she was upset by that, but "it's not that big a deal" — correct?
MR. HIGGINS: It was clear to me she was upset, and she said "I don't care too much about that other girl."
MR. JACKSON: Right. Well, at least that's what she said in text.
MR. HIGGINS: Yes.
MR. JACKSON: That's what I'm asking you — is that what she said in text, Mr. Higgins? It's not a trick question. That's what she said in text, right? She said something along the lines of "I'm just trying to be realistic — there's cracks in the relationship, it's far from perfect" — is that right?
MR. HIGGINS: I think that's something she texted.
MR. JACKSON: All right. And you'll agree that during the course of these texts, you were constantly asking for clarity and explanation from her, were you not?
MR. HIGGINS: During our communication, I did ask for clarity many times.
MR. JACKSON: You saw it, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And she pretty much wouldn't answer you, correct?
MR. HIGGINS: She was non-committal, I would say.
MR. JACKSON: Which is why you were saying in your texts "why won't you answer the question" — and she would parry and not answer that one either — correct?
MR. HIGGINS: Well, I didn't want to be stuck in the middle of anything.
MR. JACKSON: That's not my question. I'm asking you whether or not... ...she would answer your question about clarity. Specifically, she avoided — she avoided questions about texts, right? And that was frustrating, because you were very interested in her romantically at that point, correct?
MR. HIGGINS: I was attracted to her. I don't know that I would say very interested in her.
MR. JACKSON: You texted things like "why did you get my number and reach out" — that's a quote from the texts we just read, correct?
MR. HIGGINS: I did ask that, yes.
MR. JACKSON: You said "now what" — is that right?
MR. HIGGINS: Yes.
MR. JACKSON: You texted "so now what" — correct?
MR. HIGGINS: Yes.
MR. JACKSON: You texted "I would hang out" — meaning with you?
MR. HIGGINS: Yes, correct.
MR. JACKSON: You were showing interest in her.
MR. HIGGINS: Yes.
MR. JACKSON: You were showing romantic interest in her.
MR. HIGGINS: I... ...wouldn't say it was romantic. I was trying to vet it out.
MR. JACKSON: Well, you weren't — you weren't seeing if she wanted to go see a ball game with you as a buddy, right?
MR. HIGGINS: Not really, no.
MR. JACKSON: No. You were showing romantic interest in her, weren't you?
MR. HIGGINS: I was trying to vet out what — was her interest in me legitimate? It was very normal for me to have that question in my mind when I didn't initiate this — she did. And I think it was a fair question just to try to find out.
MR. JACKSON: You were showing romantic interest in Karen Read, weren't you?
MR. HIGGINS: I was interested, but I don't think I was at the romantic phase.
MR. JACKSON: Okay. When I say romantic — well, what do you mean by...
MR. HIGGINS: ...romantic? What's the romantic phase? Sending somebody flowers? Dating?
MR. JACKSON: Well, there's a difference between dating and hanging out. I mean, it's kind of hard to date somebody when you have a boyfriend, Mr. Higgins.
MR. HIGGINS: Well, not — not if both people are dating other people, right? Happens all the time, doesn't it?
MR. JACKSON: Well, I think I asked that question, too. Right? That's not my question. My question is: you seem to have a problem admitting that you had a romantic interest in my client. Is there a reason for that?
MR. HIGGINS: I was attracted to her.
MR. JACKSON: Right.
MR. HIGGINS: Physically attracted. She — I thought she was an attractive woman.
MR. JACKSON: Romantically attractive.
MR. HIGGINS: I'm not going to go there. No, I don't — I... ...don't agree with that.
MR. JACKSON: Of course you're not going to go there, because that would put you in a very awkward position, wouldn't it, sir?
MR. LALLY: Objection.
MR. HIGGINS: Not at all.
JUDGE CANNONE: The objection is sustained as to the form. You can ask it differently, and that answer will be stricken.
MR. JACKSON: Now — I'm sorry, may I?
JUDGE CANNONE: Yes.
MR. JACKSON: Were you sexually attracted to her?
MR. HIGGINS: I was physically attracted to her, yes.
MR. JACKSON: Sexually attracted to her was my question.
MR. HIGGINS: Well, I think in the text I said "you're hot."
MR. JACKSON: Okay. So my question again, Mr. Higgins — you seem to not want to answer my question. My question is: were you or were you not sexually attracted to my client?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. You were saying things like "what do you want from me" and "I want the real deal" — those are your words, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And the real deal with you would be to date her, to get involved with her romantically, correct?
MR. HIGGINS: No.
MR. JACKSON: The real deal was what?
MR. HIGGINS: What did you mean by "I want the real deal"?
MR. JACKSON: Like a relationship.
MR. HIGGINS: What kind of relationship? A buddy-buddy relationship?
MR. JACKSON: You just want to go — like the — the same thing everybody wants — a real relationship. Like a romantic relationship, Mr. Higgins.
MR. HIGGINS: It's possible, right?
MR. JACKSON: And she was answering with things like — when you said "now what," she answered "I don't know" — correct?
MR. HIGGINS: Yes, she did.
MR. JACKSON: When you asked "so now what," what did she answer?
MR. HIGGINS: I'm sorry...
MR. JACKSON: When you said "so now what," she answered "now what, what" — correct?
MR. HIGGINS: Well, I don't have it in front of me, so I — I can't agree with you. I'd like to see what you're referring to.
MR. JACKSON: Well, you just read it about 10 minutes ago.
MR. HIGGINS: Would you — would you quarrel if— I know, but this — you're — you're giving me portions of it. You were given portions of it by Mr. Lally as well.
MR. JACKSON: Okay. Right. Did you text something like "now what" and she responded something like "now what, what"?
MR. HIGGINS: I think on one occasion she did, yes.
MR. JACKSON: Okay. And you remember — you just read a text where — I'm sorry — you texted "what do you want from me" and her responsive text was... ..."I don't know" — correct? I think that was one of the texts, again with this theme of her being non-committal one way or the other — is that right?
MR. HIGGINS: Well, I don't — that's not how I would interpret it as a theme, no.
MR. JACKSON: Well, didn't you just say she was non-committal? That was your word, not mine.
MR. HIGGINS: I did, but as I told you, it's been a process of trying to suss it out and see what this was all about.
MR. JACKSON: Right. So when you were sussing it out and determining whether or not you were going to advance this romantic interest, she was sort of non-committal, wasn't she?
MR. HIGGINS: Well, not one person advances it. I think that's — that's a joint thing.
MR. JACKSON: When you texted... ..."you want the real deal," she responded "it doesn't exist" — didn't she?
MR. HIGGINS: She did, yes.
MR. JACKSON: And she never once in any of those texts expressed anger or hatred toward John, correct?
MR. HIGGINS: No, not at all. Matter of fact, she indicated more a frustration with the immediate family, the kids — she didn't want to have kids — in totality, I would say, yes.
MR. JACKSON: And then on January 23rd, as you just saw, she just stopped communicating with you altogether, correct?
MR. HIGGINS: Until the 29th, yes.
MR. JACKSON: Correct. Do you know what the term "ghosted" means?
MR. HIGGINS: I think I have a general idea, yes.
MR. JACKSON: She sort of ghosted you, didn't she?
MR. HIGGINS: I wouldn't agree with that.
MR. JACKSON: That was frustrating to you, that... ...she just stopped communicating — wasn't it?
MR. HIGGINS: No, not at all.
MR. JACKSON: You had been moving through this mindset of exploring a romantic interest with a beautiful woman you thought was interested in you — just like that — was done, right?
MR. HIGGINS: No.
MR. JACKSON: So what communication did you have with her after January 23rd?
MR. HIGGINS: Well, she texted me on January 29th.
MR. JACKSON: You keep saying that. But you know what I'm getting to — January 29th was her informing you that a tragedy had occurred, John had died — right? I'm not talking about that, Mr. Higgins. So I — I don't want to be playing games. All right? So that's what — that's what we talked about. No more — after the 23rd. Or up to the 23rd, she had been texting back and forth... with you pretty regularly— you just saw it. Correct?
MR. HIGGINS: She also sent me a text with an arrow saying the phone works both ways.
MR. JACKSON: And as of the 23rd she stopped, didn't she?
PARENTHETICAL: [sidebar — audio not captured]
MR. HIGGINS: The texts were sporadic over those nine days. I don't know if they would have stopped or they would have kept going.
MR. JACKSON: Well, they didn't keep going—
MR. HIGGINS: Well, John passed away.
MR. JACKSON: You know they didn't keep going because from the 23rd onto the 24th, the 25th, the 26th, 27th, 28th, all the way to the 29th, she never texted you. Right?
MR. HIGGINS: I believe so.
MR. JACKSON: She didn't respond to any of your texts. Right?
MR. HIGGINS: Well, she didn't respond to the text on the 28th. Friday.
MR. JACKSON: All right.
JUDGE CANNONE: Why don't we take our lunch. And what I'm going to ask the jury to do is— can we do a 45-minute lunch instead of an hour's lunch today? And also, you don't have to answer me now, but maybe we'll go to 4:30 rather than 4:00, if that works for you. If it doesn't work for any one of you— jurors, leaving your notebooks on your seats— all right, so why don't I see Counsel over here at sidebar.
COURT OFFICER: You are muted. Thank you. [unintelligible] [unintelligible] [unintelligible] [unintelligible]
PARENTHETICAL: [recess]
JUDGE CANNONE: Just a reminder. All right, Mr. Jackson, whenever you're ready.
MR. JACKSON: Thank you, Your Honor. Mr. Higgins, before we broke for lunch we were talking about the text exchanges and the communication that you were having with Miss Read in the days leading up to January 23rd. You recall that?
MR. HIGGINS: Yes.
MR. JACKSON: It's fair to say that her text communications with you started to dwindle off in the days before the 23rd. Correct?
MR. HIGGINS: They lagged.
MR. JACKSON: As a matter of fact, you reached out to her in an effort to try to prompt the conversation to continue, did you not?
MR. HIGGINS: I reached out to her, but I wouldn't say that's what it was about.
MR. JACKSON: Well, you texted her "stranger, stranger," didn't you?
MR. HIGGINS: Not once or twice — I believe so.
MR. JACKSON: Take a look, if you don't mind, at — this is a page from what you've just seen. In fact, I'm sorry, that was right in front of you. May I approach, please?
JUDGE CANNONE: Thank you. Just a second. Maybe that should — let me see. Thank you. That's easy to find. It's literally the last page.
MR. JACKSON: May I publish?
JUDGE CANNONE: Yes.
MR. JACKSON: Does that look like a fair representation of what you're looking at, the last page of that series of texts?
MR. HIGGINS: Yes.
MR. JACKSON: I'd ask you to read what you wrote in the blue bubbles, starting at the top.
MR. HIGGINS: "Haha. Stranger. Stranger."
MR. JACKSON: And then what was the response from Miss Read?
MR. HIGGINS: "Hey, I was at the Hillside all weekend."
MR. JACKSON: And what did you... ...respond at that point?
MR. HIGGINS: "I have not heard from you."
MR. JACKSON: And by the way, if you look at the next date down — what's the date underneath "I have not heard from you"?
MR. HIGGINS: The 23rd.
MR. JACKSON: So this would have preceded the 23rd. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. Then on the 23rd — and by the way, after you texted "I have not heard from you," she did not respond. Correct?
MR. HIGGINS: She did not respond.
MR. JACKSON: Then on the 23rd she did respond with "phone works" — correct? — with the arrows, like "both ways." Right?
MR. HIGGINS: Yep.
MR. JACKSON: And then what did you text after that?
MR. HIGGINS: I just said "thought you were all set."
MR. JACKSON: And how did she respond?
MR. HIGGINS: She said "with talking, no."
MR. JACKSON: That's all I have for that. Okay, bring the lights back up. So clearly, with that... ...last text, her response was in response to you saying "thought we were all set." She said "with talking, no." Correct?
MR. HIGGINS: Yes.
MR. JACKSON: Did that indicate to you that — with flirting, yes — we're all done?
MR. HIGGINS: No, I didn't read anything into it.
MR. JACKSON: Okay. But you did read where she said "with talking, no." Correct?
MR. HIGGINS: Yes.
MR. JACKSON: And then you responded how?
MR. HIGGINS: I said "Hm, are you sure?"
MR. JACKSON: Did she respond?
MR. HIGGINS: No.
MR. JACKSON: As a matter of fact, the next time you saw her — communicated with her — she was walking into the Waterfall Bar on the 29th, late night hours of the 28th going to the early morning of the 29th, with her boyfriend John O'Keefe. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: Now, you had discussed your flirtations — if I can use that word — that you had with Miss Read with your friends, at least some of them. Correct?
MR. HIGGINS: I don't recall that. No.
MR. JACKSON: Do you recall that you openly shared the details of your interest in Miss Read with your work supervisor at the DOJ?
MR. HIGGINS: Well, that was after — I shared what happened, that she kissed me. Yes, I did share that with her.
MR. JACKSON: And that was with — was that the first time? That was with a person by the name of Kate Dow. Is that right?
MR. HIGGINS: That's correct.
MR. JACKSON: And that was before January 29th?
MR. HIGGINS: Yes.
MR. JACKSON: And that's because your interest in Karen Read — when you call it romantic or sexual or whatever — your interest was... ...something that was at least occupying your mind at that point. Correct?
MR. HIGGINS: No.
MR. JACKSON: Was it occupying your mind enough to share it with your boss?
MR. HIGGINS: No. What I shared with my boss was the fact that she kissed me. That was it.
MR. JACKSON: Did you discuss your flirtatious relationship with Karen Read with Brian Albert at any point?
MR. HIGGINS: No, never.
MR. JACKSON: No. So you were on a four-hour drive in a snowstorm back from New York with Mr. — I'm sorry — with Mr. Albert, and your interest in Karen Read never came up?
MR. HIGGINS: No. Even though he's a good friend.
MR. JACKSON: Yes. Just something you wouldn't talk about. You'd been drinking since about what time? What time — that's a bad way to ask it. What time did you start drinking? When — when are we at, Mr. — I'm sorry — on the 28th. When you got back from New York, when did you start drinking?
MR. HIGGINS: Well, it wasn't until I swapped out vehicles and I went up to the Hillside.
MR. JACKSON: Okay. That would have been — give me a time frame.
MR. HIGGINS: 9-ish, 8-ish. It was dark. It was maybe in the area of 8:00.
MR. JACKSON: And what time do you think you got to the Waterfall?
MR. HIGGINS: I couldn't say. I don't — it was after the Hillside.
MR. JACKSON: Did — before Brian Albert left the Hillside, did he tell you that John O'Keefe had been invited over to meet them at the Waterfall?
MR. HIGGINS: No.
MR. JACKSON: Was there any particular reason why you changed your mind and left the... ...Hillside to go to the Waterfall?
MR. HIGGINS: Well, I think as I previously testified, that it was because I didn't always take them up on their offer, and I usually did the Irish exit, and I decided because of the weather and everything else, and it had been a long day, that I would go down there and join them.
MR. JACKSON: Didn't have anything to do with you knowing that Karen Read might be at the Waterfall?
