Commonwealth v. Read — Trial ArchiveBrian Higgins — Cross (Part 1)
2,634 linesCROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: 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, Your Honor.
MR. JACKSON: Or a homicide trial, I should say.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You brought your attorney with you, who is 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, 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 anda 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 D.A.'s office.
MR. JACKSON: Who else was there?
MR. HIGGINS: My attorney, a victim witness advocate. I believe her name is Kristen Collins. A.D.A. McLaughlin, A.D.A. Lally and Lieutenant Brian Tully from the Mass. 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, no.
MR. JACKSON: So you had an 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?
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: Your Honor, may we approach for a second?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
MR. JACKSON: I have no idea what that is.
MR. LALLY: He received a harassing photograph in the mail.
MR. JACKSON: A what?
MR. LALLY: A harassing photograph in the mail.
MR. JACKSON: What kind of photograph?
MR. LALLY: I don't know exactly what it was, but it was in reference to along the lines of threats in regards to his testimony. So you may want to stay away from it.
MR. JACKSON: My question -- I will. My question is why don't I know about that? Why would I have to find that out in my fourth guestion to this witness on the stand? I am becoming frustrated at the revelations. Every single witness has had multiple conversations with the Commonwealth that I find out on that podium. It is very, very debilitating and extraordinarily unfair.
JUDGE CANNONE: What do you want me to do about it?
MR. JACKSON: Nothing. In this instance, Judge, it's certainly not your fault. And I don't want to touch it. But I certainly cannot be seen to have opened a door that I didn't know existed.
JUDGE CANNONE: So Mr. Lally is not allowed to get into it.
MR. JACKSON: Okay.
JUDGE CANNONE: Unless you are going to pursue it?
MR. JACKSON: No, no. But I would ask that the Commonwealth be instructed if you have information that you gleaned from a witness during the course of your prep, I should have it. Every Single statement of a witness needs to be disclosed and it's not being disclosed.
MR. LALLY: It is being disclosed, Your Honor. There was no statement that is material or relevant to this case. Whether or not he received any kind of threatening or harassing photograph has not bearing on his testimony.
JUDGE CANNONE: Can you get it here at lunch?
MR. LALLY: Probably. Mr. Yannetti, I have a question for Mr. Jackson. Do you want it brought here at lunch?
MR. JACKSON: No. I don't need it.
JUDGE CANNONE: Okay. So let's go.
(Whereupon, the sidebar conference concluded.)
BY MR. JACKSON:
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 be recalled showing was as 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 that those text messages were going to be -- they were put into another format. So they were easier to read.
MR. JACKSON: And these are the screenshots that you just described on the exhibit?
MR. HIGGINS: Well, as I said, he showed me the stack and said they were the text messages. They're ina 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 Marshal 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 P.D.
MR. JACKSON: Okay. But, to be clear, you were a federal officer, not a Canton police officer on some sort of a task force with Canton P.D., correct?
MR. HIGGINS: No. Iwas not on a task force with Canton P.D.
MR. JACKSON: But you did have an office at Canton P.D. based on a personal relationship that you had with the chief; correct? He gave you this office as a courtesy; is that right?
MR. HIGGINS: So if I can explain?
MR. JACKSON: Well, that's yes or no. Was it provided as a courtesy?
MR. HIGGINS: Well, 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?
MR. HIGGINS: I did.
MR. JACKSON: It was born out of --
MR. HIGGINS: Tragedy.
MR. JACKSON: -- a family tragedy that he was aware of?
MR. HIGGINS: A horrible tragedy.
MR. JACKSON: Correct?
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 P.D.?
MR. HIGGINS: I would say that's a good summary.
MR. JACKSON: And, in addition to just having an office there, you also had a keycard 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 P.D., all based on the friendship and relationship and convenience, well, 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?
MR. HIGGINS: Yes.
MR. JACKSON: You had ingress and egress to the Canton Police Department?
MR. HIGGINS: Yes.
MR. JACKSON: You could go in and out of the sally port?
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 sally port, into the sally port, 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'd had that office for what? Back in January of 2022, you probably had that office for more than, what, three years?
MR. HIGGINS: I would estimate probably sometime around '18, 2018.
MR. JACKSON: 2018. Okay. Not 18 years. 2018?
MR. HIGGINS: No. 2018. I'm sorry.
MR. JACKSON: Okay. So maybe close to four years?
MR. HIGGINS: Yes.
MR. JACKSON: 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?
MR. JACKSON: Correct.
MR. HIGGINS: Yes, I am. I'm a special agent. Yes.
MR. JACKSON: What is your current assignment?
MR. LALLY: Objection.
JUDGE CANNONE: Is that something you're free to discuss?
MR. HIGGINS: I'm assigned to division operations at this time.
BY MR. JACKSON:
MR. JACKSON: Okay. What does that mean?
MR. HIGGINS: That's --
MR. JACKSON: You're taken out of the field?
MR. HIGGINS: Was I taken out of the field? Yes.
MR. JACKSON: You're no longer in the field?
MR. LALLY: Objection, Your Honor. 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.
BY MR. JACKSON:
MR. JACKSON: I want to turn your attention now to January 28/29 of 2022. Do you recall those dates?
MR. HIGGINS: I do.
MR. JACKSON: And you've been living with those dates for the last couple of years?
MR. HIGGINS: Like a nightmare.
MR. JACKSON: John O'Keefe's body was found outside your friend, Brian Albert's, house on the morning of January 29th, 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. Yes.
MR. JACKSON: The funeral service. Not the memorial? You separate the two?
MR. HIGGINS: Well, the wake would be the night before. The funeral is -- I call them the services. It wasn't a memorial. A memorial to me would be more like an annual thing. This was the services.
MR. JACKSON: Understood.
MR. HIGGINS: I just want to be clear.
MR. JACKSON: 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.
MR. JACKSON: To go to the services?
MR. HIGGINS: 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.
MR. JACKSON: You go to some of the same holiday parties, for instance?
MR. HIGGINS: Yes.
MR. JACKSON: You go to some of the same events, whether they are law enforcement events or otherwise?
MR. HIGGINS: Retirement parties. Yes. Things like that.
MR. JACKSON: You might meet up at a bar and have a social drink together?
MR. HIGGINS: Yes.
MR. JACKSON: You might share a meal together, correct?
MR. HIGGINS: 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 that you know quite a few cops in Canton?
MR. HIGGINS: I do.
MR. JACKSON: You're pretty good friends with, as a matter of fact, maybe best friends, with the chief of police, former chief of police, Kenny Berkowitz, correct?
MR. HIGGINS: 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 P.D., correct?
MR. HIGGINS: 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. Yes.
MR. JACKSON: Is that yes or no?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. As a matter of fact, you've been 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?
JUDGE CANNONE: Did you say that? Did you say that?
MR. HIGGINS: I don't recall that.
BY MR. JACKSON:
MR. JACKSON: You don't remember telling that joke in front of a roomful 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: Okay. 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?
MR. LALLY: Objection.
JUDGE CANNONE: Ask it differently.
BY MR. JACKSON:
MR. JACKSON: At that same retirement dinner, there were members of the D.A.'s office there, correct?
MR. HIGGINS: Yes.
MR. JACKSON: As a matter of fact, the D.A., Michael Morrissey, was there?
MR. HIGGINS: I believe he was at one point.
MR. JACKSON: All right. And that was the same event that 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, you know, I came into contact with Brian.
MR. JACKSON: Give me a number of years.
MR. HIGGINS: 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: You frequently drink together?
MR. HIGGINS: We have drank together. I wouldn't say frequently. But yes. We have 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 something like that? 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, your 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, you met up with him and had drinks under 50 times?
MR. HIGGINS: Is that a question?
MR. JACKSON: Yes.
MR. HIGGINS: Could you rephrase it?
MR. JACKSON: Sure. Is it true that you testified, "Answer: I mean, in two years, I mean, maybe under 50"? That was your testimony, too, how often you socialized with Brian Albert, correct?
MR. HIGGINS: So we socialized more when I started working with his unit.
MR. JACKSON: Okay. So my question is --
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 no secrets here. He's my friend.
MR. JACKSON: Well, Mr. Higgins, let me ask the questions. I get it.
MR. HIGGINS: That's fine.
MR. JACKSON: I get it. You also know Brian Albert well enough to know what his relationship is with, for instance, with 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 or Officer Hernandez before you ever knew --
MR. LALLY: Objection.
JUDGE CANNONE: Ask the question.
BY MR. JACKSON:
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 Albert?
MR. HIGGINS: Yes.
MR. JACKSON: And you're aware that there was a physical altercation --
MR. LALLY: Objection, Your Honor.
BY MR. JACKSON:
MR. JACKSON: -- between Brian Albert and Eddie Hernandez that you're aware of, correct?
JUDGE CANNONE: The objection is sustained.
BY MR. JACKSON:
MR. JACKSON: Are you aware that Brian Albert had gotten into a fistfight with Eddie Hernandez?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Were you at a Christmas party when that happened?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained as to that form. You can be specific.
BY MR. JACKSON:
MR. JACKSON: Have you ever been in an event with Brian Albert and Eddie Hernandez and seen them fight?
MR. LALLY: Objection.
JUDGE CANNONE: When?
BY MR. JACKSON:
MR. JACKSON: Christmas, five years or so before 2022.
JUDGE CANNONE: The objection is sustained.
BY MR. JACKSON:
MR. JACKSON: You do know that Brian Albert has a reputation for being a fighter?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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. Do 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 --
MR. HIGGINS: Okay.
MR. JACKSON: -- 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, quote --
MR. LALLY: Objection.
BY MR. JACKSON:
MR. JACKSON: -- "a little afraid of Brian Albert"?
MR. LALLY: Objection.
JUDGE CANNONE: So that is -- the objection is sustained. That's stricken. I'll see you at Sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So I'll hear you, Mr. Lally.
MR. LALLY: Your Honor, I don't see how -- first of all, the wrong witness. Secondly, as far as whatever -- a number of different things. So it's attempting to attack character and suggest some sort of bad act of a witness who's not even testifying on the stand when these questions weren't asked of the witness when he was here and when he was testifying on the stand. That was the subject of a motion in limine that was allowed. It was completely inappropriate, completely irrelevant, and I'd ask for a limiting instruction to be given to the jury at this time in regard to this.
JUDGE CANNONE: What type of limiting instruction?
MR. LALLY: Questions are not evidence because essentially what counsel is doing is testifying from his questions as to the facts that these incidents allegedly occurred.
JUDGE CANNONE: But you know he can't testify. Even Chief Berkowitz knew that his reputation -- and you know better than that, and I'm not going to give this instruction though it's warranted. Tell me why you -- that question is certainly not admissible, but tell me why you think this line of questioning is. I need you to make your offer of proof.
MR. JACKSON: Sure. I believe that it's relevant through this witness because he knows of the reputation for violence. He knows the reputation for violence of Brian Albert, Sr. He's known Brian Albert, Sr. for more than 15 years. He knows Eddie Hernandez, who I have information and he has information he got into a physical altercation with Brian Albert and was beaten up by Brian Albert. He is aware that his best friend, Kenny Berkowitz, was afraid of Brian Albert physically. And the reason all of that is relevant is because Brian Albert was in the home of a Boston police officer who we have evidence before this jury was involved in or had injuries consistent with the physical altercation. And that goes toa lack of, again, twofold, a lack of investigation by the Commonwealth, by their investigators, by the Massachusetts State Police, and it also goes toa third-party culpability that is an undefined third- party culpability that is between and among Brian Albert, Colin Albert and this witness.
JUDGE CANNONE: Okay. So one of the reasons that third-party culprit evidence is very limited is so that it doesn't put the Commonwealth in the position you're putting him in right now. This is far too attenuated. If it had been closer than five years prior to this date, I'd have given it to you. It's too remote. Okay?
MR. JACKSON: I'll move on.
JUDGE CANNONE: Okay.
MR. LALLY: Thank you.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, Your Honor.
BY MR. JACKSON:
MR. JACKSON: 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.
MR. HIGGINS: It's different.
MR. JACKSON: 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 --
MR. HIGGINS: That's right.
MR. JACKSON: -- gone out 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 I know Brian and Kevin the best.
MR. JACKSON: On January 28th, 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 would 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: Okay. 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 we -- 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 have taken -- say that again?
MR. JACKSON: He was nursing one beer while you had four Jamesons when he sat there?
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 while you had four Jamesons?
MR. HIGGINS: I'm not going to put a number on it because I don't know.
