Commonwealth v. Read — Trial ArchiveMichael Lank — Cross
953 linesCROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Lieutenant Lank, I want to start by asking you about your relationship with certain members of the Albert family. Do you know any other members of the Albert family other than Brian Albert?
MR. JACKSON: Can you describe who those are?
MR. JACKSON: Are those three individuals brothers?
MR. JACKSON: Who is the eldest brother?
MR. JACKSON: How long have you known -- I want to start first with Tim Albert. How long have you known Tim Albert?
MR. LANK: I knew Tim Albert when he was a kid because he was friends with a younger brother of a friend of mine.
MR. JACKSON: Starting at what age?
MR. JACKSON: Okay. So for the better part of your life, you've known Tim Albert?
MR. JACKSON: And what about Chris Albert?
MR. JACKSON: Which would be about what age?
MR. JACKSON: You grew up with Chris?
MR. LANK: Twelve, 13. I was friendly with Chris from junior high through high school and into our 20s.
MR. JACKSON: And friendly with Tim?
MR. LANK: I wouldn't say I was -- I was friendly to say "hello" to Tim. I didn't associate with him. He was younger. He was Chris's younger brother.
MR. JACKSON: But you also knew Chris's older brother, Brian, from back in those days?
MR. JACKSON: So you've known the three of them for basically your entire life?
MR. LANK: No. I had met them. I had met Brian. I didn't know him other than just being Chris's older brother when we were younger kids.
MR. JACKSON: Certainly with regard to Chris, you would consider him a close friend?
MR. JACKSON: Chris. I'm using first names only because they are all named Albert.
MR. JACKSON: I want to draw your attention to an incident in August of 2002. Do you remember an incident in 2002 occurring with -- that involved Chris Albert?
MR. JACKSON: In 2002, in August of 2002, specifically, you were off-duty, correct?
MR. JACKSON: You had been drinking alcohol, correct?
MR. JACKSON: You were approached by Chris Albert out in a parking lot; is that right?
MR. JACKSON: And Chris Albert told you some information about being in a fight, that he had been in a fight or an altercation of some sort, correct?
MR. LANK: He told me he had been in an altercation earlier in the night and some threats had been made to him and his family.
MR. JACKSON: And you got out of your car and discussed this with Mr. Albert, correct?
MR. JACKSON: You just talked to him while you were seated with him in your car?
MR. JACKSON: Okay. At some point, did some other individuals approach that same area?
MR. JACKSON: Was there a fight that you believed was about to ensue?
MR. JACKSON: Did you get out of your car at that point?
MR. JACKSON: Did you come to Chris's aid by, quote, unquote, "activating" yourself as an officer?
MR. LANK: I got out of my car, and I approached the group. And I pleaded with them to not fight tonight. I said, there's not going to be a fight tonight. There's six of you guys. He's here with his girlfriend. There's not going to be a fight tonight.
MR. JACKSON: Did you come to Chris Albert's aid as best you could as a longtime friend of his?
MR. JACKSON: That citizen happened to be Chris Albert, whom you had known since you were 12 years old?
MR. JACKSON: Ultimately, a fight did break out, did it not?
MR. JACKSON: And you engaged in that fight?
MR. JACKSON: And, again, you had been drinking alcohol at that point, correct?
MR. JACKSON: And you were off-duty in August of 2002 during this fight?
MR. JACKSON: Just like you were off-duty in 2022 when you were called by Sergeant Goode to activate and come to the crime scene at 34 Fairview?
MR. LANK: When Sergeant Goode contacted me, I was not working. I was due to work at 7:45 that morning. When Sergeant Goode contacted me and told me what was going on, then I activated myself and came to work because I was the detective sergeant.
MR. JACKSON: And that's a similar sort of activation, using that word in air quotes, it's a similar sort of activation that you employed back in 2002 to assist Chris Albert?
MR. JACKSON: You did, in fact, call for someone to call the police and get some Canton officers over there, correct?
MR. JACKSON: In 2002.
MR. JACKSON: Okay. And I failed to ask you this, but, in 2002, you were, in fact, a Canton police officer at the time?
MR. JACKSON: After the other officers arrived, did you order the other officers to handcuff or somehow restrain one of the two brothers that were involved in this fight with Chris?
MR. JACKSON: Ultimately, did you see whether or not those officers handcuffed or otherwise restrained one of the brothers that was involved in this fight?
MR. JACKSON: And did you then engage physically in a fight with the other brother who was not restrained?
MR. JACKSON: All right. So let me make sure I get the timing right. You did, in fact, engage in a physical fight with one of the brothers, correct?
MR. JACKSON: I'm sorry. Say that again?
MR. JACKSON: And then you struck him back?
MR. JACKSON: You ended up on the ground?
MR. JACKSON: And, ultimately, the other officers had to pull you off that man, correct?
MR. JACKSON: The fight was broken up between you and the other brother, is that right?
MR. JACKSON: And that fight was broken up by the officers who were on scene?
MR. JACKSON: All right. After this physical altercation with the brother who was not ultimately restrained, both of the brothers and everybody else was just told by the officers to go away, get out of here, go home, correct?
MR. LANK: No. I believe one of the brothers left the scene, fled the scene. And the brother that was restrained was ultimately uncuffed and free to go.
MR. JACKSON: And nobody was arrested that night?
MR. JACKSON: Nobody chased down the brother that left the scene, correct?
MR. JACKSON: And nobody arrested the brother that had been handcuffed?
MR. JACKSON: And no police reports were written by you or any of the other officers about this incident on that night?
MR. LANK: I don't recall when the other officers wrote theirs. I did not write mine on that night.
MR. JACKSON: The next day, you became aware that one or both of the brothers had arrived at Canton Police Department to file a formal complaint for having been physically attacked by you and some of the other officers involved, correct?
MR. JACKSON: You are aware that there was a complaint sought against you for the physical attack that was alleged to have occurred, correct?
MR. JACKSON: And you were also aware that only after that complaint had been sought, the police reports were then dated and filed against the two brothers, correct?
MR. JACKSON: That's a yes-or-no question. I'm just looking at timing.
JUDGE CANNONE: He is just asking you about dates. So can you answer the question? Ask the question for the dates again, please.
BY MR. JACKSON:
MR. JACKSON: Of course. I'm seeking the chronology of events. The fight occurs. A complaint against you occurs, and then police reports are filed against the two people that are complaining against you. Is that the chronology?
MR. JACKSON: And you're also aware that although he had been in a physical fight that night, no charges were ever brought against Chris Albert, correct?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Do you know that?
BY MR. JACKSON:
MR. JACKSON: Officer Lank, what we just talked about, is that an example of you using your position as a police officer to come to the aid of one of the members of the Albert family?
