Karen Read Trial (Pt 44.2) — Brian Higgins – Cross Examination

[00:00:00] Speaker 1: All right, Mr. Jackson, whenever you're ready. [00:00:02] Speaker 2: Thank you, Your Honor. Who did you come here today with, Mr. Higgins? [00:00:05] Speaker 3: Who did I travel to the courthouse with? [00:00:07] Speaker 2: Who did you meet here? [00:00:09] Speaker 3: An attorney, my attorney. [00:00:11] Speaker 2: Is there a reason that you felt compelled to bring an attorney with you for your testimony as a witness in a homicide investigation? Jackson, Your Honor. Sustained. Trial, I should say. [00:00:20] Speaker 1: Sustained. [00:00:20] Speaker 2: You brought your attorney with you who's sitting right behind you, correct? [00:00:23] Speaker 3: That is not my attorney. [00:00:25] Speaker 2: Oh, I'm sorry, I thought you were his attorney. My mistake. Where is your attorney? [00:00:30] Speaker 3: I don't know, he might be in the courthouse. Is he in the building? I don't know where he physically is right now. [00:00:34] Speaker 2: Okay, without telling me anything that you said to your attorney, did you meet with him this morning before your testimony? [00:00:39] Speaker 3: Yes. [00:00:39] Speaker 2: 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? [00:00:46] Speaker 3: Yes, I did. Okay. [00:00:48] Speaker 2: And obviously the subject matter, again, without telling me any communication, the subject matter was your testimony here today, correct? [00:00:56] Speaker 3: No. [00:00:57] Speaker 2: How many conversations have you had with Mr. Lally about your testimony or your proposed testimony in anticipation of you testifying today? [00:01:04] Speaker 3: One. When was that? That was on Monday. [00:01:09] Speaker 2: How long was that conversation? [00:01:12] Speaker 3: I would say under an hour and a half. [00:01:14] Speaker 2: In person or over the phone? [00:01:16] Speaker 3: In person. [00:01:17] Speaker 2: Where was that conversation? [00:01:18] Speaker 3: That was at the DA's office. [00:01:20] Speaker 2: Who else was there? [00:01:21] Speaker 3: My attorney, a victim witness advocate. I believe her name is Kristen Collins. ADA McLaughlin, ADA Lally, and Lieutenant Brian Tully from the Mass State Police. [00:01:33] Speaker 2: Anybody taking notes? [00:01:35] Speaker 3: I did not. I don't know if anybody was taking notes. [00:01:37] Speaker 2: Well, you were sitting there watching Lieutenant Tully. Did he take notes? [00:01:40] Speaker 3: Not that I saw, no. [00:01:41] Speaker 2: 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? [00:01:52] Speaker 3: That's correct. I did hand something to Lieutenant Tully, but he didn't take any notes in reference to what I handed him. [00:01:58] Speaker 2: What did you hand him? [00:01:59] Speaker 3: I handed him a piece of mail that I got at my residence. [00:02:03] Speaker 2: Anything having to do with this case? [00:02:05] Speaker 3: Well, I believe so. [00:02:08] Speaker 2: Was that turned over to Mr. Lally? [00:02:10] Speaker 3: No, I turned it over to State Police. [00:02:13] Speaker 2: Your Honor, may we approach you for a second? [00:02:14] Speaker 3: Yes. [00:02:19] Speaker 2: 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? [00:02:28] Speaker 3: The only thing I can be recalled showing was a photograph of the exterior of 34th Fairville Road in Canton. [00:02:34] Speaker 2: What about the text messages that you just went over extensively? Were you shown those? [00:02:38] Speaker 3: 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. [00:02:48] Speaker 2: And these are the screenshots that you've just described on the exhibit? [00:02:54] Speaker 3: Well, as I said, he showed me the stacks, said they were the text messages. They were in a different format, but I'm assuming that's what they were. [00:03:01] Speaker 2: What was your assignment with the ATF back in 2022? [00:03:06] Speaker 3: I was assigned to the Bridgewater Field Office, but I was full-time with the United States Marshal Service doing fugitive apprehension. [00:03:16] Speaker 2: And where were you physically officing out of? [00:03:19] Speaker 3: Well, I continued to maintain the office at Canton PD. [00:03:23] Speaker 2: Okay. But to be clear, you were a federal officer, not a Canton police officer on some sort of a task force with Canton PD, correct? [00:03:30] Speaker 3: No, I was not on a task force with Canton PD. [00:03:32] Speaker 2: But you did have an office at Canton PD based on a personal relationship that you had with the chief, correct? He gave you this office as a courtesy. Is that right? [00:03:43] Speaker 3: So if I can explain? [00:03:44] Speaker 2: Yes or no? Was it provided as a courtesy? [00:03:48] Speaker 3: Well, working partnership, I would say. [00:03:51] Speaker 2: And you've been asked that specific question in a prior hearing, correct? [00:03:56] Speaker 3: Yes. [00:03:56] Speaker 2: In June of 2023, right? Yes. And you explained. Look, there was a personal relationship that I had with Chief Berkowitz. [00:04:02] Speaker 3: I did. [00:04:02] Speaker 2: It was born out of... Tragedy. A family tragedy that he was aware of. [00:04:07] Speaker 3: Horrible tragedy, yes. [00:04:08] Speaker 2: And based on that personal friendship and that personal relationship, he offered you the convenience of officing out of Canton PD. [00:04:15] Speaker 3: I would say that's a good summary. [00:04:17] Speaker 2: And in addition to just having an office there, you also had a key card access, correct? [00:04:23] Speaker 3: I did to get in and out. [00:04:24] Speaker 2: What was the name that you used? You said it was a proxy card? I think it's called... [00:04:27] Speaker 3: I think in the IT world, it's probably called a proxy card. That's what I know it to be. [00:04:32] Speaker 2: So you had both a physical office and full access to Canton PD, 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? [00:04:50] Speaker 3: No, I wouldn't say full access. I had access to certain areas within the department. [00:04:54] Speaker 2: Well, you certainly had access to and from your office. [00:04:56] Speaker 3: Yes. [00:04:57] Speaker 2: You had ingress and egress to the Canton Police Department. [00:05:00] Speaker 3: Yes. [00:05:00] Speaker 2: You could go in and out of the Sally Port. [00:05:02] Speaker 3: I could. [00:05:03] Speaker 2: You could go upstairs to Chief Berkowitz's office. Yes. You could go downstairs to the dispatch area, which is on the first floor, correct? [00:05:10] Speaker 3: Yes. [00:05:11] Speaker 2: And then you could go out to the Sally Port, into the Sally Port, across that garage, those two bay doors, at your leisure. [00:05:17] Speaker 3: Well, that would exclude the evidence room, the arms room, and places like that. I didn't have access to those places. [00:05:22] Speaker 2: But the places that I just mentioned, you did have access to. [00:05:25] Speaker 3: Yes, absolutely. [00:05:30] Speaker 2: You'd have that office for, what, back in January of 2022, probably had that office for more than, what, three years? [00:05:36] Speaker 3: I would estimate probably sometime around 18, 2018. [00:05:44] Speaker 2: 2018. Yeah. Not 18 years, 2018. [00:05:46] Speaker 3: No, 2018. I'm sorry. [00:05:47] Speaker 2: My apologies. Yeah, maybe close to four years. Yes. Okay. I want to turn your attention, Mr. Higgins, to January 28, January 29, 2022. By the way, I should ask another foundational question. Are you currently still at ATF? [00:06:06] Speaker 3: Am I employed by ATF? Correct. Yes, I am. A special agent. Yes. [00:06:09] Speaker 2: What is your current billet or your assignment? [00:06:12] Speaker 3: Objection. [00:06:14] Speaker 1: Is that something you're free to discuss? [00:06:17] Speaker 3: I'm assigned to division operations at this time. [00:06:19] Speaker 2: Okay. What does that mean? That's. You're taken out of the field? [00:06:24] Speaker 3: Was I taken out of the field? Yes. [00:06:26] Speaker 2: Are you no longer in the field? [00:06:27] Speaker 3: Jackson, you're on mute strike. [00:06:29] Speaker 1: Sustained. Let's move on. You may be able to come back to this. Thank you, Your Honor. [00:06:35] Speaker 2: I want to turn your attention now to January 28, 29, 2022. Do you recall those dates? [00:06:43] Speaker 3: I do. [00:06:43] Speaker 2: You've been living with those dates for the last couple of years. [00:06:46] Speaker 3: Like a nightmare. [00:06:49] Speaker 2: John O'Keefe's body was found outside your friend Brian Albert's house on the morning of January 29, 2022. Correct? Yes. You have previously testified that on January 28, you had gone to New York for this memorial service. Correct? [00:07:05] Speaker 3: Funeral service, yes. [00:07:07] Speaker 2: The funeral service, not the memorial, you separate the two? [00:07:09] Speaker 3: So, well, the wake would be the night before, funeral, it was, I call them the services. It wasn't a memorial. Memorial to me would be more of like an annual thing. This was the services. Understood. I just want to be clear. [00:07:21] Speaker 2: So you went with Brian Albert, Kevin Albert, and Eddie Hernandez, is that right? [00:07:27] Speaker 3: I traveled down there myself, but I met up with them. [00:07:32] Speaker 2: To go to the services? [00:07:34] Speaker 3: Yes. [00:07:34] Speaker 2: Is it fair to say that you and Brian Albert and Kevin Albert sort of run in the same social and professional circles? [00:07:44] Speaker 3: I mean, without speaking for anybody else, I think we know a lot of the same people. [00:07:47] Speaker 2: Go to some of the same holiday parties, for instance. [00:07:50] Speaker 3: Yes. [00:07:51] Speaker 2: Go to some of the same events, whether they're law enforcement events or otherwise. [00:07:56] Speaker 3: Retirement parties, yes. [00:07:57] Speaker 2: Things like that. Might meet up at a bar and have a social drink together. Yes. Might share a meal together, correct? Yes. And you would agree that you particularly are pretty well connected to the Canton law enforcement community. [00:08:13] Speaker 3: Could you qualify that, explain that? [00:08:16] Speaker 2: You know quite a few cops, right? [00:08:18] Speaker 3: Well, it's a small department, so I do know everybody in the building in some capacity. [00:08:22] Speaker 2: Okay. So my question is, you know quite a few cops in Canton. [00:08:25] Speaker 3: I do. [00:08:25] Speaker 2: 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? [00:08:31] Speaker 3: Yes. [00:08:31] Speaker 2: You know Brian Albrecht, he's a Boston police officer. Yes. You know his brother and worked with his brother at Canton PD, correct? Yes. 