MR. JACKSON: But it was more?
MR. HIGGINS: More than what?
MR. JACKSON: More than you?
MR. HIGGINS: Maybe. He wasn't there that long.
MR. JACKSON: Well, it doesn't take that long to drink a beer, does it, I mean, 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.
MR. HIGGINS: Okay.
MR. JACKSON: Just presume that.
MR. HIGGINS: All right.
JUDGE CANNONE: Well, that wasn't. So let's have questions.
MR. JACKSON: Touche.
JUDGE CANNONE: Yes, Mr. Higgins, that was a question.
BY MR. JACKSON:
MR. JACKSON: All right. Let me put a question mark at the end of that.
MR. HIGGINS: Okay.
MR. JACKSON: Is it your memory that Brian Albert had more drinks than you did when you had those three to four Jamesons 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're eating or drinking and 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. Sol 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 do.
MR. JACKSON: After having as many as four whiskeys?
MR. HIGGINS: Yes.
MR. JACKSON: Brian Albert. Did he drive himself?
MR. HIGGINS: I didn't see him. I dropped him off in Boston P.D. 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: And 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'd describe it as more than friends. It was a kiss.
MR. JACKSON: Well, you did describe it as a peck, didn't you?
MR. HIGGINS: When?
MR. JACKSON: When you texted Karen Read, and she said, it was just a peck. And then you texted back, I agree?
MR. HIGGINS: Figure of speech.
MR. JACKSON: Or the truth, right?
MR. HIGGINS: Figure of speech.
MR. JACKSON: After that incident, it's safe to say, we've just gone through a number of them, you exchanged flirtatious texts with Ms. Read; is that right?
MR. HIGGINS: Is the incident we are referring to when she kissed me?
MR. JACKSON: No. I'm saying after that. After that incident -- yes. After the Patriots game.
MR. HIGGINS: Okay. Yes.
MR. JACKSON: You exchanged flirtatious texts --
MR. HIGGINS: We did.
MR. JACKSON: -- with Ms. Read?
MR. HIGGINS: I did.
MR. JACKSON: And that was over the course of a few weeks, a couple of weeks, 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: Well, actually, you've looked at the text, right?
MR. HIGGINS: I have.
MR. JACKSON: You just looked at the last couple of texts, correct?
MR. HIGGINS: I did.
MR. JACKSON: The last text that she sent of any substance was January 23rd, right?
MR. HIGGINS: Well, I think the text --
MR. JACKSON: Almost a week before --
MR. HIGGINS: I think the text on the 29th that John died, there is substance there.
MR. JACKSON: Okay. I'm not suggesting -- I'm talking about after you said, "“Ummmmmm, well," on the 28th, right?
MR. HIGGINS: Yes.
MR. JACKSON: A text of substance between the two of you, talking between the two 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.
JUDGE CANNONE: I think it's right here, Mr. Jackson, the exhibits right there.
MR. JACKSON: Thank you. May I approach?
JUDGE CANNONE: Yes.
MR. HIGGINS: Are you directing me to the 23rd?
BY MR. JACKSON:
MR. JACKSON: I am directing you to the last page. Just look at everything on it and tell me if that refreshes your recollection that this is the last substantive text about you and Karen before your "Ummmmmm, well."
MR. HIGGINS: Yes. It would be the 23rd at 9:40.
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
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 mean, I'm not --
MR. HIGGINS: Yes.
MR. JACKSON: -- talking about shaking her hand, Mr. Higgins.
MR. HIGGINS: Well, I just -- I want to answer your question truthfully.
MR. JACKSON: Yes. I would like you to too. You didn't have any physical intimate contact with Ms. Read, 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, Ms. Read did explain her feelings about her relationship with Mr. O'Keefe, correct, in text messages?
MR. HIGGINS: During the pendency of our communication, she did express, yes.
MR. JACKSON: Right. 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.
MR. JACKSON: And she said, I don't care too much about that other girl, right?
MR. HIGGINS: Well, at least that's what she said in texts, yes.
MR. JACKSON: Well, that's what I'm asking you. Is that what she said in texts, Mr. Higgins? It's not a trick question.
MR. HIGGINS: That's what she said in texts.
MR. JACKSON: 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: 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.
MR. JACKSON: Many times?
MR. HIGGINS: Yes.
MR. JACKSON: We saw it, correct?
MR. HIGGINS: Yes.
MR. JACKSON: And she pretty much wouldn't answer you, correct?
MR. HIGGINS: She was noncommital, 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 in texts.
MR. HIGGINS: She avoided questions about texts.
MR. JACKSON: 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 now 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 text 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.
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 seeing if she wanted to see a ballgame 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 was her interest in me legitimate. It's 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 "romantic"? What is the romantic phase?
MR. HIGGINS: Sending somebody flowers.
MR. JACKSON: Dating?
MR. HIGGINS: Well, there's a difference between dating and hanging out. I mean --
MR. JACKSON: Well --
MR. HIGGINS: -- it's kind of hard to date somebody when you have a boyfriend.
MR. JACKSON: Mr. Higgins, not if both people are dating other people, right? It happens all the time, doesn't it?
MR. HIGGINS: I think I asked that question, too.
MR. JACKSON: Right. That's not my question. My question is you seem to have a problem admitting that you hada romantic interest in my client. Is there a reason for that?
MR. HIGGINS: I was attracted to her.
MR. JACKSON: Right. Physically attracted?
MR. HIGGINS: I thought she was an attractive woman.
MR. JACKSON: Romantically attractive?
MR. HIGGINS: I'm not going to go there. No. I don't agree with that.
MR. JACKSON: Of course you're not going to go there, because that would put you ina very awkward position, wouldn't it, sir?
MR. LALLY: Objection.
MR. HIGGINS: No, not at all.
JUDGE CANNONE: So the objection is sustained as to the form. You can ask it differently. And that will be stricken.
MR. JACKSON: I'm sorry, Your Honor. May I?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: You were sexually attracted to her?
MR. HIGGINS: I was physically attracted to her, yes.
MR. JACKSON: Okay. 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 guestion 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: No. The real deal was what? What did you mean by, I want the real deal?
MR. HIGGINS: Like a relationship.
MR. JACKSON: What kind of relationship? A buddy-buddy relationship? You just want to go like --
MR. HIGGINS: The same thing everybody wants. A real relationship.
MR. JACKSON: Like a romantic relationship, Mr. Higgins?
MR. HIGGINS: It's possible.
MR. JACKSON: Right. 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, she answered -- I'm sorry. When you said, so now what, she answered, now what, what? Correct?
MR. HIGGINS: I don't have it in front of me. So I can't agree with you. If you -- I'd like to see what you're referring to.
MR. JACKSON: Well, you just read it about 10 minutes ago. Would you quarrel if --
MR. HIGGINS: I know, but you're giving me portions of it.
MR. JACKSON: You were given portions of it by Mr. Lally, as well.
MR. HIGGINS: Okay.
MR. JACKSON: 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 she texted -- I'm sorry. You texted, what do you want from me? And her responsive text was, I don't know. Correct?
MR. HIGGINS: I think that was one of the texts.
MR. JACKSON: Again, with this theme of her being noncommittal 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, did you just say she was noncommital? 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 noncommital, wasn't she?
MR. HIGGINS: Well, not one person advances it. I think 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 O'Keefe, correct?
MR. HIGGINS: No, not at all.
MR. JACKSON: As a matter of fact, she texted more, she indicated more a frustration with the immediate family, the kids? She didn't want to have kids?
MR. HIGGINS: In its 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: 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'd been moving through this mindset of exploring a romantic interest with a beautiful woman who you thought was interested in you. And, just like that, it 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 don't want to keep playing games.
JUDGE CANNONE: That's what we talked about. No more.
MR. JACKSON: I'm sorry, Your Honor.
BY MR. JACKSON:
MR. JACKSON: After the 23rd or up to the 23rd, she had been texting back and forth with you pretty regularly. We just saw it, correct?
MR. HIGGINS: She also sent me a text with arrows, saying the phone works both ways.
MR. JACKSON: And, as of the 23rd, she stopped, didn't she?
MR. HIGGINS: The texts were sporadic over those nine days. I don't know if they would have stopped or if they would have kept going.
MR. JACKSON: Well, they didn't keep going, did they?
MR. HIGGINS: Well, John passed away.
MR. JACKSON: They know they didn't keep going because from the 23rd, on to the 24th, the 25th, the 26th, the 27th, the 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, correct?
MR. HIGGINS: Well, she didn't respond to the texts on the 28th, Friday.
MR. JACKSON: Right.
JUDGE CANNONE: All right. Why don't we take our luncheon recess, folks. 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, and you don't have to answer me now, but maybe we will go to 4:30 rather than 4:00 o'clock if that works for you. If it doesn't work for any one of you, let the court officer know. All right. Thank you.
(Whereupon, the jury exits the courtroom for the luncheon recess at 1:00 p.m.)
JUDGE CANNONE: So why don't I see counsel over here at sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Mr. Lally? Ms. McLaughlin? You can bring that with you. All right. So I was wondering again about the proffer because if we have to do something with it --
MR. JACKSON: We don't. That was my one question and the Court was very clear, don't go there with Chief Berkowitz. So I am done.
JUDGE CANNONE: Okay.
MR. JACKSON: As I rack my brain, and Ms. Little knows probably better than I do, I don't think there is another portion where his statement and the proffer is the impeachment. It's all going to be the jury, which I know how to deal with. So I don't think I am need to even address the proffer.
JUDGE CANNONE: Because it would be wise for him to meet with his lawyer during lunch about this?
MR. JACKSON: Right.
JUDGE CANNONE: I don't know how to communicate that to him. If you don't have a problem with Mr. Lally letting his lawyer know that this may be a topic --
MR. JACKSON: I think that's exactly what I would suggest. If Mr. Lally would be kind enough to just let him know there could be an issue where Mr. Jackson wants to ask about a statement in the proffer, what are your thoughts about -- I don't think I have to go there.
JUDGE CANNONE: I'm at a disadvantage. I know nothing about the proffer other than that there was one because this witness mentioned it a few times during the grand jury testimony.
MR. JACKSON: Right.
JUDGE CANNONE: Are you both aware of the nature of the proffer? Do you have the transcript?
MR. JACKSON: We do.
MR. YANNETTI: We have the interview. But, as far as whatever the proffer was concerning or what the letter was, I don't know anything about that. What I do know is that in the federal system, proffer means something entirely different.
JUDGE CANNONE: Well, the point is you have to be able to link it to his testimony here.
MR. JACKSON: Right.
JUDGE CANNONE: And, for that, I would need to have a hearing. There are all sorts of problems of having a hearing like that in open court. So I just need to know that if you're saying --
MS. LITTLE: Can I just --
JUDGE CANNONE: Sure. Talk quietly.
(Whereupon, there was a discussion off the record.)
MR. JACKSON: Ms. Little was reminding me there is an issue that I will bring up that was brought up in the proffer, but it was also brought up in the context of the grand jury, which that's all I'll use. I don't need to relate it back.
JUDGE CANNONE: Right. So is it in the context of an impeachment, a prior inconsistent statement or -- I need to know if it has to deal with the proffer.
MR. JACKSON: It does not have to deal with the proffer, no.
JUDGE CANNONE: Okay.
MR. JACKSON: It's just an inconsistent statement about what happened inside 34 Fairview, his observations.
JUDGE CANNONE: Okay.
MR. JACKSON: That's all it is.
MR. LALLY: Your Honor, just to be clear, for the record, my concern as it pertains to the proffers is because I believe there is uniqueness as to how a proffer works in the federal system. There is no way for the witness to explain what a proffer is without making reference to the U.S. Attorney's Office and all of that.
JUDGE CANNONE: Which is why I interjected when you asked a question about his assignment, whether he could answer that because, again, I have no idea about the proffer and I don't know if that was related. But it sounds like the defendant does not intend to get into that, correct, Mr. Jackson?
MR. JACKSON: I do not, no.
JUDGE CANNONE: Okay.
MR. JACKSON: I've gone as far as I'm going to go on any of that.
JUDGE CANNONE: So Ms. McLaughlin grabbed an exhibit. Is there something you were saying about it?
MR. LALLY: Your Honor, there is within the text, I think on this page and maybe one other page --
JUDGE CANNONE: Yes. There are two pages.
MR. LALLY: -- where the defendant is ina photograph of the children.
JUDGE CANNONE: The children.
MR. LALLY: I'd like to redact that.
MR. JACKSON: No objection.
