Commonwealth v. Read — Trial ArchiveMichael Proctor - Cross (Part 1)
203 linesJUDGE CANNONE: All right. So, just before you start — we're trying to figure out scheduling at this time. I'm going to need time with the lawyers and witnesses, trying to work all that out. But as it looks right now, I thought it was going to interfere with another day this week. As it looks right now it may not — at the most it will be half an afternoon or something, maybe on Friday. But it does now look good that we'll be able to continue with this. We're out tomorrow, but Wednesday, Thursday, Friday will be full days, and we'll be able to keep moving. All right. All right, Mr. Jackson — go right ahead.
MR. JACKSON: Thank you. Trooper Proctor — in the summer of 2022, August 17th specifically, you were sitting at your desk, presumably alone at your office, at about 10 p.m. at night, going through my client's personal cell phone, correct?
MR. PROCTOR: Yes, sir.
MR. JACKSON: As a matter of fact, you were sitting there texting with your friends and colleagues at Massachusetts State Police about you going through her personal cell phone, is that right?
MR. PROCTOR: Correct, sir.
MR. JACKSON: And that included Trooper DiCicco, is that right?
MR. PROCTOR: DiCicco. Yes, sir.
MR. JACKSON: Trooper Fanning, Trooper Bukhenik, Trooper Moore, and Trooper Kat— Kakowski?
MR. PROCTOR: Kakowski.
MR. JACKSON: Tell me that again.
MR. PROCTOR: Kakowski.
MR. JACKSON: Kakowski. Yes, sir. All right — all the consonants are silent. Fair enough. Trooper Fanning and Trooper Bukhenik are your supervisors?
MR. PROCTOR: Yes.
MR. JACKSON: And you were bragging to all five of them that you were going through Karen Read's cell phone about 9:45 at night? Objection.
JUDGE CANNONE: I'll allow it.
MR. PROCTOR: No, I wasn't bragging, sir.
MR. JACKSON: How did you refer to Miss Read in that text exchange where you informed them that you were going through her phone?
MR. PROCTOR: I used regrettable language. Uh, "going through his retarded client's phone." Right. Now you were showing a
MR. JACKSON: — photograph of my colleague Mr. Yannetti, correct?
MR. PROCTOR: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Same document — Your Honor, I think the court has the copy that I was going to use. I thought I gave it back to you. You'd received a photograph? Actually, Your Honor, if I could, I would ask that this document be marked as next in order, assuming the witness verifies its authenticity.
JUDGE CANNONE: Go ahead.
MR. JACKSON: Do you recognize this document?
MR. PROCTOR: I do, sir.
MR. JACKSON: Same document — a copy of the same document that you were shown by Mr. Yannetti, correct? to ADA LALLY: Mr. L— I've done that twice, Mr. L—
MR. PROCTOR: Correct.
MR. JACKSON: All right. Is that a true and accurate reflection of the text messages that you were exchanging with — Chris Moore, Jeff Kakowski, John Fanning, DiCicco, and Yuri Bukhenik?
MR. PROCTOR: Yes.
MR. JACKSON: I'd ask this be marked.
JUDGE CANNONE: Any objection? [exhibit marking/sidebar exchange — partially inaudible] I would ask you to give it back to the witness, please.
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Trooper Proctor, Trooper DiCicco had sent you a photograph of my colleague Mr. Yannetti, correct?
MR. PROCTOR: Yes.
MR. JACKSON: Because of a technical issue, I'm not going to display it on the television. May I display this hard copy briefly?
JUDGE CANNONE: Sure.
MR. JACKSON: Thank you. You see that, Trooper?
MR. PROCTOR: I do, sir.
MR. JACKSON: Is that the photograph that you received?
MR. PROCTOR: Yes.
MR. JACKSON: Is that what you referred to on direct — examination with Mr. Lally, about receiving a photograph of Mr. Yannetti, correct?
MR. PROCTOR: Correct.
MR. JACKSON: And then your response was what?
MR. PROCTOR: "I hate that man. I truly hate that man."