MR. LANK: It was me coming to the aid of a citizen who was terrified and scared for him and his family on that night.
MR. JACKSON: Who happened to be --
MR. JACKSON: What?
MR. JACKSON: You mentioned Kevin Albert. Who is he?
MR. JACKSON: Is he a co-worker?
MR. JACKSON: How long have you known him?
MR. JACKSON: And you also consider him to be a friend as well as a co-worker?
MR. JACKSON: And a colleague?
MR. JACKSON: And you're also well aware. I mean, you've said it already. He's the brother, little brother, of Brian Albert?
MR. JACKSON: And you're also aware that the reason that your department was ultimately recused from this investigation, Lieutenant Lank, is because of a perceived bias or conflict of interest between the Albert family or the Canton Police Department, correct?
MR. JACKSON: Can you tell me one more time -- and now I want to fast forward to the incident in question. What was the exact time that you arrived at the location if you know?
MR. JACKSON: Okay. And you indicated that that was in response to a call that you got from Sergeant Goode?
MR. JACKSON: What made you decide or could you have decided to take this particular call? Was it up to you, in other words?
MR. JACKSON: Okay. Fair enough. So once you got the call, you knew that you were going to respond because there was something very serious afoot?
MR. JACKSON: Did you know at the time you got the call that that very serious incident was occurring at 34 Fairview?
MR. JACKSON: When did you realize that?
MR. JACKSON: Okay. So Sergeant Goode didn't -- I guess that's what I'm -- maybe I asked an inartful question. I was asking whether or not Sergeant Goode told you before you actually arrived, he sort of had to have, that it's at 34 Fairview?
MR. JACKSON: Okay. At that point, did a lightbulb go off and you think to yourself, ding, that's the Albert house?
MR. LANK: I don't recall if I realized it then or once I turned onto the street. I don't recall.
MR. JACKSON: At some point before your car came to a stop, you knew this is 34 Fairview; this is the Albert household?
MR. JACKSON: When you arrived, who was the ranking officer at the scene? You've mentioned --obviously, we've heard these names. Sergeant Goode. There's Officer Mullaney. There's Officer Saraf and you. Who was the ranking officer?
MR. JACKSON: Have you reviewed either -- well, let me ask a different question. Did you have a dash cam in the vehicle that you arrived in?
MR. JACKSON: And that's because it was a -- was that a detective vehicle?
MR. JACKSON: Sometimes used undercover, et cetera?
MR. JACKSON: So it's not a fully marked cruiser?
MR. JACKSON: The other cruisers, you're aware, did have dash cams, correct?
MR. JACKSON: Have you reviewed any or all of those dash cams from Officer Mullaney, Officer Saraf, Sergeant Goode?
MR. JACKSON: And you reviewed those in preparation for your testimony?
MR. JACKSON: I'd like to show you what's been previously marked as Exhibit 16.
MR. JACKSON: And I'm going to ask if you, Mr. Bates, could fast forward that to the runtime of about 28:35 or so, with the Court's permission?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Before we play this, there appears to be a still image of --
JUDGE CANNONE: So let's not describe it --
BY MR. JACKSON:
MR. JACKSON: What do you see on the screen?
MR. JACKSON: Okay. Do you recognize either or both of those images?
MR. JACKSON: How do you recognize them?
MR. LANK: It looks like the scene from that morning. I believe it's going to be -- the top one anyway is definitely 683, Officer Saraf's cruiser.
MR. JACKSON: And the bottom one?
MR. JACKSON: Okay.
MR. JACKSON: If we could fast forward to the 28:40 mark or so, Mr. Bates, and play that. And let's pause it for a second. Your Honor, may we approach briefly?
JUDGE CANNONE: Okay.
(Whereupon, there was a sidebar conference as follows:)
MR. JACKSON: I just wanted to briefly let you know so you don't become impatient, I'm going to play about five minutes of this and stop it at certain points, about four different points in the five and a half minutes in total.
JUDGE CANNONE: Okay. Just don't narrate it.
MR. JACKSON: I won't.
JUDGE CANNONE: Okay.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
BY MR. JACKSON:
MR. JACKSON: You indicated that you have reviewed these videos in anticipation of your testimony today, correct?
MR. JACKSON: I'm going to ask you to direct your attention to the top video and specifically to an area right around this area in the video, which is highlighted. Before we play, a couple of foundational questions. Did you meet with Jennifer McCabe out behind the vehicle that's depicted in the Officer Saraf dash cam?
MR. JACKSON: Did you have some sort of a conversation with her?
MR. JACKSON: At some point, did you see Ms. McCabe leave your presence and walk toward the driveway?
MR. JACKSON: Did she tell you that she intended to go inside the house?
MR. JACKSON: Why did you think it was important to speak to Brian and Nicole?
MR. JACKSON: And somebody was laying in the snow, unconscious and unresponsive, correct?
MR. JACKSON: And obviously that could potentially, at least, implicate people inside the house?
MR. LANK: Based on my conversation with Ms. McCabe, she had stated that the intention was for Mr. McCabe -- excuse me -- for Mr. O'Keefe to join them at that house. So I wanted to get statements from everybody who was there.
MR. JACKSON: To find out what happened, right?
MR. JACKSON: I mean, that's sort of the obvious initial point of an investigation: to find out who the witnesses are and interview all of them, correct?
MR. JACKSON: And you began by talking to Ms. McCabe?
MR. JACKSON: Knowing that she was as potential witness, at least, correct?
MR. JACKSON: Who had been with Mr. O'Keefe just hours before?
MR. JACKSON: He ended up laying in the snow, fighting for his life, correct?
MR. JACKSON: And you also knew that there were other witnesses potentially inside the house because she just told you that, right?
MR. JACKSON: So if there were other witnesses in the house -- sorry. If there were other individuals in the house, they also were potential witnesses?
MR. JACKSON: And Ms. McCabe indicated, I'm going to go in the house, correct?
MR. LANK: I had told her that she's going to have to wake her sister up because we're going to need to speak with her.
MR. JACKSON: You didn't think that it was more important to separate the witnesses and not let her talk to other witnesses?
MR. JACKSON: You thought that it was appropriate to let all the witnesses get together and just discuss the facts before you had an opportunity to interview them separately?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained as to the form.
MR. JACKSON: I'm just letting the siren go by.
JUDGE CANNONE: That's fine.
BY MR. JACKSON:
MR. JACKSON: Lieutenant Lank, if you could direct your attention to the area that I highlighted earlier. Let's go ahead and play the video.
(Whereupon, the video is played.)
MR. JACKSON: Stop.