MR. HIGGINS: It couldn't have, because I didn't know she or John O'Keefe would even be there. I didn't know who was going to be there, other than Brian's wife.
MR. JACKSON: Do you have any text messages with Brian about going to the Waterfall?
MR. HIGGINS: I don't recall. He told me about it at the... ...Hillside. And once he got to the Waterfall — he got to the Waterfall obviously before you did.
MR. JACKSON: He did?
MR. HIGGINS: I think shortly before, yes.
MR. JACKSON: Any text communications between you and Brian Albert about who was at the Waterfall, or who was expected to come to the Waterfall?
MR. HIGGINS: No, not that I recall.
MR. JACKSON: Now, you've already indicated — and I don't think we need to go into a lot of detail about this — but I want to ask you just in general: the mood at the Waterfall was good spirits. Correct?
MR. HIGGINS: It was great. The band was playing.
MR. JACKSON: You did not see any sort of tension between John and Karen?
MR. HIGGINS: I did not.
MR. JACKSON: Nobody seemed overly intoxicated?
MR. HIGGINS: No.
MR. JACKSON: You would have had several drinks before... ...you even got to the Waterfall. Right?
MR. HIGGINS: I think it was three to four.
MR. JACKSON: Did you drink additionally at the Waterfall?
MR. HIGGINS: I did, yes.
MR. JACKSON: Did you drink whiskey or beer, or what?
MR. HIGGINS: Whiskey.
MR. JACKSON: Okay. How many do you think you had?
MR. HIGGINS: I couldn't put a number on it. At least a couple.
MR. JACKSON: And ultimately you left from there in your personal vehicle — that's the Jeep — and drove over to 34 Fairview. Correct?
MR. HIGGINS: I drove over to the Waterfall. I'm sorry — was that — you left the Waterfall, drove over to 34 Fairview?
MR. JACKSON: I did, yes. When John walked into the Waterfall, were you already there?
MR. HIGGINS: Yes.
MR. JACKSON: He greeted you, you indicated. Correct?
MR. HIGGINS: Yes, I believe so.
MR. JACKSON: Karen walked in with him?
MR. HIGGINS: Yes.
MR. JACKSON: But she did not greet you, did she?
MR. HIGGINS: I think they kind of went — like that — different directions. Right?
MR. JACKSON: Yes. Did she greet you?
MR. HIGGINS: No.
MR. JACKSON: Right. So she walked over toward the corner of the bar, and John came over and greeted you, and then walked over and joined her. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: Karen didn't stop what she was doing once she was over in the corner of the bar and come over and say hi to you?
MR. HIGGINS: I didn't have any interaction with her that night. No.
MR. JACKSON: So safe to say that throughout that evening, once she was sidled up next to John O'Keefe or the friends she was with, she never turned back around and came over and even acknowledged you. Correct?
MR. HIGGINS: That's correct.
MR. JACKSON: So she basically ignored you the entire evening.
MR. HIGGINS: That's not how I interpret it. No.
MR. JACKSON: I didn't ask you how you interpreted it. I asked you what she did. Did she ignore you, or did she pay attention to you?
JUDGE CANNONE: You can go ahead and answer that.
MR. HIGGINS: No.
MR. JACKSON: So she paid attention to you — came over and said hello, shook your hand, gave you a hug?
MR. HIGGINS: Well, just because somebody didn't come over doesn't mean they ignored you.
MR. JACKSON: Did she do those three things? Hug — what was the other thing? Say hello, shake your hand, give you a hug?
MR. HIGGINS: No, she did not.
MR. JACKSON: No. She didn't do any of those things, did she?
MR. HIGGINS: No.
MR. JACKSON: It's like you didn't even exist.
MR. HIGGINS: I think that's dramatic. No, I... don't look at it that way.
MR. JACKSON: Did she ignore you or no?
MR. HIGGINS: No, she did not ignore me.
MR. JACKSON: So she — what did she do to not ignore you? She was [unintelligible] with you?
MR. HIGGINS: Can I answer now?
MR. JACKSON: Sure.
MR. HIGGINS: She, in my opinion, she was working the room, talking to people, saying hello, catching up, right?
MR. JACKSON: The one person she didn't come over to talk to and say hello to and catch up with — it's you.
MR. HIGGINS: Well, I don't — I don't know that I was the only person, but I was one of the people that she didn't say hello to.
MR. JACKSON: Yes. She — you, sort of like a stranger?
MR. HIGGINS: I don't feel that way, no.
MR. JACKSON: She actually positioned herself away from you at the other end of the table, on the opposite side, in the corner — — isn't that right?
MR. HIGGINS: I don't know where she was all night, no.
MR. JACKSON: Did it upset you that she ignored you or didn't pay attention to you?
MR. HIGGINS: I did not feel ignored, and it didn't upset me at all.
MR. JACKSON: But it bothered you enough to send her a text, didn't it?
MR. HIGGINS: No. It was — it was a [unintelligible] text. It was just — that was it.
MR. JACKSON: It bothered you enough to send her a text that said "um" with six M's behind it. Okay, and —
MR. HIGGINS: Well, correct. Well, it wasn't like that. It was "um" —
MR. JACKSON: Well, that's it. Just "um" — well, like a well in the ground?
MR. HIGGINS: I think you know what I mean.
MR. JACKSON: Yeah, I think you do too, sir. You meant "um, well — when are you going to pay attention to me."
MR. HIGGINS: No, that's not correct.
MR. JACKSON: "Um, well — why are you ignoring me?"
MR. HIGGINS: It's not correct.
MR. JACKSON: "Um, well — am I chopped liver?"
JUDGE CANNONE: All right, that — that's sustained. Mr. Jackson, let's move on.
MR. JACKSON: At the end of the night, the group basically discussed going back to Brian Albert's house. Is that right?
MR. HIGGINS: There was discussion at the table of like, were we going to go to the pizza shop or were we going to go somewhere else, and ultimately it was 34 Fairview.
MR. JACKSON: Before you left — just to — we're clear — when you texted "um, well," she ignored that text too, correct?
MR. HIGGINS: Can you say that again?
MR. JACKSON: When you texted her "um, well" at the Waterfall, she ignored that text too, correct?
MR. HIGGINS: Well, that was the only text I sent that night to her, yes.
MR. JACKSON: Okay. She didn't respond —
MR. HIGGINS: That wasn't my —
MR. JACKSON: — question. My question is: she ignored the text.
MR. HIGGINS: Correct — well, I don't know if she — I don't know what her mindset was, if she purposely ignored the text or she didn't see it. I don't know. I didn't read into it.
MR. JACKSON: Did she ignore the text, Mr. Higgins?
MR. HIGGINS: I don't know.
MR. JACKSON: Did she respond to the text?
MR. HIGGINS: She did not respond.
MR. JACKSON: Got it. So when everybody was leaving, did you leave before they did — John and Karen — or did they leave before you did?
MR. HIGGINS: I don't know.
MR. JACKSON: You said you were the first one back to Brian Albert's house, correct?
MR. HIGGINS: Yes.
MR. JACKSON: Safe to say you were one of the first ones to leave?
MR. HIGGINS: I was the first one to leave the Waterfall, probably. I mean, if you're the —
MR. JACKSON: — you know, if everybody's hurrying out and you're the first one to get there, you're probably among the first to leave, correct?
MR. HIGGINS: Most likely.
MR. JACKSON: Okay. You never personally discussed going to 34 Fairview — certainly not with Karen Read — did you?
MR. HIGGINS: No.
MR. JACKSON: And you never discussed it with John O'Keefe either, did you?
MR. HIGGINS: No.
MR. JACKSON: You didn't say goodbye, or walk over and give John a big hug, or anything like that, did you?
MR. HIGGINS: No.
MR. JACKSON: You just left, right? That's what everybody was doing, just leaving. Okay — you too, correct?
MR. HIGGINS: I did leave, yes.
MR. JACKSON: And all you knew — at that point, all you knew was that you were going over to 34 Fairview. You did not know — — who else was invited over to 34 Fairview?
MR. HIGGINS: My impression was that it was an open invitation and I was — I planned on heading over there.
MR. JACKSON: But you did not know who else was coming?
MR. HIGGINS: I had no idea who was coming.
MR. JACKSON: And you didn't say goodbye to John, correct?
MR. HIGGINS: I don't think I said goodbye to anybody.
MR. JACKSON: And you didn't talk to him about coming over to 34 Fairview?
MR. HIGGINS: No.
MR. JACKSON: Yet at — 2:20 — sorry, 12:20 in the morning, you texted John O'Keefe, "You coming here," correct?
MR. HIGGINS: At 12:20, I did.
MR. JACKSON: And that had three question marks behind it, correct?
MR. HIGGINS: Yes.
MR. JACKSON: Did you text Karen about coming over to 34 Fairview?
MR. HIGGINS: No.
MR. JACKSON: So at 12:20 a.m., after you left the Waterfall and made your way over to 34 — — Fairview, you were more interested in getting John to come to 34 Fairview than you were in getting Karen to come to 34 Fairview?
MR. HIGGINS: No, that's — that's not how I would describe that.
MR. JACKSON: But you didn't text Karen, correct?
MR. HIGGINS: No, I didn't.
MR. JACKSON: But you did text John.
MR. HIGGINS: Yes.
MR. JACKSON: You've indicated that you took your Jeep — your personal vehicle with the plow on it — over to 34 Fairview, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And you were among the first to arrive because you were doing that thing — the sort of playing around by plowing his driveway?
MR. HIGGINS: It was a sweep of the driveway.
MR. JACKSON: Yes. And then you indicated that you parked in front of the house, correct?
MR. HIGGINS: I did. I know you've been over this before —
MR. JACKSON: — but I'm going to ask you one sort of one final time so it's completely clear. Exactly where was your Jeep in front of that house?
MR. HIGGINS: By the mailbox.
MR. JACKSON: Okay. Can we have — with the court's permission — Exhibit 66? Okay. This is a graphic representation of 34 Fairview — not a photograph — just to orient you. Do you see what's depicted in Exhibit 66?
MR. HIGGINS: Yes.
MR. JACKSON: Do you recognize it?
MR. HIGGINS: I do.
MR. JACKSON: Do you see the mailbox, which is right there?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. Where was your Jeep in relation to that mailbox?
MR. HIGGINS: So the back end of the Jeep — the rear — would have been about around equal with the mailbox, and I was not blocking the driveway.
MR. JACKSON: Okay, so — if the right edge of that — — highlight is the mailbox — mailbox being right there, about right there on the street — correct?
MR. HIGGINS: Well, that would have been the front of the Jeep.
MR. JACKSON: Can we get a laser pointer? It would be the front. Okay, so the front of the Jeep was facing the flagpole, towards Trapman Street, correct? And the rear of the Jeep was basically even with the mailbox — Trapman Street — it was definitely past the driveway, yes.
MR. HIGGINS: Okay.
MR. JACKSON: You indicated the plow was a 6-foot — what inch plow?
MR. HIGGINS: I think it was a 68 — 6 —
MR. JACKSON: Meaning the width?
MR. HIGGINS: Meaning the width, yes.
MR. JACKSON: How deep is that plow? How deep? Like 2 feet? 3 feet?
MR. HIGGINS: Six inches? I mean, it's probably a few inches.
MR. JACKSON: Okay. It's like — it's light duty, it's on a Jeep — — okay. And it's obviously curved and to the right?
MR. HIGGINS: No, it — it wasn't canted at all. It was straight down.
MR. JACKSON: Okay, so it's not — like, I guess I'm picturing in my mind — I don't know that I've ever seen one — that the front of the Jeep is not parallel to the plow. In other words, it would plow stuff off to the right — is that not right?
MR. HIGGINS: I'm not understanding what you're — what you're trying to communicate to me.
MR. JACKSON: How is the plow positioned as it relates to the front end of the Jeep? Is it perfectly parallel to the front end, or is it canted one way or another?
MR. HIGGINS: So when you're driving — when you're driving straight locally — we — — you're not going to have to worry about overheating the Jeep. I would just have the Jeep — the plow — straight. If I was on the highway for a long distance, I'd be worried about overheating, so I would cant — cant the plow — tilted up, so that air could get through the front grille.
MR. JACKSON: So in other words, you can control it?
MR. HIGGINS: I can, yes.
MR. JACKSON: How was it that night? So how was it canted that night — was it straight or canted?
MR. HIGGINS: It was — it was straight, and straight on.
MR. JACKSON: All right. When you walked into 34 Fairview, you indicated there were people congregated basically in the kitchen area, correct?
MR. HIGGINS: There were some people in the kitchen area, yes.
MR. JACKSON: How many people were at the high-top table that you described?
MR. HIGGINS: Initially when I walked in, I believe there was Brian Jr., and he was flanked by one, possibly two females.
MR. JACKSON: And you indicated that basically you were positioned in that area with your back to the door for most of the evening?
MR. HIGGINS: I was — like, I would describe it as diagonally across from him, and had my back to the door that I had come in, which would be the breezeway door.
MR. JACKSON: But at some point you had moved out of that kitchen area with Brian Albert, correct?
MR. HIGGINS: Well, briefly went and looked at some photos, right?
MR. JACKSON: So you moved out of that area with Brian Albert alone to go to a — — different room?
MR. HIGGINS: Yes. And I think his wife Nicole might have popped in the room for a second, but it was brief.
MR. JACKSON: Did you have anything to drink while you were at 34 Fairview?
MR. HIGGINS: Well, they — when I got there, they didn't have any whiskey. I believe they might have put a beer or something else in front of me. And, you know, I — I knew it was going to be a short night there because I just wasn't gonna — I'm not a beer drinker.
MR. JACKSON: You've indicated in prior testimony that you've never been upstairs in Brian's house, correct? When you say "upstairs," like you're talking like second floor, correct?
MR. HIGGINS: Yes.
MR. JACKSON: No?
MR. HIGGINS: Okay.
MR. JACKSON: You testified to that in a prior — — hearing, is that right?
MR. HIGGINS: Yes, in May of 2023.
MR. JACKSON: And you said specifically, quote, "I've never been upstairs." So, yes, right?
MR. HIGGINS: Yes.
MR. JACKSON: You understood when you gave that statement that you were under oath?
MR. HIGGINS: Yes.
MR. JACKSON: You were telling the truth?
MR. HIGGINS: Yes.
MR. JACKSON: Same oath that you took here today, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You indicated that the photos that you saw were on the first-floor living room area. Is that right?
MR. HIGGINS: I believe that's where they were, yes.
MR. JACKSON: So the only floor downstairs from the first floor would be what?
MR. HIGGINS: The basement.
MR. JACKSON: And the only floor upstairs from the basement would be what?
MR. HIGGINS: The first floor.
MR. JACKSON: So if someone were to describe going upstairs to look at the photos that you've described on the first floor, where would they have to be to go upstairs to look at those photos?
MR. HIGGINS: On the first floor?
MR. JACKSON: Correct. If the photos are on the first floor —
MR. HIGGINS: Yeah.
MR. JACKSON: — and someone said "we went upstairs to look at those photos," where would they have to be?