JUDGE CANNONE: I saw that, as well. Is there an agreement that those two pages can be removed from Exhibit 104A and replaced or how do you want to do it?
MS. MCLAUGHLIN: My biggest concern is just if -- I think I could, you know, cover that and take a picture and put it back and just kind of put the page back in but redact the picture.
JUDGE CANNONE: I am fine with that. What we will need to do is take the two pages out, mark them for identification.
MR. LALLY: Mark them.
JUDGE CANNONE: So this copy has a page number on it. I didn't have that. Wait. I need to -- okay. For identification together, please, Madam Court Reporter.
COURT REPORTER: That will be "PP" for Identification.
Whereupon, two pages from Exhibit No. 104A were entered and marked Exhibit "PP" for Identification.)
JUDGE CANNONE: Thank you.
MR. LALLY: And my apologies. I asked Ms. Gilman to put the numbers on there, just to make it --
JUDGE CANNONE: No. That's great. I thought the witness had what I had. Plus you all have color photos and I don't. So it is 47 and 48 of Exhibit 104A. The Commonwealth has permission to redact the photograph on the bottom that shows two small sleeping children. Counsel agree. You don't need this because you have it separately, right?
MR. LALLY: We can get it.
MS. MCLAUGHLIN: We can.
MR. LALLY: That's correct, yes.
JUDGE CANNONE: I just don't like exhibits leaving the room if we can help it.
MR. LALLY: Yes.
JUDGE CANNONE: All right. So we'll start back up at quarter of two. Even if you finish today, it's been that there has been redirect. What is your position on that? Will you be coming back for that even if you finish or will one of your colleagues take over that?
MR. JACKSON: My suggestion would be if we can take him out of order and order him back for the following Monday. I have to be here for that if that happens.
JUDGE CANNONE: I don't want to do that ona redirect or recross. But let's see how far we go. That's why I asked the jury if they would stay an extra half hour.
MR. JACKSON: That was very kind. I think I can get done. I do.
JUDGE CANNONE: Okay.
MR. JACKSON: And I think I can leave Mr. Lally enough room to get done as well.
MR. LALLY: I don't foresee being terribly long.
JUDGE CANNONE: Speed it up. All right. Thank you. I'll see you at guarter of two.
MR. JACKSON: Thank you.
(Whereupon, the luncheon recess was taken.)
AFTERNOON SESSION
(Court resumes.)
(Defendant present. Jury present.)
JUDGE CANNONE: All right, Mr. Jackson. Whenever you're ready.
MR. JACKSON: Thank you, Your Honor.
BY MR. JACKSON:
MR. JACKSON: Mr. Higgins, before we broke for lunch, we were talking about the text exchanges and the communication that you were having with Ms. Read in the days leading up to January 23rd. Do 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, not once but twice?
MR. HIGGINS: I believe so.
MR. JACKSON: Take a look, if you don't mind, at -- this is a page from what you've just seen --
JUDGE CANNONE: All right. So he needs the exhibit.
MR. JACKSON: I'm sorry. I was thinking that was right in front of you. May I approach?
JUDGE CANNONE: Please.
MR. JACKSON: Thank you. It was easy to find. It's literally the last page. With the Court's permission, may I publish?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
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: At the very top, can you read what you write in the blue bubbles, starting at the top?
MR. HIGGINS: (As read), "Haha. Stranger stranger."
MR. JACKSON: And then what was the response from Ms. Read?
MR. HIGGINS: (As read), "Hey. I was at the Hilly all weekend."
MR. JACKSON: And what did you respond at that point?
MR. HIGGINS: (As read), "I have not heard from you."
MR. JACKSON: And, by the way, if you look at the next date down, what is 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 (as read), "Phone works," correct?
MR. HIGGINS: And the arrows like both ways. Yes.
MR. JACKSON: Right. And then what did you text after that?
MR. HIGGINS: I just said (as read), "I thought you were all set."
MR. JACKSON: And how did she respond?
MR. HIGGINS: She said (as read), "With talking? No."
MR. JACKSON: Your Honor, that's all I have for that.
JUDGE CANNONE: Okay.
MR. JACKSON: We can bring the lights back up.
BY MR. JACKSON:
MR. JACKSON: 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 (as read), "How?"
MR. HIGGINS: I said (as read), "Hmmm. Are you sure."
MR. JACKSON: And did she respond?
MR. HIGGINS: No.
MR. JACKSON: As a matter of fact, the next time you saw or communicated with her, she was walking into the Waterfall bar on the 29th, early morning hours of the -- late night hours of the 28th, going into 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 Ms. 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 Ms. 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 --
MR. HIGGINS: That was the first time.
MR. JACKSON: And that was with a person by the name Kate Dowd; 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, whether 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: It was 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 Rad with Brian Albert at any point?
MR. HIGGINS: No.
MR. JACKSON: Never?
MR. HIGGINS: No.
MR. JACKSON: So you were on a four-hour drive ina snowstorm back from New York with Mr. Read -- I'm sorry, with Mr. Read -- with Mr. Albert and your interest in Karen Read never came up?
MR. HIGGINS: No.
MR. JACKSON: Even though he's a good friend?
MR. HIGGINS: Yes. It's just something I wouldn't talk about.
MR. JACKSON: You'd been drinking since about what time? That's a bad way to ask it. What time did you start drinking?
JUDGE CANNONE: When? When are we at, Mr. Jackson?
MR. JACKSON: I'm sorry.
BY MR. JACKSON:
MR. JACKSON: 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. Give me a time frame. Nineish? Eightish?
MR. HIGGINS: It was dark. It was maybe in the area of 8:00 o'clock.
MR. JACKSON: And what time do you think you got to Waterfall?
MR. HIGGINS: I couldn't say. It was after the Hillside.
MR. JACKSON: Before Brian Albert left 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 do 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: It didn't have anything to do with you known 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: Did 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.
MR. JACKSON: And, once he got to the Waterfall, he got the Waterfall, obviously, before you did?
MR. HIGGINS: He did. I think shortly before. Yes.
MR. JACKSON: Any text communications between you and Brian Albert about who was at the Waterfall and 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. A 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 had 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 and drove over to the -- that's the Jeep --
MR. HIGGINS: The Jeep, yes.
MR. JACKSON: -- drove over to the Waterfall, correct?
MR. HIGGINS: I drove over to the Waterfall? Iwas at the Waterfall.
MR. JACKSON: I'm sorry. You left the Waterfall and drove over to 34 Fairview?
MR. HIGGINS: I did, yes.
MR. JACKSON: 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, in different directions.
MR. JACKSON: Right.
MR. HIGGINS: Yes.
MR. JACKSON: 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 it's safe to say that throughout that evening, once she was sidled up next to John O'Keefe or the friends that 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.
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?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: You can go ahead and answer that. Did she ignore you?
MR. HIGGINS: No.
BY MR. JACKSON:
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?
MR. HIGGINS: Hug? What was the other --
MR. JACKSON: Did she say "hello"? Did she 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 was 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 not?
MR. HIGGINS: No. She did not ignore me.
MR. JACKSON: So what did she do to not ignore you?
MR. HIGGINS: She was --
MR. JACKSON: What was her interaction with you?
MR. HIGGINS: Can I answer now?
MR. JACKSON: Sure.
MR. HIGGINS: In my opinion, she was working the room, talking to people, saying "hello," catching up.
MR. JACKSON: Right. The one person she didn't come over to talk to and say "hello" to and catch up with is you, correct?
MR. HIGGINS: I don't know that I was the only person, but I was one of the people that she didn't say hello to, yes.
MR. JACKSON: She treated 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. I don't know.
MR. JACKSON: Did that 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 a flirtatious text. That was it.
MR. JACKSON: It bothered you enough to send her a text that said, "Ummmmmm," with six M's behind it.
MR. HIGGINS: Okay.
MR. JACKSON: And, well, correct?
MR. HIGGINS: Well, it wasn't like that. It was, “Ummmmmm, well." That's it.
MR. JACKSON: Just, “Ummmmmm, 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, ummmmmm, well, when are you going to pay attention to me?
MR. HIGGINS: No. That's not correct.
MR. JACKSON: Ummmmmm, well, why are you ignoring me?
MR. HIGGINS: That's not correct.
MR. JACKSON: Ummmmmm, well, am I chopped liver?
MR. LALLY: Objection.
JUDGE CANNONE: All right. That's sustained. Mr. Jackson, let's move along.
BY MR. JACKSON:
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 so we are clear, when you texted, "Ummmmmm, well," she ignored that text from you, didn't she?
MR. HIGGINS: Can you say that again?
MR. JACKSON: When you texted her, "Ummmmmm, well," at Waterfall, she ignored that text too, correct?
MR. HIGGINS: Well, that was the only text I sent that night to her. Yes. She didn't respond.
MR. JACKSON: That wasn't my question. My question is she ignored the text, correct?
MR. HIGGINS: 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 --
MR. JACKSON: Waterfall
MR. HIGGINS: -- the Waterfall? Probably.
MR. JACKSON: I mean, if everybody is herding out and you're the first one to get there, you were probably among the first to leave, correct?
MR. HIGGINS: Most likely.
MR. JACKSON: Okay. You never personally discussed going to 34 Fairview with -- 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, an acknowledgment, did you?
MR. HIGGINS: No.
MR. JACKSON: You just left?
MR. HIGGINS: That's what everybody was doing, just leaving. 0) Okay. You too, correct? A I did leave, yes.
MR. JACKSON: And all you knew that -- at that point, all you knew was that you were going over to 34 Fairview. You didn't know who else was invited over to 34 Fairview, did you?
MR. HIGGINS: My impression was that it was an open invitation and 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 in the morning, you texted John O'Keefe, you coming here, correct?
MR. HIGGINS: At 2:20?
MR. JACKSON: Sorry. 12:20.
MR. HIGGINS: 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 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 with the -- sort of playing around by plowing his driveway?
MR. HIGGINS: It was a sweep of the driveway. Yes.
MR. JACKSON: And then you indicated that you parked in front of the house, correct?
MR. HIGGINS: I did.
MR. JACKSON: I know you've been over this before, but I'm going to ask you 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: Can we have, with the Court's permission, Exhibit 66?
JUDGE CANNONE: All right.
BY MR. JACKSON:
MR. JACKSON: This is a graphic representation of 34 Fairview. It's 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 about 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 around equal with the mailbox. And I was not blocking the driveway.
MR. JACKSON: Okay. So you were about there, correct? If the right edge of that highlight is the mailbox, and the mailbox being right there, it would have been about right there on the street, correct?
MR. HIGGINS: Well, that would have been the front of the Jeep where your laser pointer is. It would be the front.
MR. JACKSON: Okay. So the front of the Jeep was facing the flagpole?
MR. HIGGINS: Towards Chapman Street, correct.
MR. JACKSON: And the rear of the Jeep was basically even with the mailbox strut or stanchion?
MR. HIGGINS: It was definitely past the driveway, yes.
MR. JACKSON: You indicated the plow was a six-foot-what inch plow?
MR. HIGGINS: I think it was a six-eight.
MR. JACKSON: Six-eight meaning the width?
MR. HIGGINS: Meaning the width, yes.
MR. JACKSON: How deep is that plow?
MR. HIGGINS: How deep?
MR. JACKSON: Two feet? Three feet? Six inches?
MR. HIGGINS: I mean, it's probably a few inches. It's light duty. It's on a Jeep.
MR. JACKSON: Okay. And it's obviously curved and canted to the right?
MR. HIGGINS: No. 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 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, you're driving straight, locally, where you're not going to have to worry about overheating the Jeep, I would just have the Jeep and the plow straight. If I was on the highway for a long distance, I would be worried about overheating. So I would canter the plow tilted up so that air could get through the front grill.
MR. JACKSON: So, in other words, you can control it?
MR. HIGGINS: I can, yes.
MR. JACKSON: How was it that night? How was it canted that night? Was it straight or canted?
MR. HIGGINS: It was straight, straight on.
MR. JACKSON: All right. When you walked into 34 Fairview, you indicated that 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, correct?
MR. HIGGINS: I was like kind of -- 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, I briefly went and looked at some photos.
MR. JACKSON: Right. 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, 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. You know, I knew it was going to be a short night there because I just wasn't going to -- 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?
MR. HIGGINS: When you say “upstairs,™" like are you talking about the second floor?
MR. JACKSON: Correct.
MR. HIGGINS: Yes. No.
MR. JACKSON: Okay. You testified to that in a prior hearing; is that right?
MR. HIGGINS: Yes.