MR. JACKSON: Did you see anything occur at or around the car in the distance?
MR. JACKSON: Was that Jen McCabe?
MR. JACKSON: Do you see yourself, by the way, in this video?
MR. JACKSON: Where are you?
MR. JACKSON: You've described sort of the -- I don't know if it's tan or gray.
MR. JACKSON: Okay. Toward the shoulders?
MR. JACKSON: All right. Let's go ahead and play the video, and I'll indicate another stopping place that I'd like to ask you a couple of questions about.
(Whereupon, the video is played.)
MR. JACKSON: Did you see another person shorter in stature approaching?
MR. JACKSON: Yes, sir.
MR. JACKSON: Who is that?
MR. JACKSON: Okay.
MR. JACKSON: Okay. Go ahead and play. Pause it.
(Whereupon, the video is played and paused.)
MR. JACKSON: Did you see yourself just exit the screen right?
MR. JACKSON: Did it appear that you had something in your hand?
MR. JACKSON: You were taking a call on your cell phone?
MR. JACKSON: What was that call?
MR. LANK: I don't recall. It could have -- I can't see what time that is. I don't believe that I made the call to the CPAC unit until around 6:38. So I'm not sure who that call is to, was from.
MR. JACKSON: If you'll direct your attention I think now down toward the camera below, you may see yourself enter the front. Can we go ahead and play it?
(Whereupon, the video is played.)
MR. JACKSON: And go ahead and pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Does it appear you're on the phone?
MR. JACKSON: Go ahead.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Did it appear that you walked off-screen left?
MR. JACKSON: Are you still on the phone?
MR. JACKSON: Go ahead.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Did you see someone following that same direction?
MR. JACKSON: Go ahead and play it.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Do you think it might have been Sergeant Goode?
MR. JACKSON: With the Court's permission.
JUDGE CANNONE: Sure. Go ahead.
(Whereupon, the video is played.)
MR. JACKSON: And pause.
(Whereupon, the video is paused.)
MR. JACKSON: Do you recognize that person?
MR. JACKSON: Okay. Go ahead.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Does it appear that you've walked back into the frame?
MR. JACKSON: Are you followed by anybody?
MR. JACKSON: Are you speaking to Sergeant Goode or are you walking away from him or can you tell?
MR. JACKSON: Okay.
MR. JACKSON: Go ahead and play it.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Did appear that you were sort of walking away from Sergeant Goode off frame again?
MR. JACKSON: Were you still on the phone?
MR. JACKSON: Thank you. Go ahead.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Directing your attention to the top video, do you see the SUV in the video?
MR. JACKSON: Does that SUV appear to be leaving the scene?
MR. JACKSON: Do you know who was in that SUV?
MR. JACKSON: Okay. Go ahead and play it.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: At that point, are you walking back into the frame on the lower video?
MR. JACKSON: At this point, Lieutenant, are the lights at 34 Fairview on or off?
MR. JACKSON: And, at some point while you were still at the scene, did the lights come on? I think you testified to that earlier.
MR. JACKSON: Okay. I'd like you to pay special attention to that moment and maybe tell me to stop when you see those lights come on. It may be a minute or so.
MR. JACKSON: You can play it.
(Whereupon, the video is played.)
MR. JACKSON: At this point, does it appear that you're still on the phone?
MR. JACKSON: Pause it.
MR. JACKSON: At this point, is there anything that changed in the scene?
MR. JACKSON: What's that?
MR. JACKSON: And, at this point, Ms. McCabe has been inside the house for approximately how long, if you could estimate?
MR. JACKSON: And are you still on the phone, or have you ended that call?
MR. LANK: I can't tell if I'm still on the phone at that point. I know that right around this time is when I ended speaking to the CPAC unit because I believe I get into the vehicle.
MR. JACKSON: Let's play just a little bit further forward, maybe another 30 seconds or so.
(Whereupon, the video is played.)
MR. JACKSON: Okay. Stop it.
(Whereupon, the video is paused.)
MR. JACKSON: Does it appear at this point, if you can see, does it appear that you've ended that call or at least your hands are down by your side?
MR. JACKSON: That's all as to that.
MR. JACKSON: You would agree with me that without counting the seconds, that was about a five-minute phone call or maybe a little better than five minutes?
MR. JACKSON: Do you have any idea who you were talking to now that you've seen that?
MR. JACKSON: You did notice that several minutes after Jen McCabe went in the house and while you were on that phone call, the lights finally came on at 34 Fairview, correct?
MR. JACKSON: At the point the lights came on, the ladder truck had already gone, left from the scene, correct, the fire engine?
MR. JACKSON: The firefighters are all gone?
MR. JACKSON: The ambulance has already left and transported Mr. O'Keefe?
MR. JACKSON: The paramedics are gone, the EMTs?
MR. JACKSON: The fire captain and his SUV, that's gone? Is that right?
MR. JACKSON: The fire captain and his SUV, that's gone?
MR. JACKSON: In other words, all the fire and EMTs have cleared the scene?
MR. JACKSON: It doesn't appear that any fire or EMTs are still on the scene, correct?
MR. JACKSON: Kerry Roberts is gone?
MR. JACKSON: Karen Read is gone?
MR. JACKSON: So when the only parties left at the scene are members of the Albert family, Jen McCabe and the Canton Police Department representatives, that's when the lights inside 34 Fairview finally come on?
MR. JACKSON: Is that yes?
MR. JACKSON: And then minutes after that call, you did then speak to CPAC -- I'm sorry -- to dispatch, correct?
MR. JACKSON: Right. I was getting to that. It was a dispatch, and the dispatch was to CPAC, not to Canton P.D.?
MR. JACKSON: And, at some point, did CPAC dispatch indicate that they were on their way, they had declined the call? What was that call all about?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Who did you talk to at CPAC?
MR. JACKSON: Okay. Do you remember having a conversation with Kelly Dever?
MR. LANK: No. I think we are talking about two different things. I am talking CPAC dispatch, not Canton Police dispatch.
MR. JACKSON: Okay. Fair enough. At some point, did you have a conversation with -- well, let me ask it this way. I just don't know. Did you talk to both Canton dispatch and CPAC dispatch?
MR. LANK: I definitely spoke to CPAC dispatch. I'm not sure if I spoke to Canton dispatch or not.
MR. JACKSON: All right. At some point, did you say -- did you indicate to one or the other, I'm responding to 34 Fairview. We have a Boston police officer who was just found?
MR. JACKSON: You indicated that he does have some trauma to his head area, correct?
MR. JACKSON: And you said, quote, "I'm not sure if he's been in a fight or whatever. Our medics don't believe he's going to make it."