MR. HIGGINS: I guess upstairs.
MR. JACKSON: The people would have to be upstairs.
MR. HIGGINS: Well, the photos would be upstairs. Is that what you're saying?
MR. JACKSON: Where are the people? Where would the people have to be to go upstairs to the living room to look at the photos?
MR. HIGGINS: I'm not understanding the question.
MR. JACKSON: If the photos are on the first floor, Mr. —
MR. HIGGINS: Yes.
MR. JACKSON: — the only floor beneath it is the basement. Okay, and —
MR. HIGGINS: Someone says we went upstairs to look at the photos — where would they have to be?
MR. JACKSON: Well, who said they went upstairs?
JUDGE CANNONE: All right, so Mr. Jackson, you can save this for argument. Next question, please.
MR. JACKSON: If Brian Albert said you went upstairs to look at the photos, where would you have to be? [unintelligible] Brian Albert had a weight room someplace in the house, right?
MR. HIGGINS: Yes.
MR. JACKSON: In a gym?
MR. HIGGINS: I guess he called it a home gym.
MR. JACKSON: Where was that?
MR. HIGGINS: In the basement.
MR. JACKSON: Had you ever been down to that basement before?
MR. HIGGINS: Yes, one time.
MR. JACKSON: When was that?
MR. HIGGINS: That was during the twins' graduation party.
MR. JACKSON: Summertime?
MR. HIGGINS: Summertime before, yes.
MR. JACKSON: Summertime before?
MR. HIGGINS: Yes. Summer of 2021. Maybe.
MR. JACKSON: So if Brian Albert testified that you'd never been in the basement, that would not be accurate?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Now, you do recall giving testimony at another proceeding on June 1st, 2023, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And of course the same thing applied — you were under oath, is that right?
MR. HIGGINS: Yes.
MR. JACKSON: Knew that it was a crime to lie under oath?
MR. HIGGINS: Yes.
MR. JACKSON: In that proceeding, during the course of that proceeding, you were asked who was in the house and who you saw come into the house, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And during the course of that testimony, you admitted that you observed a tall, dark-haired male enter the Albert house that night, correct?
MR. HIGGINS: I believe that was in reference— —to somebody's brother in a pickup. I don't know if that was during—
MR. JACKSON: All I'm asking you, Mr. Higgins, is: did you say that? Did you say "tall, dark-haired male entered the house while you were there"?
MR. HIGGINS: I said they might have.
MR. JACKSON: Did you say "they might have"?
MR. HIGGINS: Yes. And that was in reference to somebody's brother. [unintelligible — Your Honor?]
MR. JACKSON: Isn't it true that you indicated that a male showed up who may have been Julie Nagel's brother?
MR. HIGGINS: I said might have, yes.
MR. JACKSON: Right. But there was no question in your mind that a male did in fact show up, and you described him as tall and dark-haired, right?
MR. HIGGINS: Yes.
MR. JACKSON: You were asked, "A male showed up — where?" and you answered, quote, "Showed up—"
MR. HIGGINS: —at the house. I didn't know. I think he was there very briefly. I was half paying attention to it.
MR. JACKSON: Question: "Did that male come inside the house?" Answer: "I believe he did." Do you remember that?
MR. HIGGINS: Yes.
MR. JACKSON: So a male did come in the house that night, correct?
MR. HIGGINS: No — I said I believe he did. I wasn't sure.
MR. JACKSON: Well, when you testified at the prior hearing, you were asked, "So you saw someone else come?" Answer: "Somebody else. Yes." In quotes. That's what you testified to under oath, wasn't it?
MR. HIGGINS: Is that in reference to that — what page are you on, Mr. Jackson?
MR. JACKSON: Page [unintelligible]. Yes. May I approach?
JUDGE CANNONE: Yes. Thank you.
MR. JACKSON: Look at the top part, highlight— truncated Mr. Higgins, do you have that in mind?
MR. HIGGINS: I do.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: You were asked the question, quote, "Did that male come inside the house?" You answered, "I believe he did." Question: "So you saw someone else come?" Answer: "Somebody else. Yes." Correct?
MR. HIGGINS: Yes. But I also said that I wasn't paying attention.
MR. JACKSON: I realize that you want to explain your answer. I've asked you a very simple question: was that your testimony in another proceeding?
MR. HIGGINS: Yes, it was.
MR. JACKSON: In another proceeding in which you were under oath?
MR. HIGGINS: Yes, it was.
MR. JACKSON: Okay. You also said that you only remember seeing that person come in briefly, and it looked like he was having a conversation with the two girls—
MR. HIGGINS: —briefly. Correct.
MR. JACKSON: You were asked, "How long was the person in there, roughly?" And you said, "It was quick — less than a couple of minutes. I mean, it was quick." Correct?
MR. HIGGINS: Yes.
MR. JACKSON: And then you were asked what he looked like, and you said, "I feel like they were a little bit taller. They had dark hair." Correct?
MR. HIGGINS: Yes.
MR. JACKSON: So you testified that a tall, dark-haired male came into the house at least briefly, correct?
MR. HIGGINS: Yes.
MR. JACKSON: Approximately when in the timeline of events did that unidentified male enter the residence?
MR. HIGGINS: I don't know the time frame. It would have been while I was there.
MR. JACKSON: When you gave your statement to the Massachusetts State— —Police, you didn't tell them about a tall, dark-haired male coming into the residence at 34 Fairview, did you? On February 3rd?
MR. HIGGINS: I don't recall.
MR. JACKSON: You were specifically asked by ADA Lally when you testified before the state court grand jury on April 28th, 2022, who else was present, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And you never mentioned a tall, dark-haired male coming into the house, did you?
MR. HIGGINS: No.
MR. JACKSON: However, on June 1st, 2023, at this other proceeding, you were specifically instructed at the start of your testimony that it was a crime to give materially false statements in that proceeding, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And that's the proceeding in which you admitted that there was a tall— —dark-haired male who came in the house. Yes or no?
MR. HIGGINS: It was—
MR. JACKSON: Yes or no.
MR. HIGGINS: No, I can't answer that yes or no.
JUDGE CANNONE: Next question, Mr. Jackson.
MR. JACKSON: The quotes that I just read you and that you just looked at — that was from the June 1st, 2023 hearing, wasn't it?
MR. HIGGINS: I don't know. May—
MR. JACKSON: Yes. That's what we've just read. And that's another page — just take a look at that page and see if you see a date on it.
MR. HIGGINS: The first page — I see it, yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: What's the date, sir?
MR. HIGGINS: June 1st, 2023.
MR. JACKSON: Yes. How long did you stay at the Albert residence in total — from the time you got there till the time you left?
MR. HIGGINS: Maybe like a half hour. Less than an hour.
MR. JACKSON: And what time did you leave?
MR. HIGGINS: Uh — say 12:30. I think I said between 12:30 and 1:00 a.m.
MR. JACKSON: And you indicated that you pretty much didn't say goodbye to anybody at the house, correct?
MR. HIGGINS: I just kind of left. I said "see you later," wouldn't turn around, left.
MR. JACKSON: As a matter of fact, at that same hearing that we just looked at, your statement was "I made a beeline out of there," correct?
MR. HIGGINS: I don't know if that's the verbiage I used, but I left.
MR. JACKSON: Why the rush? Why did you leave so quick?
MR. HIGGINS: Because it was a long day and I just wanted to go home.
MR. JACKSON: Except you didn't go home, did you?
MR. HIGGINS: No. I went back to Canton PD.
MR. JACKSON: Right. So it wasn't such a long day that you actually— —drove home. You went back to the Canton Police Department at 1 or 1:30 in the morning, correct?
MR. HIGGINS: To move vehicles. Correct.
MR. JACKSON: Well, let's talk about you leaving. You walked out the side — the side breezeway door, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You walked down the driveway?
MR. HIGGINS: Yes.
MR. JACKSON: There's nothing obstructing your view at that point of the lawn to your right, correct?
MR. HIGGINS: I didn't look over there, but I would not think so.
MR. JACKSON: Between you and the flag pole — in other words, there wasn't some mound of dirt or something obstructing your view. You could see straight across, if you wanted to, correct?
MR. HIGGINS: If I wanted to, yes.
MR. JACKSON: It's just basically a flat, grassy lawn with a light dusting of white powder snow on it, right?
MR. HIGGINS: I don't know how much snow was there, but there was snow, yeah.
MR. JACKSON: You indicated it wasn't even enough to stick to the pavement at that—
MR. HIGGINS: Well, that's when I got there, yes.
MR. JACKSON: Well, you only stayed less than an hour, right?
MR. HIGGINS: That's correct.
MR. JACKSON: So I'm assuming it didn't dump three feet in an hour, correct?
MR. HIGGINS: Correct. I think we can both agree it's not three feet.
MR. JACKSON: Right. So it would have been a light dusting of snow — more than when you arrived? [unintelligible] How far would you say it was from the edge of the driveway over to your Jeep — from where the back of your Jeep was—
MR. HIGGINS: —parked? Maybe a foot or two, or could have been even with the edge of the driveway.
MR. JACKSON: Oh, no no — I'm sorry. That's probably a bad question on my part. You left the house. As you started to walk down the driveway toward your Jeep, how long of a walk is that — down the driveway to get to your Jeep?
MR. HIGGINS: Short. 30 feet, maybe.
MR. JACKSON: Okay. During the course of you walking out the door, heading to your Jeep, you didn't see anything out of the ordinary in the yard, correct?
MR. HIGGINS: No.
MR. JACKSON: You certainly didn't see a body in the yard?
MR. HIGGINS: Of course not.
MR. JACKSON: Now, you get in your car and it's facing directly toward the flag pole—
MR. HIGGINS: Correct. It's facing directly up the street. Flag pole would be off to the — one o'clock, right?
MR. JACKSON: So just a few degrees off to the right — the flag pole is?
MR. HIGGINS: Correct. It's off to the right. Just a few degrees. I don't know how many degrees, but it's off to the right.
MR. JACKSON: Well, you just said "one o'clock." You're a former military guy, right?
MR. HIGGINS: I am.
MR. JACKSON: Okay. One o'clock means one o'clock on a watch. Twelve o'clock is due north, or right in front of you. One o'clock is just a few degrees to the right, correct?
MR. HIGGINS: That's what I meant. At the one o'clock, yes.
MR. JACKSON: Okay. So you didn't see a body when you got in your Jeep?
MR. HIGGINS: No, I did not.
MR. JACKSON: Then you turned the engine on, correct?
MR. HIGGINS: Correct.
MR. JACKSON: And the wipers?
MR. HIGGINS: Yes.
MR. JACKSON: And— —the lights?
MR. HIGGINS: Yes.
MR. JACKSON: And the lights lit up everything in front of you, correct?
MR. HIGGINS: Yes.
MR. JACKSON: Still didn't see a body, did you?
MR. HIGGINS: No, I did not.
MR. JACKSON: Sitting in the driver's seat, you put the car in gear and you begin to roll forward, right?
MR. HIGGINS: Yes.
MR. JACKSON: But there was a plow on the ground that scraped for a foot, right?
MR. HIGGINS: Yes.
MR. JACKSON: So you picked it back up?
MR. HIGGINS: Yes.
MR. JACKSON: Looked out the windshield to make sure the plow is situated and continue to roll forward, correct?
MR. HIGGINS: I knew it was up when I continued to drive.
MR. JACKSON: And as you continue to drive, you're looking ahead of you and probably to your left to make sure there's no oncoming cars, right?
MR. HIGGINS: Well, I knew there was no oncoming cars. I— —was just driving forward.
MR. JACKSON: Right. So your focus is directly in front of you on the road?
MR. HIGGINS: Yes.
MR. JACKSON: And everything in your peripheral vision right in front of you as well, correct?
MR. HIGGINS: Yes.
MR. JACKSON: Nothing obstructing your view — I mean, other than snow on the car, nothing obstructing your view outside toward the lawn? Wasn't there another car parked there?
MR. HIGGINS: No, no. There was no vehicles in front of me. The roadway was relatively empty. There was no cars.
MR. JACKSON: And you didn't see a body then either, did you?
MR. HIGGINS: I did not.
MR. JACKSON: And as you drive past that flag pole, with everything lit up and everything in your peripheral vision, you still didn't see a body on that lawn? did you?
MR. HIGGINS: I did not.
MR. JACKSON: You're a former firefighter, is that right?
MR. HIGGINS: Yes.
MR. JACKSON: That put you in a position of being a first responder?
MR. HIGGINS: Yes.
MR. JACKSON: And you're currently a law enforcement officer?
MR. HIGGINS: Yes.
MR. JACKSON: That puts you in the position of being a first responder, correct?
MR. HIGGINS: I'm also a tactical medic.
MR. JACKSON: Yes. Which means that you have training to be an observer — you're a trained observer, more than the average person, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You look for things out of the ordinary, you look for things that don't belong — as an investigator, former firefighter, first responder, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And you did not see a 217-pound man bleeding out on the side of the road, in the lawn, or in the yard just to your right by that flag pole, correct?
MR. HIGGINS: If I did, I would have done something to help him.
MR. JACKSON: I asked you if you saw one.
MR. HIGGINS: No, did not.
MR. JACKSON: And that's because there was no body there, correct?
MR. HIGGINS: I didn't see anything.
MR. JACKSON: Because if there was a body there, you certainly would have seen that.
MR. LALLY: Objection.
MR. JACKSON: Where exactly did you go when you left 34 Fairview?
MR. HIGGINS: I went back to the Canton Police Station.
MR. JACKSON: When you were asked that on direct examination, you said you weren't sure where you went when you left 34 — either home or to CPD?
MR. HIGGINS: No, that's — that's — that's not what I testified to.
MR. JACKSON: Did something jog your memory where you went?
MR. HIGGINS: That is not what I testified to. That was in relation to — that was in relation to: where did I go after I left 34 Fairview the next morning?
MR. JACKSON: Why did you go to Canton Police Department that night — that morning?
MR. HIGGINS: What's the question?
MR. JACKSON: Why did you go to the Canton Police Department that morning?
MR. HIGGINS: The morning when I — the morning when I left 34 Fairview — the Friday into Saturday?
MR. JACKSON: Correct.
MR. HIGGINS: To move two vehicles.
MR. JACKSON: There's been quite an evolution of that story over the years, has there not?
MR. HIGGINS: I don't understand the question.
MR. JACKSON: All right, let's talk about that for a second. You had an initial interview with Massachusetts State Police on February 3rd, 2022?
MR. HIGGINS: Yes, correct.
MR. JACKSON: And you indicated during the course of that interview which was just — a couple of days — five days after the events in question — that you left Brian Albert's house, went to Canton PD to quote "fulfill some administrative obligations," end quote, correct?
MR. HIGGINS: Correct.
MR. JACKSON: You later said, when you testified in front of the grand jury on April 28th, that you went to Canton PD to do quote "administrative work," correct?
MR. HIGGINS: Yes.
MR. JACKSON: You never mentioned — I said "administrative things," you said "administrative work" was your testimony and your transcript.