MR. JACKSON: In May of 2023?
MR. HIGGINS: Yes.
MR. JACKSON: And you said specifically (as read), "I have never been upstairs"; is that 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: The 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: Are you saying 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 do the people have to be to go upstairs into the living room to look at the photos?
MR. HIGGINS: I'm not understanding the question.
MR. JACKSON: If the photos were on the first floor, Mr. Higgins --
MR. HIGGINS: Yes.
MR. JACKSON: -- the only floor beneath it is the basement.
MR. HIGGINS: Okay.
MR. JACKSON: And if someone says, we went upstairs to look at the photos, where would they have to be?
MR. HIGGINS: Well, who said they went upstairs?
JUDGE CANNONE: Mr. Jackson, you can save this for argument. Next question, please.
BY MR. JACKSON:
MR. JACKSON: If Brian Albert said you went upstairs to look at the photos, where would you have to be?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Now, Brian Albert had a weight room someplace in the house, right?
MR. HIGGINS: Yes.
MR. JACKSON: And 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. Summertime.
MR. JACKSON: Summertime before --
MR. HIGGINS: Summertime before, yes.
MR. JACKSON: Summer of 2021?
MR. HIGGINS: Maybe.
MR. JACKSON: So if Brian Albert testified that you had never been in the basement, that would not be accurate?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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: You 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 ina 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 a 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 --
MR. JACKSON: If I may have just a moment, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Isn't it true that you indicated that a male showed up who may have been Julie Nagel's brother, correct?
MR. HIGGINS: I said might, 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 hair, right?
MR. HIGGINS: Yes.
MR. JACKSON: You were asked, a male showed up where? And you answered, quote, "Showed up at the house that I didn't know. I think he was there very briefly. I just -- I was paying -- I was half paying attention to it. "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," end quote. That's what you testified to under oath, wasn't it?
MR. HIGGINS: Is that in reference to that?
JUDGE CANNONE: What page are you on, Mr. Jackson?
MR. JACKSON: It's page 485-486, I believe. Yes. If I may, may I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Take a look at the top part that I've highlighted.
MR. HIGGINS: Thank you.
MR. JACKSON: Mr. Higgins, do you have that in mind?
MR. HIGGINS: I do.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
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: Mr. Higgins, I realize that you want to explain your answer. I've asked you a very simple guestion. Was that your testimony in front of another proceeding --
MR. HIGGINS: Yes, it was.
MR. JACKSON: -- at another proceeding at which you were under oath?
MR. HIGGINS: Yes, it was.
MR. JACKSON: 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 briefly, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You were asked how long was the person in there roughly. And you said, it was quick. I don't -- 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, maybe 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 in your testimony, 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 A.D.A. 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 lst, 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. Yes or no. It's that proceeding --
JUDGE CANNONE: Can you answer that yes or no?
MR. HIGGINS: No, I can't, Your Honor.
JUDGE CANNONE: Next question, Mr. Jackson.
BY MR. JACKSON:
MR. JACKSON: The quotes that I just read you and that you just looked at --
MR. HIGGINS: Yes.
MR. JACKSON: -- that was from the June 1, 2023 hearing, wasn't it?
MR. HIGGINS: I don't know.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: That's what was just read, and that's another page. Just take a look at that page and see if you see a date on the first page.
MR. HIGGINS: I see it. Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: What is the date, sir?
MR. HIGGINS: June lst.
MR. JACKSON: 2023?
MR. HIGGINS: Yes.
MR. JACKSON: How long did you stay at the Albert residence in total from the time you got there to the time you left?
MR. HIGGINS: Maybe like a half hour. Less than an hour.
MR. JACKSON: And what time did you leave? Say 12:30, you said?
MR. HIGGINS: I think I said between 12:30 and 1:00 a.m.
MR. JACKSON: Okay. And you indicated that you pretty much didn't say "goodbye" to anybody, right?
MR. HIGGINS: At the house?
MR. JACKSON: Correct.
MR. HIGGINS: I just kind of left. I said "see you later," and turned around and 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 P.D.
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 1:00 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 breezeway door, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You walked down the driveway?
MR. HIGGINS: Yes.
MR. JACKSON: There is 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 flagpole, in other words, there wasn't some mound of dirt, 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, but there was snow there.
MR. JACKSON: Yes. You indicated that there wasn't even enough to stick to the pavement at that point?
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: I think we both can agree that it wouldn't have been three feet. No.
MR. JACKSON: So it would have been a light dusting of snow?
MR. HIGGINS: More snow than there was there.
MR. JACKSON: How far would you say it was from the edge of the driveway over to your Jeep?
MR. HIGGINS: From where the back of my Jeep was parked?
MR. JACKSON: Correct.
MR. HIGGINS: Maybe a foot or two, or it could have been even with the edge of the driveway.
MR. JACKSON: Oh, no, no. I'm sorry. It's probably a bad guestion on my part. When you left the house, as you started to walk down the driveway toward your Jeep, how long of a walk is that, across the yard, you know, down the driveway to get to your Jeep?
MR. HIGGINS: Short.
MR. JACKSON: Thirty feet?
MR. HIGGINS: 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 flagpole, correct?
MR. HIGGINS: It's facing directly up the street. The flagpole would be off to the 1:00 o'clock.
MR. JACKSON: Right. So just a few degrees off to the right the flagpole is, correct?
MR. HIGGINS: It's off to the right.
MR. JACKSON: Just a few degrees?
MR. HIGGINS: I don't know how many degrees, but it's off to the right.
MR. JACKSON: Well, you just said 1:00 o'clock.
MR. HIGGINS: Yes.
MR. JACKSON: You're a former military guy, right?
MR. HIGGINS: I am.
MR. JACKSON: Okay. 1:00 o'clock means 1:00 o'clock ona watch. 12:00 o'clock is due north or right in front of you. 1:00 o'clock is just a few degrees to the right, correct? That's what you meant?
MR. HIGGINS: At the 1:00 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: And the wipers, 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: You 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 and it 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 was situated and continued to roll forward, correct?
MR. HIGGINS: I knew it was up when I continued to drive.
MR. JACKSON: And, as you continued to drive, you're looking ahead of you and probably to your left to make sure that 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?
MR. HIGGINS: On the road, yes.
MR. JACKSON: And everything in your peripheral vision was right in front of you, as well, correct?
MR. HIGGINS: Yes.
MR. JACKSON: Nothing obstructing your view?
MR. HIGGINS: I mean, other than snow on the car.
MR. JACKSON: Nothing obstructing your view outside toward the lawn? There wasn't another car parked there?
MR. HIGGINS: No, no. There were no vehicles in front of me. No.
MR. JACKSON: The roadway was relatively empty?
MR. HIGGINS: 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 flagpole 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: And that puts 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. Yes.
MR. JACKSON: 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 and former firefighter, a 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 flagpole, correct?
MR. HIGGINS: If I did, I would have --
MR. JACKSON: I didn't ask you if you did.
MR. HIGGINS: -- done something to help him.
MR. JACKSON: I asked you if you saw one.
MR. HIGGINS: No, I 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.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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 Fairview, either home or to Canton P.D., correct?
MR. HIGGINS: That's not what I testified to.
MR. JACKSON: Did something jog your memory as to where you went?
MR. HIGGINS: That is not what I testified 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 left 34 Fairview, the Friday, into Saturday?
MR. JACKSON: Correct.
MR. HIGGINS: To move to 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 fora second. You had an initial interview with Massachusetts State Police on February 3rd, 2022, correct?
MR. HIGGINS: Yes.
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 P.D. to, quote, "fulfill some administrative obligations," end quote, correct?
MR. HIGGINS: Yes.
MR. JACKSON: You later said when you testified in front of the grand jury on April 28th that you went to Canton P.D. to do, quote, “administrative work," correct?
MR. HIGGINS: Yes.
MR. JACKSON: You've never mentioned --
MR. HIGGINS: I said administrative things.
MR. JACKSON: You said administrative work, was your testimony in 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 P.D. 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 said I didn't move my personal vehicle. I moved work vehicles.
MR. JACKSON: Or either one. You just traded off vehicles, moved them out of the way, right?
MR. HIGGINS: The purpose for going back there was to move two work vehicles.
MR. JACKSON: And the reality is that you had gotten there, you had gotten to Canton P.D., 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 1S 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, right?
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 P.D. to do administrative work at 1:30 in the morning, were you?
MR. HIGGINS: I was moving the vehicles. I'm sure it's on video.
MR. JACKSON: Oh, 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 sally port 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?
JUDGE CANNONE: Do you need to hear something or --
JUDGE CANNONE: Why don't we take a five-minute recess.
(Whereupon, the jurors exit the courtroom.)
JUDGE CANNONE: So why don't we all stay here.
(Court resumes.)
(Defendant present. Jury present.)
JUDGE CANNONE: All right. Mr. Jackson?
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Mr. Higgins, if you went back to Canton P.D. at 1:00 o'clock, 1:30 in the morning, you would certainly be in a position to monitor anything that was happening at Canton P.D. at the time at least that you were there, correct?
MR. HIGGINS: No.
MR. JACKSON: I mean, you would be inside the building, correct?
MR. HIGGINS: Yes.
MR. JACKSON: With access to dispatch and anything else that was happening around that floor, that area, correct?
MR. HIGGINS: I did not go into dispatch.
MR. JACKSON: You would have access to the interior of the police station at that time if you went back to Canton P.D. 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, things of that nature?
MR. HIGGINS: 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?
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained. Ask it differently.
BY MR. JACKSON:
MR. JACKSON: You were able to monitor, you would be ina 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: So how long did it take you to get home from Canton P.D.?
MR. HIGGINS: A little longer -- from after I moved the vehicles?
MR. JACKSON: Correct.
MR. HIGGINS: I don't know. I mean, it could have been 15 minutes. It could have been 20 minutes.
MR. JACKSON: Do 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 and maybe a couple more drinks.
MR. JACKSON: Then you went to bed?
MR. HIGGINS: I 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 you testified here today?
MR. HIGGINS: Those would be the two options.
MR. JACKSON: Okay. I didn't ask you about your options. I asked you if you reviewed your testimony before you testified today.
MR. HIGGINS: Yes.
MR. JACKSON: When you reviewed your testimony previous 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 any 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 gquestioning ina different hearing was that you may have gotten something to eat. You then went to bed. You put you stuff on the night stand 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: You were clear when you went to sleep in your prior testimony that 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, yeah, it's right on my bedside?
MR. HIGGINS: I don't have a charging station.
MR. JACKSON: Right. You said no, bedside. In other words, you keep your phone by your bedside, on your bedside table?
MR. HIGGINS: Usually.
MR. JACKSON: 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 know 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: That is correct.
MR. JACKSON: And you don't use Snapchat and you, 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 7:00 a.m., which woke you up; is that right?
MR. HIGGINS: It was around 6:30-ish, I think.
MR. JACKSON: Your testimony previously was, at some point before 7:00 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 guestioning 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, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Take a look at those two documents and tell me if you recognize at least the top one.
JUDGE CANNONE: Do they have a page number or no?
MR. JACKSON: I was just asking Ms. Little. I don't think we 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.
BY MR. JACKSON:
MR. JACKSON: Do you recognize those?
MR. HIGGINS: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: You know what? I'm going to -- if it's okay with the Court, may the witness maintain those documents?
JUDGE CANNONE: Sure, sir.
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?
MR. JACKSON: We can do it as one exhibit. That's fine.
JUDGE CANNONE: Okay. Could you please hand those to Madam Court Reporter?
MR. JACKSON: Yes.
(Whereupon, phone records, two pages, were entered and marked Exhibit "QQ" for Identification.)
COURT REPORTER: "QQ" for Identification.
JUDGE CANNONE: I'm sorry. What was that?
COURT REPORTER: "QQ."
MR. JACKSON: Thank you. May I inquire?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Mr. Higgins, do you see the document on the lower right that has a page number or there is a numeric indicator 01770? In other words, 1770.
MR. HIGGINS: On the lower right-hand corner?
MR. JACKSON: In the right. I mean, in the red.
MR. HIGGINS: It says O1771.
MR. JACKSON: Look at the next page. I think they are just out of order.
JUDGE CANNONE: Why don't you come show him.
MR. HIGGINS: Am I missing something?
MR. JACKSON: Oh. This one has been marked over. It's right over the top.
COURT REPORTER: That's the protocol.
MR. JACKSON: It's okay. It's okay. I'll use the one with "QQ" and the one with 1771 because the other numbers --
MR. HIGGINS: When I'm referencing them?