MR. JACKSON: End quote. Sergeant Lank, you never saw John O'Keefe's body, correct?
MR. JACKSON: So if somebody disclosed to you that it appeared that he had been in a quote, "Fight or whatever," at least at that point, that was your thought?
MR. JACKSON: Then what made you -- well, you didn't say to dispatch the victim appears to have been shot, correct?
MR. JACKSON: You didn't say it appeared that he had been stabbed?
MR. JACKSON: He had been strangled?
MR. JACKSON: You didn't say it appeared he'd been hit by a car?
MR. JACKSON: You said, it appeared that he's been in a fight or whatever, correct?
MR. LANK: I stated that he had some trauma to his head. And I said, I don't know if he had been in a fight. And then I believe I described it as a -- I don't remember my exact terminology. But it was a crazy scene.
MR. JACKSON: A chaotic scene?
MR. JACKSON: But you do recall your exact words to dispatch being, I don't know if he's been in a fight or whatever?
MR. JACKSON: Okay. I want to talk about inside the house for just a few minutes, if I could. You've talked extensively about the crime scene outside, and we will get to that in a second. But I want to talk about what did or did not happen inside the house. Did you actually make it inside the house at some point?
MR. JACKSON: When was that? How long -- let's use Jennifer McCabe as the time frame. How long after that did you finally go inside the house after she had been in the house?
MR. JACKSON: So just a few minutes after we ended that video?
MR. JACKSON: And you walked either -- you said either along the driveway or in the yard?
MR. JACKSON: Okay. Once you went in the house, you made contact with the individuals in the house, correct?
MR. JACKSON: And you believed at least at that point that there was a potential that there was a -- let me rephrase that. You knew that you were dealing with a violent incident, correct?
MR. JACKSON: You thought maybe it was just a heart attack?
MR. LANK: I didn't know what it was. At that point in time, I didn't know what it was. It could have been a multitude of things.
MR. JACKSON: But what was going through your mind at that point was it could have been a fight or whatever because he had trauma to his head? Those were your words?
MR. JACKSON: So you didn't think it was like some old man who died of old age, right?
MR. JACKSON: You didn't think it was an accidental drowning or something?
MR. LANK: Again, it could have been a multitude of things to cause those injuries. So at that point in time, we had no idea what we were looking at.
MR. JACKSON: But you were aware that it had something to do with a violent incident? He had trauma to his face and he's unconscious, correct?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you believe that there were any indicators that Mr. O'Keefe had been involved in some sort of a physical altercation?
MR. JACKSON: Okay. And that's because you used the phrase "he had trauma to his face and head," right?
MR. JACKSON: Okay. So based on what you had been told, you knew that there was a person laying out unconscious just outside a residence that may have been involved in a physical altercation? That's fair?
MR. LANK: It's a possibility, yes. Again, there were a multitude of things that were going through my head. It's a possibility.
MR. JACKSON: But that's one of the premiere possibilities, right?
MR. JACKSON: And it's logical to believe that if a fight had occurred, it very well may have started inside the residence, 30 feet away?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you believe in your mind that it was possible, given the fact that a violent confrontation was possible in your mind, that it could have started inside the house?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May we approach?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: What is the objection, Mr. Lally?
MR. LALLY: It calls for speculation.
MR. JACKSON: This goes directly to something -- it's not asking him to speculate. I'm asking him what his state of mind at the time was.
JUDGE CANNONE: You have to ask it differently. You were asking him to speculate. Ask it differently.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I?
JUDGE CANNONE: Sure.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Lieutenant Lank, given what you believed at the time and the possibility that there was a fight or whatever, did you logically think in your mind, your state of mind, was it possibly it could have started in the house?
MR. JACKSON: Right. The house is part of anywhere, right?
MR. JACKSON: So, in other words, the house is not excluded in your mind at that point as a starting point for the investigation; is that right?
MR. LANK: The starting point where Mr. O'Keefe had been discovered and then based on speaking with the witnesses, there was no indication that he had ever made it into the house.
MR. JACKSON: Well, you didn't know that until you followed up on your investigation, correct?
MR. JACKSON: So you just took Ms. McCabe's word for it?
MR. LANK: At that point in time, that was the only person I had spoken to. And she gave me a timeline of events from that night where Mr. O'Keefe was supposed to come back to the house but never made it.
MR. JACKSON: Have you ever been, in the course of your investigating cases, have you ever been lied to by a witness?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Can you answer that? Have you ever been lied to by a witness?
BY MR. JACKSON:
MR. JACKSON: So it's not necessarily the best investigative technique to just take a witness's word for something, correct?
MR. LALLY: Objection.
JUDGE CANNONE: That's sustained.
BY MR. JACKSON:
MR. JACKSON: You need to actually investigate the circumstances for yourself and to your own satisfaction. Is that a fair statement?
MR. JACKSON: One of those investigative techniques would be to walk into the house and figure out who's who there, correct?
MR. JACKSON: Sure. One of those investigative techniques to satisfy yourself that you're actually getting to the truth of the matter would be to walk into the house and figure out who's in the house first?
MR. LANK: I will agree that I needed to speak to the people in the home. I can't just walk in their house. I have to announce myself and they don't have to let me in.
MR. JACKSON: I understand. I'm not trying to parse those words. I just mean entering the home and interviewing witnesses. That would be a normal part of your investigation initially, correct?
MR. JACKSON: And you also knew that the most obvious place to look for witnesses that may have information about a fallen man in the snow would be 30 feet away in the home, correct?
MR. JACKSON: So once you're inside the residence, you walked in the front door, correct?
MR. JACKSON: You indicated that there's a stair that serves as the second floor; is that right?
MR. JACKSON: Right. And just before the staircase, there is a door to your left, right?
MR. JACKSON: Do you remember whether or not there is a door that when you open it, it goes directly downstairs to the basement?
MR. JACKSON: You indicated on direct examination that you didn't notice -- I'm paraphrasing. So forgive me. You didn't notice anything out of place in the home?
MR. JACKSON: But you didn't go downstairs to the basement and look, did you?
MR. JACKSON: You didn't look for broken furniture down there?
MR. JACKSON: You didn't look for torn clothing down there?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: How about anywhere in the house? Did you look for broken furniture or torn clothing or blood evidence or DNA evidence?
MR. JACKSON: So the answer to my question is, no, you did not?
MR. JACKSON: So if I were to ask you one more time -- I know you'd never made it past the foyer. Did you ever investigate the foyer area or any other part of the house for evidence of a fight?
MR. LANK: The only area I was able to observe at that point, everything appeared to be in order.
MR. JACKSON: But you didn't search the rest of the house for a fight, Lieutenant? That's all I'm asking.