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? [00:08:46] Speaker 3: Well, I think that comes with working with people, yes. [00:08:49] Speaker 2: Is that yes or no? Yes. Okay. As a matter of fact, you've even given a personal toast at one of these events, these retirement events, etc., correct? [00:08:59] Speaker 3: Chief Berkowitz, yes. [00:08:59] Speaker 2: And during the course of that toast, you even said, if you want to hide a body, Kenny Berkowitz is your man, correct? [00:09:06] Speaker ?: Jackson. [00:09:07] Speaker 2: Did you say that? [00:09:09] Speaker 1: Did you say that? [00:09:09] Speaker 3: I don't recall that. [00:09:10] Speaker 2: You don't remember telling that joke in front of a room full of folks? [00:09:13] Speaker 3: I don't. [00:09:13] Speaker 2: If you want to hide a body, Kenny Berkowitz is your man? [00:09:16] Speaker 3: I don't. [00:09:17] Speaker ?: Okay. [00:09:18] Speaker 2: 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? [00:09:29] Speaker 4: Objection. [00:09:31] Speaker 1: Ask it differently. [00:09:34] Speaker 2: At that same retirement dinner, there were members of the DA's office there, correct? [00:09:39] Speaker 3: Yes. [00:09:39] Speaker 2: As a matter of fact, the DA, Michael Morrissey, was there. [00:09:42] Speaker 3: I believe he was at one point. [00:09:43] Speaker 2: 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? Yes. How long have you known Brian Albert, specifically? [00:09:58] Speaker 3: I think I had some interaction with him when I was on the Cambridge Fire Department in my capacity and fire investigations. And then I would say pretty much through my entire career at ATF, you know, I came into contact with Brian. [00:10:11] Speaker 2: Give me a number of years. [00:10:14] Speaker 3: Well, I've been with ATF now for 15 years. I've probably known him at least that whole time. [00:10:19] Speaker 2: You'd say that you have both a social and professional working relationship with him? [00:10:25] Speaker 3: I would say yes. He's a friend. [00:10:28] Speaker 2: Frequently drink together? [00:10:30] Speaker 3: We have drank together. I wouldn't say frequently, but yes, we've drank together. [00:10:35] Speaker 2: Break bread together, have meals together? [00:10:37] Speaker 3: Absolutely. Had lunch. [00:10:39] Speaker 2: 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? Or under, actually you said under 50? [00:10:52] Speaker 3: Under 50, I think I might have said 30. [00:10:58] Speaker 2: And that was in two years, correct? [00:11:02] Speaker 3: Yes. [00:11:03] Speaker 2: So not under 50 in the entirety of your relationship, but 50 in your relationship with Brian Albert. Literally in the prior two years when you gave your testimony in June of 2023, in those two years, I met up with him and had drinks under 50 times. [00:11:18] Speaker 3: Was that a question? [00:11:19] Speaker 2: Yes. [00:11:20] Speaker 3: Could you rephrase it? [00:11:21] Speaker 2: Sure. Is it true that you testified, answer, quote, I mean, in two years, I mean, maybe under 50, end quote. That was your testimony to how often you socialized with Brian Albert, correct? [00:11:34] Speaker 3: So we socialized more when I started working with his unit. [00:11:40] Speaker 2: Okay. So my question is, well. [00:11:43] Speaker 3: I don't know the exact number, but yes, we socialized, absolutely. [00:11:46] Speaker 2: That's all I was getting at. [00:11:47] Speaker 3: Okay. That's fine. I mean, there's no secrets here, right? He's my friend. [00:11:50] Speaker 2: Mr. Higgins, let me ask the questions. I get it. [00:11:53] Speaker 3: That's fine. [00:11:54] Speaker 2: I get it. You also know Brian Albert well enough to know what his relationship with, for instance, the other guy that you traveled back from New York with, Eddie Hernandez. [00:12:04] Speaker 3: I do know Eddie Hernandez. I actually know Eddie the longest out of everybody. [00:12:07] Speaker 2: So you knew Eddie, or Officer Hernandez, before you ever knew. [00:12:12] Speaker 1: Ask the question. [00:12:13] Speaker 2: You knew Officer Hernandez before you ever knew Brian Albert. Yes. You knew him before you even knew Kevin. [00:12:20] Speaker 3: Yes. [00:12:20] Speaker 2: And you're aware that there was a physical altercation between Brian Albert and Eddie Hernandez that you're aware of, correct? [00:12:28] Speaker 1: The objection sustained. [00:12:29] Speaker 2: Are you aware that Brian Albert had gotten into a fist fight with Eddie Hernandez? [00:12:32] Speaker 1: Objection. Sustained. [00:12:34] Speaker 2: Were you at a Christmas party when that happened? [00:12:37] Speaker 4: Objection, Your Honor. [00:12:39] Speaker 1: Sustained as to that form. You can be specific. [00:12:43] Speaker 2: Have you ever been in an event with Brian Albert and Eddie Hernandez and seen them fight? [00:12:49] Speaker 1: Objection. [00:12:51] Speaker 2: Christmas five years or so before 2022. [00:12:57] Speaker 1: Okay. The objection sustained. [00:12:59] Speaker 2: You do know that Brian Albert has a reputation for being a fighter. [00:13:03] Speaker 1: Objection. Sustained. [00:13:08] Speaker 2: 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? [00:13:25] Speaker 3: I'm tracking. [00:13:26] Speaker 2: Okay. At the formal interview, which is what I'm going to call that. [00:13:29] Speaker 3: Okay. [00:13:30] Speaker 2: The formal interview, you were asked about Brian Albert and his reputation. Were you not? Yes or no? [00:13:37] Speaker 3: Yes. [00:13:37] Speaker 2: You indicated in that formal interview that even Chief Berkowitz was a little afraid of Brian Albert. [00:13:43] Speaker 1: All right. So that is the objection sustained. That's stricken. I'll see you at sidebar. [00:13:49] Speaker 2: May I inquire? [00:13:51] Speaker 1: Yes. [00:13:51] Speaker 2: Thank you, Your Honor. You're also relatively close friends. In addition to being close friends with Brian Albert, you're also relatively close friends with his brother, Kevin. Correct? [00:14:01] Speaker 3: I am. [00:14:02] Speaker 2: Kevin Albert is a detective with the Canton Police Department. Is that right? Yes. And you've worked in the same physical office with him for a number of years? [00:14:10] Speaker 3: Physical building. [00:14:11] Speaker 2: Physical building. That's a better way to put it. [00:14:12] Speaker 3: It's different. [00:14:13] Speaker 2: Is that right? [00:14:14] Speaker 3: Yes. [00:14:14] Speaker 2: And it's fair to say that you've consulted with Kevin Albert on certain of his cases professionally. Is that right? [00:14:21] Speaker 3: I've assisted. [00:14:22] Speaker 2: And you've also socialized with him, shared drinks with him, gone out to bars with him. Is that right? Yes, I have. It's fair to say that you know the Albert family relatively well. [00:14:35] Speaker 3: I would say that I know Brian and Kevin the best. [00:14:41] Speaker 2: On January 28th, you drove your Jeep Wrangler to the Hillside Bar to meet up with Brian Albert for drinks, correct? [00:14:48] Speaker 3: I did. [00:14:49] Speaker 2: You said you drank three to four whiskey sodas at the Hillside. Is that right? [00:14:54] Speaker 3: It'd be Jameson and Ginger, not whiskey soda. [00:14:58] Speaker 2: My mistake. Jameson and Ginger. Jameson is an Irish whiskey? [00:15:01] Speaker 3: It is. [00:15:02] Speaker 2: And Ginger is ginger ale? Yes. Okay. What was Brian Albert drinking? If I was to guess, a beer. I don't want you to guess. Do you know what he was drinking? [00:15:14] Speaker 3: No, I don't. He was drinking something. He was drinking something. [00:15:16] Speaker 2: Okay. Alcoholic. Yes. 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. [00:15:28] Speaker 3: Um, I don't think we, no, I wouldn't say we were going round for round. [00:15:32] Speaker 2: So he was nursing one beer while you had four Jamesons? [00:15:36] Speaker 3: Well, it would, it would take, say that again. [00:15:39] Speaker 2: He was nursing one beer while you had four Jamesons? What do you say? [00:15:42] Speaker 3: No, he was probably, maybe he had more beers than I had Jamesons is more what I would say. [00:15:46] Speaker 2: Okay. So maybe he had five or six beers while you had four Jamesons. [00:15:49] Speaker 3: I'm not going to put a number on it because I don't know. [00:15:51] Speaker 2: But it was more. [00:15:52] Speaker 3: More than what? [00:15:53] Speaker 2: More than you. [00:15:55] Speaker 3: Maybe. He wasn't there that long. [00:15:58] Speaker 2: Um, 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. [00:16:05] Speaker 3: Is that a question? [00:16:07] Speaker 2: Everything I say up here is a question. [00:16:08] Speaker 3: Okay. Just presume that. All right. So. [00:16:11] Speaker 1: Well, that wasn't. So. So let's. [00:16:17] Speaker 2: Question. [00:16:18] Speaker 1: Yes. That was a question. [00:16:20] Speaker 2: Um, all right. Let me put a question mark at the end of that. Okay. It's your memory that Brian Albert had more drinks than you did when you had those three to four, um, Jameson and Gingers. [00:16:30] Speaker 3: To be honest with you, I wasn't keeping track. [00:16:35] Speaker 2: He left Hillside and you stayed, correct? For a short time. Yes. 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? [00:16:51] Speaker 3: Yes, because I'm always saying I'm going to show up and then I kind of do the Irish exit. So I decided it was a long day. It was an emotional day. And I decided to join them. [00:17:00] Speaker 2: Did you drive your vehicle over there? [00:17:02] Speaker 3: Yes, I did. [00:17:02] Speaker 2: After having as many as four whiskeys? [00:17:06] Speaker 3: Yes. [00:17:09] Speaker 2: Brian Albert. Did he drive himself? [00:17:12] Speaker 3: Well, I didn't see him. I dropped him off in, uh, Boston Peabody District down there in Charlestown. And I'm assuming he drove back towards that way to meet me. [00:17:22] Speaker 2: He wasn't with anybody else? [00:17:23] Speaker 3: Not that I know of. [00:17:24] Speaker 2: So he was drinking at the Hillside Bar and then got in his car and drove over to the waterfall as well. [00:17:28] Speaker 3: I didn't see him drive over, but I assume that's what he did. Yes. [00:17:31] Speaker 2: Um, 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? [00:17:41] Speaker 3: Yes. [00:17:42] Speaker 2: That was the time when you indicated that when you left, Karen gave you a kiss goodbye, correct? [00:17:48] Speaker 3: Yes. [00:17:48] Speaker 2: Um, 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? [00:17:59] Speaker 3: I wouldn't describe it as a peck. I describe it as more than friends. It was a kiss. [00:18:03] Speaker 2: Well, you did describe it as a peck, didn't you? [00:18:06] Speaker 3: When? [00:18:07] Speaker 2: When you texted Karen Reed and she said it was just a peck and then you texted back, I agree. [00:18:12] Speaker 3: Figure of speech. [00:18:15] Speaker 2: Or the truth, right? [00:18:17] Speaker 3: Figure of speech. [00:18:21] Speaker 2: After that incident, it's safe to say we've just gone through a number of them. Uh, you exchanged flirtatious texts with Ms. Reed, is that right? [00:18:29] Speaker 3: Is the incident you're referring to when she kissed me? [00:18:31] Speaker 2: No, I'm saying after that. After that incident, yes, after the Patriots game. [00:18:36] Speaker 3: Okay, yeah. [00:18:37] Speaker 2: You exchanged flirtatious texts. [00:18:39] Speaker 3: We did. [00:18:39] Speaker 2: With Ms. Reed. [00:18:40] Speaker 3: I did. [00:18:41] Speaker 2: Um, and that was over the course of a few weeks, a couple of weeks, but just nine days. Is that right? [00:18:49] Speaker 3: So it was between the 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. [00:19:00] Speaker 2: Well, it's actually, you've looked at the text, right? [00:19:03] Speaker 3: I have. [00:19:04] Speaker 2: You just looked at the last couple of texts. I did. The last text that she sent of any substance was January 23rd, right? [00:19:12] Speaker 3: Well, I think the text, I think the text on the 29th, John died, there's substance there. [00:19:18] Speaker 2: Okay, I'm not suggesting, I'm talking about after you said, um, well, on the 28th, right? The text of substance between the two of you, talking between the two of you, not the John died text. That substance ended on the 23rd, didn't it? [00:19:36] Speaker 3: I'd have to, I'd have to have the text in front of me to, to, to agree with you. [00:19:42] Speaker 1: I, I think it's right here, Mr. Jackson, right in front of the exhibits right there. Thank you. May I approach? [00:19:48] Speaker 2: Yes. [00:19:49] Speaker 3: Okay, wait, are you directing me to the 23rd? [00:19:51] Speaker 2: I'm directing you to the last page. Just look at everything on it and tell me if that refreshes your recollection is to the last substantive texts about you and Karen before your, um, well, yes, it'd be the 23rd at 940. May I? Yes. Thank you. So it was nine days of texting between the two of you, correct? [00:20:14] Speaker 3: I believe so. Yes. [00:20:18] Speaker 2: And aside from the, the kiss goodbye, you two never had any sort of physical contact with one another. [00:20:26] Speaker 3: Do you mean intimate when you say physical? [00:20:29] Speaker 2: Correct. Yes. I'm not talking about shaking her hand, Mr. Higgins. [00:20:33] Speaker 3: Well, I just, I want to answer your, your, your question truthfully. [00:20:36] Speaker 2: I would like you to, too. You didn't have any physical intimate contact with this read, correct? [00:20:41] Speaker 3: No, I did not. [00:20:41] Speaker 2: But there was no other hugs or kisses or certainly no sex. [00:20:45] Speaker 3: Nope. [00:20:46] Speaker 2: Um, 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? [00:20:57] Speaker 3: Yes. [00:20:58] Speaker 2: Over the course of that week or so, um, Ms. Reed did explain her feelings about her relationship with Mr. O'Keefe, correct? [00:21:08] Speaker 