BY MR. JACKSON:
MR. JACKSON: When I'm referencing them for you.
MR. HIGGINS: Okay.
MR. JACKSON: Take a look at the one that's marked with the "QQ."
MR. HIGGINS: I see it.
MR. JACKSON: 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 a -- these were records that were shown to you at a prior hearing?
MR. HIGGINS: Yes.
MR. JACKSON: Okay. And you acknowledged that at least the one marked "QQ" is a record of your calls, correct?
MR. HIGGINS: It has my name and my telephone number. Correct.
MR. JACKSON: And it indicates that on January 29th, 2022 at 2:22:35, you received a call from Brian Albert, duration of one second, correct?
MR. HIGGINS: Yes.
MR. JACKSON: In other words, Brian Albert called you at 2:22:35 but it looks like you missed the call, correct?
MR. HIGGINS: I see the one-second call, yes.
MR. JACKSON: There is a second call just below that on the same date at 2:22:52 from you to Brian Albert. Do you see that one?
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.
BY MR. JACKSON:
MR. JACKSON: So the fact is you were speaking to Brian Albert in the middle of the night approximately three 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 the cold, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: And then, of course, you lied about that under oath in that prior proceeding by saying, I don't remember this phone call?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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: 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, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You acknowledged 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. With the Court's permission?
JUDGE CANNONE: The Court does not give permission.
BY MR. JACKSON:
MR. JACKSON: If we were to count off 22 seconds, that'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.
MR. JACKSON: You can't, us human beings, can't have a conversation is 22 seconds?
MR. HIGGINS: Sure they could. I don't think it's anything of substance.
MR. JACKSON: Okay. 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 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 had an iPhone at the time?
MR. HIGGINS: Yes.
MR. JACKSON: As a matter of fact, that number reflecting 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, there is a notification that 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: And, 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? If you miss a call from someone, it's not just going to automatically re-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. Sustained. You can break it down.
MR. JACKSON: Sure.
BY MR. JACKSON:
MR. JACKSON: 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 I.D. 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 a six-digit passcode locking your iPhone at the time?
MR. HIGGINS: I don't know if it was a digit code or face I.D.
MR. JACKSON: Well, if you have a face I.D., 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 I.D. 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 have 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 did you butt dial it?
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: So I am going to sustain it in that form. You can ask it appropriately, Mr. Jackson.
BY 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: Do you remember being asked, quote, "Did you call him back," end quote? And you answered, "Yes." And then there was a question --
MR. HIGGINS: There was a series of questions there. That's only a fragment of what I said.
MR. JACKSON: I'm not done yet, 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 colloguy back and forth where you spoke over each other words, right?
MR. HIGGINS: There was dialogue back and forth about this whole thing, yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Do you see the pink highlighted question and the pink highlighted question?
MR. HIGGINS: Yes.
MR. JACKSON: What's the question? Please read it for me.
MR. HIGGINS: "Did you call him back?"
MR. JACKSON: What's the answer?
MR. HIGGINS: "Yes. "
MR. JACKSON: Thank you.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
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? Yes or no.
MR. HIGGINS: Can I see it?
MR. JACKSON: Sure.
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. HIGGINS: Thank you.
BY MR. JACKSON:
MR. JACKSON: The bottom portion in pink. If you could read that answer to yourself, please. Do you have that in mind, sir?
MR. HIGGINS: No. Can I have a minute, please?
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, Your Honor.
BY MR. JACKSON:
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 only thing." Correct?
MR. HIGGINS: Meaning it's possible it could have happened.
MR. JACKSON: It's possible it could have happened 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?
MR. HIGGINS: Time to think about it?
MR. JACKSON: Yes.
MR. HIGGINS: 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.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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.
BY MR. JACKSON:
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 who?
MR. HIGGINS: Well, I believe I said I got the call from Chief Berkowitz.
MR. JACKSON: That's not my question.
MR. HIGGINS: Say that again?
MR. JACKSON: Who is 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, and you 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: Yes. 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., if you recall?
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 the 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: 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. HIGGINS: No.
JUDGE CANNONE: Is that what you were trying to do?
MR. HIGGINS: No, Your Honor.
BY MR. JACKSON:
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.?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you tell Chief Berkowitz that you had been with John O'Keefe and you were at the crime scene the night before?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can ask that differently.
BY MR. JACKSON:
MR. JACKSON: Did you inform Chief Berkowitz that you had been with John O'Keefe the night before?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. HIGGINS: I believe I may have told him at some point that I saw John at the Waterfall.
BY MR. JACKSON:
MR. JACKSON: Did you tell Chief Berkowitz that you had 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.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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?
MR. HIGGINS: No.
MR. JACKSON: Did you ever tell Chief Berkowitz about the nature of your interest in Ms. Read?
MR. HIGGINS: No. I don't believe so.
MR. JACKSON: Did you tell Chief Berkowitz that you had seen Mr. O'Keefe and Ms. Read the night before and that Ms. Read had ignored you?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. You can break that down, Mr. Jackson.
MR. JACKSON: Thank you, Your Honor. If I may have just a moment?
BY MR. JACKSON:
MR. JACKSON: 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, you said, I had no idea where John O'Keefe's body was found, correct?
MR. HIGGINS: That's correct.
MR. JACKSON: You'd just spoken with Brian Albert, right?
MR. HIGGINS: He said in front of the house.
MR. JACKSON: All he said was John O'Keefe was found in front of the house? He didn't say, right outside on my front lawn?
MR. HIGGINS: I believe he said he was found out in front of his house, unresponsive.
MR. JACKSON: Okay. 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, that your Jeep would just be feet away from it, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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 think any of that was important when talking with the chief of police of the Canton Police Department?
MR. LALLY: Objection.
JUDGE CANNONE: I'll let him have it.
MR. HIGGINS: No, I didn't. There was no reason to tell him.
BY MR. JACKSON:
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: In that form, I'll sustain it.
BY MR. JACKSON:
MR. JACKSON: Are you aware that searching electronic devices is an important part of investigations?
MR. LALLY: Objection.
JUDGE CANNONE: 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.
BY MR. JACKSON:
MR. JACKSON: Okay. So another way to put that is obviously phone data and electronic data is an important part of an investigation; is that right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: 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 7:00, 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?
MR. HIGGINS: At what time?
MR. JACKSON: That time. Actually, at any time.
MR. HIGGINS: No, not to my knowledge. 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, on the 29th?
MR. HIGGINS: 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.
MR. HIGGINS: You want to tell me every instance when somebody could have asked me?
MR. JACKSON: Correct.
MR. HIGGINS: Okay.
MR. JACKSON: On the 29th, were you asked whether or not your vehicle could be searched?
MR. HIGGINS: Searched or inspected?
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.
MR. JACKSON: They didn't ask to search it? Did they ask to inspect it?
MR. HIGGINS: No.
MR. JACKSON: When you 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 the 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? I'm sorry. Had Julie Albert gotten there yet?
MR. HIGGINS: She came after me.
MR. JACKSON: Okay. So at some point, all the people that I just ticked off, they were all inside the house, right?
MR. HIGGINS: Brian Albert, Jr.; Nicole; Brian; Matt and Jen.
MR. JACKSON: You all discussed the incident together, correct?
MR. HIGGINS: 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 and 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.
BY MR. JACKSON:
MR. JACKSON: Trying to figure out what to say, right?
MR. HIGGINS: No.
MR. JACKSON: And you were 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? Family amongst themselves and you being a friend. These were 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 P.D. and ask someone to come back?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained as to that form. You can ask it differently.
BY MR. JACKSON:
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 Ms. Read had said, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it. 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 that -- 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.
BY MR. JACKSON:
MR. JACKSON: What she actually said was, I hope I didn't hit him, correct?
MR. LALLY: Objection.
MR. HIGGINS: That's not what I heard, no.
JUDGE CANNONE: That will stand.
BY MR. JACKSON:
MR. JACKSON: Who did you ever tell this to?
MR. HIGGINS: I've reported that.
MR. JACKSON: That she said, I hit him?
MR. HIGGINS: 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 P.D. that; isn't that right?
MR. HIGGINS: No. I don't think that's what I said. No.
MR. JACKSON: You're as sure about that as you are about that 2:22 call, right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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; is that right?
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 P.D. 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 --
MR. HIGGINS: I don't believe I did, no. I believe there might have been a stop at Canton P.D. before I went home.
MR. JACKSON: As a matter of fact, you didn't just stop at Canton P.D. You spent the entire day at Canton P.D. 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 keycard, right?
MR. HIGGINS: I do have a keycard.
MR. JACKSON: And that keycard logs its swipes?
MR. HIGGINS: That's correct.
MR. JACKSON: So it logs where you go, access to and access inside the Canton P.D., correct?
MR. HIGGINS: Yes.
MR. JACKSON: When you got to Canton P.D. -- 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 I came back. I don't recall.
MR. JACKSON: Okay. So if the records indicate that you were there from 9:00-a.m.-ish to after 5:00 --
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 P.D., did you speak again to Brian Albert?
MR. HIGGINS: I don't remember.
MR. JACKSON: While you were at Canton P.D., did you speak again to Chief Berkowitz?
MR. HIGGINS: Most likely.
MR. JACKSON: While you were at Canton P.D., did you speak with Brian Albert's brother, Kevin Albert?
MR. HIGGINS: I don't believe so.
MR. JACKSON: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: That's a 176-page document. 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 logged by" --
JUDGE CANNONE: So don't read it out loud.
MR. HIGGINS: Oh, I'm sorry, Your Honor.
JUDGE CANNONE: Just do you recognize it?
MR. HIGGINS: Yes, I do.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: This appears to be a log of key swipes in and around Canton P.D., correct?
MR. HIGGINS: Yes.
MR. JACKSON: 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 P.D., 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: All right. It shows that you entered Canton P.D. 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: The second floor would make sense because I went in the building and then to the second floor.
MR. JACKSON: If I may have just a moment, Your Honor?
JUDGE CANNONE: Sure.
BY MR. JACKSON:
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 thereafter?
MR. HIGGINS: Not that I recall, no.
MR. JACKSON: But you remember by the time you got there that the scene had basically been cleared? There wasn't much of emergency vehicles, crime scene tape, nothing like that?
MR. HIGGINS: I didn't see fire trucks. I might have sawa cruiser. I can't be sure. I don't recall.
MR. JACKSON: But you're not sure about that even?
MR. HIGGINS: I'm sorry?
MR. JACKSON: You're not sure about even seeing a cruiser, correct?
MR. HIGGINS: Not 100 percent, no.
MR. JACKSON: You certainly were not contacted by a law enforcement who took your name and I.D. or anything like that?
MR. HIGGINS: No, no, no.
MR. JACKSON: You just parked and walked in the house?
MR. HIGGINS: Yes.
MR. JACKSON: Your Honor, may I approach one more time?
JUDGE CANNONE: Yes.
MR. JACKSON: I'd like to have that document marked as next in order. It represents Bates pages 2850 to 3016.
JUDGE CANNONE: All right. So marked for identification. Is there an agreement that this comes in, Mr. Lally?
MR. LALLY: There is not, no.
JUDGE CANNONE: So that's marked for identification.
(Whereupon, packet of documents re: key swipe records, Canton Police Department, January 29, 2022, was entered and marked "RR" for Identification.)
COURT REPORTER: That will be "RR" for Identification.
MR. JACKSON: May I proceed?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Mr. Higgins, if you will look at Bates page 3015, which actually is in order -- that's not in reverse chronological -- the second to the 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, this entry, at least?
MR. HIGGINS: 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 P.D. I mean, this is the entire log for 1/29, right?
MR. HIGGINS: Okay. But all I'm saying is just my name is next to that. I don't see any other names.
MR. JACKSON: Right.
MR. HIGGINS: Okay.
MR. JACKSON: So on 1/29/2022 -- I'm just trying to orient you -- at 1:27:52, access granted, Brian Higgins, rear entry to secure corridor, rear entry to secure corridor, correct?
MR. HIGGINS: Yes.
MR. JACKSON: 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: All right. 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?
MR. JACKSON: That's Bates page 2976. That's the bottom right-hand --
MR. HIGGINS: I see it. Yes.
MR. JACKSON: Look at the time entry for 9:23:39.
MR. HIGGINS: 9:23 and what?
MR. JACKSON: Thirty-nine.
MR. HIGGINS: And that's on 2976?
MR. JACKSON: It should be.
MR. HIGGINS: Give me the time again, please?