MR. JACKSON: And did you seek guidance from a court as to whether or not you might have probable cause?
MR. JACKSON: That's what I mean.
MR. LANK: I wouldn't fill out an affidavit for a search warrant because I wouldn't have probable cause.
MR. JACKSON: In your mind, there was no P.C. to search that house, right?
MR. LALLY: Objection.
JUDGE CANNONE: Let's move on from this.
BY MR. JACKSON:
MR. JACKSON: One of the ways to secure a premises, any premises, at a normal crime scene investigation would be to remove the witnesses and animals from that premises to sort of freeze and lock it down, correct?
MR. JACKSON: Okay. Were the witnesses in this case asked to come outside the house in order to freeze the house down as a potential crime scene?
MR. JACKSON: Were any animals removed in order to freeze and lock down the house as a potential crime scene?
MR. JACKSON: Did you -- and this is the last question on this issue. Did you do anything to lock down and secure that premises, the inside of the house, in any way, shape, form or fashion?
MR. JACKSON: Sure. Did you do anything to lock down and secure that premises in any way, shape, form or fashion?
MR. JACKSON: Did you allow witnesses to go inside the house other than Jen McCabe?
MR. JACKSON: Who was that?
MR. JACKSON: And did you seek to separate any of the witnesses or admonish them that they are not to be in each other's presence and discuss the facts of the case before you had an opportunity to interview them?
MR. JACKSON: And, as you sit here, you have no idea when you were not in their presence, you have no idea what the occupants of that house were discussing?
MR. JACKSON: Or what they were doing?
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Given the fact that you were the first law enforcement officer inside the house, did you seek to photograph anything inside the house?
MR. LANK: When you say I was the first law enforcement officer, I was with Sergeant Goode. We both walked in at the same time.
MR. JACKSON: That's fair. I don't mean to be vague. But you were sort of leading the discussion, correct, with the interviews?
MR. JACKSON: At least according to Sergeant Goode, you were taking charge?
MR. JACKSON: As the first law enforcement to take charge inside the house, did you seek to photograph the premises of that location?
MR. JACKSON: Did you make any drawings or diagrams of the layout of the house?
MR. JACKSON: Did you note where the furniture was or was not?
MR. JACKSON: Did you note in a diagram where furniture was? There's a dining room table here. It's got six chairs. There is a kitchen table over there.
MR. JACKSON: Did you note in any document where the individuals were, the human beings were, in relation to each other when you walked in the house?
MR. JACKSON: I'm asking you whether you documented that.
MR. JACKSON: Okay. Had you been told at the time that you went in the house that when John O'Keefe was found out in the yard that there was a shoe missing, his right shoe was missing?
MR. JACKSON: You didn't have that investigation yet?
MR. JACKSON: Did you subsequently learn that?
MR. JACKSON: Tell me what "much later" means. Days, hours, weeks?
MR. JACKSON: I think I know the answer for this, but you didn't do any search for any missing clothing from the victim inside the house?
MR. JACKSON: The last issue, the last question or last series of questions on this issue, you understand the importance of electronic devices in modern investigations, correct?
MR. JACKSON: iPads, cell phones, things of that nature?
MR. JACKSON: Because they can record things like photographs, videos, conversations, text messages and emails?
MR. JACKSON: Would you consider electronic devices relatively vital in modern law enforcement investigations?
MR. JACKSON: Vital. Critical.
MR. JACKSON: They're critical items of evidence, right?
MR. JACKSON: It's like walking around with your entire life in the palm of your hand, correct?
MR. JACKSON: Did you seek to secure any electronic devices from any of the occupants of the house that morning?
MR. JACKSON: Did you ask for consent to look through their electronic devices, for instance, their cell phones for text messages or communications?
MR. JACKSON: Did you believe -- well, turning back to a question that you were asked by Mr. Lally, you did, in fact, interview Brian Albert at the scene, correct?
MR. JACKSON: You also interviewed his wife?
MR. JACKSON: Did you believe at any point before you interviewed Mr. Albert that it was incumbent upon you to let your supervisors know that there may be a conflict of interest because of a personal relationship that you had with the family?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you ever, in fact, not whether you believed it was important, but did you ever, in fact, notify any of your superiors at Canton P.D. or any other law enforcement agency that you had a personal relationship with the Albert family or members of the Albert family?
MR. JACKSON: You indicated that you believe you spoke to Mr. Albert and his wife, Nicole Albert for maybe 15 to 20 minutes; is that what you said?
MR. JACKSON: Did you record that conversation?
MR. JACKSON: You had your cell phone with you, correct?
MR. JACKSON: And you know that has recording capability?
MR. JACKSON: Was anybody else with Nicole -- when I say "with," I mean within earshot of Nicole and Brian Albert when you interviewed either one of them or both of them?
MR. JACKSON: So you interviewed them together?
MR. JACKSON: Did you then interview Jennifer McCabe?
MR. LANK: I had spoken to Jennifer McCabe outside to the best of my memory. I believe once we were inside, I was able to get some more information from her based on the chronological order of events.
MR. JACKSON: And, when you were getting this information about the chronological order of events, that was within earshot of Brian Albert and Nicole Albert?
MR. JACKSON: So when you interviewed Brian Albert, Nicole and Jennifer McCabe were listening, correct?
MR. JACKSON: When you interviewed Nicole Albert, Brian Albert and Jennifer McCabe were listening?
MR. JACKSON: And, when you got this chronological layout of the night before from Jennifer McCabe, Brian and Nicole were both listening?
MR. JACKSON: After you met with the three of them and interviewed them, you indicated that you came back. You'd already left and came back. And I'm jumping ahead a little bit. So forgive me. When you came back, it was around 9:00 a.m.?
MR. JACKSON: Had you actually left? I may be a bit confused. So I apologize. Had you actually left and then driven back to Canton P.D.?
MR. JACKSON: Okay. So you just came back in the house?
MR. JACKSON: No. I'm so sorry. I'm jumping ahead. That's unfair. You've left. Now we are at the point where you've already cleared the crime scene.
MR. JACKSON: And then at some point you get called back, correct?
MR. JACKSON: Because Ms. McCabe said she had additional information she wanted to impart?
MR. JACKSON: When you interviewed Ms. McCabe that second time, were Brian and Nicole Albert there?
MR. JACKSON: Were they within earshot?
MR. JACKSON: And they listened to that conversation, as well?
MR. JACKSON: After that conversation, did you meet with any other witnesses between January 29th, later in the day January 29th, anytime until February 4th?
MR. JACKSON: None?