MR. JACKSON: Actually, your response was "I'm going through his retarded client's phone right now," correct?
MR. PROCTOR: Yes — after the picture, sir.
MR. JACKSON: Yes. Who's the retarded client?
MR. PROCTOR: I was referring to Miss Read — again, unprofessional.
MR. JACKSON: I'm asking who you were referring to. You've got an explanation. Who was it you were referring to as retarded?
MR. PROCTOR: Miss Read. Karen Read.
MR. JACKSON: The woman sitting to my left?
MR. PROCTOR: Yes, sir.
MR. JACKSON: The subject of your investigation, as a professional, correct?
MR. PROCTOR: Yes, sir.
MR. JACKSON: As an unbiased, objective investigator — the person that you were investigating — you — referred to your bosses as retarded, correct?
MR. PROCTOR: Again, poor language on my part.
MR. JACKSON: Poor language is one way to put it. Completely offensive is another way to put it, right?
JUDGE CANNONE: Jackson, I've got to sustain that. Mr. Jackson —
MR. JACKSON: After you referred to my client as retarded, then you decided to make a comment about Mr. Yannetti, her lawyer, correct?
MR. PROCTOR: Correct.
MR. JACKSON: And what did you say about Mr. Yannetti?
MR. PROCTOR: "I hate that man. I truly hate that man. I hate that man. I truly hate him."
MR. JACKSON: Mm-hmm. Correct?
MR. PROCTOR: Correct.
MR. JACKSON: You didn't say "I dislike him," "disagree with him" — you said "I hate him," correct?
MR. PROCTOR: Correct, sir.
MR. JACKSON: That's a visceral response to someone who's just doing a job, correct?
JUDGE CANNONE: Jackson, sustained. You can ask it differently.
MR. JACKSON: Sure. Let me ask it this way: were you upset, or annoyed, or pissed off that Karen Read had gotten representation — legal representation to represent her?
MR. PROCTOR: No, not at all. That's her right.
MR. JACKSON: Well, let me ask you this. In August of 2022, you said you absolutely hate him, correct?
MR. PROCTOR: I don't — if I used "absolutely" — I didn't use "absolutely," sir. I used "truly."
MR. JACKSON: Correct. "Truly," yes. How do you feel about him now, sitting right there?
MR. PROCTOR: I still don't care for him.
MR. JACKSON: Now, right?
JUDGE CANNONE: I'll let it stand.
MR. JACKSON: What did you tell your colleagues that you were looking for as you sat at almost 10 p.m. at night on a Wednesday night, August 17th, 2022, looking through Karen Read's
MR. PROCTOR: I didn't tell them I was looking through anything. They knew I was going through Miss Read's phone. I provided an inappropriate joke as an update. They knew I was going through location data, text messages, Google searches. But like I mentioned earlier, I had —
MR. JACKSON: Trooper Proctor — none of that really professional-sounding stuff ended up in your comments to your bosses, did it?
MR. PROCTOR: Again, it was a poor joke —
MR. JACKSON: Yes or no — it did not?
MR. PROCTOR: No, it did not.
MR. JACKSON: As a matter of fact, what did you write after you talked about going through the "retarded client's phone"?
JUDGE CANNONE: Jackson, I'll allow it.
MR. PROCTOR: "No nudes so far."
MR. JACKSON: "No nudes so far," correct?
MR. PROCTOR: Correct.
MR. JACKSON: You said that to your bosses?
MR. PROCTOR: Yes, sir.
MR. JACKSON: You were looking for naked photographs of Miss Read on a Wednesday night as you sat in your office at 9:44 p.m., correct?
MR. PROCTOR: No, not correct.
MR. JACKSON: Let me ask you a question. Have you ever — ever — looked for naked photos of a male suspect that you were investigating?
MR. PROCTOR: I don't look for naked photos on anyone's phones.
MR. JACKSON: But you said you were looking for nudes of Miss Read.
MR. PROCTOR: Like I said, Mr. Jackson, it was an inappropriate joke.