3: During the, during the pendency of, uh, communication, she, she did express. [00:21:12] Speaker 2: Correct. [00:21:13] Speaker ?: Yes. [00:21:13] Speaker 2: And she indicated that, uh, there's a difference between being married to someone and dating someone, et cetera. We saw those texts. Is that right? [00:21:18] Speaker ?: Yes. [00:21:19] Speaker 2: Uh, 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? [00:21:28] Speaker 3: It was clear to me she was upset. [00:21:30] Speaker 2: And she said, I don't care too much about that other girl, right? [00:21:32] Speaker 3: Well, at least that's what she said in text. Yes. [00:21:34] Speaker 2: That's what I'm asking you. Is that what she said in text, Mr. Higgins? It's not a trick question. [00:21:38] Speaker 3: That's what she said in text. [00:21:39] Speaker 2: Right. Um, she said something along the lines of, uh, I'm just trying to be realistic. There's cracks in the relationship. It's far from perfect. Is that right? [00:21:50] Speaker 3: I think that's something she texted. [00:21:52] Speaker 2: All right. And you'll agree that during the course of these texts, you were constantly asking for clarity and explanation from her. Were you not? [00:22:02] Speaker 3: During our communication, I did ask for clarity. Many times. Yes. [00:22:08] Speaker 2: You saw it, correct? [00:22:09] Speaker 3: Yes. [00:22:10] Speaker 2: And she pretty much wouldn't answer you, correct? [00:22:13] Speaker 3: She was noncommittal, I would say. [00:22:14] Speaker 2: 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? [00:22:24] Speaker 3: Well, I didn't want to be stuck in the middle of anything. [00:22:26] Speaker 2: That's not my question. I'm asking you whether or not she would answer your question about clarity specifically. [00:22:31] Speaker 3: She avoided questions about texts. [00:22:34] Speaker 2: And that was frustrating because you were very interested in her romantically at that point, correct? [00:22:39] Speaker 3: I was attracted to her. I don't know that I would say very interested in her. [00:22:43] Speaker 2: You texted things like, why did you get my number and reach out? That's a quote from the text we just read, correct? [00:22:49] Speaker 3: I did ask that, yes. [00:22:50] Speaker 2: You said, now what? Is that right? Yes. You texted, so now what? Correct? Yes. You texted, I would hang out, meaning with you. Yes. Correct? You were showing interest in her. Yes. You were showing romantic interest in her. [00:23:08] Speaker 3: I wouldn't say it was romantic. I was trying to vet it out. [00:23:10] Speaker 2: Well, you weren't trying to, you weren't seeing if she wanted to go see a ball game with you as a buddy, right? [00:23:17] Speaker 3: Not really, no. [00:23:18] Speaker 2: No. You were showing romantic interest in her, weren't you? [00:23:21] Speaker 3: I was trying to vet out what is, was her interest in me legitimate? It was very normal for me to have that question in my mind when I didn't initiate this, she did. And I think it was a fair question just to try to find out. [00:23:36] Speaker 2: You were showing romantic interest in Karen Reed, weren't you? [00:23:41] Speaker 3: I was interested, but I don't think I was at the romantic phase. Okay. [00:23:45] Speaker 2: When I say romantic, well, what do you mean by romantic? What's the romantic phase? [00:23:50] Speaker 3: Sending somebody flowers? [00:23:52] Speaker 2: Dating? [00:23:54] Speaker 3: Well, there's a difference between dating and hanging out. I mean, it's kind of hard to date somebody when you have a boyfriend. [00:23:59] Speaker 2: Mr. Higgins, well, not if both people are dating other people, right? Happens all the time, doesn't it? [00:24:05] Speaker 3: Well, I think I asked that question, too. [00:24:07] Speaker 2: Right. That's not my question. My question is, you seem to have a problem admitting that you had a romantic interest in my client. Is there a reason for that? [00:24:15] Speaker 3: I was attracted to her. [00:24:16] Speaker 2: Right. Physically attracted. [00:24:19] Speaker 3: I thought she was an attractive woman. [00:24:21] Speaker 2: Romantically attracted. [00:24:22] Speaker 3: I'm not going to go there. No, I don't agree with that. [00:24:24] Speaker 2: Of course you're not going to go there, because that would put you in a very awkward position, wouldn't it, sir? [00:24:28] Speaker 4: Objection. [00:24:29] Speaker 2: Not at all. [00:24:29] Speaker 1: So the objection sustained is to the form. You can ask it differently, and that answer will be stricken now. [00:24:35] Speaker 2: I'm sorry, Your Honor. May I? [00:24:37] Speaker 1: Yes. [00:24:38] Speaker 2: You were sexually attracted to her. [00:24:40] Speaker 3: I was physically attracted to her, yes. [00:24:42] Speaker 2: Sexually attracted to her was my question. [00:24:44] Speaker 3: Well, I think in the text I said, you're hot. [00:24:47] Speaker 2: Okay. So my question again, Mr. Higgins, you seem to not want to answer my question. My question is, were you or were you not sexually attracted to my client? Yes. You were saying things like, what do you want from me, and I want the real deal. Those are your words, correct? [00:25:08] Speaker 3: Yes. [00:25:10] Speaker 2: And the real deal with you would be to date her, to get involved with her, romantically, correct? [00:25:18] Speaker ?: No. [00:25:19] Speaker 2: The real deal was what? What did you mean by, I want the real deal? [00:25:22] Speaker 3: Like a relationship. [00:25:24] Speaker 2: What kind of relationship? A buddy-buddy relationship? Do you just want to go like? [00:25:28] Speaker 3: The same thing everybody wants. A real relationship. [00:25:31] Speaker 2: Like a romantic relationship, Mr. Higgins? [00:25:34] Speaker 3: It's possible. [00:25:36] Speaker 2: Right. And she was answering with things like, when you said, now what? She answered, I don't know, correct? [00:25:47] Speaker 3: Yes, she did. [00:25:48] Speaker 2: When you asked, so now what, what? She answered, I'm sorry, when you said, so now what? She answered, now what, what? Correct? [00:25:57] Speaker 3: Well, I don't have it in front of me, so I can't agree with you. I'd like to see what you're referring to. [00:26:02] Speaker 2: Well, you just read it about 10 minutes ago. Would you, would you quarrel if? [00:26:06] Speaker 3: I know, but this put, you're, you're, you're giving me portions of it. [00:26:09] Speaker 2: You were given portions of it by Mr. Lally as well. [00:26:12] Speaker 3: Okay. [00:26:12] Speaker 2: Right? Did you text something like, now what? And she responded something like, now what, what? [00:26:20] Speaker 3: I think on one occasion she did, yes. Okay. [00:26:26] Speaker 2: 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? [00:26:37] Speaker 3: I think that was one of the texts. [00:26:38] Speaker 2: Again, with this theme of her being non-committal, one way or the other. Is that right? [00:26:44] Speaker 3: Well, I don't, that's not how I would interpret it as a theme, no. [00:26:47] Speaker 2: Well, didn't you just say she was non-committal? That was your word, not mine. [00:26:52] Speaker 3: 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. [00:26:57] Speaker 2: Right. So when you were sussing it out and determining whether or not you were going to advance this romantic interest, she was sort of non-committal, wasn't she? [00:27:07] Speaker 3: Well, not one person advances it. I think that's a, that's a joint thing. [00:27:13] Speaker 2: When you texted, you want the real deal, she responded, it doesn't exist, didn't she? [00:27:23] Speaker 3: She did, yes. [00:27:27] Speaker 2: And she never once, in any of those texts, expressed anger or hatred for John O'Keefe, correct? [00:27:34] Speaker 3: No, not at all. [00:27:35] Speaker 2: Matter of fact, she texted more, she indicated more of frustration with the immediate family. The kids, she didn't want to have kids. [00:27:45] Speaker 3: In its totality, I would say yes. [00:27:48] Speaker 2: And then on January 23rd, as you just saw, she just stopped communicating with you altogether, correct? [00:27:56] Speaker 3: Until the 29th, yes. [00:27:58] Speaker 2: Correct. Do you know what the term ghosted means? [00:28:02] Speaker 3: I think I have a general idea, yes. [00:28:04] Speaker 2: She sort of ghosted you, didn't she? [00:28:05] Speaker 3: I wouldn't agree with that. [00:28:08] Speaker 2: That was frustrating to you, that she just stopped communicating, wasn't it? [00:28:12] Speaker 3: No, not at all. [00:28:13] Speaker 2: You had been moving through this mindset of exploring a romantic interest with a beautiful woman who thought was interested in you. And just like that, it was done, right? [00:28:26] Speaker 3: No. [00:28:28] Speaker 2: So what communication did you have with her after January 23rd? [00:28:32] Speaker 3: Well, she texted me on January 29th. [00:28:34] Speaker 2: 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. [00:28:46] Speaker 1: All right, so that's what we talked about. No more of that. Sorry. [00:28:51] Speaker 2: After the 23rd, or up to the 23rd, she had been texting back and forth with you pretty regularly. You just saw it, correct? [00:28:59] Speaker 3: She also sent me a text with arrows saying the phone works both ways. [00:29:03] Speaker 2: And as of the 23rd, she stopped, didn't she? [00:29:08] Speaker 3: The texts were sporadic over those nine days. I don't know if they would have stopped or they would have kept going. [00:29:13] Speaker 2: Well, they didn't keep going, did they? [00:29:15] Speaker 3: Well, John passed away. [00:29:16] Speaker 2: You know they didn't keep going because from the 23rd on to the 24th, 25th, 26th, 27th, 28th, all the way to the 29th, she never texted you, right? [00:29:30] Speaker 3: I believe so. [00:29:31] Speaker 2: She didn't respond to any of your texts, correct? [00:29:34] Speaker 3: Well, she didn't respond to the text on the 28th, Friday. [00:29:39] Speaker 2: Mr. Higgins, before we broke for lunch, we were talking about the text exchanges and the communication that you were having with Ms. Reed in the days leading up to January 23rd. You recall that? Yes. It's fair to say that her text communications with you started to dwindle off in the days before the 23rd, correct? They lagged. As a matter of fact, you reached out to her in an effort to try to prompt the conversation to continue, did you not? [00:30:10] Speaker 3: I reached out to her, but I wouldn't say that's what it was about. [00:30:13] Speaker 2: Well, you texted her, stranger, stranger, didn't you? Not once, but twice. [00:30:19] Speaker 3: I believe so. [00:30:21] Speaker 2: Take a look, if you don't mind, at, this is a page from what you've just seen. So he needs the... I'm sorry. I was thinking that was right in front of you. May I approach? Please. Thank you. [00:30:32] Speaker 1: Maybe that should just stay with Mr. Reed. [00:30:40] Speaker 2: Thank you. That's easy to find. It's literally the last page. Report permission, may it publish? Yes. Does that look like a fair representation of what you're looking at? The last page of that series of texts? Yes. At the very top, do you read what you write in the blue bubbles starting at the top? [00:31:00] Speaker 3: Ha, ha, stranger, stranger. [00:31:02] Speaker 2: And then what was the response from Ms. Reed? [00:31:05] Speaker 3: Hey, I was at the hilly all weekend. [00:31:07] Speaker 2: And what did you respond to that point? [00:31:09] Speaker 3: I have not heard from you. [00:31:11] Speaker 2: And by the way, if you look at the next date down, what's the date underneath, I have not heard from you? [00:31:16] Speaker 3: The 23rd. [00:31:18] Speaker 2: So this would have preceded the 23rd, correct? [00:31:22] Speaker 3: Yes. [00:31:23] Speaker 2: Okay. Then on the 23rd, and by the way, after you texted, I have not heard from you, she did not respond, correct? [00:31:31] Speaker 3: She did not respond. [00:31:33] Speaker 2: Then on the 23rd, she did respond with phone works, correct? [00:31:37] Speaker 3: In the arrows, like both ways. Right. [00:31:39] Speaker ?: Yep. [00:31:40] Speaker 2: And then what did you text after that? [00:31:42] Speaker 3: I just said, thought you were all set. And how did she