MR. HIGGINS: I believe it was "things," but okay.
MR. JACKSON: Okay. Can we agree, Mr. Higgins, that you didn't mention anything about moving cars around, correct?
MR. HIGGINS: Well, that would be administrative.
MR. JACKSON: So when you say "I went to Canton PD to do administrative work or administrative obligations," you meant moving your car — your personal vehicle?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. Although you didn't say that you were going there to move your personal vehicle, right?
MR. HIGGINS: No. I — I didn't move my personal vehicle. I moved work vehicles.
MR. JACKSON: Either one — you just traded off vehicles, moved them out of the way, right?
MR. HIGGINS: I moved — the purpose for going back there was to move two work vehicles.
MR. JACKSON: And the reality is, you had gotten there — you had gotten to Canton PD earlier in the afternoon and actually moved some other vehicles, traded vehicles, didn't you?
MR. HIGGINS: I swapped vehicles out, that's correct.
MR. JACKSON: Right. And you left the vehicles that you now claim you had to go move exactly where they were, even though you knew a blizzard was coming, correct?
MR. HIGGINS: That is correct, yes.
MR. JACKSON: So you didn't move the cars a few hours earlier, knowing that you'd just have to come back and move those cars a few hours later?
MR. HIGGINS: I was more concerned to go eat and have a drink because it had been a long day.
MR. JACKSON: So wouldn't you want to move those cars early on so you wouldn't have to go all the way back to Canton and play — you know — parking lot with these cars in the middle of the night?
MR. HIGGINS: Not really.
MR. JACKSON: Mr. Higgins, you weren't actually at Canton PD to do administrative work at 1:30 in the morning, were you?
MR. HIGGINS: I was — I was moving the vehicles. I'm sure it's on video.
MR. JACKSON: We'll talk about the video in just a second. You entered the Canton Police Station through which door?
MR. HIGGINS: I believe it was the door to the right of the sallyport as you come in the main entrance.
MR. JACKSON: And you made note of who was on duty that night, correct?
MR. HIGGINS: I didn't make note. I walked by, I saw somebody sitting in the control room, and then just went about my business.
MR. JACKSON: So you immediately knew that your friend Officer Goode was working dispatch, right? recess — audio/equipment issue; off record
COURT CLERK: Court's in session. Please be seated.
JUDGE CANNONE: Okay, thank you. Let's bring Mr. Higgins back. Thank you. All right, Mr. Jackson.
MR. JACKSON: Thank you. Mr. Higgins, if you went back to Canton PD at 1:00, 1:30 in the morning, you would certainly be in a position to monitor anything that was happening at Canton PD at the time — at least while you were there — correct?
MR. HIGGINS: No.
MR. JACKSON: I mean, you would be inside the building, correct? The access to dispatch and anything else that was happening around that floor, that area, correct?
MR. HIGGINS: I did not go in to dispatch.
MR. JACKSON: You would have access to the interior of the police station at that time if you went back to Canton PD at 1:30 in the morning, correct?
MR. HIGGINS: I'd have access.
MR. JACKSON: You could see if there was any activity going on, any calls, call-outs—
MR. HIGGINS: —things of that nature. I wasn't — I didn't have access to that, and I wasn't looking for it.
MR. JACKSON: Not that you were looking for it, Mr. Higgins. My question is more simple than that. If you were there, you'd know what was going on inside the building.
MR. HIGGINS: No.
MR. JACKSON: So if you walked in, you would just be completely oblivious to anything that was happening? For instance, if Troopers started amassing to go out to a call, you wouldn't see that? prosecution: Objection.
JUDGE CANNONE: The objection is sustained. Ask it differently.
MR. JACKSON: If you were able to monitor — you'd be in a position to monitor what was happening at the station around 1:30 in the morning when you were over there, correct?
MR. HIGGINS: No.
MR. JACKSON: How long did it take you to get home from Canton PD?
MR. HIGGINS: A little — from when? After I moved the vehicles? I don't know, I mean it could have been 15 minutes, it could have been 20 minutes.
MR. JACKSON: You live alone?
MR. HIGGINS: I do.
MR. JACKSON: You did then?
MR. HIGGINS: Yes.
MR. JACKSON: What did you do when you got home?
MR. HIGGINS: I think I had something to eat, maybe a couple more drinks.
MR. JACKSON: And you went to bed?
MR. HIGGINS: Was either on the couch or in the bed, watching the news.
MR. JACKSON: In any of the prior testimony that you've given in this case, have you ever indicated — ever — that you slept on the couch that night?
MR. HIGGINS: I don't know.
MR. JACKSON: Well, you reviewed your testimony before.
MR. HIGGINS: Well, those — those would be the two — those would— —be the two options.
MR. JACKSON: Okay. I didn't ask you about your options. I asked — you reviewed your testimony before you testified today?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. When you reviewed your testimony prior to coming in here today, did you ever testify that you slept on the couch that night?
MR. HIGGINS: No. I slept in my bed, but I could have started somewhere else.
MR. JACKSON: Did you ever testify in the previous hearing that you started somewhere else?
MR. HIGGINS: Not that I know.
MR. JACKSON: Did you ever mention a couch in any of your description about what you did when you went home that night?
MR. HIGGINS: Not that I recall.
MR. JACKSON: As a matter of fact, what you did mention under questioning in a different hearing was that you may have gotten— —something to eat, then went to bed, put your stuff on the nightstand next to your bed, correct?
MR. HIGGINS: That would be the routine. Yes.
MR. JACKSON: You did not make or receive any calls after returning home that night?
MR. HIGGINS: No.
MR. JACKSON: In your prior testimony, you were clear that when you went to sleep, you put both your work and your personal phone — you had two at the time, correct?
MR. HIGGINS: Yes.
MR. JACKSON: A personal and a work cell phone, right?
MR. HIGGINS: Yes.
MR. JACKSON: You put them both on your bedside table because that's what you do every night, is that right?
MR. HIGGINS: Most often, yes.
MR. JACKSON: As a matter of fact, you were asked whether or not you have a charging station, and you said it's right on my bedside—
MR. HIGGINS: —I don't know that I don't have a charging station, right.
MR. JACKSON: You said, "No, bedside" — in other words, you keep your phone by your bedside, on your bedside table, usually. You also testified that you did not use your phone that night to go on social media, correct?
MR. HIGGINS: That's correct.
MR. JACKSON: You indicated that you didn't go on social media because you don't have social media — you don't use it that much.
MR. HIGGINS: I don't.
MR. JACKSON: You said, "I don't have the gram" — I'm guessing that means Instagram, correct?
MR. HIGGINS: Correct. That is correct.
MR. JACKSON: You don't use Snapchat and, quote, "don't do those things," correct?
MR. HIGGINS: That's correct.
MR. JACKSON: All right. So you testified that— —the first call you received after returning home on the 29th was a call from Chief Berkowitz just before 7 a.m., which woke you up, is that right?
MR. HIGGINS: It was around 6:30-ish, I think.
MR. JACKSON: Okay. Your testimony previously was — at some point before 7 a.m. — that call was the one that woke you up?
MR. HIGGINS: Yes.
MR. JACKSON: And it turns out, Mr. Higgins, that that was a lie, wasn't it?
MR. HIGGINS: No, it wasn't a lie.
MR. JACKSON: When you were asked that question at a previous hearing, you didn't know that the person questioning you had your phone records, did you?
MR. HIGGINS: I assume they did.
MR. JACKSON: And you were thereafter confronted with those phone records, correct?
MR. HIGGINS: I was asked about them, yes.
MR. JACKSON: And those phone— —records established that you and Brian Albert actually exchanged not one but two phone calls at 2:22 a.m. that morning, at a time when you claimed you were in bed asleep, correct?
MR. HIGGINS: I have no recollection of any phone calls.
MR. JACKSON: May I approach?
JUDGE CANNONE: You may. Yes.
MR. JACKSON: Thank you. Take a look at those two documents and tell me if you recognize at least the top one.
MR. LALLY: Do they have a page number for me to follow, or no? I was just — I don't think we've introduced them, and no, they don't have a page number. But I'm going to ask that they be marked for identification at least at this point. Do you recognize those?
MR. HIGGINS: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: These are— You know what, I'm going to — if it's okay with the court — maybe have the witness maintain those documents.
JUDGE CANNONE: Sure.
MR. JACKSON: I'd like to have those two documents marked only for identification, with the Court's permission.
JUDGE CANNONE: Okay, as one exhibit — we can do it as one exhibit, that's fine. Okay.
MR. JACKSON: You please hand those — yes, thank you. May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Mr. Higgins, you see the document on the lower right — it has a page number, or there's an alphanumeric indicator: 01770. In other words, 1770 on the lower right-hand corner — in the right, I mean, in the red — says 0771. Look at the next page. Just out of order — am I missing something? Right over — top. It's okay. It's okay. I'll use the one with QQ and the one with 1771, because the other numbers — when you're referencing them, when I'm referencing them — okay. Take a look at the one that's marked with the QQ. I see you've seen that document before. Correct?
MR. HIGGINS: I think I've seen it maybe on a screen, not in my hand.
MR. JACKSON: That was — these were the records that were shown to you at a prior hearing?
MR. HIGGINS: Yes.
MR. JACKSON: And you acknowledged that at least the one marked QQ is a record of your calls. Correct?
MR. HIGGINS: It has my name, my telephone number.
MR. JACKSON: Correct. And it indicates that on January 29th, 2022, at 2:22 and 35 seconds, you received a call from Brian Albert. Duration of 1 second. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: In other words, Brian Albert called you at 2:22 and 35 seconds, but it looks like you missed the call. Correct?
MR. HIGGINS: I see the one-second call. Yes.
MR. JACKSON: There's a second call just below that, on the same date, at 2:22 and 52 seconds, from you to Brian Albert. Do you see that one?
PARENTHETICAL: [Objection]
MR. JACKSON: Did you in fact tell the truth at the prior proceeding when you said "I don't remember that phone call"?
MR. HIGGINS: Yes.
MR. JACKSON: And the duration of that call is 22 seconds. Correct?
MR. HIGGINS: I see that. Yes.
MR. JACKSON: So, 17 seconds after you missed a call — according to these records — from Brian Albert, you called him back, and there was a call lasting 22 seconds. Is that right?
MR. HIGGINS: That's what the records say.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: So the fact is, you were speaking to Brian Albert in the middle of the night, approximately 3 hours before Mr. O'Keefe's body was found in his yard. Correct?
MR. HIGGINS: No, that's not correct.
MR. JACKSON: And that was five minutes before 2:27 a.m., when there was a Google search for how long to die in [unintelligible]. Correct? And then, of course, you lied about that under oath in that prior proceeding by saying "I don't remember this phone call."
MR. HIGGINS: I always tell the truth.
MR. JACKSON: Did you lie under oath, sir?
MR. HIGGINS: No, I did not.
MR. JACKSON: Would you tell us if you did?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You acknowledge that there's a 22-second phone call in your phone records. Correct?
MR. HIGGINS: That's what's reflected by the record.
MR. JACKSON: And 22 seconds is quite an amount of time. Would you agree?
MR. HIGGINS: It's 22 seconds.
MR. JACKSON: As a matter of fact, it's about this long —
JUDGE CANNONE: With the Court's permission — the court does not give permission. That's argument, Mr. Jackson.
MR. JACKSON: If we were to count off 22 seconds, it's an uncomfortably long time. Is it not?
MR. HIGGINS: No.
MR. JACKSON: It's long enough to have a conversation, isn't it?
MR. HIGGINS: I didn't have a conversation.
MR. JACKSON: Is 22 seconds long enough to have a conversation?
MR. HIGGINS: No. You can't — a human being can't have a conversation in 22 seconds.
MR. JACKSON: Sure, they could.
MR. HIGGINS: I don't think it's — — anything of substance.
JUDGE CANNONE: Okay.
MR. JACKSON: So that's my question: is 22 seconds long enough to have a conversation?
MR. HIGGINS: I don't agree with it. No.
MR. JACKSON: Now, when you were asked about this and you were shown these records at that prior hearing, you had an explanation for what that 22-second call may have been, and what the prior call may have been. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: What was your explanation?
MR. HIGGINS: Well, I used a phrase that people commonly use — as a butt dial.
MR. JACKSON: So you think it's possible that you may have butt-dialed Brian Albert for a 22-second call that you're not aware of?
MR. HIGGINS: I think it's possible that he could have been inadvertently called back, but I have no — — recollection of that, nor did I have any conversation with anybody.
MR. JACKSON: But you admitted that you lived alone. Correct, Mr. Higgins?
MR. HIGGINS: That's correct.
MR. JACKSON: You have an iPhone at the time?
MR. HIGGINS: Yes.
MR. JACKSON: As a matter of fact, that number reflected by those records is — in fact, or was in fact — an iPhone. Is that right?
MR. HIGGINS: Yes.
MR. JACKSON: You already indicated under oath that you don't sleep with your iPhone — you keep it on your bedside table. Is that right?
MR. HIGGINS: Most often. Yes.
MR. JACKSON: There's nobody else in your room. Is that right?
MR. HIGGINS: That's correct.
MR. JACKSON: And you had your ringer on, because you were awakened the next morning by a call from Chief Berkowitz. Right?
MR. HIGGINS: Yes, the ringer was on.
MR. JACKSON: When somebody calls you and you miss the call, a notification shows up on that iPhone. Isn't that right?
MR. HIGGINS: I don't know how mine was set up at the time. I don't know.
MR. JACKSON: If you open up your phone app and you go to recents, it shows all the missed calls. Correct?
MR. HIGGINS: I think you can get to them. Yes.
MR. JACKSON: And you know that the iPhone does not automatically call people back — that is not a thing. Right? Miss a call from someone, it's not just going to automatically ring them.
MR. HIGGINS: Yes. I think we both know that. Yes.
MR. JACKSON: So to call somebody back, you have to go on your iPhone, open it up from a locked position, navigate to a phone application, then — — navigate to a contact and then make a call. Correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can break it down.
MR. JACKSON: Sure. In order to call somebody back, if you've missed a call, you first have to unlock your iPhone.
MR. HIGGINS: You would have to. Yes.
MR. JACKSON: You can do that either through Face ID or through a four- or six-digit passcode. Right?
MR. HIGGINS: Yes.
MR. JACKSON: Which — don't tell me the code — but did you have a four- or six-digit passcode locking your iPhone at the time?
MR. HIGGINS: I don't know if it was a digit code or a Face ID.
MR. JACKSON: Well, if you have a Face ID, you have to have a digit code as well. Right?
MR. HIGGINS: I guess so.
MR. JACKSON: Okay. Did you open your phone with your Face ID or a multi-digit code?
MR. HIGGINS: I have no recollection of answering — — the phone or calling anybody back.
MR. JACKSON: You also have to navigate — once the phone is unlocked, you have to navigate to the phone app. Correct?
MR. HIGGINS: I don't know necessarily — if you unlocked it with your face, if it would be right there. I don't — I've never thought about it.
MR. JACKSON: Once you unlock that phone app, you have to manipulate the phone on the screen with your finger in order to make a call. Correct?