MR. JACKSON: Okay. I do want to talk for a second, just a brief second, about setting up a crime scene outdoors. You indicated that the crime scene was relatively secure, was your word, was relatively secure because there were patrol cars, cruisers, sort of around the perimeter of the yard?
MR. JACKSON: Is that right?
MR. JACKSON: The crime scene tape wasn't working because it was windy?
MR. JACKSON: Okay. And, of course, Canton P.D. has the ability to go get stakes and just hammer some stakes into the dirt if you wish to?
MR. JACKSON: You don't have stakes at Canton --
MR. JACKSON: I don't mean steaks that you eat. S-T-A-K-E-S.
MR. JACKSON: Okay. Canton P.D. doesn't have those? Okay. So if the crime scene tape was blowing down, that was just sort of a "let's give up on it; it wouldn't do any good"?
MR. JACKSON: In your mind, it was futile?
MR. LANK: The crime scene tape was futile, yes. It was left up until we made the determination to take it down, but it wasn't really doing its job.
MR. JACKSON: All right. And, once the scene was cleared, all those cruisers that were protecting that crime scene were now gone, right?
MR. JACKSON: And all the cruisers were gone by about 7:50 in the morning, 7:50, 7:55?
MR. JACKSON: So before 8:00 a.m., that crime scene was completely -- I'm sorry. After 8:00 a.m., that crime scene was completely open?
MR. JACKSON: Unsecured?
MR. JACKSON: And available to anybody who wanted access to it?
MR. JACKSON: One of the reasons to secure a crime scene is to minimize the possibility of evidence destruction on one hand, correct?
MR. JACKSON: And evidence tampering on the other hand, right?
MR. JACKSON: And examples of evidence tampering could be just moving a piece of evidence?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: That's overruled. Not too much further with this.
MR. JACKSON: I've just got a couple of quick questions about this.
BY MR. JACKSON:
MR. JACKSON: Sure. An example or a couple of examples of evidence tampering could be something as simple as moving a piece of evidence, moving it from here to here, correct?
MR. JACKSON: Hiding evidence? Getting rid of it, right?
MR. JACKSON: Taking evidence out of the scene or putting evidence back into the scene, correct?
MR. JACKSON: Or even planting evidence that didn't exist before? All of those would be examples of tampering with evidence?
MR. JACKSON: And setting up a proper crime scene minimizes or eliminates the possibility for that?
MR. JACKSON: Sure. Setting up a proper crime scene, securing a proper crime scene minimizes or tries to eliminate the possibility of that type of evidence tampering, obviously?
MR. LANK: It would. But, at this point in time, we weren't aware -- at this point in time, state police had said they weren't responding. So there was no longer an area to preserve at that point.
MR. JACKSON: So in your mind -- well, let me phrase it a different way. What that means is after 8:00 a.m., that scene was just open?
MR. JACKSON: You found both the blood that we saw pictures of and the cocktail glass that we were just introduced to this morning, correct?
MR. JACKSON: Yes.
MR. JACKSON: You searched the area that was adjacent to where you believed the body was; is that right?
MR. JACKSON: 6x6 or 7x7?
MR. JACKSON: Right. You were looking for anything, obviously, that was out of place, anything that didn't belong, right?
MR. JACKSON: Like a man's Size 12 shoe would have caught your attention?
MR. JACKSON: A black baseball hat would have caught your attention?
MR. JACKSON: A piece of plastic, broken, probably would have caught your attention?
MR. JACKSON: Certainly 45 pieces of plastic would have caught your attention?
MR. JACKSON: And between you and Officer Saraf, Sergeant Goode, Officer Mullaney, Lieutenant Gallagher, none of that was found?
MR. JACKSON: You did find the blood, however; is that right?
MR. JACKSON: Who literally physically leaned down and scooped that blood up?
MR. JACKSON: And that was done in a plastic Solo cup that we've heard a little bit about; is that right?
MR. JACKSON: You're aware that those Solo cups are unsealed?
MR. JACKSON: When I say "unsealed," I mean they don't have a lid on them. They're not airtight containers?
MR. JACKSON: So once you scoop up the snow and the dirt and the debris, the grass and everything else along with the blood, they're just open to the air?
MR. JACKSON: You're sure about that? There was no dirt and snow?
MR. JACKSON: You didn't observe any dirt in the snow? You don't think there's dirt in snow?
MR. JACKSON: It certainly wasn't a sterile cup?
MR. JACKSON: It certainly wasn't a crime scene cup?
MR. JACKSON: You're aware that the Massachusetts State Police Crime Lab warns against collecting any biological material in anything made of plastic, correct? Were you aware of that?
MR. JACKSON: After the -- well, when you scooped up the blood, did you videotape that process so we know exactly which bloodstain was scooped up from where?
MR. LANK: I don't recall if it was videotaped, but we did not document which scoop went in which cup.
MR. JACKSON: Okay. So if there was multiple contributors to blood -- sorry -- multiple contributors of the blood, we sort of have no idea which blood drop belonged to whom, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Once these unsealed cups were in your possession, what did you do with them?
MR. LANK: The cups were placed into the Toyota Tundra that I was driving that day and ultimately returned back to the police station.
MR. JACKSON: Okay. And you talked a little bit about the process once you returned back to the station. They were put in a brown evidence bag, correct?
MR. JACKSON: And, ultimately, when you logged these items into the -- tell me the name of it again? It's the temporary evidence?
MR. JACKSON: Okay. Inside the evidence bag? In other words, the cups are still inside the evidence bag and it's logged in?
MR. JACKSON: You indicated that there is an item number or a property number that's assigned to them?
MR. JACKSON: There is generated a seal or a label to go on the evidence that's being stored, correct?
MR. JACKSON: And the bag is sealed. The evidence bag is sealed like this red tape that we see on this thing, correct?
MR. LANK: When possible, there are certain items that can't be bagged. Sometimes you create a tag and attach it to the bag.
MR. JACKSON: Right. But, if it's a brown paper bag that's an evidence bag, you certainly just fold over the edge of it and just put a red evidence seal on it to make sure that that's secure and not tampered with, correct?
MR. LANK: That would be one way to do it, yes. I don't recall if I left them in the bag or took them out of the bag. I don't recall.
MR. JACKSON: If you left them in the bag, you likely would have -- if you're booking them into evidence, you likely would have used some red crime scene -- I mean, not crime scene tape -- evidence tape?
MR. JACKSON: So everybody could see it?
MR. JACKSON: Okay. There is an evidence bag with important evidence in it. Don't mess with it. It's secure, correct?
MR. JACKSON: Can we have Tab 23?
BY MR. JACKSON:
MR. JACKSON: Do you recognize what's depicted in this exhibit?