respond? She said, with talking? No. [00:31:50] Speaker 2: That's all I have for that. Okay. Bring the lights back up. So clearly with that last text, her response was in response to you saying, thought we were all set. She said, with talking, no. Correct? Yes. Did that indicate to you that with flirting, yes, we're all done? [00:32:09] Speaker 3: No. I didn't read anything into it. [00:32:11] Speaker 2: Okay. But you did read where she said, with talking, no, correct? [00:32:15] Speaker 3: Yes. [00:32:15] Speaker 2: And then you responded, how? [00:32:19] Speaker 3: I said, hmm, are you sure? [00:32:22] Speaker 2: And did she respond? [00:32:26] Speaker 3: No. [00:32:27] Speaker 2: 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 20th, late night hours of the 28th, early morning of the 29th, with her boyfriend, John O'Keefe, correct? Yes. Now, you had discussed your flirtations, if I can use that word, that you had with Ms. Reed with your friends, at least some of them, correct? I don't recall that, no. Do you recall that you openly shared the details of your interest in Ms. Reed with your work supervisor at the DOJ? [00:33:09] Speaker 3: Well, that was after, I shared what happened, that she kissed me. Yes, I did share that with her. [00:33:14] Speaker 2: And that was with? That was the first time. That was with a person by the name of Kate Dowd, is that right? [00:33:19] Speaker 3: That's correct. [00:33:20] Speaker 2: And that was before January 29th? [00:33:22] Speaker 3: Yes. [00:33:23] Speaker 2: And that's because your interest in Karen Reed, whether you call it romantic or sexual or whatever, your interest was something that was at least occupying your mind at that point, correct? [00:33:36] Speaker 3: No. [00:33:37] Speaker 2: It was occupying your mind enough to share it with your boss. [00:33:40] Speaker 3: No, what I shared with my boss was the fact that she kissed me. That was it. [00:33:45] Speaker 2: Did you discuss your flirtatious relationship with Karen Reed with Brian Albert at any point? [00:33:51] Speaker 3: No. [00:33:51] Speaker 2: Never? No. So you were on a four-hour drive in a snowstorm back from New York with Mr. Reed, I'm sorry, with Mr. Reed, with Mr. Albert, and your interest in Karen Reed never came up? No. Even though he's a good friend? Yes, just something I wouldn't talk about. You've been drinking since about what time? That's a bad way to ask it. What time did you start drinking? [00:34:19] Speaker 1: When are we at, Mr. Reed? [00:34:20] Speaker 2: I'm sorry, on the 28th, when you got back from New York. When did you start drinking? [00:34:26] Speaker 3: Well, it wasn't until I swapped out vehicles and I went up to the hillside. [00:34:30] Speaker 2: Okay. That would have been, give me a time frame. Nine-ish, eight-ish? [00:34:35] Speaker 3: It was dark. It was maybe in the area of eight o'clock. And what time do you think you got to Waterfall? I couldn't say. I don't, it was after the hillside. [00:34:48] Speaker 2: Did, before Brian Albert left Hillside, did he tell you that John O'Keefe had been invited over to meet them at the Waterfall? [00:34:59] Speaker 3: No. [00:35:02] Speaker 2: Was there any particular reason why you changed your mind and left the hillside to go to the Waterfall? [00:35:08] Speaker 3: Well, I think, as I previously testified, that it was because I didn't always take them up on their offer. And I usually did the Irish exit, and I decided, because of the weather and everything else, and it had been a long day, that I would go down there and join them. [00:35:24] Speaker 2: It didn't have anything to do with you knowing that Karen Reed might be at the Waterfall. [00:35:29] Speaker 3: 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. [00:35:36] Speaker 2: Do you have any text messages with Brian about going to the Waterfall? [00:35:40] Speaker 3: I don't recall. He told me about it at the hillside. [00:35:47] Speaker 2: And once he got to the Waterfall, he got to the Waterfall, obviously, before you did. [00:35:51] Speaker 3: He did, I think shortly before, yes. [00:35:53] Speaker 2: Any text communications between you and Brian Albert about who was at the Waterfall or who was expected to come to the Waterfall? [00:35:57] Speaker 3: No, not that I recall. [00:36:00] Speaker 2: 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? [00:36:11] Speaker 3: It was great. Band was playing. [00:36:13] Speaker 2: You did not see any sort of tension between John and Karen? [00:36:16] Speaker 3: I did not. [00:36:19] Speaker 2: Nobody seemed overly intoxicated? [00:36:21] Speaker 3: No. [00:36:21] Speaker 2: You had had several drinks before you even got to the Waterfall, right? [00:36:25] Speaker 3: I think it was three to four. [00:36:26] Speaker 2: Did you drink additionally at the Waterfall? I did, yes. Did you drink whiskey or beer or what? Whiskey. Okay. How many do you think you had? I couldn't put a number on it. [00:36:35] Speaker 3: At least a couple. [00:36:36] Speaker 2: And ultimately, you left from there in your personal vehicle and drove over to, that's the Jeep, drove over to the Waterfall, correct? [00:36:43] Speaker 3: I drove over to the Waterfall. [00:36:44] Speaker 2: I'm sorry. I was at the Waterfall. Left the Waterfall, drove over to 34 Fairview. [00:36:47] Speaker 3: I did, yes. [00:36:51] Speaker 2: When John walked in to the Waterfall, were you already there? Yes. He greeted you, you indicated, correct? Yes, I believe so. Karen walked in with him? Yes. But she did not greet you, did she? [00:37:05] Speaker 3: I think they kind of went like that in different directions. [00:37:08] Speaker 2: Right. [00:37:09] Speaker 3: Yes. [00:37:09] Speaker 2: Did she greet you? [00:37:11] Speaker ?: No. [00:37:11] Speaker 2: 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? [00:37:18] Speaker 3: Yes. [00:37:20] Speaker 2: 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? [00:37:26] Speaker 3: I didn't have any interaction with her that night, no. [00:37:28] Speaker 2: So it's safe to say that throughout that evening, once she was sidled up next to John O'Keefe or friends that she was with, she never turned back around and came over and even acknowledged you, correct? [00:37:40] Speaker 3: That's correct. [00:37:41] Speaker 2: So she basically ignored you the entire evening? [00:37:43] Speaker 3: That's not how I interpret it, no. [00:37:45] Speaker 2: 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? [00:37:49] Speaker 4: Jackson. [00:37:51] Speaker 1: You can go ahead and answer that. Did she ignore you? [00:37:53] Speaker 2: No. So she paid attention to you? [00:37:57] Speaker 3: Came over and said hello, shake your hand, gave you a hug? Well, just because somebody didn't come over doesn't mean they ignored you. [00:38:03] Speaker 2: Did she do those three things? [00:38:06] Speaker 3: Hug? What was the other thing? [00:38:07] Speaker 2: Did she say hello, shake your hand, give you a hug? [00:38:09] Speaker 3: No, she did not. [00:38:10] Speaker 2: No, she didn't do any of those things. Did she? [00:38:11] Speaker 3: No. [00:38:12] Speaker 2: It was like you didn't even exist. [00:38:14] Speaker 3: I think that's dramatic. No, I don't look at it that way. [00:38:18] Speaker 2: Did she ignore you or not? [00:38:20] Speaker 3: No, she did not ignore me. [00:38:21] Speaker 2: So what did she do to not ignore you? [00:38:23] Speaker 3: She was working. [00:38:24] Speaker 2: What did she do to not ignore you? [00:38:26] Speaker 3: Can I answer now? Sure. In my opinion, she was working in the room, talking to people, saying hello, catching up. [00:38:32] Speaker 2: Right. The one person she didn't come over to talk to and say hello to and catch up with is you. [00:38:38] Speaker 3: Well, 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. [00:38:43] Speaker 2: Treated you sort of like a stranger. [00:38:45] Speaker 3: I don't feel that way, no. [00:38:47] Speaker 2: 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? [00:38:55] Speaker 3: I don't know where she was all night, no. [00:38:57] Speaker 2: Did that upset you that she ignored you or didn't pay attention to you? [00:39:00] Speaker 3: I did not feel ignored and didn't upset me at all. [00:39:05] Speaker 2: But it bothered you enough to send her a text, didn't it? [00:39:08] Speaker 3: No, it was a flirtasers text. It was just, that was it. [00:39:12] Speaker 2: It bothered you enough to send her a text that said, um, with six Ms behind it. Okay. And, well, correct? [00:39:23] Speaker 3: Well, it wasn't like that. It was, um, well, that's it. [00:39:26] Speaker 2: Just, um, well, like a well in the ground. [00:39:31] Speaker 3: I think you know what I mean. [00:39:32] Speaker 2: Yeah, I think you do too, sir. You meant, um, well, when are you going to pay attention to me? [00:39:38] Speaker 3: No, that's not correct. [00:39:39] Speaker 2: Um, well, why are you ignoring me? That's not correct. Um, well, am I chopped liver? [00:39:44] Speaker 4: Objection. [00:39:45] Speaker 1: All right, that's sustained. Mr. Jackson, let's move on. [00:39:52] Speaker 2: At the end of the night, the group basically discussed going back to Brian Albert's house. Is that right? [00:39:57] Speaker 3: 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. [00:40:06] Speaker 2: Before you left, just so we're clear, when you texted, um, well, she ignored that text too, didn't she? [00:40:17] Speaker 3: Can you say that again? [00:40:18] Speaker 2: When you texted her, um, well, at Waterfall, she ignored that text too, correct? [00:40:25] Speaker 3: Well, that was the only text I sent that night to her, yes. Okay. She didn't respond. [00:40:29] Speaker 2: That wasn't my question. My question is, she ignored the text, correct? [00:40:33] Speaker 3: Well, I don't know if she, I don't know what her mindset was. If she purposely ignored the text, or she didn't see it, I don't know. I didn't read into it. [00:40:43] Speaker 2: Did she ignore the text, Mr. Higgins? [00:40:45] Speaker 3: I don't know. [00:40:47] Speaker 2: Did she respond to the text? [00:40:48] Speaker 3: She did not respond. [00:40:49] Speaker 2: Got it. So, when everybody was leaving, did you leave before they did, John and Karen, or did they leave before you did? I don't know. You said you were the first one back to Brian Albert's house, correct? Yes. Safe to say you were one of the first ones to leave. [00:41:09] Speaker 3: I was the first one to leave the Waterfall. Probably. [00:41:15] Speaker 2: I mean, if you're the, you know, if everybody's hurting out, and you're the first one to get there, you're probably among the first to leave, correct? [00:41:21] Speaker 3: Most likely. [00:41:22] Speaker 2: Okay. You never personally discussed going to 34 Fairview with, certainly not with Karen Reed, did you? No. And you never discussed it with John O'Keefe either, did you? [00:41:32] Speaker 3: No. [00:41:34] Speaker 2: You didn't say goodbye or walk over and give John a big hug or anything like that? No. An acknowledgement, did you? [00:41:42] Speaker 3: No. [00:41:42] Speaker 2: You just left. [00:41:44] Speaker 3: That's what everybody was doing, just leaving. Okay. You too. [00:41:47] Speaker 2: Correct? I did leave, yes. And all you knew that, at that point, all you knew was that you were going over to 34 Fairview. You did not know who else was invited over to 34 Fairview. [00:42:01] Speaker 3: My impression was that it was an open invitation, and I was, I planned on heading over there. [00:42:06] Speaker 2: But you did not know who else was coming? [00:42:08] Speaker 3: I had no idea who was coming. [00:42:09] Speaker 2: And you didn't say goodbye to John, correct? [00:42:12] Speaker 3: I don't think I said goodbye to anybody. [00:42:13] Speaker 2: And you didn't talk to him about coming over to 34 Fairview. [00:42:17] Speaker 3: No. [00:42:17] Speaker 2: Yet at 2.20 in the morning, you texted John O'Keefe, you coming here, correct? At 2.20? Sorry, 12.20. I did. And that had three question marks behind it, correct? Yes. Did you text Karen about coming over to 34 Fairview? [00:42:37] Speaker 3: No. [00:42:38] Speaker 2: 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? No, that's not how I would describe that. But you didn't