MR. HIGGINS: You would have to hit at least one button, I guess.
MR. JACKSON: At least one. Right?
MR. HIGGINS: Yes.
MR. JACKSON: So that's three or four interactions with the phone that have to be physically undertaken to just make one call. Right?
MR. HIGGINS: But I didn't make any calls.
MR. JACKSON: So how'd your butt dial —
MR. HIGGINS: I didn't make — — any calls. I have no recollection of any calls, nor did I speak with anybody.
MR. JACKSON: After you were shown these phone records at that prior hearing, in that hearing at least you finally admitted that you did in fact call Brian Albert back — but this time you claimed the two of you just sort of sat in silence. Isn't that right?
MR. LALLY: Objection.
JUDGE CANNONE: I'm going to sustain — sustained in that form. You can ask it appropriately, Mr. Jackson.
MR. JACKSON: Did you ever previously testify that you did in fact make the call, but you did not have a conversation during the course of the call?
MR. HIGGINS: What I think I testified was something must have happened, but I didn't have any phone call.
MR. JACKSON: You remember being asked, quote, "Did you call him back?" end quote — and you answered "Yes" — and then there was a question, there was a series of questions there?
MR. HIGGINS: That's — that's only a fragment of what I said. I'm — I'm not done yet.
MR. JACKSON: Mr. Higgins, can you answer my question?
MR. HIGGINS: Yes.
MR. JACKSON: To the question "Did you call him back?" your answer was "Yes." Correct?
MR. HIGGINS: I think it was kind of "I must have."
MR. JACKSON: Then you were asked — well, the answer was "Yes" — and then there was a colloquy back and forth where you spoke over each other's words. Right?
MR. HIGGINS: It was dialogue back and forth about this whole thing. Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Ma'am. You see the pink highlighted question and the pink highlighted answer?
MR. HIGGINS: Yes.
MR. JACKSON: What's the question? Please read it for me.
MR. HIGGINS: "Did you — did you call him back?"
MR. JACKSON: What's the answer?
MR. HIGGINS: "Yes."
MR. JACKSON: Thank you. May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: You then said, a little bit further in that same conversation, "I did not have a conversation." Correct?
MR. HIGGINS: I did not have a conversation with anybody.
MR. JACKSON: And the question following that was, "You just listened to the phone, what someone was telling you?" Answer: "It's possible that the phone picked up on the other end and nobody said anything, and then I terminated the call." End quote. That's what you said at the other hearing, under oath. Correct?
MR. HIGGINS: Yes or no — can I see it?
JUDGE CANNONE: Sure.
MR. JACKSON: Yes. [unintelligible] — same. Thank you. The bottom portion in pink — you can read that answer to yourself, please. You have that in mind, sir?
MR. HIGGINS: No. Can I have a minute, please?
MR. JACKSON: May I?
JUDGE CANNONE: Yes. Thank you.
MR. JACKSON: Does that refresh your recollection about how you answered that question?
MR. HIGGINS: Yes.
MR. JACKSON: And your answer was: "It's possible that the phone picked up on the other end and nobody said anything, and then I terminated the call." That's the — that's the only thing — meaning it's — meaning it's possible it could have happened?
MR. HIGGINS: It's possible it could have happened.
MR. JACKSON: That you had a 22-second call with Brian Albert. Correct?
MR. HIGGINS: I did not have a 22-second call with Brian Albert. There was no conversation.
MR. JACKSON: You've had some time to think about this 2:22 a.m. call. Correct? Since that last testimony, some time to think about it?
MR. HIGGINS: Yeah, I haven't really thought about it. No.
MR. JACKSON: So for over a — ...year, you haven't even considered the fact that you were caught with a phone record lying about not having a conversation with Brian Albert at 2:22 in the morning?
MR. LALLY: Objection.
MR. JACKSON: Mr. Higgins, what was so important that you and Brian Albert needed to discuss something at 2:22 in the morning?
MR. HIGGINS: There was no discussion. I never talked to Brian Albert.
MR. JACKSON: Then why the 22-second phone call, sir?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: I want to talk about what you did after you woke up on January 29th, 2022. That was obviously a memorable day in your mind, correct?
MR. HIGGINS: It was a sad day.
MR. JACKSON: The very first person you spoke to after waking up was —
MR. HIGGINS: Well, I believe I said I got the call from Chief Berkowitz.
MR. JACKSON: Not my question. Say that again — who's the first person you spoke to on the phone that morning when you woke up?
MR. HIGGINS: Brian Albert.
MR. JACKSON: Whose idea was it for you to drive to Brian Albert's house that morning?
MR. HIGGINS: It was my idea.
MR. JACKSON: Was it important to you to speak with Brian Albert in person rather than over text or phone call?
MR. HIGGINS: No. It was important to support the people that were there.
MR. JACKSON: So of course you drove over to his house — had an opportunity to speak to him in person without any law enforcement presence, correct?
MR. HIGGINS: I was there with everybody, not just Brian Albert.
MR. JACKSON: And Brian Albert was in the house and you were in the house, right?
MR. HIGGINS: That's correct.
MR. JACKSON: So you had access to him and others without any law enforcement there — is that right?
MR. HIGGINS: That's correct.
MR. JACKSON: As soon as you got off the phone with Brian Albert that morning, who did you call at 7:22 a.m.?
MR. HIGGINS: I think I might have called Chief Berkowitz back.
MR. JACKSON: So as soon as you got off the phone with Brian Albert first thing in the morning, the next call you made was to Chief Berkowitz — is that right?
MR. HIGGINS: Yes, because he had called me first. Yes, I called him back.
MR. JACKSON: Did you request from Chief Berkowitz any information that he may have had concerning the investigation surrounding John O'Keefe being found at 34 Fairview that morning?
MR. HIGGINS: No.
MR. JACKSON: Were you trying to see how much law enforcement knew right away?
MR. HIGGINS: Absolutely not. I didn't even know what happened.
MR. JACKSON: Were you trying to gather information about what happened so that you would know what happened?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. JACKSON: You were trying to —
MR. HIGGINS: No. [unintelligible]
MR. JACKSON: What did Chief Berkowitz tell you about his knowledge of John O'Keefe's body being found just after 6:00 a.m.? Did you tell Chief Berkowitz that you had been with John O'Keefe and were at the crime scene the night before?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can ask that differently.
MR. JACKSON: Did you inform Chief Berkowitz that you had been with John O'Keefe the night before?
JUDGE CANNONE: Jackson, I'll allow it.
MR. HIGGINS: I believe I may have told him at some point that I saw John at the Waterfall.
MR. JACKSON: Did you tell Chief Berkowitz that you'd been at 34 Fairview?
MR. HIGGINS: I believe I did.
MR. JACKSON: Did you tell him that your vehicle was parked just feet away from where John's body was discovered?
MR. HIGGINS: No, because I didn't know where he was discovered.
MR. JACKSON: Did you tell Chief Berkowitz that you and Brian Albert had had a call at 2:22 in the morning?
MR. LALLY: Objection.
MR. JACKSON: Did you tell Chief Berkowitz that you had been flirting with John O'Keefe's girlfriend in the weeks prior to his death?
PARENTHETICAL: [Objection]
MR. JACKSON: Did you tell Chief Berkowitz that you had texted John O'Keefe to have him come over to 34 Fairview just hours before he was discovered dead in the yard?
MR. HIGGINS: No.
MR. JACKSON: Did you ever tell Chief Berkowitz about the nature of your interest in Karen Read?
MR. HIGGINS: No, I don't believe so.
MR. JACKSON: Did you tell Chief Berkowitz that you had seen Mr. O'Keefe and Miss Read the night before and that Miss Read had ignored you?
JUDGE CANNONE: Jackson, you can break that down, Mr. Jackson.
MR. JACKSON: Thank you. If I may have just a moment. You indicated just a second ago that when I asked — did you tell Chief Berkowitz that your Jeep was parked just feet away from where John O'Keefe's body was found — you said you had no idea where John O'Keefe's body was found, correct?
MR. HIGGINS: That's correct.
MR. JACKSON: You had just spoken with Brian Albert, right?
MR. HIGGINS: He said "in front of the house." All he said was John was found in front of the house. He didn't say right outside on my front lawn.
MR. JACKSON: He said he was found out in front of his house, unresponsive?
MR. HIGGINS: Okay.
MR. JACKSON: If he was out in front of his house, then you would know, because your Jeep was also parked out in front of his house — your Jeep would just be feet away from him.
MR. HIGGINS: No.
MR. JACKSON: Did you think any of that was important when talking to the chief of police of the Canton Police Department?
JUDGE CANNONE: I'll let him have it.
MR. HIGGINS: No, I didn't. There was no reason to tell him.
MR. JACKSON: You've been an investigator for some 15 years and you were a firefighter for years before that, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You're very familiar with some of the tools that are used in conducting modern investigations, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You'd agree that searching electronic devices and phones is an incredibly important investigative tool that modern investigators use, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained in that form.
MR. JACKSON: Are you aware that searching electronic devices is an important part of investigations?
MR. LALLY: Objection.
MR. JACKSON: Are you aware of that, sir? Do you agree with that?
MR. HIGGINS: I've utilized phone data during the course of my investigations at times, yes.
MR. JACKSON: Okay, so another way to put that is — obviously phone data and electronic data is an important part of investigations, yes. What time do you believe you got to Brian Albert's house that morning — after you received the phone calls and woke up, what time did you make your way back over to Brian Albert's house?
MR. HIGGINS: Maybe around 7, 7:15 in that area.
MR. JACKSON: Was there any law enforcement presence there when you arrived?
MR. HIGGINS: I can't recall specifically. There could have been one police car. I'm not positive.
MR. JACKSON: Did any officer ever ask you to take a look at your vehicle — at any time?
MR. HIGGINS: No. To my knowledge, no — nobody from law enforcement associated with the investigation had ever asked to take a look at my vehicle.
MR. JACKSON: So they certainly didn't ask that day, correct?
MR. HIGGINS: On the 29th, what I'm saying is, to my knowledge, nobody has ever asked me that.
MR. JACKSON: Right. So that's my point. I'm just trying to break it down — you want to tell me every instance when somebody could have asked me, correct?
MR. HIGGINS: Okay.
MR. JACKSON: On the 29th, were you asked whether or not your vehicle could be searched or inspected?
MR. HIGGINS: What do you mean — either one?
MR. JACKSON: Either one.
MR. HIGGINS: Well, I would consider a search the inside of the vehicle, more so than the outside. I would consider the outside more of an inspection. I would have been happy to show them it.
MR. JACKSON: I'm sure you would have. I'm asking — did they ask?
MR. HIGGINS: No. They didn't ask to search it.
MR. JACKSON: Did they ask to inspect it?
MR. HIGGINS: No.
MR. JACKSON: We met with Troopers — who was it that you met with on the 3rd of February?
MR. HIGGINS: Trooper Proctor and Trooper Bukhenik.
MR. JACKSON: Did either Trooper Proctor or Trooper Bukhenik ask to inspect your vehicle — or otherwise search it?
MR. HIGGINS: Not to my recollection.
MR. JACKSON: And to this day, nobody from Massachusetts State Police has ever indicated that they want to inspect your vehicle?
MR. HIGGINS: No.
MR. JACKSON: When you entered the house that morning, Brian Albert was there, Nicole Albert, Jen McCabe, Matt McCabe, Brian Albert Jr., and Julie Albert were all there?
MR. HIGGINS: I'm sorry — had Julie Albert gotten there yet?
MR. JACKSON: She came after me.
MR. HIGGINS: Okay. So at some point all the people that I just ticked off — they were all inside the house: Brian Albert Jr., Nicole, Brian, Matt, and Jen. You all discussed the incident together, correct? I wouldn't describe it that way, no.
MR. JACKSON: Did each of you discuss your own perspectives about what had happened the night before in the early morning hours?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. HIGGINS: People were in shock at the table, trying to figure out what happened. The math didn't make sense — John and the defendant never showed up. People were in shock, trying to figure out what to say.
MR. JACKSON: Right, no — and you were all talking within earshot of each other, right?
MR. HIGGINS: We were all there in the kitchen, talking together.
MR. JACKSON: At this meeting — and these were friends and family, correct?
MR. HIGGINS: Excuse me?
MR. JACKSON: These were friends and family amongst themselves, and you being a friend — these are friends and family inside that house discussing this incident, correct?
MR. HIGGINS: Yes.
MR. JACKSON: So at this meeting, you actually instructed Jennifer McCabe to call Canton PD and ask someone to come back?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained as to that form. You can ask it differently.
MR. JACKSON: At some point, did an officer come back to reinterview Jen McCabe?
MR. HIGGINS: Yes.
MR. JACKSON: Jen McCabe had told you that she had information about something that Miss Read had said, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Jackson, I'll allow it.
MR. JACKSON: Did she tell you that that morning?
MR. HIGGINS: She didn't specifically tell me anything. She made a statement at the table to the group of people, and she clearly seemed like she was in shock. She was upset, and she made a statement something to the effect that Karen had opined that she had hit John.
MR. JACKSON: But she actually said "I hope I didn't hit him," correct?
MR. HIGGINS: It's not what I heard.
MR. JACKSON: No?
MR. HIGGINS: No.
MR. JACKSON: Who did you ever tell this to?
MR. HIGGINS: I've reported that she said "I hit him," yes. I've reported it.
MR. JACKSON: What you reported was — she said — Karen said "I hope I didn't hit him" — and you said "Oh, you need to tell Canton PD that." Isn't that right?
MR. HIGGINS: No, I don't think that's what I said.
MR. JACKSON: No? You're sure about that, as you are about that 2:22 call, right?
MR. LALLY: Objection.
MR. JACKSON: Mr. Higgins, what time did you leave Brian Albert's house?
MR. HIGGINS: It would have been — I believe when Sergeant Lank arrived, and I think Lieutenant Gallagher might have been with him.
MR. JACKSON: You weren't scheduled to work that Saturday, correct?
MR. HIGGINS: No.
MR. JACKSON: As a matter of fact, you weren't on duty at all.
MR. HIGGINS: No, I wasn't.
MR. JACKSON: But you didn't go home and get some sleep or run errands — you went directly to Canton PD from 34 Fairview — yet again, didn't you?
MR. HIGGINS: Who could sleep after somebody just was discovered like that?
MR. JACKSON: Did you go home, or did you —
MR. HIGGINS: I don't believe I did, no. I believe there — might have been a stop at Canton PD before I went home.
MR. JACKSON: As a matter of fact, you didn't just stop at Canton PD — you spent the entire day at Canton PD on the 29th, didn't you?
MR. HIGGINS: I don't know that I spent the entire day there. No.
MR. JACKSON: Well, you've got a key card, right?
MR. HIGGINS: I do have a key card.
MR. JACKSON: And that key card logs swipes. That's correct?
MR. HIGGINS: Correct.
MR. JACKSON: So it logs where you go — access to and access inside Canton PD. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: When you got to Canton PD — and you're telling this jury you don't know how long you spent there?
MR. HIGGINS: I don't know how long I spent there. I don't know if I left and came back. I don't recall.