MR. JACKSON: Why don't we do it this way. May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: This is an exact copy.
MR. HIGGINS: Yes. There's times all over the place. My apologies.
MR. JACKSON: That's fine.
MR. HIGGINS: All right. Thank you.
MR. JACKSON: At 9:23:39 -- I'm sorry. Have you got that in mind?
MR. HIGGINS: I do. I see it.
MR. JACKSON: At 9:23:39, that shows that you were granted access to the sally port, to front exit, front entry to sally port, correct?
MR. HIGGINS: Yes.
MR. JACKSON: There is only one sally port at Canton P.D., correct?
MR. HIGGINS: Yes. And there is a door on each side of the sally port.
MR. JACKSON: Two bay doors, right?
MR. HIGGINS: Two bay doors on each side, yes.
MR. JACKSON: And then there is a personal pass-through door, as well?
MR. HIGGINS: Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
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 is also an entry, same page -- it should be right above that, 9:23:50 -- showing you were granted access from booking to sally port, as well, correct?
MR. HIGGINS: Page 2976?
MR. JACKSON: The same page.
MR. HIGGINS: Yes.
MR. JACKSON: It's about maybe six entries above. Six entries up. You'll look for time 9:23:50.
MR. HIGGINS: I see it. Yes.
MR. JACKSON: All right. And that shows that you were granted access to the sally port and then from sally port to booking, correct?
MR. HIGGINS: It says, booking to sally port, sally port to booking.
MR. JACKSON: Okay. So that's a key swipe of you either entering into the sally port from booking or from booking into the sally port, right?
MR. HIGGINS: Yes.
MR. JACKSON: Okay.
COURT REPORTER: Could you repeat the question?
MR. JACKSON: Of course. Of course.
(Whereupon, there was a brief pause.)
MR. JACKSON: May I inguire, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: I have no idea what the last question was. I'll see if I can make a new one up.
BY MR. JACKSON:
MR. JACKSON: At 9:23:50 in the morning, you were granted access, booking to sally port and sally port to booking, meaning you swiped the keycard in the door, going from booking to sally port?
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 P.D. 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. Does it refresh your recollection?
MR. HIGGINS: It would not be uncommon for me to move around Canton P.D. at various times and dates, 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 at 11:52?
MR. HIGGINS: Could have.
MR. JACKSON: Okay, and come back.
MR. HIGGINS: Yes.
MR. JACKSON: If there is a 2:05:56 entry, then obviously you're there, right?
MR. HIGGINS: If the card was swiped, I was there.
MR. JACKSON: I mean, you're not giving that card to anybody else?
MR. HIGGINS: No, I'm not.
MR. JACKSON: No way, right? Let's just look at 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 in the middle of the page.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: This might be a little easier.
BY MR. JACKSON:
MR. JACKSON: I'll highlight it for you.
MR. HIGGINS: I see it.
MR. JACKSON: Okay. So that would indicate that you were back at Canton P.D. at at least 2:05:56 and you were granted access, sally port 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. It's possible.
MR. JACKSON: Okay.
MR. HIGGINS: I mean, I don't recall 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. No.
MR. JACKSON: Do you remember that it was a 12-minute phone call?
MR. HIGGINS: No. 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 P.D.?
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.
JUDGE CANNONE: So I think the question was do you remember. Do you remember that?
MR. HIGGINS: Your Honor, 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: May I approach briefly?
JUDGE CANNONE: Yes.
MR. HIGGINS: Thank you.
BY MR. JACKSON:
MR. JACKSON: Just to close this loop, that appears to be your phone record, correct?
MR. HIGGINS: 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: So you had cleared the call about 3:22; is that right?
MR. HIGGINS: Yes.
MR. JACKSON: And then it shows a 3:24 phone call -- 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: May I approach.
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Does that refresh your 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: I mean, there was a lot going on that day. People were upset. And 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 --
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: If you'll look just below those phone calls to Kevin Albert and Brian Albert, there's 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 P.D. Were you doing that?
MR. LALLY: Objection.
JUDGE CANNONE: So I'll sustain the objection in that form. You can ask one part of that question.
MR. JACKSON: Sure.
BY MR. JACKSON:
MR. JACKSON: Were you getting any information from Canton P.D.?
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 P.D.?
MR. HIGGINS: No.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: But you were, in fact, on the phone with all of those interested parties throughout the day, you'll agree?
JUDGE CANNONE: You can answer that. There is no objection.
MR. HIGGINS: Yes. They're friends, and I was on the phone with them. Yes.
BY MR. JACKSON:
MR. JACKSON: And, sir, you were not on duty that day, correct?
MR. HIGGINS: No.
MR. JACKSON: You were 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 ina 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 are still having conversations with Kevin Albert at Canton P.D. while you're at Canton P.D., correct?
MR. HIGGINS: Not about this.
MR. JACKSON: And you're having conversations with Chief Berkowitz of Canton P.D. while you're at Canton P.D., correct?
MR. HIGGINS: I had conversations with them but not about this, no.
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: IT want to take you back for a second to a couple of other sally port 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.
MR. HIGGINS: 2885?
MR. JACKSON: 2885 and 2886. We will start with 2886 and then work backward.
MR. HIGGINS: Okay.
MR. JACKSON: The first entry is at 3:57:54.
MR. HIGGINS: 3:57:54. I see it.
MR. JACKSON: Brian Higgins, booking to sally port, correct?
MR. HIGGINS: It says, Brian Higgins, communication to pedestrian sally port, communication to pedestrian sally port.
MR. JACKSON: Look at the one just above it. That's 3:58:24. Look at 3:57:54. It's probably going to be just below it because it's reverse.
MR. HIGGINS: You said 3:57:54, correct?
MR. JACKSON: Correct.
MR. HIGGINS: That's what I just read.
MR. JACKSON: Got it. Look at five, six entries below it.
MR. HIGGINS: 3:57:36. I see it. Access granted, Brian Higgins, booking to sally port, sally port to booking.
MR. JACKSON: Then there is one more on page 2885. Look for 4:07:47.
MR. HIGGINS: 4:07:47?
MR. JACKSON: Correct.
MR. HIGGINS: I have it. Access granted, Brian Higgins, booking to sally port, booking to sally port.
MR. JACKSON: And there is no record in that document of you exiting, correct? That's just booking to sally port?
MR. HIGGINS: Yes. I don't -- yeah. There's no record. I don't know if --
MR. JACKSON: That's all. You've answered my question. There is no record of it, correct?
MR. HIGGINS: Not that I can see here, no.
MR. JACKSON: And you're aware that that's about 90 minutes before Karen Read's SUV was delivered to that sally port, correct?
MR. HIGGINS: No. I'm not aware of that.
MR. JACKSON: Are you aware that her car ended up in that sally port 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 sally port?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you see any other evidence in the sally port 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.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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. I did not see anything.
MR. JACKSON: Are you aware that at -- 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 P.D. 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 sally port around the same time you were, correct?
MR. HIGGINS: I don't recall that, no.
MR. JACKSON: But the records would reflect that, correct, the records that are in front of you?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You were in the sally port. The last time you were logged into the sally port, it's 4:07. Do you remember seeing Chief Berkowitz at sally port at 4:14?
MR. HIGGINS: No. And, if that says that I'm logged, that could be me cutting through.
MR. JACKSON: Mr. Higgins, all I'm asking you -- 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 sally port. We know that.
MR. HIGGINS: If I walked in --
MR. JACKSON: Correct?
MR. HIGGINS: -- I was cutting through. Yes.
MR. JACKSON: Right. Was Chief Berkowitz in the sally port 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 sally port, no.
MR. JACKSON: Was he there at 4:33?
MR. HIGGINS: I don't remember ever seeing Chief Berkowitz in the sally port.
MR. JACKSON: At 4:50?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. Let's move through this, please.
BY MR. JACKSON:
MR. JACKSON: Finally, was he there at 5:36:37 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: Do you remember Chief Berkowitz calling the front desk at 5:42 and saying, shut the barracks?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Do you remember any kind of call shutting the barracks, meaning shutting the sally port?
MR. LALLY: Objection.
JUDGE CANNONE: Do you remember that?
MR. HIGGINS: I don't remember anything like that, Your Honor.
JUDGE CANNONE: Okay. Next question.
BY MR. JACKSON:
MR. JACKSON: You didn't leave Canton P.D. 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 o'clock?
MR. HIGGINS: I don't recall what time I left.
MR. JACKSON: You're aware that there's video surveillance feeds in the sally port garage, correct?
MR. HIGGINS: That's correct, yes, around the building.
MR. JACKSON: Were you in the sally port 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 or --
MR. HIGGINS: I don't believe I was, no.
MR. JACKSON: You're aware that the video surveillance feed from the sally port garage at or around 5:36, the precise time when the car was delivered, is missing, right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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 at 6:16 p.m. that lasted about five minutes and 16 seconds?
MR. HIGGINS: No.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: If you'd look at the entries for 6:12 and 6:16 and see if that refreshes your recollection.
MR. HIGGINS: Are you referring to the --
MR. JACKSON: 6:12 and 6:16.
MR. HIGGINS: Okay. 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, at 6:16, that lasted five minutes and 15 seconds, correct?
MR. HIGGINS: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Are they telling you that taillight pieces had been found at the location?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Your Honor, may we approach briefly?
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Okay. So why don't you go ahead and state your objection on the record, Mr. Lally.
MR. LALLY: Number one, hearsay. Number two, he's asking about content of phone calls that he has already testified he doesn't remember having.
JUDGE CANNONE: What do you say, Mr. Jackson?
MR. JACKSON: It's not offered for the truth of the matter asserted but for the effect on the listener, as well as the state of mind of both declarants. Chief Berkowitz and Brian Albert both insisted on informing this witness completely and inappropriately about conduct that was being done at the crime scene at the time, and he was being informed and updated constantly. He is a witness. He is not a law enforcement officer. In that capacity, it's completely inappropriate that those lead the biased investigation, literally infusing or inviting witnesses into the inner workings of an investigation.
JUDGE CANNONE: The objection is sustained. He denied all that and said he didn't remember having these conversations.
MR. JACKSON: Okay.
JUDGE CANNONE: So sustained.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: So 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 taillights 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?
MR. HIGGINS: No.
MR. JACKSON: Were you providing your friend, Brian Alberts (sic) -- 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: May I have just a moment, Your Honor?
JUDGE CANNONE: Sure.
BY MR. JACKSON:
MR. JACKSON: 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 of the date, but it was several days after. Yes.
MR. JACKSON: I'm sorry. I said February 1st. It may have been February 3rd.
MR. HIGGINS: I don't know the date, but we were into February.
MR. JACKSON: Where did that interview take place?
MR. HIGGINS: Sharon, Mass.
MR. JACKSON: I'm sorry?
MR. HIGGINS: Sharon, Mass.
MR. JACKSON: At what location?
MR. HIGGINS: I'm sorry?
MR. JACKSON: What location?
MR. LALLY: Objection.
JUDGE CANNONE: I'll see counsel very quickly.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Is this at the home of his lawyer?
MR. JACKSON: Correct.
MR. LALLY: Yes.
JUDGE CANNONE: Why do you need the location?
MR. JACKSON: Because that is absolutely inappropriate. This witness was being given special dispensation, special treatment that would never happen in any investigation I've ever heard of or that the Court has ever heard of. You investigate a witness in a homicide investigation who was in the house at the time a person died and you go to their lawyer's house? That is a special treatment, and I think the jurors are entitled to weigh and balance that.
JUDGE CANNONE: Was his lawyer sick at the time?
MR. LALLY: I believe so, yes.
MR. JACKSON: Says who? How do we know that?
JUDGE CANNONE: Because I read who his lawyer is. He was very ill.
MR. JACKSON: Well, I wouldn't know that. I'm not trying to be insensitive.
JUDGE CANNONE: No.
MR. JACKSON: I think he can say it. I think that is --
JUDGE CANNONE: Not at this point. I'll think about it but not right now.
MR. JACKSON: Okay. By the way, I am not going to finish. I thought I was going to finish but -- may I have just a moment?
JUDGE CANNONE: Yes.
(Whereupon, there was a discussion off the record.)
MR. JACKSON: I'm going to hurry along. I'm going to turn up the -- I'm going to try to finish by 4:30.
JUDGE CANNONE: All right. And then is one of your colleagues going to stand in for the redirect on Tuesday?
MR. JACKSON: If it's necessary, yes.
JUDGE CANNONE: Is there redirect?
MR. LALLY: Yes.