text Karen, correct? No, I didn't. But you did text John. Yes. You've indicated that you took your Jeep, your personal vehicle with the plow on it, over to 34 Fairview, correct? Yes. And you were among the first to arrive because you were doing that thing with the sort of playing around by plowing his driveway. [00:43:18] Speaker 3: It was a sweep of the driveway, yes. [00:43:22] Speaker 2: And then you indicated that you parked in front of the house, correct? I did. I know you've been over this before, but I'm going to ask you one sort of one final time so it's completely clear. Exactly where was your Jeep in front of that house? [00:43:35] Speaker 3: By the mailbox. [00:43:36] Speaker 2: Okay. Can we have, with the court's permission, Exhibit 66? Okay. This is a graphic representation of 34 Fairview, not a photograph. Just to orient you, do you see what's depicted in Exhibit 66? Yes. Do you recognize it? I do. Do you see the mailbox, which is out right there? [00:44:01] Speaker 3: Yes. [00:44:02] Speaker 2: Okay. Where was your Jeep in relation to that mailbox? [00:44:07] Speaker 3: So, the back end of the Jeep, the rear, would have been about, around equal with the mailbox, and I was not blocking the driveway. [00:44:18] Speaker 2: Okay. So, you would have been about there, correct? If the right edge of that highlight is the mailbox, the mailbox came right there, would have been about right there on the street, correct? [00:44:30] Speaker 3: Well, that would have been the front of the Jeep. We, a laser pointer is, it would be the front. [00:44:34] Speaker 2: Okay. So, the front of the Jeep was facing the flattable? [00:44:38] Speaker 3: Towards Trapman Street, correct. [00:44:40] Speaker 2: And the rear of the Jeep was basically, even with the mailbox, strut or stanchion? [00:44:45] Speaker 3: It was definitely past the driveway, yes. [00:44:49] Speaker 2: Okay. You indicated the plow was a six foot, what inch plow? [00:44:56] Speaker 3: I think it was a six, eight, six foot. [00:44:58] Speaker 2: Six, eight, meaning the width? [00:44:59] Speaker 3: Meaning the width, yes. [00:45:00] Speaker 2: How deep is that plow? How deep? Like, two foot, three feet, six inches? I mean, it's probably a few inches. Okay. [00:45:09] Speaker 3: It's light, it's light duty. It's on a Jeep. [00:45:11] Speaker 2: Okay. And it's obviously curved and to the right? [00:45:16] Speaker 3: No, it was, it wasn't canted at all. It was straight down. [00:45:19] Speaker 2: Okay. So, it's not like, I'm, 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? [00:45:32] Speaker 3: I'm not understanding what you're trying to communicate to me. [00:45:34] Speaker 2: How is it, how is the plow positioned as it relates to the front end of the Jeep? Is it perfect, perfectly parallel to the front end or is it canted one way or another? [00:45:42] Speaker 3: 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, the plow straight. If I was on the highway for a long distance, I'd be worried about overheating. So, I would canter the, canter the plow, tilt it up so that air could get through the front grill. [00:46:01] Speaker 2: So, in other words, you can control it? [00:46:02] Speaker 3: I can, yes. [00:46:03] Speaker 2: How was it that night? [00:46:05] Speaker 3: So, so. [00:46:06] Speaker 2: How was it canted that night? Was it straight or canted? [00:46:08] Speaker 3: It was, it was straight and straight on. [00:46:11] Speaker 2: All right. When you walked into 34 Fairview, you indicated that there were people congregated basically in the kitchen area, correct? [00:46:21] Speaker 3: There were some people in the kitchen area, yes. [00:46:25] Speaker 2: How many people were at the high top table that you described? [00:46:29] Speaker 3: Initially, when I walked in, I believe there was Brian Jr. and he was flanked by one, possibly two females. [00:46:37] Speaker 2: And you indicated that basically you were positioned in that area with your back to the door for most of the evening, correct? [00:46:42] Speaker 3: I was like kind of, I would describe this diagonally across from him and had my back to the door that I had come in, which would be the breezeway door. [00:46:50] Speaker 2: But at some point you had moved out of that kitchen area with Brian Albert, correct? [00:46:55] Speaker 3: Well, I briefly went and looked at some photos. [00:46:57] Speaker 2: Right. So, you moved out of that area with Brian Albert alone to go to a different room. [00:47:03] Speaker 3: Yes. And I think his wife, Nicole, might have popped in the room for a second, but it was brief. [00:47:08] Speaker 2: Did you have anything to drink while you were at 34 Fairview? [00:47:10] Speaker 3: Well, when I got there, they didn't have any whiskey. I believe they might have put a bear or something else in front of me. And, you know, I knew it was going to be a short night there because I just wasn't going to – I'm not a bear drinker. [00:47:23] Speaker 2: So, the – you've indicated in a prior testimony that you've never been upstairs in Brian's house, correct? [00:47:40] Speaker 3: When you say upstairs, like you're talking like second floor? [00:47:42] Speaker 2: Correct. [00:47:43] Speaker 3: Yes. No. [00:47:44] Speaker 2: Okay. You testified to that in a prior hearing. Is that right? Yes. In May of 2023. Yes. And you said specifically, quote, I've never been upstairs. Is that right? [00:47:57] Speaker ?: All right. [00:47:57] Speaker 2: You understood when you gave that statement that you were under oath? Yes. You were telling the truth? Yes. Same oath that you took here today, correct? Yes. You indicated that the photos that you saw were on the first floor living room area. Is that right? I believe that's where they were. [00:48:13] Speaker 3: Yes. [00:48:13] Speaker 2: So, the only floor downstairs from the first floor would be what? The basement. And the only floor upstairs from the basement would be what? The first floor. 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? [00:48:39] Speaker 3: Are you saying on the first floor? [00:48:41] Speaker 2: Correct. If the photos are on the first floor. [00:48:44] Speaker 3: Yeah. [00:48:44] Speaker 2: And someone said, we went upstairs to look at those photos, where would they have to be? [00:48:50] Speaker 3: I guess upstairs. [00:48:52] Speaker 2: The people would have to be upstairs? [00:48:55] Speaker 3: Well, the photos would be upstairs. Is that what you're saying? [00:48:57] Speaker 2: Where are the people? Where would the people have to be to go upstairs to the living room to look at the photos? [00:49:05] Speaker 3: I'm not understanding the question. [00:49:07] Speaker 2: If the photos are on the first floor, Mr. Higgins. [00:49:09] Speaker 3: Yes. [00:49:10] Speaker 2: The only floor beneath it is the basement. [00:49:12] Speaker 3: Okay. [00:49:12] Speaker 2: And someone says, we went upstairs to look at the photos, where would they have to be? [00:49:18] Speaker 3: Well, who said they went upstairs? [00:49:21] Speaker 1: All right. So, Mr. Jackson, you can save this for argument. Next question, please. [00:49:27] Speaker 2: If Brian Albert said you went upstairs to look at the photos, where would you have to be? [00:49:31] Speaker 4: Jackson. [00:49:32] Speaker 1: Sustain. [00:49:35] Speaker 2: Now, Brian Albert had a weight room someplace in the house, right? Yes. And a gym. [00:49:41] Speaker 3: I guess he called it a home gym. [00:49:43] Speaker 2: Where was that? [00:49:44] Speaker 3: In the basement. [00:49:45] Speaker 2: Had you ever been down to that basement before? [00:49:47] Speaker 3: Yes, one time. [00:49:50] Speaker 2: When was that? [00:49:52] Speaker 3: That was during the twins' graduation party. Summertime? [00:49:59] Speaker 2: Summertime before? [00:50:00] Speaker 3: Summertime before, yes. [00:50:02] Speaker 2: Summer of 2021? [00:50:05] Speaker 3: Maybe. [00:50:07] Speaker 2: So, if Brian Albert testified that you've never been in the basement, that would not be accurate. [00:50:11] Speaker 1: Objection. Sustained. [00:50:15] Speaker 2: Now, you do recall giving testimony at another proceeding on June 1st, 2023, correct? Yes. And, of course, the same thing applied. You were under oath. Is that right? Yes. You knew that it was a crime to lie under oath? Yes. 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? Yes. And, during the course of that testimony, you admitted that you observed a tall, dark-haired male enter the Albert house that night, correct? [00:50:51] Speaker 3: I believe that was in reference to somebody's brother in a pickup. I don't know if that was during... [00:51:00] Speaker 2: 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? [00:51:10] Speaker 3: I said they might have. [00:51:12] Speaker 2: Did you say they might have? [00:51:13] Speaker 3: Yes. [00:51:14] Speaker ?: Yes. [00:51:18] Speaker 3: And that was in reference to somebody's brother. Yes. [00:51:20] Speaker 2: Isn't it true that you indicated that a male showed up who may have been Julie Nagel's brother, correct? [00:51:34] Speaker 3: I said might have, yes. [00:51:35] Speaker 2: Right. But there was no question in your mind that a male did, in fact, show up, and you described him as tall and dark-haired, right? Yes. 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? Yes. So a male did come in the house that night, correct? [00:52:08] Speaker 3: No, I said I believe he did. I wasn't sure. [00:52:10] Speaker 2: Well, when you testified at the prior hearing, you were asked, so you saw someone else come, question, answer, somebody else, yes, end quote. That's what you testified to under oath, wasn't it? Is that in reference to that? [00:52:33] Speaker 1: What page are you on, Mr. Jackson? [00:52:35] Speaker 2: Page 485, 486, I believe. [00:52:44] Speaker ?: Yes. [00:52:47] Speaker 2: If I may, can I approach? Yes. Thank you. Look at the top part. Mr. Higgins, do you have that in mind? [00:53:01] Speaker 3: I do. [00:53:02] Speaker 2: May I approach? Yes. 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? [00:53:17] Speaker 3: Yes, but I also said that I wasn't paying attention. [00:53:20] Speaker 2: I realize that you want to explain your answer. I've asked you a very simple question. Was that your testimony in front of another proceeding? Yes, it was. At another proceeding, which you were under oath. Yes, it was. Okay. You also said that you only remember seeing that person come in briefly, and it looked like he was having a conversation with the two girls briefly, correct? Yes. 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? Yes. And then you were asked what he looked like, and you said, I feel like they were a little bit taller. Maybe he had dark hair, correct? Yes. So you testified that a tall, dark-haired male came into the house, at least briefly, in your testimony, correct? Yes. Approximately when in the timeline of events did that unidentified male enter the residence? [00:54:19] Speaker 3: I don't know the time frame. [00:54:21] Speaker 2: It would have been while I was there. 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? [00:54:36] Speaker 3: I don't recall. [00:54:40] Speaker 2: You were specifically asked by ADA Lally when you testified before the state court grand jury on April 28, 2022, who else was present, correct? Yes. And you never mentioned a tall, dark-haired male coming into the house, did you? [00:54:56] Speaker 3: No. [00:54:58] Speaker 2: However, on June 1st, 2023, at this other proceeding, you were specifically instructed at the start of your testimony that it was a crime to give materially false statements in that proceeding, correct? Yes. 