MR. JACKSON: So if the records indicate that — — you were there from 9:00 a.m. to after five?
MR. HIGGINS: I don't know how the records would indicate that.
MR. JACKSON: I'll show you in a second.
MR. HIGGINS: Okay.
MR. JACKSON: While you were at Canton PD, did you speak again to Brian Albert?
MR. HIGGINS: I don't remember.
MR. JACKSON: While you were at Canton PD, did you speak again to Chief Berkowitz?
MR. HIGGINS: Most likely.
MR. JACKSON: While you were at Canton PD, did you speak with Brian Albert's brother Kevin Albert?
MR. HIGGINS: I don't believe so.
MR. JACKSON: Conor, may I approach this one?
JUDGE CANNONE: Yeah — this particular area. But I just want to see if — may I approach?
MR. JACKSON: Yes. Thank you. That's 167 pages of document. You can glance through — obviously don't read the whole thing — just glance through it and tell me if you recognize what that is.
MR. HIGGINS: So it says "Canton Police all events log by day."
MR. JACKSON: Don't read it out loud, please. Do you recognize it?
MR. HIGGINS: Okay.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. HIGGINS: This appears to be a log of key swipes in and around Canton PD. Correct?
MR. JACKSON: Yes. And it's in reverse chronological order — in other words —
MR. HIGGINS: I didn't note that, but okay.
MR. JACKSON: Okay. You acknowledge that that is a record of the key swipes that everybody uses moving in and around Canton PD — going — through doors. Every place that needs a key swipe is logged.
MR. HIGGINS: I would assume that's what that is. Yes.
MR. JACKSON: It shows that you entered Canton PD for the first time on the 29th at 1:27 a.m. Does that sound about right — when you got there, you say, to move your cars?
MR. HIGGINS: It's possible.
MR. JACKSON: All right. It shows that you were granted access to Floor Corridor 227. Does that mean anything to you?
MR. HIGGINS: No.
MR. JACKSON: What about Floor Corridor 226 — on the second floor?
MR. HIGGINS: Second floor would make sense, because I went in the building and then to the second floor.
MR. JACKSON: Let me have just a moment, Your Honor.
JUDGE CANNONE: Sure.
MR. JACKSON: By the way, did Brian Albert ever mention what time the officers cleared the — scene?
MR. HIGGINS: No.
MR. JACKSON: Without telling me the substance of the conversation — did he tell you when he talked to you at 7:20, or —
MR. HIGGINS: Not that — not that — not that I recall. No.
MR. JACKSON: But you remember — by the time you got there, the scene had basically been cleared. There wasn't much in the way of emergency vehicles, crime scene tape — nothing like that?
MR. HIGGINS: I didn't see fire trucks. I might see a cruiser — I can't be sure. I don't recall.
MR. JACKSON: You're not sure about that either?
MR. HIGGINS: Sorry. I'm not sure about even seeing a cruiser. Correct. Not 100%. No.
MR. JACKSON: Certainly you were not contacted by a law enforcement officer who took your name and ID or anything like that?
MR. HIGGINS: No. No. No.
MR. JACKSON: Parked and walked in the house.
MR. HIGGINS: Yes.
MR. JACKSON: May I approach one more time?
JUDGE CANNONE: Yes.
MR. JACKSON: Same thing. I'd like to have that document marked as next in order. Bates Pages — it represents Bates Pages 2850 to 3016.
JUDGE CANNONE: All right. So marked for identification. Is there an agreement this is coming in, Mr. Lally?
MR. LALLY: There is not. No.
JUDGE CANNONE: All right. So that's marked for identification.
MR. JACKSON: Thank you. Sorry. Thank you. Mr. Higgins, if you will — I'm sorry, are we ready? Thank you. May I proceed?
JUDGE CANNONE: Yes.
MR. JACKSON: Mr. Higgins, if you'll look at Bates page 3015 — which actually is in order, that's not reverse chronological — the second-to-last page.
MR. HIGGINS: I have it.
MR. JACKSON: Can you take a look at the eighth entry from the bottom?
MR. HIGGINS: I see it.
MR. JACKSON: Does that indicate that this all occurred on 1/29/22?
MR. HIGGINS: This entry at least. Well — I mean, I only — on that eighth entry, I see that that's associated with my name. I don't know what the other ones are associated with.
MR. JACKSON: Right. It would be other individuals in Canton PD. I mean, this is the entire log for 1/29. Right?
MR. HIGGINS: Okay. But — what all I'm saying is that just my name is next to that. I don't see any other name. So — right.
MR. JACKSON: Okay. So — 1/29/2022. I'm just trying to orient you. At 1:27 and 52 seconds —
MR. HIGGINS: I see — "Access granted: Brian Higgins, rear entry to secure Corridor" — "rear entry to secure Corridor." Correct?
MR. JACKSON: Yes. All right, so that appears to be what the log entry — or the key swipe entry — looks like when it's logged. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: If you look at page — 2967 — I'm sorry, I said it backwards — 2976.
MR. HIGGINS: Okay.
MR. JACKSON: Take a look at —
MR. HIGGINS: You said 2976? That's Bates page 2976 — that's the bottom right-hand — I see it. Yes.
MR. JACKSON: Look at the time entry for 9:23 and 39 seconds.
MR. HIGGINS: 9:23 and what?
MR. JACKSON: 39.
MR. HIGGINS: And that's on 2976 — should be right — give me the time again, please.
MR. JACKSON: We'll do it this way. May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Is this an exact copy? [unintelligible] Yeah — the time's all over the place. My apologies. [unintelligible] Okay. All right. Thank you. At 9:23:39 —
MR. HIGGINS: I'm sorry — got that in mind. I do. I see it. It's highlighted.
MR. JACKSON: At 9:23:39, that shows that you were granted access — front entry to sally port. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: There's only one sally port at Canton PD. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: And there's a door on each side of the sally port — two bay doors, right?
MR. HIGGINS: Two bay doors on each side. Yes.
MR. JACKSON: And then there's a pass-through — personal pass-through door — as well?
MR. HIGGINS: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Sure.
MR. JACKSON: I want to try to speed this up just a bit. Because it's small print — reverse chronological order — on page 2976, there's also an entry — same page — should be right above that — 9:23:50 — showing that you were granted access from booking to sallyport as well. Correct?
MR. HIGGINS: Okay.
JUDGE CANNONE: 2976 — what was the time?
MR. JACKSON: Page — yes. About maybe six entries above. Six entries up — you'll look for time 9:23 and 50 seconds.
MR. HIGGINS: I see. Yes.
MR. JACKSON: All right. And that shows that you were granted access to the sallyport — and then from sallyport to booking. Correct?
MR. HIGGINS: Says "booking to sallyport, sallyport to booking."
MR. JACKSON: Okay. So that's a key swipe — you entering into the sallyport from booking?
MR. HIGGINS: Yes. Could you repeat the question?
MR. JACKSON: Of course. [unintelligible] Okay, may I inquire, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Does that indicate — I have no idea what the last question was. I'll see if I can make a new one up. At 9:23 and 50 seconds in the morning, you were granted access — booking to sallyport, and sallyport to booking — meaning swipe the key card, go in the door, going from booking to sallyport?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. I don't want to belabor this, because we could get bogged down into it all day long. Would you have any quarrel if those logs indicated that you were moving in and around Canton PD at 9:28, 9:53, 9:53, 9:54, 9:54, 11:40, et cetera? We can look at every one of them if you want to. Well, does that refresh your recollection?
MR. HIGGINS: It would not be uncommon for me to move around Canton PD at various times or dates — right — middle of the night, during the day. But just because I swiped in somewhere, and then you have a swipe at the end of the day, doesn't mean I was there the whole day. I could have left. I could have come back. And I truly don't have a recollection, but I'm pretty sure I wasn't there all day.
MR. JACKSON: Fair enough. If we moved from 11:40 to 11:44, 11:45, 11:47, 11:51, 11:52 — and then jump to 2:05 — would that be an explanation where you might have gone out for lunch?
MR. HIGGINS: Could have.
MR. JACKSON: Okay. Come back — if there's a 2:05 and 56 entry, then obviously you're there. Right?
MR. HIGGINS: If the card was swiped, I was there. I mean — you're not giving that card to anybody else.
MR. JACKSON: No, I'm not. No way. Right. Let's just look at page 2905 — because I want you to be comfortable — page 2905, and let's look at that 2:05:56 entry.
MR. HIGGINS: I'm at 2905. Where would you like me to look?
MR. JACKSON: About right there — basically middle of the page. May I approach? This might be a little easier highlighted before you.
MR. HIGGINS: I see it.
MR. JACKSON: Okay. So that would indicate that you were back at Canton PD at at least 2:05:56 — and you were granted access, sallyport to front door. Correct?
MR. HIGGINS: That's what it says. Yes.
MR. JACKSON: Okay. At 3:10 p.m., you called Brian Albert's brother Kevin Albert. Correct?
MR. HIGGINS: I don't — — know. That's possible. I mean, I don't remember every phone call I made that day.
MR. JACKSON: Understood. Do you remember talking to Kevin Albert?
MR. HIGGINS: I don't.
MR. JACKSON: So you don't remember what you discussed with him?
MR. HIGGINS: No.
MR. JACKSON: Do you remember that it was a 12-minute phone call?
MR. HIGGINS: No. I don't. I don't remember having any phone call, but I'm sure it's possible that we spoke.
MR. JACKSON: Do you remember Kevin Albert providing you any information about the ongoing investigation into John O'Keefe's death?
MR. HIGGINS: No.
MR. JACKSON: Did you ask him about additional information concerning John O'Keefe's death?
MR. HIGGINS: No.
MR. JACKSON: Were you providing details back to Brian Albert that you were receiving while at Canton PD?
MR. HIGGINS: Absolutely not. No.
MR. JACKSON: Do you recall that two minutes after you cleared the call with Kevin Albert, you then called Brian Albert?
MR. HIGGINS: It's possible. So — I think the question was do you remember — there was a lot of phone calls made that day. It was an upsetting day. I spoke to multiple people at multiple times. I don't have a recollection. I'm sorry.
MR. JACKSON: I approach.
JUDGE CANNONE: Briefly. Yes. Thank you.
MR. JACKSON: Just to close this loop — that appears to be — is this your phone record?
MR. HIGGINS: Correct. Yes.
MR. JACKSON: And it appears that you made a call at 3:10 for 12 minutes with Kevin Albert. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: 3:10 plus 12 is 3:22. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: You cleared the call about 3:22. Is that right?
MR. HIGGINS: Yes.
MR. JACKSON: Then it shows a 3:24 phone call to Brian — uh, I'm sorry, Brian Albert then calls you at 3:24. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: And you two speak for six minutes. Is that right?
MR. HIGGINS: Six minutes, five seconds. Yes.
MR. JACKSON: I approach.
JUDGE CANNONE: Yes.
MR. JACKSON: Is that a fresher recollection that you made those calls?
MR. HIGGINS: Based on the record, yes.
MR. JACKSON: Was that just a coincidence that you were talking to Brian Albert and Kevin Albert within minutes of one another?
MR. HIGGINS: Yeah, I mean there was a lot going on that day. People were upset. I — I don't remember the phone calls. I don't deny making the phone calls, I just don't remember them.
MR. JACKSON: Do you remember providing information that you were learning from Kevin Albert to Brian Albert?
MR. HIGGINS: Absolutely not.
MR. JACKSON: And then — may I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: The record — if you look just below those phone calls to Kevin Albert and Brian Albert, there are two additional phone calls that you had with Chief Berkowitz and then Brian Albert again. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: Mr. Higgins, it looks an awful lot like you're gleaning information from Canton PD. Were you doing that?
MR. LALLY: Objection.
JUDGE CANNONE: I'll sustain the objection in that form. You can ask one part of that question.
MR. JACKSON: Sure. Were you getting any information from Canton PD?
MR. HIGGINS: No, I wasn't.
MR. JACKSON: Did you provide any information to Brian Albert?
MR. HIGGINS: No, I did not.
MR. JACKSON: Based on any conversations or conduct at Canton PD?
MR. HIGGINS: No.
MR. JACKSON: I approach.
JUDGE CANNONE: Yes.
MR. JACKSON: But you were in fact on the phone with all of those interested parties throughout the day. You'll agree?
MR. HIGGINS: I was.
MR. LALLY: Objection.
JUDGE CANNONE: Answer that.
MR. HIGGINS: I — yes. They're friends and I was on the phone with them. Yes.
MR. JACKSON: And sir, you were not on duty that day. Correct?
MR. HIGGINS: No.
MR. JACKSON: You are not a Canton police officer. Correct?
MR. HIGGINS: That's correct.
MR. JACKSON: You were not assigned to this investigation in any formal capacity, were you?
MR. HIGGINS: I was not.
MR. JACKSON: As a matter of fact, you're a witness in a homicide investigation. That's your only role in this. Correct?
MR. HIGGINS: That's correct. But they're still my friends. Yes.
MR. JACKSON: And yet you're still having conversations with Kevin Albert at Canton PD while you're at Canton PD.
MR. HIGGINS: Correct. Not about this.
MR. JACKSON: And you're having conversations with Chief Berkowitz of Canton PD while you're at Canton PD. Correct?
MR. HIGGINS: I had conversations with him, but not about this.
MR. JACKSON: And you're consistently through the day calling Brian Albert, aren't you?
MR. HIGGINS: I had conversations with Brian Albert. John was found on his lawn. Yes, of course I had phone conversations with him.
MR. JACKSON: I want to take you back for a second to a couple of other entries, including one at 3:57, one at 3:58, and one at 4:07. I'm going to draw your attention to 2885 and 2886. Once you have the pages, I'll give you the times. Once again, 2885 and 2886. We'll start with 2886 and then backward.
MR. HIGGINS: Okay.
MR. JACKSON: First entry is at 3:57 and 54 seconds. 3:57 and 54 seconds.
MR. HIGGINS: I see it. Brian Higgins, booking to sallyport. Correct?
MR. JACKSON: It says Brian Higgins, communication to pedestrian sallyport — communication to pedestrian sallyport. Look at the one just above it. That's 3:58:24. Look at 3:57:54 — or the one — probably going to be just below it. It's reversed. You said 3:57:54. Correct?
MR. HIGGINS: Correct. That's what I just read.
MR. JACKSON: Got it. Look at five or six entries below, at 3:57:36. 3:57:36.
MR. HIGGINS: I see it. Access granted, Brian Higgins, booking to sallyport, sallyport to booking.
MR. JACKSON: Then there's one more on page 2885. Look for 4:07:47.
MR. HIGGINS: 4:07:47. Correct. I have it. Access granted, Brian Higgins, booking to sallyport, booking to sallyport.
MR. JACKSON: And there's no record in that document of you exiting. Correct?
MR. HIGGINS: That's just booking to sallyport. Yes, I don't — yeah, there's no record. I don't know if it records you going — there's no record. Correct. Not that I can see here. No, I'm sorry.
MR. JACKSON: And you're aware that that's about 90 minutes before Karen Read's SUV was delivered to that sallyport. Correct?