MR. JACKSON: So this is a citizen — she's a woman you were supposed to be objectively investigating. Does your text message to your colleagues at Massachusetts State Police reflect an objective investigation of a citizen?
MR. LALLY: Objection.
JUDGE CANNONE: You can get part of that question and ask it again.
MR. JACKSON: Do you believe that your text messages were reflective of an objective investigator?
JUDGE CANNONE: Jackson, I'll allow that.
MR. JACKSON: Do you believe that, Trooper Proctor?
MR. PROCTOR: I believe poor jokes and unprofessional language have no bearing on the integrity and the facts and physical evidence of this case.
MR. JACKSON: It's not that they don't have any bearing on the facts and integrity — it's that they have no place in a professional investigation, because it shows bias, right?
JUDGE CANNONE: Jackson, I have to sustain that as asked. Go ahead and ask it differently, Mr. Jackson.
MR. JACKSON: You weren't so much objectively investigating Karen Read as objectifying her, correct?
JUDGE CANNONE: Jackson, I'll allow that. Is that right? Rephrase the question, please.
MR. JACKSON: You weren't so much objectively investigating her as objectifying her in those moments, correct?
MR. PROCTOR: Again, Mr. Jackson, it was a poor choice of words and a joke that I should not have texted out. But from the start of the investigation, we didn't know what we had.
MR. JACKSON: Trooper Proctor — your point in saying "no nudes so far" to your colleagues at Massachusetts State Police was to suggest that you were looking for nudes, and you'd update them when you found them, correct?
MR. PROCTOR: Incorrect.
MR. JACKSON: Let me ask you a question. Did you find any nudes?
MR. PROCTOR: I didn't go through the photos, sir.
MR. JACKSON: Did you find any nudes of Karen Read?
MR. PROCTOR: I didn't go through the photos, sir.
MR. JACKSON: Were you successful in your quest?
MR. PROCTOR: I came across text messages from Miss Read to another attorney on January 29th, so I had to stop looking through her phone.
MR. JACKSON: So you got sidetracked before you could get to the naked pictures?
JUDGE CANNONE: Sustained.
MR. JACKSON: To be clear, when you sent those text messages on that group chat — those text messages included, as you said, not one but two of your supervisors, correct?
MR. PROCTOR: Correct.
MR. JACKSON: Were you ever reprimanded for your conduct in sending that text message?
JUDGE CANNONE: Jackson, that's sustained. Do we need to go to sidebar?
MR. JACKSON: Based on what you told me earlier, we do not.
JUDGE CANNONE: Okay.
MR. JACKSON: So I'll ask it a different way. Did either Trooper Fanning or Trooper Bukhenik dress you down in a responsive text message in that text thread for doing something so abhorrent as looking for nudes — or referring to nudes — of a female suspect or subject of your investigation? Did that ever happen?
MR. PROCTOR: Not that I can recall.
MR. JACKSON: As a matter of fact, in reference to one of the text messages in the same string, Bukhenik actually responded to the photo of Mr. Yannetti, didn't he?
JUDGE CANNONE: Jackson, I'll allow it.
MR. PROCTOR: He did, sir.
MR. JACKSON: After you received the photo, that's when you said — quote — "Funny, I'm going through his retarded client's phone," is — that right?
JUDGE CANNONE: Jackson, this, but not too many more.
MR. JACKSON: Sure. Is that correct? It's on the top of page 685.
MR. PROCTOR: That's correct.
MR. JACKSON: And Bukhenik liked that comment — "Funny, I'm going through his retarded client's phone."
MR. PROCTOR: I see you laughed at an image here, sir. I can't tell if he liked that comment, sir.
MR. JACKSON: Can I approach?
JUDGE CANNONE: Yes.
MR. PROCTOR: I don't know if it's just because it's faded — yeah, my copy is faded.
MR. JACKSON: Top of page 685. You can use my copy if that helps.
JUDGE CANNONE: All right. Thank you.
MR. JACKSON: What do you see on the top of that page?
MR. PROCTOR: Bukhenik liked it.