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? [00:55:21] Speaker 1: Can you answer that, yes or no? [00:55:24] Speaker 2: No, I can't, Your Honor. [00:55:25] Speaker 1: Next question, Mr. Jackson. [00:55:29] Speaker 2: The quotations that I, or the quotes that I just read you and that you just looked at? Yes. That was from the June 1, 2023 hearing, wasn't it? [00:55:36] Speaker 3: I don't know. [00:55:45] Speaker 2: That's what we 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. [00:55:51] Speaker 3: I see it, yes. [00:55:52] Speaker 2: May I approach? Yes. What's the date, sir? [00:55:56] Speaker 3: June 1st. [00:55:58] Speaker 2: 2023? Yes. How long did you stay at the Albert residence in total? From the time you got there until the time you left? [00:56:08] Speaker 3: Maybe like a half hour, less than an hour. [00:56:12] Speaker 2: And what time did you leave? Say 1230, you said? [00:56:17] Speaker 3: I think I said between 1230 and 1 a.m. [00:56:20] Speaker 2: And you indicated that you pretty much didn't say goodbye to anybody, right? [00:56:24] Speaker 3: At the house? [00:56:25] Speaker 2: Correct. [00:56:26] Speaker 3: I just kind of left. I said, see you later. Turn around and left. [00:56:30] Speaker 2: As a matter of fact, at that same hearing that we just looked at, your statement was, I made a beeline out of it, correct? [00:56:38] Speaker 3: I don't know if that's the verbiage I used, but I left. Why the rush? Why did you leave so quick? Because it was a long day and I just wanted to go home. [00:56:46] Speaker 2: Except you didn't go home, did you? [00:56:48] Speaker 3: No, I went back to Canton PD. [00:56:49] Speaker 2: Right. So it wasn't such a long day that you actually drove home. You went back to the Canton Police Department at 1 or 1.30 in the morning, correct? [00:56:58] Speaker 3: To move vehicles, correct. [00:57:00] Speaker 2: Well, let's talk about you leaving. You walked out that side breezeway door, correct? Yes. You walked down the driveway? Yes. There's nothing obstructing your view at that point of the lawn to your right, correct? I didn't look over there, but I would not think so. 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? If I wanted to, yes. It's just basically a flat, grassy lawn with a light dusting of white powder snow on it, right? [00:57:36] Speaker 3: I don't know how much snow was, but there was snow there. [00:57:39] Speaker 2: Yeah, you indicated that it wasn't even enough to stick to the pavement at that point. [00:57:42] Speaker 3: Well, that's when I got there, yes. [00:57:44] Speaker 2: Well, you only stayed less than an hour, right? That's correct. So I'm assuming it didn't dump three feet in an hour, correct? [00:57:50] Speaker 3: I think we can both agree that it wouldn't have been three feet now. [00:57:54] Speaker 2: Right. So it would have been a light dusting of snow. [00:57:56] Speaker 3: More snow than there was there. [00:58:03] Speaker 2: How many, how far would you say it was from the edge of the driveway over to your Jeep? [00:58:12] Speaker 3: From where the back of my Jeep was parked? [00:58:13] Speaker 2: Correct. [00:58:17] Speaker 3: Maybe a foot or two, or it could have been even with the edge of the driveway? [00:58:21] Speaker 2: Oh, no, no, I'm sorry. It's probably a bad question on my part. When you left the house, as you started to walk down the driveway toward your Jeep, how long the walk is that across the yard to the, you know, down the driveway to get to your Jeep? [00:58:34] Speaker 3: Short. [00:58:36] Speaker 2: 30 feet? Maybe. 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? No. You certainly didn't see a body in the yard. Of course not. Now, you get in your car, and it's facing directly toward the flagpole, correct? [00:59:02] Speaker 3: It's facing directly up the street. The flagpole would be off to the one o'clock. [00:59:07] Speaker 2: Right. So, just a few degrees off to the right, the flagpole is, correct? It's off to the right. Just a few degrees. [00:59:14] Speaker 3: I don't know how many degrees, but it's off to the right. Well, you just said one o'clock. [00:59:18] Speaker 2: Yes. You're a former military guy, right? I am. Okay. One o'clock means one o'clock on a watch. Twelve o'clock is due north, or right in front of you. One o'clock is just a few degrees to the right, correct? That's what you meant. At the one o'clock, yes. Okay. So, you didn't see a body when you got in your Jeep? No, I did not. Then you turned the engine on, correct? And the wipers, yes. And the lights? Yes. And the lights lit up everything in front of you, correct? Yes. Still didn't see a body, did you? No, I did not. Sitting in the driver's seat, you put the car in gear, and you began to roll forward, right? Yes. But there was a plow on the ground that scraped for a foot, right? Yes. So, you picked it back up? Yes. Looked out the windshield to make sure the plow was situated and continued to roll forward, correct? I knew it was up when I continued to drive. 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? [01:00:14] Speaker 3: Well, I knew there was no oncoming cars. I was just driving forward. [01:00:17] Speaker 2: Right. So, your focus is directly in front of you? [01:00:19] Speaker 3: On the road, yes. [01:00:20] Speaker 2: And everything in your peripheral vision was right in front of you as well, correct? Yes. Nothing obstructing your view? I mean, other than snow on the car. Nothing obstructing your view outside, toward the lawn? Wasn't another car parked there? No, no. There was no vehicles in front of me, no. It was, the roadway was relatively empty. There was no cars. And you didn't see a body then either, did you? [01:00:43] Speaker 3: I did not. [01:00:46] Speaker 2: 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? [01:00:54] Speaker ?: I did not. [01:00:57] Speaker 2: You're a former firefighter, is that right? Yes. Did that put you in a position of being a first responder? [01:01:03] Speaker 3: Yes. [01:01:04] Speaker 2: And you're currently a law enforcement officer? Yes. That puts you in the position of being a first responder, correct? I'm also a tactical medic, yes. Which means that you have training to be an observer. You're a trained observer. More than the average person, correct? Yes. You look for things out of the ordinary. You look for things that don't belong. As an investigator, a former firefighter, first responder, correct? [01:01:29] Speaker 3: Yes. [01:01:30] Speaker 2: 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? If I did, I would have done something to help him. I asked you if you saw one. [01:01:44] Speaker 3: No, I did not. [01:01:48] Speaker 2: And that's because there was no body there, correct? [01:01:52] Speaker 3: I didn't see anything. [01:01:53] Speaker 2: Because if there was a body there, you certainly would have seen that. [01:02:00] Speaker 4: Objection. [01:02:03] Speaker 2: Where exactly did you go when you left 34 Fairview? [01:02:07] Speaker 3: I went back to the Canton Police Station. [01:02:10] Speaker 2: 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 PD. [01:02:18] Speaker 3: No, that's not what I testified to. No, that's not what I testified to. Did something jog your memory about where you went? That is not what I testified to. That was in relation to where did I go after I left 34 Fairview the next morning. [01:02:35] Speaker 2: Why did you go to Canton Police Department that night, that morning? [01:02:42] Speaker 3: What's the question? [01:02:44] Speaker 2: Why did you go to the Canton Police Department that morning? [01:02:47] Speaker 3: The morning when I left 34 Fairview the Friday into Saturday? [01:02:53] Speaker 2: Correct. [01:02:54] Speaker 3: To move two vehicles. [01:02:56] Speaker 2: There's been quite an evolution of that story over the years, has there not? [01:03:02] Speaker 3: I don't understand the question. [01:03:03] Speaker 2: All right, let's talk about that for a second. You had an initial interview with Massachusetts State Police on February 3rd, 2022. Yes. Correct? And you indicated during the course of that interview, which was just a couple of days, five days, after the events in question, that you left Brian Albert's house, went to Canton PD to, quote, fulfill some administrative obligations, end quote. Correct? You later said, when you testified in front of the grand jury on April 28th, that you went to Canton PD to do, quote, administrative work. Correct? Yes. You never mentioned. I said administrative things. You said administrative work was your testimony in your transcript. I believe it was things, but okay. Okay. Can we agree, Mr. Higgins, that you didn't mention anything about moving cars around? Correct? [01:03:49] Speaker 3: Well, that would be administrative. [01:03:51] Speaker 2: So, when you say, I went to Canton PD to do administrative work or administrative obligations, you meant moving your car, your personal vehicle? Yes. Okay. Although you didn't say that you were going there to move your personal vehicle, right? [01:04:04] Speaker 3: No, I said I didn't move my personal vehicle. I moved work vehicles. [01:04:07] Speaker 2: Or either one. You just traded off vehicles, moved them out of the way, right? [01:04:11] Speaker 3: I moved two. The purpose for going back there was to move two work vehicles. [01:04:14] Speaker 2: And the reality is you had gotten there, you had gotten Canton PD earlier in the afternoon and actually moved some other vehicles, traded vehicles, didn't you? I swapped vehicles out. That's correct. 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? That is correct, yes. So, you didn't move the cars a few hours earlier knowing that you just have to come back and move those cars a few hours later, right? [01:04:45] Speaker 3: I was more concerned to go eat and have a drink because it had been a long day. [01:04:49] Speaker 2: 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? [01:05:00] Speaker 3: Not really. [01:05:04] Speaker 2: Mr. Higgins, you weren't actually at Canton PD to do administrative work at 1.30 in the morning, were you? [01:05:09] Speaker 3: I was moving the vehicles. I'm sure it's on video. [01:05:15] Speaker 2: We'll talk about the video in just a second. You entered the Canton Police Station through which door? [01:05:26] Speaker 3: I believe it was the door to the right of the Sally Port as you come in the main entrance. [01:05:34] Speaker 2: And you made note of who was on duty that night, correct? [01:05:37] Speaker 3: I didn't make note. I walked by, I saw somebody sitting in the control room, and then just went about my business. [01:05:42] Speaker 2: So, you immediately knew that your friend, Officer Good, was working dispatch, right? [01:05:47] Speaker 1: So, do you need to hear something? All right, Mr. Jackson. [01:05:50] Speaker ?: Thank you. [01:05:50] Speaker 2: Mr. Higgins, if you went back to Canton PD at 1 o'clock, 1.30 in the morning, you would certainly be in a position to monitor anything that was happening at Canton PD at the time that at least you were there, correct? [01:06:09] Speaker 3: Mr. Jackson. [01:06:10] Speaker 2: No. I mean, you would be inside the building, correct? Mr. Jackson. [01:06:13] Speaker ?: Yes, sir. [01:06:14] Speaker 2: With access to dispatch and anything else that was happening around that floor, that area, correct? [01:06:20] Speaker 3: Mr. Jackson. I did not go into dispatch. [01:06:22] Speaker 2: You would have access to the interior of the police station at that time if you went back to Canton PD at 1:30 in the morning, correct? [01:06:30] Speaker 3: Mr. Jackson. [01:06:31] Speaker 2: I'd have access. You could see if there was any activity going on, any calls, call outs, things of that nature? [01:06:37] Speaker 3: Mr. Jackson. I didn't have access to that and I wasn't looking for it. [01:06:40] Speaker 2: 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. Jackson. No. 