MR. HIGGINS: No, I'm not aware of that.
MR. JACKSON: Are you aware that her car ended up in that sallyport where you were at 5:36?
MR. HIGGINS: I'm aware her car ended up there. Yes.
MR. JACKSON: Are you aware that there was other evidence that was also being held in the sallyport?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did you see any other evidence in the sallyport related to this case?
MR. HIGGINS: No.
MR. JACKSON: Did you see a bag — a grocery bag with six Solo cups there?
MR. LALLY: Objection.
MR. JACKSON: Did you see anything that seemed out of the ordinary there?
MR. HIGGINS: All I would do is use that as a cut-through. Did not see anything.
MR. JACKSON: Are you aware that — at 5 — well, let me ask you this. You and Chief Berkowitz were moving in and through — at least in some parts of the day — in and through Canton PD together. Correct?
MR. HIGGINS: At some points we might have been together. I'm not — I mean, we weren't together all day.
MR. JACKSON: As a matter of fact, he was also in the sallyport around the same time you were.
MR. HIGGINS: Correct. I don't recall that. No.
MR. JACKSON: But the records would reflect that, right? The records that are in front of you — you in the sallyport. The last time you're logged into the sallyport, it's 4:07. Do you remember seeing Chief Berkowitz at the sallyport at 4:14?
MR. HIGGINS: No. And if it says that I'm logged — that could be me cutting through.
MR. JACKSON: All I'm asking — I'm not asking you what you did. I'm asking you where you were.
MR. HIGGINS: I don't know where I was at that specific time.
MR. JACKSON: Well, you walked into the sallyport. We know that.
MR. HIGGINS: If I walked in, I — correct, cutting through. Yes.
MR. JACKSON: Right. Was Chief Berkowitz in the sallyport at 4:14?
MR. HIGGINS: Not that I recall. No.
MR. JACKSON: Was he there at 4:30?
MR. HIGGINS: I don't remember ever seeing him in the sallyport. No.
MR. JACKSON: Was he there at 4:33?
MR. HIGGINS: I don't remember ever seeing Chief Berkowitz in the sallyport.
MR. JACKSON: At 4:50?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. Let's move through this, please.
MR. JACKSON: Finally, was he there at 5:36 and 37 seconds — at the same time Karen Read's vehicle was delivered?
MR. HIGGINS: I don't remember.
MR. JACKSON: Do you remember Chief Berkowitz — or were you with Chief Berkowitz — when he made a call to the front desk?
MR. HIGGINS: No, I don't remember anything like that. No.
MR. JACKSON: You remember Chief Berkowitz calling the front desk at 5:42 and saying "shut the door"?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You remember any kind of call shutting the barracks — meaning shutting the sallyport?
MR. LALLY: Objection.
MR. JACKSON: Do you remember that?
MR. HIGGINS: I don't remember anything like that.
MR. JACKSON: Your Honor —
JUDGE CANNONE: Okay, next question.
MR. JACKSON: You didn't leave Canton PD until close to 6:00 p.m. Isn't that right?
MR. HIGGINS: I don't know what time I left.
MR. JACKSON: Could it have been 5:50, 6:00?
MR. HIGGINS: I don't recall what time I left.
MR. JACKSON: You're aware that there's video surveillance feeds in the sallyport garage. Correct?
MR. HIGGINS: That's correct. Yes.
MR. JACKSON: Around the building. Were you in the sallyport at 5:36 when the car was delivered?
MR. HIGGINS: I don't have any recollection of that. No.
MR. JACKSON: It's one thing to say "I don't remember." It's another thing to say "no, I was not there."
MR. HIGGINS: I don't remember being there. No.
MR. JACKSON: Is it possible that you could have been there when that car was delivered?
MR. HIGGINS: I don't believe I was. No.
MR. JACKSON: You don't believe you were?
MR. HIGGINS: I don't believe I was. No.
MR. JACKSON: You're aware that the video surveillance feed from the sallyport garage at around 5:36 — the precise time when the car was delivered — is missing. Right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did you receive a flurry of phone calls from Brian Albert and Chief Berkowitz indicating that some taillight pieces — or a taillight piece — had been recovered at 34 Fairview later that evening?
MR. LALLY: Objection.
MR. JACKSON: Did you receive a call at all — without telling me what the conversation consisted of — around 6:12 p.m. from Brian Albert?
MR. HIGGINS: I don't — I don't know what day you're referring to.
MR. JACKSON: The 29th.
MR. HIGGINS: No, I don't remember any phone calls like that.
MR. JACKSON: Do you remember, three minutes later, getting another call from Chief Berkowitz — 6:16 p.m. — that lasted about five minutes and 15 seconds?
MR. HIGGINS: No.
MR. JACKSON: I approach.
JUDGE CANNONE: Yes.
MR. JACKSON: You look at the entries for 6:12 and 6:16. See if that refreshes your recollection.
MR. HIGGINS: Are you referring to the 6:12 and 6:16?
MR. JACKSON: Okay.
MR. HIGGINS: I see those. Yes.
MR. JACKSON: There was a call at 6:12 that Brian Albert made to you for a duration of one minute and seven seconds. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: And right after that, there was a call from Chief Berkowitz to you at 6:16. It lasted five minutes and 15 seconds. Correct?
MR. HIGGINS: Yes.
MR. JACKSON: I approach.
JUDGE CANNONE: Yes.
MR. JACKSON: They were telling you that taillight pieces had been found at the location?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May we approach briefly?
JUDGE CANNONE: Okay.
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Your testimony is that you don't recall the substance of those conversations at 6:12 and 6:16?
MR. HIGGINS: I don't. No.
MR. JACKSON: Isn't it true that you were asked about those phone calls at another hearing?
MR. HIGGINS: I might have been. I don't recall.
MR. JACKSON: And did you testify at the other hearing that in fact what was discussed was the substance of the taillight being found at the location?
MR. HIGGINS: No, that's not what that was in reference to.
MR. JACKSON: Were you being provided information from your friend Chief Berkowitz about the progress of the investigation?
PARENTHETICAL: [sidebar]
JUDGE CANNONE: Return from sidebar
MR. HIGGINS: No.
MR. JACKSON: Were you providing your friend Brian Albert information about the progress of the investigation, or what you perceived it to be?
MR. HIGGINS: No. I didn't have any information on the investigation.
MR. JACKSON: Just a moment. You were not interviewed about this case in any formal capacity until five days later, correct?
MR. HIGGINS: That sounds about right.
MR. JACKSON: February 1st — Trooper Proctor?
MR. HIGGINS: I'm not exactly sure the date, but it was several days after.
MR. JACKSON: Yes.
MR. HIGGINS: I'm sorry — February 1st, maybe February 3rd. I don't know the date, but it was — we were into February.
MR. JACKSON: Where did that interview take place?
MR. HIGGINS: Sharon, Massachusetts.
MR. JACKSON: I'm sorry — Sharon, Mass. At what location? Sorry, what location?
MR. HIGGINS: [unintelligible]
JUDGE CANNONE: I'll see counsel very quickly.
MR. JACKSON: The interview was not at the police station?
MR. HIGGINS: It was not, no.
MR. JACKSON: By the time you interviewed with Trooper Proctor, you had already had numerous conversations with Brian Albert — is that safe to say?
MR. HIGGINS: Well, the interview was with both Trooper Proctor and Trooper Bukhenik. And of course I've talked to Brian Albert because of what took place.
MR. JACKSON: That was a yes or no question.
MR. HIGGINS: Yeah, of course I've talked to him. Yeah.
MR. JACKSON: Okay. The answer is yes, right? Do we agree the answer is yes? Thank you. By the time you spoke with Trooper Proctor and Trooper Bukhenik, you had already had numerous conversations with Chief Berkowitz, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You had already had numerous conversations with Kevin Albert?
MR. HIGGINS: Yes.
MR. JACKSON: You had already had this meeting with the Alberts and the McCabes over at 34 Fairview — is that right?
MR. HIGGINS: I went to the house and discussed this case, as you earlier described in your testimony. I discussed — what we — we tried to figure out what happened.
MR. JACKSON: You discussed this case, Mr. Higgins?
MR. HIGGINS: Well, at that point it wasn't a case.
MR. JACKSON: Okay. I'm not parsing words about what a case is versus a matter versus an issue. You understood my question, didn't you?
MR. HIGGINS: Yes.
MR. JACKSON: Is there a reason you don't want to answer that question?
MR. HIGGINS: I don't have a problem—
MR. LALLY: Objection.
JUDGE CANNONE: Why don't you go ahead?
MR. HIGGINS: Well, I — I'm [unintelligible] trying to make it sound like something it wasn't.
MR. JACKSON: I'm not trying to make it sound like anything, sir. I'm asking a question. Had you discussed this case, or the issues surrounding this case, with those folks?
MR. HIGGINS: I did discuss things when I went back to the house, yes.
MR. JACKSON: And that was before you met with Trooper Proctor and Trooper Bukhenik, correct?
MR. HIGGINS: That's correct.
MR. JACKSON: You had already spent an enormous amount of time at Canton PD — we've just gone through those records — is that right?
MR. HIGGINS: I have been at Canton PD, yes.
MR. JACKSON: And you had been able to talk to — you had access, at least, to all the officers, correct?
MR. HIGGINS: What do you mean? Anybody coming and going at Canton PD — access for what purpose? Just to walk by them, to hear what they were saying, see what they were doing?
MR. JACKSON: Yeah — not what I was doing. No. I'm not accusing you of doing anything. I'm saying you had access to the individuals within Canton PD, correct?
MR. HIGGINS: To interact, if needed — yes.
MR. JACKSON: And very obviously you had access to the sallyport.
MR. HIGGINS: I had access, yes.
MR. JACKSON: And that's a cut-through you used all the time. And anything that was in it, correct?
MR. HIGGINS: I wouldn't need anything in it.
MR. JACKSON: It was only after all that that Michael Proctor thought that you were worthy of a conversation. I'll rephrase it. I'll rephrase it. It was only after all of that that you were interviewed by Michael Proctor and Trooper Bukhenik, correct?
MR. HIGGINS: I wasn't interviewed until the following days — that's correct.
MR. JACKSON: At some point on February 4th, Chief Berkowitz called you — I'm sorry — to personally inform you that he had personally found a taillight piece at 34 Fairview. Is that right?
MR. HIGGINS: He did — he did tell me that, yes.
MR. JACKSON: And to be clear, that's the same Ken Berkowitz that you were with in the sallyport?
MR. HIGGINS: I don't recall being in the sallyport with him, no.
MR. JACKSON: Right. What did you do with that information when you learned from Chief Berkowitz that he personally saw a taillight piece as he drove by?
MR. HIGGINS: I didn't do anything with the information.
MR. JACKSON: Did you call Brian Albert?
MR. HIGGINS: No. Brian Albert called me.
MR. JACKSON: You were asked this specific question in the other proceeding, in June of 2023, correct?
MR. HIGGINS: I don't know if it was a specific question. I was asked a series of questions on how the phone calls came in — that's what I was asked.
MR. JACKSON: And your answer was it's 100% probable that I told him about that — meaning I told Brian Albert about my conversation with Ken Berkowitz — correct?
MR. HIGGINS: It's possible.
MR. JACKSON: Was that your statement or not?
MR. HIGGINS: It was my statement then, but I've thought about it.
MR. JACKSON: And you've changed your statement somehow?
MR. HIGGINS: I don't know if I changed my statement, but I think the way the phone calls came in is Brian Albert told me you're not going to believe what was found on the front lawn. And then I believe Ken Berkowitz told me he found the taillight. And I'm referring to the taillight from — from both of them. I didn't provide any information to anybody. Information was provided to me.
MR. JACKSON: What you actually said was: it's 100% probable that I told him about that. Yes, 100%. I'm not hiding that fact. But you're asking me if I recollect specifically. I know I called him after.
JUDGE CANNONE: Alright, so — too many facts. Go slow.
MR. JACKSON: Sure. You said "yes — I'm — yes, 100% correct" in that testimony — correct?
MR. HIGGINS: I did. Yes.
MR. JACKSON: And then in that testimony you went on to say I'm not hiding that fact but you're asking me if I recollect specifically, correct?
MR. HIGGINS: I don't have the transcript in front of me — that's what you're telling me.
MR. JACKSON: You went on to say I know I called him after that phone call, correct?
MR. HIGGINS: I don't know.
MR. JACKSON: And you went on to say if that's when Chief Berkowitz told me — if — listen, I didn't do anything wrong in this. End quote. That was your statement at the prior hearing, correct? So I want to — May I?
JUDGE CANNONE: Yes.
MR. JACKSON: You said you don't recall that entire testimony, right?
MR. HIGGINS: Not that — not that portion. But I know I was asked about how the phone calls came in and what was said.
MR. JACKSON: Do you think it would refresh your recollection to see the transcript of your answer? Is this it right here?
MR. HIGGINS: It is.
MR. JACKSON: I'm going to read it for the record. May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you. Does that refresh your recollection as to what your testimony was under oath in June of 2023?
MR. HIGGINS: I do.
MR. JACKSON: And you said if that's what Chief Berkowitz told me — if — listen, I didn't do anything wrong in this — correct?
MR. HIGGINS: That was a statement I made, yes.
MR. JACKSON: Why did you say "listen, I didn't do anything wrong in this"?
MR. HIGGINS: I felt they were being accusatory, and I was trying to explain what was going on. And what I had said — I believe what I said was something to the effect — I can't be 100% positive — and then I went on to say it's probable. But I felt like they were being accusatory. And I was trying to explain how the phone calls came in. I've had time to reflect about it after that — since that testimony. And both — that information about the taillight that was found was provided by each person. I didn't provide any information to anybody.
JUDGE CANNONE: Next question, thank you.
MR. JACKSON: You said "look, I didn't do anything wrong in this" because it looks like you and Ken Berkowitz were colluding to provide information to Brian Albert — correct? Is that correct?
MR. HIGGINS: Absolutely not correct. That's wrong.
MR. JACKSON: You knew that was going to look like collusion, which is why you said "look, I didn't do anything wrong in this"—
MR. LALLY: Objection.
JUDGE CANNONE: Objection sustained.
MR. JACKSON: Mr. Higgins, if you wanted to get rid of — and you've dealt with cell phones and electronic devices in your career many, many times, correct?
MR. HIGGINS: Over my career, yes.
MR. JACKSON: You've probably written search warrants for them, things of that nature, right?
MR. HIGGINS: Yes.
MR. JACKSON: If you wanted to destroy evidence on your cell phone, what kind of steps might you take to do that?
MR. LALLY: Objection.
MR. JACKSON: If you wanted to just get rid of information on your cell phone that would be unrecoverable, what steps might be taken? Do you know how to get rid of information on your cell phone?
MR. HIGGINS: That's a lie.
JUDGE CANNONE: You can answer that.
MR. HIGGINS: Do I know how to get rid of information? I mean, I think there's different ways you could — possibly you could wipe your phone.
MR. JACKSON: Anything else?
MR. HIGGINS: You could wipe your phone.