JUDGE CANNONE: Okay. So I'll need a colloquy with your client here at sidebar. I'll excuse the jurors first. I've got to let them go at 4:30.
MR. JACKSON: Understood. I totally understand.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: The interview was not at a 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, Sergeant Bukhenik. And of course I've talked to Brian Albert because of what took place.
MR. JACKSON: Mr. Higgins, that was a yes-or-no question.
MR. HIGGINS: Of course I've talked to him, yes.
MR. JACKSON: Okay. And the answer is yes, right? Can we agree?
MR. HIGGINS: The answer is yes.
MR. JACKSON: 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.
MR. JACKSON: And discussed this case as you earlier described in your testimony?
MR. HIGGINS: I discussed what -- we were trying 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 understand 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, Your Honor.
JUDGE CANNONE: Well, is there a reason, or why don't you go ahead and explain.
MR. HIGGINS: Well, I feel like you're trying to make it sound like something it wasn't. It --
BY MR. JACKSON:
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 at 34 Fairview?
MR. HIGGINS: I discussed 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: Yes. That's correct.
MR. JACKSON: You had already spent an enormous amount of time at Canton P.D. We've just gone through those records; is that right?
MR. HIGGINS: I have been at Canton P.D. Yes.
MR. JACKSON: And you had been able to talk to -- you had access, at least, to all of the officers, correct?
MR. HIGGINS: What do you mean --
MR. JACKSON: Anybody that was coming and going at Canton P.D.
MR. HIGGINS: Access for what purpose?
MR. JACKSON: Just to walk by them, to hear what they were saying, to see what they were doing.
MR. HIGGINS: That's not what I was doing, no.
MR. JACKSON: I'm not accusing you of doing anything. I'm saying you had access to the individuals within the Canton P.D., correct?
MR. HIGGINS: To interact if needed, yes.
MR. JACKSON: And, very obviously, you had access to the sally port?
MR. HIGGINS: I had access, yes. And that's a cut-through I used all the time.
MR. JACKSON: 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?
MR. LALLY: Objection.
MR. JACKSON: I'll rephrase that. I'll rephrase it.
BY MR. JACKSON:
MR. JACKSON: 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 to formally -- I'm sorry -- to personally inform you that he had personally found taillight at 34 Fairview; is that right?
MR. HIGGINS: He did tell me that, yes.
MR. JACKSON: And, to be clear, that's the same Ken Berkowitz that you were with in the sally port?
MR. HIGGINS: I don't recall being in the sally port with him, no.
MR. JACKSON: What did you do with that information when you learned from Chief Berkowitz that he, personally, sawa 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 the 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 percent 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. Yes.
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 the both of them. I didn't provide any information to anybody. Information was provided to me.
MR. JACKSON: (As read), "Well, what you actually said was, it's 100 percent probable that I told him about that. Yes. One hundred percent. I'm not hiding that fact. But you're asking me if I recollect specifically. I know I called him after that phone call."
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: All right. Too many facts. Go slowly.
MR. JACKSON: Sure.
BY MR. JACKSON:
MR. JACKSON: You said (as read), "Yes, one hundred percent," correct?
MR. HIGGINS: In that testimony, I did, yes.
MR. JACKSON: And then in that testimony, you went on to say (as read), "I'm not hiding that fact. But you're asking me if I recollect specifically," correct?
MR. HIGGINS: I don't have it in front of me. That's what you're telling me.
MR. JACKSON: You went on to say (as read), "I know I called him after that phone call," correct?
MR. HIGGINS: I don't know.
MR. JACKSON: And you went on to say (as read), "If that's when Chief Berkowitz told me. If I -- listen, I didn't do anything wrong in this," end quote. That was your statement in the prior hearing, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I'm going to strike the end.
MR. JACKSON: Your Honor, may I?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: You said you don't recall that entire testimony, right?
MR. HIGGINS: 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 a transcript of your answer?
MR. HIGGINS: Is this it right here?
MR. JACKSON: That's it, in pink.
MR. HIGGINS: T'il read it.
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: 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 (as read), "If that's what Chief Berkowitz told me. If I -- listen, I didn't do anything wrong in this," correct?
MR. HIGGINS: That was the statement I made, yes.
MR. JACKSON: Why did you say, listen, I didn't do anything wrong in this?
MR. LALLY: Objection.
JUDGE CANNONE: Why did you say that?
MR. HIGGINS: Because I felt they were being accusatory, and I was trying to explain what was going on. And what I had said over that was, I can't -- I believe what I said, something to the effect, I can't be 100 percent positive. And then when I -- 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. 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.
MR. JACKSON: Thank you.
BY MR. JACKSON:
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?
MR. LALLY: Objection.
JUDGE CANNONE: Is that correct?
MR. HIGGINS: Absolutely not correct. That's wrong.
BY MR. JACKSON:
MR. JACKSON: And you knew that was going to look like collusion, which is why you said, look I didn't do anything wrong in this, correct?
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained.
BY MR. JACKSON:
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: All my career. Yes.
MR. JACKSON: You've probably even written search warrants for them and 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.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: If you wanted to just get rid of information on your cell phone that would be unrecoverable, what steps might you take?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Do you know how to get rid of information on your cell phone?
MR. LALLY: Objection.
JUDGE CANNONE: That's allowed. You can answer that.
MR. HIGGINS: Do I know how to get rid of information? I mean, I think there's different ways. Possibly you could wipe your phone.
BY MR. JACKSON:
MR. JACKSON: Anything else?
MR. HIGGINS: You could wipe your phone. Factory reset.
MR. JACKSON: Factory reset might be one. Wiping your phone. Taking the SIM card out?
MR. HIGGINS: I don't know that the SIM card is going to take information that's on the phone out.
MR. JACKSON: So that might be one avenue. You could break the SIM card in half or snap it, correct?
MR. HIGGINS: You could, yes.
MR. JACKSON: You know that the SIM card stores an enormous amount of data? The phone's just a brick, right?
MR. HIGGINS: No. I don't know that.
MR. JACKSON: You can 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: You might even consult with some kind of an expert to help learn how to permanently erase things from a phone like a forensics expert, for instance?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: 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 P.D. You'd agree with that, correct?
MR. HIGGINS: No. You said I spent much of the morning at Brian Albert's house?
MR. JACKSON: Correct. In other words, you went over at whatever it was, 7:50, 8:00 o'clock, something like that, and then until about 9:00?
MR. HIGGINS: No. I got over there around 7:00 o'clock. And I was there less than an hour. I wasn't there most of the day.
MR. JACKSON: Okay.
MR. HIGGINS: I never went back there.
MR. JACKSON: So you spent time at Brian Albert's house and then much of the rest of the day at Canton P.D., 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: 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 is the FBI regional computer forensics lab, correct?
MR. HIGGINS: Yes.
MR. JACKSON: That's how I got my mistake. I apologize.
MR. HIGGINS: Well, I just make sure the record is reflected correctly.
MR. JACKSON: You and me both. So you reflected it correctly. So Matt Kelch is an ATF agent who works at the FBI computer -- 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.
JUDGE CANNONE: In that form, I'll sustain it.
BY MR. JACKSON:
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 decide 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.
JUDGE CANNONE: The objection is sustained, but you've already answered. I'll strike that answer. The second question you can answer. Was this in connection to any case you were working on?
MR. HIGGINS: No, Your Honor.
JUDGE CANNONE: Next question.
BY MR. JACKSON:
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?
MR. LALLY: Objection.
JUDGE CANNONE: Is that why you did it?
MR. HIGGINS: No. I did it because I wanted to provide it to law enforcement, Your Honor.
JUDGE CANNONE: Okay. Next question.
BY MR. JACKSON:
MR. JACKSON: 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 ATF agent?
MR. HIGGINS: What's the question?
MR. JACKSON: You knew it was an option to just hand your phone over, just pick it up and give it to them?
MR. HIGGINS: And there was also an option to provide it to them, as well.
MR. JACKSON: 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 as to that form.
BY MR. JACKSON:
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 what they refer to as a kiosk on the first floor over at FBI.
MR. JACKSON: And that's --
MR. HIGGINS: And all local P.D.s, law enforcement have access to that.
MR. JACKSON: And that's obviously --
MR. HIGGINS: It's an unrestricted area. You can be in there, as I understand it, unaccompanied if you are 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, if you will, 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.
MR. JACKSON: And that machine belonged to the FBI. It didn't belong to you; is that right?
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?
MR. LALLY: Objection.
JUDGE CANNONE: So I need to see you. I know this is time-consuming. I need to see you. We may as well use this time with me asking counsel questions.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Again, I don't know anything about the proffer. Is that what this is about?
MR. JACKSON: No. This is the information that was presented at the Federal Grand Jury.
JUDGE CANNONE: Right. I read it. It has nothing to do with his proffer?
MR. JACKSON: No, no. What I'm getting at is he committed a crime. It is a federal crime to use federal resources for personal gain. That's exactly what he just admitted he did.
JUDGE CANNONE: So he has a lawyer here, right, who he should be able to consult as to whether he's going to take the Fifth on that.
MR. JACKSON: It's on him. That's right. I mean, it's on him. I want to ask one more question; whether or not he knows it's a crime to do what he did. And he can choose not to answer it.
JUDGE CANNONE: I know you're ina real hurry to get this done.
MR. JACKSON: That's okay. I want to --
JUDGE CANNONE: I need to get his lawyer in here.
MR. JACKSON: Okay.
JUDGE CANNONE: Okay?
MR. JACKSON: Okay.
JUDGE CANNONE: Do you know where his lawyer is?
MR. LALLY: In the building, but --
JUDGE CANNONE: I have to take a recess in order to consult with the lawyer. I'm going to ask him whether he committed a crime. Why have a lawyer if you can't consult with him on this?
MR. JACKSON: That's a good point.
JUDGE CANNONE: So we need to take a recess.
MR. JACKSON: Yes, Your Honor.
JUDGE CANNONE: Very quickly.
(Whereupon, the sidebar conference is paused.)
JUDGE CANNONE: Jurors, I know we are leaving at 4:30. We need a quick five-minute recess.
(Whereupon, the jury is escorted from the courtroom for a brief recess.)
(Whereupon, the sidebar conference continued.)
JUDGE CANNONE: Will you tell the lawyer what the question is that you're asking.
MR. JACKSON: That he's admitted that he utilized federal resources for personal gain. That's a violation of --
JUDGE CANNONE: I mean, how is the mechanism -- is Mr. Lally going to tell the lawyer what are you going to say? Do we bring him in and you say these are your questions?
MR. JACKSON: I think that -- I don't think that the lawyer should be given a preview of what we are going to Say.
JUDGE CANNONE: Well, he's got to know that his client is going to be asked a question about committing a crime.
MR. JACKSON: I think the lawyer should sit right next to him, and I'll just have to put the question up: Did you say this? I'm sorry. Did you do this? Did you realize that that was a crime? I think he has already -- that that cat is sort of already out of the bag.
JUDGE CANNONE: It's not quite yet.
MR. JACKSON: Well, the conduct of this. I mean, that's why I was asking him. I didn't know how he did this. I had no idea that he actually went to a federal facility and used a computer. That's the crime.
MR. LALLY: In the Federal Grand Jury minutes, number one; number two, I don't really understand what the relevancy of this is as it applies to this case.
MR. JACKSON: He is willing to commit a crime in order to hide his data in the phone that he ultimately destroyed. That's going way over and above just, no, I don't have my phone.
JUDGE CANNONE: So you don't have to explain to Mr. Lally. All right? We are wasting time here. If it's already in the Federal Grand Jury minutes, I want the lawyer to know that you're about to question him on this.
MR. JACKSON: Yes, Your Honor.
JUDGE CANNONE: Again, what good is a lawyer if it's not for that?
MR. JACKSON: I agree.
JUDGE CANNONE: So do you have where in the Federal Grand Jury minutes it is, Mr. Lally? I'm trying to expedite this for your sake.
MR. JACKSON: Thank you. And what I would suggest is that if we bring the lawyer in, I'll make an offer of proof.
JUDGE CANNONE: That's great.
MR. JACKSON: That will just be easier.
JUDGE CANNONE: All right.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: We may as well use this time with me asking counsel questions.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: As soon as the lawyer comes in, we will break. If you don't finish your cross today, I will bend the rule about one lawyer/one question. So if it's important to you that you're here on Tuesday, I will let one of your colleagues pick up later.
MR. JACKSON: I appreciate that. It is important. It is just personal to me, but I deeply do appreciate it.