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? [01:06:57] Speaker 4: Objection. [01:06:58] Speaker 1: The objection sustained. Ask it differently. [01:07:00] Speaker 2: If you were able to monitor, you'd be in a position to monitor what was happening at the station around 1:30 in the morning when you were over there, correct? No. So, how long did it take you to get home from Canton PD? [01:07:16] Speaker 3: A little longer from when I, after I moved the vehicles? Correct. I don't know. I mean, it could have been 15 minutes. It could have been 20 minutes. You live alone? [01:07:28] Speaker 2: I do. You did then? Yes. What did you do when you got home? [01:07:34] Speaker 3: I think I had something to eat, maybe a couple more drinks. [01:07:39] Speaker 2: Then you went to bed? [01:07:42] Speaker 3: I was either on the couch or in the bed watching the news. [01:07:46] Speaker 2: 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? [01:07:56] Speaker 3: I don't know. [01:07:57] Speaker 2: Well, you reviewed your testimony before you testified? [01:08:00] Speaker 3: Well, those would be the two options. [01:08:03] Speaker 2: Okay. I didn't ask you about your options. I asked you if you reviewed your testimony before you testified today. Yes. [01:08:11] Speaker 3: Okay. [01:08:12] Speaker 2: When you reviewed your testimony previous to coming in here today, did you ever testify that you slept on the couch that night? [01:08:20] Speaker 3: No, I slept in my bed, but I could have started somewhere else. [01:08:24] Speaker 2: Did you ever testify in the previous hearing that you started somewhere else? [01:08:29] Speaker 3: Not that I know. [01:08:30] Speaker 2: Did you ever mention a couch in any of your description about what you did when you went home that night? Not that I recall. As a matter of fact, what you did mention under questioning in a different hearing was that you may have gotten something to eat, you then went to bed and put your stuff on the nightstand next to your bed, correct? [01:08:50] Speaker 3: That would be the routine, yes. [01:08:53] Speaker 2: You did not make or receive any calls after returning home that night? No. 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? Yes. A personal and a work cell phone, right? Yes. You put them both on your bedside table because that's what you do every night, is that right? Most often, yes. 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. I don't know. [01:09:33] Speaker 3: I don't have a charging station. [01:09:34] Speaker 2: Right. You said no, bedside. In other words, you keep your phone by your bedside on your bedside table. Usually. You also testified that you did not use your phone that night to go on social media, correct? That's correct. 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. I don't. You said, I don't have the gram. I'm guessing that means Instagram, correct? That is correct. And you don't use Snapchat and you quote, don't do those things, correct? That's correct. 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 AM, which woke you up. Is that right? [01:10:14] Speaker 3: It was it was around 6:30 ish, I think. Okay. [01:10:18] Speaker 2: Your testimony previously was at some point, at some point before 7:00 AM, that call was the one that woke you up. Yes. And it turns out, Mr. Higgins, that that was a lie, wasn't it? No, it wasn't a lie. When you were asked that question at a previous hearing, you didn't know that the person questioning you had your phone records, did you? I assume they did. And you were thereafter confronted with those phone records, correct? I was asked about them, yes. And those phone records established that you and Brian Albert actually exchanged not one, but two phone calls at 2:22 AM that morning, at a time when you claimed you were in bed asleep, correct? [01:11:02] Speaker 3: I have no recollection of any phone calls. [01:11:05] Speaker ?: I have no recollection of any phone calls. [01:11:06] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:09] Speaker ?: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:12] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:16] Speaker ?: I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:18] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:20] Speaker 3: I have no recollection of any phone calls. [01:11:21] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:29] Speaker 1: I have no recollection of any phone calls. [01:11:30] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:42] Speaker 3: I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:44] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:54] Speaker ?: I have no recollection of any phone calls. [01:11:55] Speaker 3: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:11:58] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:12:10] Speaker 3: I have no recollection of any phone calls. I have no recollection of any phone calls. [01:12:12] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. [01:12:16] Speaker ?: I have no recollection of any phone calls. [01:12:17] Speaker 2: I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. I have no recollection of any phone calls. Brian Albert called you at 2:22 and 35 seconds, but it looks like you missed the call. Correct? [01:12:33] Speaker 3: I see the one-second call, yes. [01:12:35] Speaker 2: There's a second call just below that. On the same date at 2:22 and 52 seconds from you to Brian Albert. Do you see that one? Yes. And the duration of that call is 22 seconds. Correct? I see that, yes. 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? [01:13:03] Speaker 3: That's what the records say. [01:13:05] Speaker 2: May I approach? Yes. 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? [01:13:18] Speaker 3: No, that's not correct. [01:13:20] Speaker 2: 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? [01:13:28] Speaker 4: Jackson. [01:13:29] Speaker 2: Sistine. And then of course you lied about that under oath in that prior proceeding by saying, I don't remember this phone call. Jackson. Sistine. Did you in fact tell the truth at the prior proceeding when you said, I don't remember that phone call? [01:13:47] Speaker 3: I always tell the truth. [01:13:49] Speaker 2: Did you lie under oath, sir? No, I did not. Would you tell us if you did? Jackson, Your Honor. Sistine. You acknowledge that there's a 22 second phone call in your phone records, correct? [01:14:01] Speaker 3: That's what's reflected by the record. [01:14:03] Speaker 2: And 22 seconds is quite an amount of time. Would you agree? It's 22 seconds. [01:14:08] Speaker 3: It's 22 seconds. [01:14:09] Speaker 2: As a matter of fact, it's about this long, with the court's permission. [01:14:13] Speaker 1: The court does not get permission. That's argument, Mr. Jackson. [01:14:16] Speaker 2: If we were to count off 22 seconds, that's an uncomfortably long time, is it not? No. It's long enough to have a conversation, isn't it? I didn't have a conversation. Is 22 seconds long enough to have a conversation? [01:14:28] Speaker 3: No. [01:14:29] Speaker 2: A human being can't have a conversation in 22 seconds? Sure they could. [01:14:33] Speaker 3: I don't think it's anything of substance. [01:14:35] Speaker 2: Okay, so that's my question. Is it 22 seconds long enough to have a conversation? [01:14:40] Speaker 3: I don't agree with it, no. [01:14:43] Speaker 2: Now, when you were asked about this, and you were shown these records, 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? Yes. [01:15:00] Speaker 3: What was your explanation? Well, I used a phrase that people commonly used as a butt dial. [01:15:11] Speaker 2: 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? [01:15:19] Speaker 3: I think it's possible that he could have been inadvertently called back, but I have no recollection of that, nor did I have any conversation with anybody. [01:15:26] Speaker 2: But you admitted that you lived alone, correct, Mr. Higgins? [01:15:29] Speaker 3: That's correct. [01:15:30] Speaker 2: You have an iPhone at the time. [01:15:31] Speaker 3: Yes. [01:15:32] Speaker 2: Matter of fact, that number, reflecting those records, is in fact, or was in fact, an iPhone. Is that right? Yes. You already indicated under oath that you don't sleep with your iPhone. You keep it on your bedside table. Is that right? Most often, yes. There's nobody else in your room. There's nobody else in your room, is that right? That's correct. And you had your ringer on because you were awakened the next morning by a call from Chief Berkowitz, right? Yes, the ringer was on. When somebody calls you and you missed the call, there's a notification that shows up on that iPhone. Is that right? [01:16:01] Speaker 3: I don't know how mine was set up at the time. I don't know. [01:16:05] Speaker 2: If you open up your phone app and you go to Recents, it shows all the missed calls, correct? [01:16:10] Speaker 3: I think you can get to them, yes. [01:16:12] Speaker 2: And you know that the iPhone does not automatically call people back. That is not a thing, right? If it's a call from someone, it's not just going to automatically re-ring them. Yes, I think we both know that, yes. 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? Objection. [01:16:39] Speaker 1: Sustained. You can break it down. [01:16:41] Speaker 2: Sure. In order to call somebody back, if you've missed a call, you first have to unlock your iPhone. You would have to, yes. You can do that either through Face ID or through a four or six-digit passcode, right? Yes. Which, don't tell me the code, but did you have a four or a six-digit passcode locking your iPhone at the time? [01:17:01] Speaker 3: I don't know if it was a digit code or a Face ID. [01:17:05] Speaker 2: Well, if you have a Face ID, you have to have a digit code as well, right? I guess so. Okay. Did you open your phone with your Face ID or a multi-digit code? [01:17:15] Speaker 3: I have no recollection of answering the phone or calling anybody back. [01:17:19] Speaker 2: You also have to navigate, once the phone is unlocked, you have to navigate to the phone app, correct? [01:17:26] Speaker 3: 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. [01:17:33] Speaker 2: 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? [01:17:41] Speaker 3: You would have to hit at least one button, I guess. At least one, right? Yes. [01:17:46] Speaker 2: So that's three or four interactions with the phone that have to be physically undertaken to just make one call, right? [01:17:55] Speaker 3: But I didn't make any calls. So how'd you butt dial? I didn't make any calls. I have no recollection of any calls, nor did I speak with anybody. [01:18:03] Speaker 2: 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? Jackson. [01:18:19] Speaker 1: So I'm going to sustain it in that form. You can ask it appropriately, Mr. Jackson. [01:18:24] Speaker 2: 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? [01:18:34] Speaker 3: What I think I testified was something must have happened, but I didn't have any phone call. [01:18:40] Speaker 2: Do you remember being asked, quote, did you call him back, end quote, and you answered yes. And then there was a question. [01:18:49] Speaker 3: There was a series of questions there. That's only a fragment of what I said. [01:18:53] Speaker 2: I'm not done yet, Mr. Higgins. Can you answer my question? Yes. To the question, did you call him back? Your answer was yes, correct? I think it was kind of, I must have. Then you were asked, well, the answer was yes. Yes. And then there was a colloquy back and forth where you spoke over each other's words, right? [01:19:12] Speaker 3: It was dialogue back and forth about this whole thing. Yes. [01:19:18] Speaker 2: May I approach? Yes. You see the pink highlighted question and the pink highlighted answer? Yes. What's the question? Please read it for me. [01:19:28] Speaker 3: Did you, did you call him back? [01:19:31] Speaker 2: What's the answer? [01:19:32] Speaker 3: Yes. [01:19:33] Speaker 2: Thank you. May I approach? [01:19:35] Speaker ?: Yes. [01:19:36] Speaker 2: You then said a little bit further in that same conversation, I did not have a conversation, correct? [01:19:43] Speaker 3: I did not have a conversation with anybody. [01:19:45] Speaker 2: 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? Can I see it? [01:20:03] Speaker 3: Sure. [01:20:04] Speaker ?: Thank you. [01:20:05] Speaker 3: The bottom portion in pink. [01:20:06] Speaker 2: If you could read that answer to yourself, please. Does that refresh your recollection about how you answered that question? Yes. 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. [01:20:19] Speaker 3: That's the only thing. [01:20:20] Speaker 2: Right. Meaning it's possible it could have happened. It's possible it could have happened that you had a 22 second call with Brian Albert, correct? I did not have a 22 second call with Brian Albert. There was no conversation. [01:20:29] Speaker 3: You've had some time to think about this 2:22 AM call, correct? Since that last testimony. [01:20:32] Speaker 2: Some time to think about it? Yeah. I haven't really thought about it, no. 