MR. JACKSON: For the record, you're looking at what's been previously marked as Exhibit 37. Do you see a little white rag down there by the right rear quarter panel?
MR. JACKSON: Let's go to Tab 24. Do you see that white rag?
MR. JACKSON: I'm sorry?
MR. JACKSON: Did you see a bag sitting next to it?
MR. JACKSON: It doesn't look like an evidence bag, does it?
MR. LANK: No. It looks like a Stop & Shop bag. Actually, it looks like an evidence bag. It just doesn't say "Canton Police" on it. It says "Stop & Shop." But it does look like an evidence bag. It's the same thing.
MR. JACKSON: That's a grocery bag?
MR. LANK: It is. And that's exactly what our evidence bags look like. So that's what I thought it was at first.
MR. JACKSON: Right, except it doesn't say anything about evidence on it. It says "Stop & Shop"; correct?
MR. JACKSON: What do you think's in that evidence bag -- I'm sorry -- the Stop & Shop bag?
MR. JACKSON: Are you aware when these pictures were taken?
MR. LANK: I can tell that's the Canton Police sally port. So it's some point after the state police had seized the vehicle.
MR. JACKSON: And, at some point after you had brought the Solo cups back to the station?
MR. JACKSON: As a matter of fact, these were taken on February 1st when the Massachusetts State Police Crime Lab finally took possession of these items of evidence, correct?
MR. JACKSON: Let's look at the next tab, Tab 25. Do you recognize that?
MR. JACKSON: Are those just any Solo cups or the Solo cups that you took back to the station from 34 Fairview?
MR. JACKSON: It appears that they have red liquid material floating in the bottom?
MR. JACKSON: Does that appear to be blood?
MR. LANK: The top three I can see. Yeah. The only two I see that don't have it are the bottom two left.
MR. JACKSON: Okay. Let's look at the next tab, which is 26. And do you see somebody with gloved hands opening that bag, the same bag with the white rag right there?
MR. JACKSON: Okay. Does that appear to be the same six Solo cups?
MR. JACKSON: Yes.
MR. JACKSON: Are those the same six Solo cups that you gathered at the scene at 34 Fairview and ultimately brought back to Canton P.D.?
MR. JACKSON: And the reason you -- I'm sorry. I didn't mean to step on your words. Go ahead. Finish it.
MR. JACKSON: Let's go back to Tab 24. And the reason you can't say definitively, Lieutenant, is because there is no label on this bag, is there?
MR. JACKSON: There is no property number on this bag, is there?
MR. JACKSON: There is no evidence tape on this bag, is there?
MR. JACKSON: Well, let's look at the other photographs. Are you -- well, before we do that, are you suggesting that all of that material is on the other side of this bag?
MR. JACKSON: Okay. Let's look at the next tab. Looking at it from the top, does it appear anywhere from that vantage point that there is evidence tape that's ever been put on that bag, that has ever been secured?
MR. JACKSON: Well, one of the ways that you can tell that evidence tape has been put on an item is because when the evidence tape is placed on it, it's completely sealed. And if, in fact, that seal is ever broken, it's not torn off; it's cut and there are initials put on, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Have you ever used evidence tape before to seal anything?
MR. JACKSON: How long have you been a detective? I'm sorry. How long were you a detective when you were a detective?
MR. LANK: I was a detective for 11 months as a sergeant and then I was a detective for 15 months back in 2011- 12.
MR. JACKSON: And in your experience -- and how long have you been a police officer?
MR. JACKSON: So in your 24 years of experience and over a year as a detective, you can't remember if you ever used evidence sealing tape?
MR. JACKSON: If you believe -- if you can recall using it at all, isn't the protocol that when evidence sealing tape is used to seal an item of evidence, when it's removed, it's not torn off, it's cut and then new sealing tape is put over it with an initial and a date, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Do you know the answer to that?
JUDGE CANNONE: Okay. Next question.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: That's all I have for this.
JUDGE CANNONE: I am going to see counsel at sidebar for just a minute, please.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So I didn't want to interrupt you and embarrass you. You don't put anything up on that screen without my permission. You did it five times: Let's go to Tab 1. Let's go to Tab 2.
MR. JACKSON: I thought if it was in evidence we were free to --
JUDGE CANNONE: You don't just freely walk about the courtroom and put up displays.
MR. JACKSON: Where would you like me --
JUDGE CANNONE: Mr. Yannetti should have told you that.
MR. JACKSON: How would you like me to -- what is the proper protocol to ask --
JUDGE CANNONE: You ask me for permission to put something up on the screen.
MR. JACKSON: Okay. Okay.
JUDGE CANNONE: Mr. Yannetti, you have a role with pro hac vice to let them know --
MR. YANNETTI: I understand.
JUDGE CANNONE: All right. The jury needs a break.
MR. JACKSON: I've got about, just so the Court knows --
JUDGE CANNONE: Jurors, go ahead and let's take a 10-minute break. Okay?
(Whereupon, the jury is escorted from the courtroom for a brief recess and the sidebar conference continues as follows:)
MS. LITTLE: The same question by a different witness in the same position yesterday.
MR. JACKSON: Just so the Court knows, I have maybe 10 minutes left, no longer.
JUDGE CANNONE: And yours will be very short?
MR. LALLY: Yes.
JUDGE CANNONE: All right. I'd really like to not bring him back again tomorrow.
MR. LALLY: No.
JUDGE CANNONE: Will we start with another witness?
MR. LALLY: I think we can probably get through with Lieutenant Rae.
MR. YANNETTI: I was going to suggest, Your Honor, I would really like the Court to rule on the photos I brought up at the start of the day yesterday because I think there is a chance Caitlin Albert could be called tomorrow.
MR. LALLY: I doubt it.
MR. YANNETTI: You doubt it?
COURT REPORTER: I can't hear.
MR. YANNETTI: I had just said that I was hoping for a ruling on the photos that I had brought up at the start of the day yesterday. I do have further oral argument to make outside the presence of the jury.
JUDGE CANNONE: Why don't you make it right now.
MR. YANNETTI: Can I get my notes?
JUDGE CANNONE: Are there pages and pages or is this --
MR. YANNETTI: There's three pages, Judge.
JUDGE CANNONE: Mr. Yannetti, I don't need to hear three pages of argument.
MR. YANNETTI: Here is the thing: All right. Let me just try to encapsulate it. I thought that it would be appropriate to discuss what orders have been in place regarding reciprocal discovery. This Court is free to make any orders it wants at any time, and I recognize that. But I wanted to explain the reason why we didn't reveal the photos that were previously marked "H," "I," "J" and "K" previously. And, you know, it was our view that there was no specific reciprocal discovery order that required the provision to the Commonwealth of material that we deemed to be impeachment evidence. It would have been within this Court's purview to order it. And, as I said, the Court can order it now if it has not been ordered to this date, and I recognize that. But that was the reason for that. So with regard to those four photos, I understand the Court's ruling that those were inadmissible to use against Ms. McLaughlin.