MR. JACKSON: Liked what?
MR. PROCTOR: "Going through his retarded client's phone," sir.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: I'll take my — there you go. So your supervisors at Massachusetts State Police not only didn't ride you for making comments like this — he encouraged it?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Trooper Proctor, this is your direct chain of command, is that right?
MR. PROCTOR: Bukhenik? Yes, sir.
MR. JACKSON: Did you believe that your conduct was a misuse of your authority and power as you were going through her phone in August of 2022?
JUDGE CANNONE: Jackson, I'll allow it.
MR. PROCTOR: No. I had a warrant signed by a district court clerk to go through Miss Read's phone. I don't think it was an abuse of power. I had every right to go through that phone.
MR. JACKSON: Did the warrant say anything about looking for nudes of my client?
JUDGE CANNONE: Jackson, did it?
MR. PROCTOR: No.
JUDGE CANNONE: Say anything about that?
MR. PROCTOR: No, Your Honor.
JUDGE CANNONE: Okay. Next question.
MR. JACKSON: So that would be an abuse of the power that was given to you by the court, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Trooper Proctor, you'd agree that the hallmark of any good investigation — as you've been taught, and as others in Massachusetts State Police have been taught — is that the investigation and the investigator have to be fair, they have to be impartial. Would you agree with that?
MR. PROCTOR: Yes, sir.
MR. JACKSON: Meaning that the investigation has to be free of conflicts, right?
MR. PROCTOR: Yes, sir.
MR. JACKSON: The investigator has to be free of conflicts, right?
MR. PROCTOR: Yes.
MR. JACKSON: The investigation has to be free of bias, is that right?
MR. PROCTOR: Correct.
MR. JACKSON: You can't be biased against the person that you're investigating — that would compromise the entire thing, wouldn't it?
MR. PROCTOR: Yes.
MR. JACKSON: Basically, you follow the evidence. You're supposed to follow the evidence wherever it takes you, right?
MR. PROCTOR: Correct.
MR. JACKSON: Good or bad. Top to bottom, just follow the evidence and report it back — that's how an investigation is supposed to be run, isn't it?
MR. PROCTOR: Yes, sir.
MR. JACKSON: And these are things that you learn early on at Massachusetts State Police Academy, and then in your detective training, isn't that right?
MR. PROCTOR: It is. Literally, it's part of an oath that you took at the Academy that you will, quote, "faithfully and —
MR. JACKSON: Impartially discharge and perform all of the duties incumbent on you as a Massachusetts State Police Trooper, right?
MR. PROCTOR: Yes, sir.
MR. JACKSON: You swore that oath.
MR. PROCTOR: I did.
MR. JACKSON: When you start an investigation, everybody in that investigation should be treated exactly the same. Don't you believe that's true?
MR. PROCTOR: Correct.
MR. JACKSON: Everybody. Have you ever heard the phrase "everybody's a suspect until they're not"?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: It's especially important early in an investigation, before all of the facts are known, that the investigator is not compromised by bias or prejudice, right?
MR. PROCTOR: Correct.
MR. JACKSON: Most important early in the investigation, because that's when the most things are up in the air — — there's the cloud, the fog of not knowing exactly what the truth is. Right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: In other words, Trooper Proctor, you don't get to pick a suspect and then try to find evidence to support your choice, right?
MR. PROCTOR: Correct.
MR. JACKSON: But in this case, it's exactly what you did, isn't it?
MR. PROCTOR: Absolutely not.
JUDGE CANNONE: All right, Mr. Jackson, why don't we end for today. This is as good a place as any.
MR. JACKSON: Thank you.
JUDGE CANNONE: All right. So, folks, we're off tomorrow. Those same three cautions — please do not discuss this case with anyone. Don't do any independent research or investigation into this case. If you happen to see or read anything about the case, please disregard it. Let me know Wednesday morning. So Wednesday, Thursday, Friday — right now anticipated to be full days of testimony. So thank you all. All right, so one last time at sidebar for scheduling, okay.
COURT OFFICER: All rise for the court, please.