MR. JACKSON: Good.
MR. HIGGINS: Factory — factory reset.
MR. JACKSON: Factory reset might be one.
MR. HIGGINS: Wiping your phone, taking the SIM card out — I don't know that the SIM card's going to take information that's on the phone out, so that might be one avenue. You could break the SIM card in half — it could, yes.
MR. JACKSON: You know the SIM card stores an enormous amount of data. Those phones need to be bricked, right?
MR. HIGGINS: No, I don't know that.
MR. JACKSON: Okay. You could also — if you take the SIM card out, you just get rid of the phone somehow, right? Just destroy it.
MR. HIGGINS: Yes.
MR. JACKSON: Might even consult with some kind of an expert to help learn how to permanently erase things from a phone — like a friend who's an expert, for instance? On Saturday, January 29th, you spent much of the day — much of the morning rather — at Brian Albert's house, and then the rest of the day variously at Canton PD. You'd agree with that, correct?
MR. HIGGINS: No.
MR. JACKSON: You said you spent much of the morning at Brian Albert's house — correct? In other words, you went over there at whatever it was — 7:50, 8:00, something like that — and then until about 9:00?
MR. HIGGINS: No. I got over there around 7:00 and I was there less than an hour. I wasn't there most of the day. I never went back there.
MR. JACKSON: So you spent time at Brian Albert's house, then much of the rest of the day at Canton PD, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And then the very next day — that Sunday — you called a friend of yours, a guy named Matt Kelch, didn't you?
MR. HIGGINS: I — yeah, he's my best friend, yes.
MR. JACKSON: And he's a special agent with the FBI, isn't he?
MR. HIGGINS: No, he's not.
MR. JACKSON: Was he then?
MR. HIGGINS: He's never been a special agent with the FBI. He's a special agent with ATF.
MR. JACKSON: My mistake, my mistake. I thought he was with the FBI. He's a federal special agent.
MR. HIGGINS: He's a coworker of mine, yes.
MR. JACKSON: Which makes him a federal special agent, right?
MR. HIGGINS: An ATF agent, yes.
MR. JACKSON: And does he work for or have access to the regional computer forensics lab?
MR. HIGGINS: Yes, he works over there.
MR. JACKSON: Okay, that's the FBI Regional Forensics Regional Computer Forensics Lab, correct?
MR. HIGGINS: Yes.
MR. JACKSON: That's how I— my mistake, I apologize.
MR. HIGGINS: Well, I just want to make sure the record reflects correctly.
MR. JACKSON: You and me both. So you reflected it correctly. So Matt Kelch is an ATF agent who works at the FBI— sorry— Regional Computer Forensics Lab, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And he's an expert in digital forensics, is he not?
MR. HIGGINS: He has a level of expertise more than myself, yes.
MR. JACKSON: And he's one of your best friends?
MR. HIGGINS: He is my best friend.
MR. JACKSON: You spoke to him about the death of John O'Keefe, did you not?
MR. HIGGINS: Yes.
MR. JACKSON: And you asked him for a personal favor, sort of off the books, correct?
MR. LALLY: Objection, as to form.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did you— —ask him for a personal favor?
MR. HIGGINS: No.
MR. JACKSON: Did you ask him to show you, or consult with you, how to pull things off of your phone that you decided to get off your phone?
MR. HIGGINS: I asked him how I could pull text strings off my cellular telephone for the purpose of providing them to law enforcement.
MR. JACKSON: This was not in connection with any case that he was working, correct?
MR. HIGGINS: That's correct.
MR. JACKSON: It was not in connection with any case you were working, correct?
MR. LALLY: Objection. Objection.
JUDGE CANNONE: Sustained. But you already answered. I'll strike that answer. Second question, you can answer: is this in connection to any case?
MR. HIGGINS: No, your Honor.
JUDGE CANNONE: Next question.
MR. JACKSON: But you asked your friend— —to utilize his resources to teach you how to extract certain information off your phone. Is that what you did?
MR. HIGGINS: I asked him if it was possible to get this off— if there was a method to get this off my phone so I could provide it to law enforcement.
MR. JACKSON: And that information was selected by you, correct?
MR. HIGGINS: Two particular text threads, yes.
MR. JACKSON: Right. In other words, there was nobody else that was picking and choosing what to get off your phone— that was just you?
MR. HIGGINS: It was me, yes.
MR. JACKSON: And the reason you did that, Mr. Higgins, is that you wanted to control and limit the amount of information that was pulled off your phone, right? Is that why you did—
MR. HIGGINS: No. I did it because I wanted to provide it to law enforcement.
MR. JACKSON: Okay. Next question. But you could have just provided your phone to law enforcement and let them image the entire thing, correct?
MR. HIGGINS: I guess that was an option, yes.
MR. JACKSON: And you knew that was an option at the time— and you're a trained federal ATF agent—
JUDGE CANNONE: What's the question?
MR. JACKSON: You knew it was an option to just hand your phone over— pick it up and give it to them— and there was also an option to provide it to them as well, right? But you chose the one that you got to select the information, not the one where they would get everything, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained, just as to the form.
MR. JACKSON: Did you actually go to the FBI Computer Forensics Lab?
MR. HIGGINS: Yes. Let me correct that— I didn't go to the lab itself. I went to a— what they refer to as a kiosk on the first floor, over at FBI.
MR. JACKSON: Okay. And all local PDs— law enforcement— have access to that?
MR. HIGGINS: And those— that's obviously— it's an unrestricted area. You can be in there, as I understand, unaccompanied, if you're local law enforcement. It's on the first floor.
MR. JACKSON: That is a federal facility, however?
MR. HIGGINS: Yes, it is.
MR. JACKSON: Did you utilize any computer or data— sorry— any data extraction machinery— a computer or something— to extract this data?
MR. HIGGINS: Well, it was a machine. I don't know what it's called.
MR. JACKSON: Okay, fair enough. I'll— —use the word "machine." I don't know what it's called either. So you hooked that phone up to a machine, correct?
MR. HIGGINS: Yes.
PARENTHETICAL: [Someone]
MR. JACKSON: : No, I'm just going to grab a— [unintelligible]. [unintelligible]
MR. JACKSON: And that machine belonged to the FBI— it didn't belong to you— is that right?
PARENTHETICAL: [Someone]
JUDGE CANNONE: : I love all your optimism, but it's going to take him about two minutes to get here.
PARENTHETICAL: [Someone]
JUDGE CANNONE: : Do you want these?
MR. HIGGINS: That's correct.
MR. JACKSON: So that was a federal resource, not for anything having to do with any official case that you were working, isn't that right?
JUDGE CANNONE: Jackson, I need to see you. I know this is— I need to see you. [unintelligible] While we're doing that, counsel, come on back. [unintelligible] [unintelligible] Counsel, why don't you come on over, please. Mr. Connolly— if you just go and stand next to your client— Mr. Jackson's going to make an offer of proof of a question— a couple of questions he's about to ask your client. It doesn't make any sense to me that somebody has counsel and the counsel is not aware of a potential issue. So you'll hear the offer of proof. I'll let you speak to Mr. Higgins before this actually happens before the jury.
MR. JACKSON: Could I just have—
JUDGE CANNONE: Yes. I was just going to ask you to identify yourself.
MR. HIGGINS: Sure. My name is William Connolly, spelled C-O-N-N-O-L-L-Y.
JUDGE CANNONE: All right. May— yes.
MR. JACKSON: The witness has indicated that he utilized federal resources for personal gain. The specifics of that testimony have been as follows: he indicated that he contacted Matt Kelch, a federal agent; indicated that he utilized a federal facility— he called it an unsecured facility, but it's a federal facility notwithstanding— and that the two of them, he and Agent Kelch, utilized federal resources in the form of some kind of a machine, as the witness indicated, for his own personal gain— so that he could, as a witness, in no official capacity working any official case— and in Matt Kelch's capacity as an individual rather than an— —agent, they both worked together to download certain information from the witness's phone in anticipation of turning that highly selected, highly curated information o
MR. JACKSON: ver to law enforcement, so that he could later ultimately destroy his phone— which this witness in fact did.
JUDGE CANNONE: Okay. So it's not— I disagree with you. I don't think it's reached that level. His testimony was that he went to a kiosk on the first floor where all local police departments can go— it's unrestricted, it's on the first floor— and we just got to the part about a machine in the kiosk when you mentioned an FBI resource. So what is your question? What questions do you—
MR. JACKSON: —intend to ask this witness? Now, whether he is aware that under 5 CFR 2635.702, it is a federal offense to use his public office— to use any public office— for his own private gain, or for the gain of persons or organizations with which you are associated personally. In other words, an ATF agent cannot use federal resources for personal gain. The fact that he contacted an ATF agent, the fact that he utilized a federal facility that is owned by the federal government, run by the federal government, paid for by taxpayer dollars, and the fact that he used a machine that is owned by the federal government to download certain information for his— —own personal gain— that personal gain being: "These are the curated texts that I'm going to turn over to law enforcement"— that's a federal—
JUDGE CANNONE: All right. So those questions are going to be asked. I don't know— there's been an objection to them— I'm not sure I'm going to let them in. But I wanted to give you the opportunity to speak privately with your client. In the bathroom there— can you do it in short order?
MR. HIGGINS: I can. I can do it in about ten seconds.
JUDGE CANNONE: Okay. Sure. All right. Why don't you go back and talk to him. I'll stop bringing the jury, or getting the jury lined up to come back.
MR. JACKSON: Do you need anything?
JUDGE CANNONE: All right, so we're ready to proceed?
MR. JACKSON: I am, your Honor. Thank you.
JUDGE CANNONE: So let's bring the jurors in, please.
COURT OFFICER: All rise.
JUDGE CANNONE: Be seated. All right, we have very few minutes left. Mr. Jackson—
MR. JACKSON: Mr. Higgins, you indicated that the phone was hooked up to some sort of machine at the FBI— at the FBI kiosk, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You're aware, sir, that under 5 CFR 2635.702, you may not use your public office for your own personal or private gain, or for the gain of persons or organizations with which you are associated personally, under pain of a federal offense, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Okay.
MR. JACKSON: Are you aware that under 5 CFR 2635.704, it's a felony to— quote— Your Honor—
JUDGE CANNONE: As you're reading, go ahead and finish the question.
MR. JACKSON: —for an employee— I'm sorry— an employee— has a duty to preserve and conserve government property and shall not use such property or allow its use for other than authorized purposes. Were you aware of that federal regulation?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Sir, notwithstanding those regulations, you utilized the services of Matt Kelch as a friend and a colleague, utilizing federal resources to pull information off your phone — correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained as to that form.
MR. JACKSON: In fact, you were successful in getting information off your phone, which is the text that you turned over to the Commonwealth — correct?
MR. LALLY: Objection as to that form.
JUDGE CANNONE: You're almost there, Mr. Jackson. That form was improper. The information
MR. JACKSON: That was ultimately pulled off your phone was the information that you selected, and you and Matt Kelch worked together to get off your phone — correct?
MR. LALLY: Objection.
JUDGE CANNONE: Is that correct?
MR. HIGGINS: No. Your Honor, if I could explain.
MR. JACKSON: Sure.
MR. HIGGINS: He walked me through how I could pull the text string with John O'Keefe and the defendant. He walked me through the process, how to use the machine.
MR. JACKSON: And then you did that?
MR. HIGGINS: I did do that. That's correct.
MR. JACKSON: That's what you turned over to the police?
MR. HIGGINS: That's correct.
MR. JACKSON: And any other information would still be on your phone ending in 5421 — correct?
MR. HIGGINS: Well, that information stayed on my phone. I just took those strings off and provided them to the Mass State Police.
MR. JACKSON: So where's your phone?
MR. HIGGINS: I do not have that phone anymore.
MR. JACKSON: You've destroyed that phone, haven't you?
MR. HIGGINS: No. I threw the phone away.
MR. JACKSON: Well, that's destroying the phone, isn't it?
MR. HIGGINS: I had every right to do that.
MR. JACKSON: I didn't ask you about your rights.
MR. HIGGINS: When I threw it away — if I was going to take it out, I would break it or cut it, but I did not wipe the phone. I did not take anything else off it. But if I was going to throw the phone away, that's what I would have done.
MR. JACKSON: Okay. You know, as an ATF agent with electronic data experience, when you pull the SIM card out and break it and then throw the phone away and the SIM card away, you don't need to wipe the phone —
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. That's it.
MR. JACKSON: Your Honor, one more question. I can do this in 30 seconds. I think you were aware that there was a court order that you not alter, delete, or destroy, or in any way manipulate your phone or the electronic data associated with it — correct?
MR. LALLY: Objection.
JUDGE CANNONE: As to what date?
MR. JACKSON: As of September 23rd — I'm sorry, September 30th, 2022.
MR. LALLY: Objection. I don't believe that's what the court order was.
JUDGE CANNONE: I think — make a quick offer of proof.
MR. JACKSON: That's exactly what it was.
JUDGE CANNONE: Were you aware of that? That was your understanding? What's the question exactly?
MR. JACKSON: I'm sorry. That is the question. Were you served with a copy of a notice on September 30th, 2022, that you not alter or destroy or manipulate anything on your phone?
MR. HIGGINS: On September 30th, I was served an order — yes, that's correct.
MR. JACKSON: And isn't it true that in another hearing you explained that on September 29th — the day before you claim you got that notice — you changed phone carriers and changed phone numbers?
MR. HIGGINS: And I maintained the phone until —
MR. JACKSON: You didn't — when you destroyed it a month later by pulling the SIM card out and throwing it away — correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did you do that in October? Did you destroy that phone?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did you pull the SIM card out of your phone, Mr. Higgins?
MR. HIGGINS: It's possible that I did. I believe that's how I've testified.
MR. JACKSON: Yes — you testified it's possible that if you took it out, it was either cut or broken.
MR. HIGGINS: It's not just possible —
MR. JACKSON: And that would have been after the date the order was already in effect. Mr. Higgins, I have one question left. One question. Did you — Mr. Lally's already standing. I haven't even started.
JUDGE CANNONE: Have a seat, Mr. Lally. Go ahead. Last question, Mr. Jackson. Quiet, please. Quiet. Mr. Higgins, very simply —
MR. JACKSON: And then we're done — did you remove the SIM card from that phone, drive onto a military base, throw the SIM card in one dumpster, and the phone in a different dumpster?
MR. HIGGINS: That is not correct.
JUDGE CANNONE: Was that your one question, Mr. Jackson?
MR. JACKSON: All right.
JUDGE CANNONE: All right, folks, that's it for today. We will see you Tuesday. Have a great long weekend, please. It is very important — do not discuss this case with anyone. Don't do any independent research or investigation into this case. If you happen to see, hear, or read anything about this case, please disregard it. Let us know. We will see you on Tuesday. Tuesday will be a full day. Goodbye.
COURT OFFICER: All rise.
JUDGE CANNONE: You can follow them. Yes. All right, so I will see counsel at sidebar. Madam court reporter, thank you very much. All right, thank you everybody.
COURT OFFICER: All rise.