My position, our position, is that we are in a much different position with regard to Caitlin Albert, not only with regard to those four photos because now the Commonwealth is not surprised. They have time to prepare here and that topic of conversation would be a part of our examination anyway. But also with regard particularly to these new photos that we just received over the weekend. There has been no discovery violation with regard to that. I have a list on my desk of all of the discovery that the Commonwealth has proved to us that continues to come in on a daily basis since this trial has started. So you know, clearly, this is not something that we held back. It's new. It's relevant. And, you know, the Court had indicated yesterday that, you know, it may be cumulative. I would take issue with that because there has been no photo introduced of their relationship and there has been an attempt by Ms. McLaughlin to minimize that relationship.
These photos not only prove that she was minimizing it but, in my view, proof that she was lying on the stand about the nature of the relationship. She had said specifically two things: number one, that she hadn't had any contact with Caitlin Albert in the last two or three years. Come to find out, we have a photo from eight months prior to January of 2022 where there is a limited number of people in a photograph and Caitlin Albert and Katie McLaughlin had their arms around each other at a baby shower. You know, in addition -- Liza, what was the --
MS. LITTLE: The statement.
MR. YANNETTI: Oh, yeah. She had also said that they had only take day trips together to the beach in a group. We have a photo of them in Maine, four hours away, drinking in a hot tub, which clearly is not just a one-day trip. And then we have photos with the four of them together where she is with Caitlin Albert's two college roommates. So there is Caitlin Albert and her two roommates and Katie McLaughlin. You know, she started off her testimony by saying, I went to school with somebody by that name. That's like saying, you know, I know somebody who raised me who happens to be a woman and is married to my father. I mean, she misrepresented the relationship. This is central cross-examination material and these exhibits are relevant. There has been no discovery violation, and I seek to use them during their cross of Caitlin Albert.
JUDGE CANNONE: What do you say?
MR. LALLY: Your Honor, what I would say is there absolutely has been a discovery violation. The Commonwealth filed a motion for reciprocal discovery, which the Court -- I don't know if it was acted on as far as writing on the order, but it is specifically stated to counsel to provide those. The subsequent do absolutely nothing to further any point as far as Firefighter McLaughlin. And I remind counsel that it is a firefighter and that's how she's involved in this case and comes to the scene in the first place. Frankly, the cross-examination -- I'm going to leave it at that because I don't want to say something that I may regret. But, with regard to -- most of this is cumulative. The other sort of photographs that are in here are -- you know, they went to high school at the same time, which Firefighter McLaughlin acknowledged. They were on the same track team. So were about 40 other people. Every other photograph that's contained in here is in a group setting, which is what Firefighter McLaughlin acknowledged. There is absolutely no evidence whatsoever of any prevarication, any lying, anything mentioned in any -- in front of this Court and flat-out accused Firefighter McLaughlin of doing. There is no evidence of that in those photographs, the other photographs or anything about her testimony. And, frankly, it's repulsive.
JUDGE CANNONE: All right. So I'm going to strike the "repulsive" part. All right. So I did find that there was a violation of Rule 14. I know that counsel said that you didn't intend to use it. But I disagree, and I find that you did. So I will mark all of these for identification. There are seven of them. And I made an independent finding that they are cumulative, that Mr. Jackson got the answers that he was looking for and that the photos are not inconsistent. So for all of those reasons, the photos from the other day are out and these are out.
MR. YANNETTI: Specifically with regard to these --
JUDGE CANNONE: Hold on.
MR. YANNETTI: I'm sorry.
COURT REPORTER: Do you want them as one or --
JUDGE CANNONE: I think one is easier.
MR. YANNETTI: With regard to the --
JUDGE CANNONE: Hold on.
MR. YANNETTI: I'm sorry. I'm sorry.
(Whereupon, seven pages of photographs were entered and marked Exhibit "S" for Identification.)
JUDGE CANNONE: All right. What's your question, Mr. Yannetti?
MR. YANNETTI: Just so I understand the Court's ruling, with regard to those additional photos that we received over the weekend, is the Court ruling that they are excluded in part because they, too, are a discovery violation?
JUDGE CANNONE: I don't know where they came from or who authenticates them. Did you get these, Commonwealth?
MR. LALLY: I mean, when the Court did.
MR. YANNETTI: I had represented we received these over the weekend and, in fact, we got --
JUDGE CANNONE: Unknown sources.
MR. YANNETTI: Right.
JUDGE CANNONE: And some are marked. Tori, can I have that, please? Thank you. So I don't hear anything right now that would make these admissible. You need to question the witness first. I don't have your discovery motion in front of me, Mr. Lally. Did it include impeachment material?
MR. YANNETTI: I can speak to that because I reviewed it. It did. If that motion was allowed, then my reading of the motion is that these, not these but the previous four photographs, should have been turned over. But I also --
JUDGE CANNONE: Okay. The motion was allowed because I remember saying I knew you had to wait until a certificate of compliance --
MR. YANNETTI: Right.
JUDGE CANNONE: And I said that the Commonwealth's motion is allowed, is my understanding, and you had to get it immediately. I think I said two days. I didn't know that even Ms. Little complied much sooner than that.
MR. YANNETTI: Right.
JUDGE CANNONE: And I really would rather handle it in his testimony. Do you need much more time on this, hearing from all three? Actually, just the two of you.
MR. YANNETTI: Well, I was just going to explain, Your Honor, that I checked the docket. The motion was not endorsed, but I don't question what the Court just said.
JUDGE CANNONE: Okay. I remember specifically --
MR. YANNETTI: Okay.
JUDGE CANNONE: -- the two-day part.
MR. YANNETTI: That's fine.
JUDGE CANNONE: Why don't we just continue. If you come up with another argument before the witness testifies, you can tell me about it.
MR. YANNETTI: Okay. Thank you.
JUDGE CANNONE: I really don't want to waste anymore time.
MR. YANNETTI: I understand. I understand.
JUDGE CANNONE: So we won't get a break. We'll just bring the jury in. Okay?
MR. YANNETTI: Fine.
(Whereupon, the jury enters the courtroom and is seated in the jury box.)
JUDGE CANNONE: All right, Mr. Jackson. Whenever you're ready.
MR. JACKSON: Thank you, Your Honor. That's all I have at this time.
JUDGE CANNONE: Mr. Lally?
MR. LALLY: Thank you, Your Honor.