JUDGE CANNONE: All right. I'm trying to accommodate you. There are just so many steps that have been in court today, but this one is critical. Were it not for the fact that I am trying to accommodate you, I would break for the weekend.
MR. JACKSON: Yes.
MR. LALLY: Understood.
JUDGE CANNONE: We may still have to. Counsel needs to speak to his client. All right. So we'll all stick around after 4:30. I apologize to the staff, and I will have a colloguy with your client at sidebar.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded anda brief recess is taken.)
(Court resumes.)
(Defendant present. Jury not present.)
JUDGE CANNONE: All right. Counsel, why don't you come on over, please, Mr. Connolly. If you would just stand next to your client. Mr. Jackson is going to make an offer of proof for the question he's about to ask your client or a couple of questions he's about to ask your client. It doesn't make any sense to me that somebody has counsel and their counsel is not aware of the potential issue. So you will hear the offer of proof. I'll let you speak to Mr. Higgins before this actually happens before the jury. Please identify yourself.
MR. CONNOLLY: Yes. My name is William Connolly. It's spelled C-O-N-N-O-L-L-Y.
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: 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; He 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 over 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 entirely -- I disagree with you. I don't think it's reached that level. His testimony was that he went into 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 intend to ask this witness now?
MR. JACKSON: Whether he is aware that under 5 CFR 2635.702 it is a federal offense 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 FBI agent or an ATF agent cannot use federal resources for personal gain. The fact that he contacted an ATF agent, the fact that he utilized a 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 offense.
JUDGE CANNONE: All right. So those questions are going to be asked. I don't know if 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 of speaking privately with your client in the back room there. Can you do it in short order, or do you need more time?
MR. CONNOLLY: I can do it in about 10 seconds, Your Honor.
JUDGE CANNONE: Okay.
MR. CONNOLLY: Sure, if you feel the need. I'd like to talk to him.
JUDGE CANNONE: So why don't you go back and talk to him. We'll start getting the jury lined up.
(Whereupon, there was a brief pause.)
MR. CONNOLLY: Thank you, Your Honor.
JUDGE CANNONE: All right. So we are ready to proceed?
MR. JACKSON: I am, Your Honor. Thank you.
JUDGE CANNONE: All right. Let's bring the jurors in, please.
(Whereupon, the jury entered the courtroom.)
JUDGE CANNONE: We have very few minutes left, Mr. Jackson.
MR. JACKSON: Understood.
BY MR. JACKSON:
MR. JACKSON: Mr. Higgins, you indicated that the phone was hooked up to some sort of machine 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: Are you aware of that, sir?
MR. HIGGINS: No, Your Honor.
JUDGE CANNONE: Okay.
BY MR. JACKSON:
MR. JACKSON: Are you aware that under 5 CFR 2634.704, it's a felony, quote --
MR. LALLY: Objection, Your Honor. Asked already.
JUDGE CANNONE: Go ahead and finish your question.
BY MR. JACKSON:
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?
JUDGE CANNONE: That objection is sustained.
BY MR. JACKSON:
MR. JACKSON: Sir, notwithstanding those regulations, you utilized the services of Matt Kelch as a friend anda colleague but utilizing federal resources to pull information off your phone, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained as to that form.
BY MR. JACKSON:
MR. JACKSON: In fact, you were successful in getting information off your phone, which is the texts that you turned over to the Commonwealth, correct?
MR. LALLY: Objection.
JUDGE CANNONE: In that form, you're almost there, Mr. Jackson. That form was improper.
BY MR. JACKSON:
MR. JACKSON: The information 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. Tf I could explain?
JUDGE CANNONE: Sure.
MR. HIGGINS: He walked me through on 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.
BY MR. JACKSON:
MR. JACKSON: And then you did that?
MR. HIGGINS: I did do that. That's correct.
MR. JACKSON: And 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 is 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. I asked you what you did.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You destroyed the phone by removing the SIM card and breaking it in half, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you do that? Did you pull the SIM card out?
MR. LALLY: Objection.
JUDGE CANNONE: Did you pull the SIM card out of your phone?
MR. HIGGINS: Your Honor, to the best of my recollection, if I did take the SIM card out, I would have -- 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.
BY MR. JACKSON:
MR. JACKSON: Well, 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. Mr. Jackson, that's it.
MR. JACKSON: Your Honor --
JUDGE CANNONE: One more question.
MR. JACKSON: I can do this in 30 seconds, I think.
BY MR. JACKSON:
MR. JACKSON: 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.
MR. JACKSON: Your Honor, I can make a quick offer of proof. That's exactly what it was.
JUDGE CANNONE: Were you aware of that? Was that your understanding?
MR. HIGGINS: What's the guestion exactly, Your Honor? I'm sorry.
JUDGE CANNONE: Ask the question again.
MR. JACKSON: Sure.
BY MR. JACKSON:
MR. JACKSON: Sure. 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 on September 30th?
MR. HIGGINS: I was served an order. Yes. That's correct.
MR. JACKSON: Okay. And isn't it true that in another hearing, you explained that on September 29th, the day before you claim you got notice, you changed phone carriers and changed phone numbers?
MR. HIGGINS: And I maintained the phone.
MR. JACKSON: Until 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.
BY MR. JACKSON:
MR. JACKSON: Did you do that in October? Did you destroy that phone?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you pull the SIM card out of your phone, Mr. Higgins?
JUDGE CANNONE: Did you?
MR. HIGGINS: It's possible that I did. I believe that's how I've testified, yes.
BY MR. JACKSON:
MR. JACKSON: You testified --
MR. HIGGINS: It's possible that if I took it out that it was either cut or broken.
MR. JACKSON: It's not just possible that --
MR. HIGGINS: And that would have been after the date the order was already denied.
MR. JACKSON: Mr. Higgins --
JUDGE CANNONE: Okay. Mr. Jackson --
MR. JACKSON: I have one guestion left, one question.
BY MR. JACKSON:
MR. JACKSON: Did you --
MR. JACKSON: Mr. Lally is already standing. I haven't even started.
JUDGE CANNONE: Have a seat, Mr. Lally. Go ahead. Last question.
BY MR. JACKSON:
MR. JACKSON: Mr. Higgins, very simply, and then we are done, did you remove the SIM card for that phone, drive onto a military base, throw the SIM card into one dumpster and the phone ina different dumpster?
MR. HIGGINS: That is not correct.
MR. JACKSON: Did you testify that that's what you did?
JUDGE CANNONE: That's one question, Mr. Jackson. All right. Folks, that's it for today. We will see you Tuesday. Have a great long weekend. Please, it's 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 and let us know. We will see you on Tuesday. Tuesday will be a full day.
(Whereupon, the jury exited the courtroom and is excused until Tuesday.)
JUDGE CANNONE: I will see counsel at sidebar. Bring your client, Mr. Jackson. Bring your client.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: I will see counsel at sidebar.
COURT CLERK: Counsel to sidebar.
JUDGE CANNONE: Bring your client, Mr. Jackson. Bring your client.
COURT REPORTER: I need complete quiet in the courtroom, please. We are still on the record. KAREN READ, Sworn
JUDGE CANNONE: So these are our microphones that you need to make sure you're heard in. Would you tell me your full name, please?
MS. READ: Karen Read.
JUDGE CANNONE: How old are you, Ms. Read?
MS. READ: Forty-four.
JUDGE CANNONE: How far have you gone in school?
MS. READ: I have a master's degree.
JUDGE CANNONE: In the last twenty-four hours, have you had any drugs or alcohol that might affect your judgment here today?
MS. READ: No.
JUDGE CANNONE: Are you aware of any mental illness that you might have or that you have suffered from in the past?
MS. READ: No.
JUDGE CANNONE: So you are represented by counsel in this case, correct?
MS. READ: Yes.
JUDGE CANNONE: And Mr. Jackson, by all accounts, seems to be your lead counsel. Is that your view of it?
MS. READ: Yes.
JUDGE CANNONE: So Mr. Jackson has informed me that he will not be here on Tuesday. It is the only day we are meeting next week. Are you aware that he will not be here?
MS. READ: Io am.
JUDGE CANNONE: Are you aware that this is a critical juncture in your case?
MS. READ: Yes.
JUDGE CANNONE: And that we are ready to go forward and, indeed, this witness, Mr. Higgins, will be on the stand first thing Monday morning. I mean Tuesday morning.
MS. READ: Tuesday.
JUDGE CANNONE: Are you aware of that?
MS. READ: Yes. My whole team is.
JUDGE CANNONE: I could order Mr. Jackson to be here Tuesday morning.
MS. READ: It isn't necessary.
JUDGE CANNONE: And so this is something that you've thought about?
MS. READ: Yes.
JUDGE CANNONE: You've talked to your lawyers about it?
MS. READ: Yes.
JUDGE CANNONE: Whose decision is it about whether Mr. Jackson is here on Tuesday to continue representing you with this witness who is still on the stand? Is it your decision?
MS. READ: It is my decision.
JUDGE CANNONE: And you realize you can't come back later and say, gee, I made a bad mistake. I wish I never did that, and --
MS. READ: I would never do that.
JUDGE CANNONE: Okay. Mr. Jackson, is there anything else you think I should ask her?
MR. JACKSON: No, Your Honor. Thank you.
JUDGE CANNONE: Mr. Lally, I don't know if you heard my questions. Is there anything else you think I need to ask Ms. Read?
MR. LALLY: No.
MR. JACKSON: Thank you.
JUDGE CANNONE: All right. Thank you very much.
MR. JACKSON: I appreciate it, Your Honor.
JUDGE CANNONE: So your client can go back, but I want to talk to counsel for a minute. Ms. McLaughlin, why don't you come over here. So does the defense have anymore with this witness?
MR. JACKSON: Yes. The only thing I didn't get to do because of the time constraint covers the federal grand jury transcript that showed that he just lied. And I just need to --
JUDGE CANNONE: I need more specifics about that. What is in the federal grand jury?
MR. JACKSON: He said in front of the grand jury that he took his phone. He removed the SIM card. He broke it in half or he cut it in half. He couldn't remember. He drove onto a military base. He threw one part of the SIM card into one receptacle or dumpster, threw another part of it in another dumpster. Then he left the base.
JUDGE CANNONE: Okay.
MR. JACKSON: That was his testimony. But he just said, no, I would never do that.
JUDGE CANNONE: No. I think he said he wasn't -- I think it was I don't remember doing that, if I had done it.
MR. JACKSON: Maybe.
JUDGE CANNONE: So who is going to be taking your place Tuesday morning?
MR. JACKSON: We haven't even talked about that.
JUDGE CANNONE: I need to know.
MR. JACKSON: David.
JUDGE CANNONE: All right. So you have a very short bit of time left?
MR. JACKSON: Very. I mean, literally two, three minutes. If it were me, it's two or three minutes.
JUDGE CANNONE: Okay.
MR. YANNETTI: I'll do the same.
JUDGE CANNONE: All right. Who are the other witnesses that you anticipate on Tuesday?
MR. LALLY: In large part, I don't know. I would say it would certainly include Dr. Rice and Dr. Faller from Good Samaritan and Nicholas Roberts from the office of alcohol testing.
JUDGE CANNONE: So you intend to put that evidence in on Tuesday?
MR. LALLY: Yes. I'll have other witnesses. I can certainly let counsel and the Court --
MR. YANNETTI: I would like to know --
JUDGE CANNONE: I'm sorry. Only one at a time. It's been a very long day, and our court reporter has been doing a phenomenal job, far beyond what is expected of her. So one at a time. What were you saying?
MR. LALLY: So all I was saying is there will be other witnesses. I need to figure out schedules on that, and I can certainly let counsel and the Court know that well in advance of Tuesday. I just don't know.
JUDGE CANNONE: Okay. Do you anticipate the children may testify on Tuesday?
MR. LALLY: Possibly.
JUDGE CANNONE: All right. I've issued an order that the media cannot cover the children's testimony. I think you all saw that weeks ago.
MR. JACKSON: We did.
JUDGE CANNONE: And there is no objection to that order, correct?
MR. YANNETTI: No objection.
JUDGE CANNONE: Everybody is shaking their head. The record doesn't pick up the shaking of the head.
MR. JACKSON: No objection.
MR. LALLY: No.
JUDGE CANNONE: All right. We will see you Tuesday, and we'll see you the following week.
MR. JACKSON: Thank you.
MR. YANNETTI: Thank you.
MR. LALLY: Thank you, Your Honor.
(Whereupon, the sidebar conference concluded, and the Court adjourned at 4:45.)