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. [01:20:48] Speaker 3: I haven't really thought about it now. [01:20:51] Speaker 2: 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? [01:21:02] Speaker 4: Objection. [01:21:08] Speaker 2: Mr. Higgins, what was so important that you and Brian Albert needed to discuss something at 2.22 in the morning? [01:21:15] Speaker 3: There was no discussion. I never talked to Brian Albert. [01:21:18] Speaker 2: And why the 22-second phone call, sir? [01:21:22] Speaker 4: Objection. [01:21:24] Speaker 2: Sustained. I want to talk about what you did after you woke up on January 29, 2022. That was obviously a memorable day in your mind, correct? [01:21:35] Speaker 3: It was a sad day. [01:21:37] Speaker 2: The very first person you spoke to after waking up was who? [01:21:42] Speaker 3: Well, I believe I said I got the call from Chief Berkowitz. That's not my question. Say that again? [01:21:47] Speaker 2: Who's the first person you spoke to on the phone that morning when you woke up? [01:21:51] Speaker 3: Brian Albert. [01:21:58] Speaker 2: Whose idea was it for you to drive to Brian Albert's house that morning? [01:22:02] Speaker 3: It was my idea. [01:22:04] Speaker 2: Was it important to you to speak with Brian Albert in person rather than over text or phone call? [01:22:13] Speaker 3: No, it was important to support the people that were there. [01:22:16] Speaker 2: So, of course, you drove over to his house and had an opportunity to speak to him in person without any law enforcement presence, correct? [01:22:24] Speaker 3: I was there with everybody, not just Brian Albert. [01:22:27] Speaker 2: And Brian Albert was in the house and you were in the house, right? [01:22:29] Speaker 3: That's correct. [01:22:29] Speaker 2: So, you had access to him and others without any law enforcement there. Is that right? [01:22:34] Speaker 3: That's correct. [01:22:40] Speaker 2: As soon as you got off the phone with Brian Albert that morning, who did you call? At 7.22 a.m. [01:22:52] Speaker 3: I think I might have called Chief Berkowitz back. [01:22:56] Speaker 2: So, as soon as you got off the phone with Brian Albert, first thing in the morning, the next call you made was to Chief Berkowitz. Is that right? [01:23:03] Speaker 3: Yes, because he had called me first. Yes, I called him back. [01:23:10] Speaker 2: 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? [01:23:19] Speaker 3: No. [01:23:22] Speaker 2: Were you trying to see how much law enforcement knew right away? I didn't even know what happened. Were you trying to gather information about what happened so that you would know what happened? [01:23:31] Speaker ?: Objection. [01:23:31] Speaker 1: I'll allow it. No. Is that what you were trying to do? [01:23:34] Speaker 3: No, Your Honor. [01:23:38] Speaker 2: What did Chief Berkowitz tell you about his knowledge of John O'Keefe's body being found just after 6 a.m.? Objection. Dostained. Did you tell Chief Berkowitz that you had been with John O'Keefe and you were at the crime scene? The night before? [01:23:57] Speaker 4: Objection. [01:23:58] Speaker 1: Sustained. You can ask that differently. [01:24:01] Speaker 2: Did you inform Chief Berkowitz that you had been with John O'Keefe the night before? [01:24:05] Speaker ?: Objection. [01:24:06] Speaker 1: I'll allow it. [01:24:07] Speaker 3: I believe I may have told him at some point that I saw John at the waterfall. [01:24:12] Speaker 2: Did you tell Chief Berkowitz that you had been at 34 Fairview? [01:24:15] Speaker 3: I believe I did. [01:24:18] Speaker 2: Did you tell him that your vehicle was parked just feet away from where John's body was discovered? [01:24:23] Speaker 3: No, because I didn't know where he was discovered. [01:24:25] Speaker 2: Did you tell Chief Berkowitz that you and Brian Albert had had a call at 2.22 in the morning? [01:24:32] Speaker 4: Objection. [01:24:33] Speaker 2: Objection. Did you tell Chief Berkowitz that you had been flirting with John O'Keefe's girlfriend in the weeks prior to his death? [01:24:42] Speaker 4: No. [01:24:46] Speaker 2: Did you ever tell Chief Berkowitz about the nature of your interest in Ms. Reed? [01:24:50] Speaker 3: No, I don't believe so. [01:24:57] Speaker 2: Did you tell Chief Berkowitz that you had seen Mr. O'Keefe and Ms. Reed the night before and that Ms. Reed had ignored you? [01:25:07] Speaker 4: Objection. [01:25:08] Speaker 2: Objection. You indicated just a second ago that when I asked did you tell Chief Berkowitz that your Jeep was parked just feet away from where John O'Keefe's body was found, you said I had no idea where John O'Keefe's body was found, correct? That's correct. You had just spoken with Brian Albert, right? He said in front of the house. All he said was John O'Keefe was found in front of the house. He didn't say right outside on my front lawn. [01:25:35] Speaker 3: I believe he said he was found out in front of his house unresponsive. [01:25:39] Speaker 2: 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, your Jeep would just be feet away from him, correct? [01:25:46] Speaker 4: Objection. [01:25:46] Speaker 2: 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? [01:25:59] Speaker 3: No. [01:26:01] Speaker 2: Did you think any of that was important when talking to the Chief of Police of the Canton Police Department? [01:26:07] Speaker 1: I'll let him have it. [01:26:10] Speaker 3: No, I didn't. There was no reason to tell him. [01:26:16] Speaker 2: You've been an investigator for some 15 years and you were a firefighter for years before that, correct? Yes. You're very familiar with some of the tools that are used in conducting modern investigations, correct? Yes. You'd agree that searching electronic devices and phones is an incredibly important investigative tool that modern investigators use, correct? [01:26:37] Speaker 4: Objection. [01:26:38] Speaker 1: In that form of sustainment? [01:26:40] Speaker 2: Are you aware that searching electronic devices is an important part of investigations? [01:26:45] Speaker 4: Objection. [01:26:46] Speaker 1: Are you aware of that, sir? Do you agree with that? [01:26:49] Speaker 3: I've utilized phone data during the course of my investigations at times, yes. [01:26:55] Speaker 2: Okay, so another way to put that is obviously phone data and electronic data is an important part of investigation. Objection. Sustain. 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? [01:27:18] Speaker 3: Maybe around 7, 7.15 in that area. [01:27:21] Speaker 2: Was there any law enforcement presence there when you arrived? [01:27:24] Speaker 3: I can't recall specifically. There could have been one police car. I'm not positive. [01:27:28] Speaker 2: Did any officer ever ask you to take a look at your vehicle? [01:27:34] Speaker 3: At what time? [01:27:35] Speaker 2: That time. Actually, at any time. [01:27:38] Speaker 3: No. To my knowledge, nobody from law enforcement associated with the investigation had ever asked to take a look at my vehicle. [01:27:46] Speaker 2: So they certainly didn't ask that day, correct? [01:27:49] Speaker 3: On the 21st. What I'm saying is, to my knowledge, nobody has ever asked me that. [01:27:54] Speaker 2: Right. So that's my point. I'm just trying to break it down. [01:27:57] Speaker 3: You want to tell me every instance when somebody could have asked me? [01:28:00] Speaker 2: Correct. [01:28:01] Speaker 3: Okay. [01:28:02] Speaker 2: On the 29th, were you asked whether or not your vehicle could be searched? [01:28:08] Speaker 3: Searched or inspected? What do you mean? Either one. 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. [01:28:19] Speaker 2: I'm sure you would have. I'm asking, did they ask? [01:28:21] Speaker ?: No. [01:28:22] Speaker 2: They didn't ask to search it? They didn't ask to inspect it? [01:28:24] Speaker ?: No. [01:28:25] Speaker 2: When you met with troopers, who was it that you met with on the 3rd of February? [01:28:31] Speaker 3: Trooper Proctor and Trooper Buchanek. [01:28:33] Speaker 2: Did either Trooper Proctor or Trooper Buchanek ask to inspect your vehicle, otherwise search it? [01:28:39] Speaker 3: Not to my recollection. [01:28:41] Speaker 2: And to this day, nobody from Massachusetts State Police has ever indicated that they want to inspect your vehicle? [01:28:47] Speaker 3: No. [01:28:52] Speaker 2: 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? [01:29:03] Speaker 3: She came after me. [01:29:04] Speaker 2: Okay. So at some point, all the people that I just ticked off, they were all inside the house. [01:29:09] Speaker 3: Brian Albert Jr., Nicole, Brian, Matt, and Jen. [01:29:15] Speaker 2: You all discussed the incident together, correct? [01:29:21] Speaker 3: I wouldn't describe it that way, no. [01:29:25] Speaker 2: Did each of you discuss your own perspectives about what had happened the night before in the early morning hours? [01:29:32] Speaker 3: Objection. [01:29:32] Speaker 1: I'll allow it. [01:29:34] Speaker 3: 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. [01:29:46] Speaker 2: Trying to figure out what to say, right? [01:29:48] Speaker 3: No. [01:29:49] Speaker 2: And you were all talking within earshot of each other, right? [01:29:52] Speaker 3: We were all there in the kitchen talking together. [01:29:56] Speaker 2: At this meeting, and these were friends and family, correct? [01:30:01] Speaker 3: Excuse me? [01:30:02] Speaker 2: 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? [01:30:11] Speaker 3: Yes. [01:30:12] Speaker 2: So, at this meeting, you actually instructed Jennifer McCabe to call Canton PD and ask someone to come back. [01:30:20] Speaker 4: Objection. [01:30:21] Speaker 1: Sustained as to that form. You can ask a different name. [01:30:23] Speaker 2: At some point, did an officer come back to re-interview Jen McCabe? Yes. Jen McCabe had told you that she had information about something that Ms. Reed had said, correct? Objection. [01:30:37] Speaker 1: I'll allow it. Did she tell you that that morning? [01:30:40] Speaker 3: 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. [01:30:57] Speaker 2: What she actually said was, I hope I didn't hit him, correct? [01:31:00] Speaker 3: Objection. That's not what I heard. No. [01:31:04] Speaker 2: Who did you ever tell this to? [01:31:07] Speaker 3: I've reported that. [01:31:09] Speaker 2: That she said, I hit him? [01:31:11] Speaker 3: Yes, I've reported it. [01:31:13] Speaker 2: What you reported was, she said, Karen said, I hope I didn't hit him. And you said, oh, you need to tell Canton PD that. Isn't that right? [01:31:21] Speaker 3: No, I don't think that's what I said. No. [01:31:23] Speaker 2: You're as sure about that as you are about that 222 call, right? [01:31:26] Speaker 3: Objection. [01:31:27] Speaker 2: Sustained. Mr. Higgins, what time did you leave Brian Albert's house? [01:31:32] Speaker 3: It would have been, I believe, when Sergeant Lank arrived. And I think Lieutenant Gallagher might have been with him. [01:31:41] Speaker 2: You weren't scheduled to work that Saturday, correct? [01:31:44] Speaker 3: No. [01:31:44] Speaker 2: Matter of fact, you weren't on duty at all. [01:31:47] Speaker 3: No, I wasn't. [01:31:49] Speaker 2: But you didn't go home and get some sleep or run errands. You went directly to Canton PD from 34 Fairview yet again, didn't you? [01:31:57] Speaker 3: Who could sleep after somebody just was discovered like that? [01:32:01] Speaker 2: Did you go home? Or did you? [01:32:02] Speaker 3: I don't believe I did, no. I believe there might have been a stop at Canton PD before I went home. [01:32:07] Speaker 2: As a matter of fact, you didn't just stop at Canton PD. You spent the entire day at Canton PD on the 29th, didn't you? [01:32:15] Speaker 3: I don't know that I spent the entire day there, no. [01:32:18] Speaker 2: Well, you've got a key card, right? [01:32:19] Speaker 3: I do have a key card. [01:32:20] Speaker 2: And that key card logs swipes. [01:32:23] Speaker 3: That's correct. [01:32:23] Speaker 2: So it logs where you go, access to, and access inside the Canton PD, correct? [01:32:30] Speaker 3: Yes. [01:32:32] Speaker 2: When you got to Canton PD, and you're telling this jury, you don't know how long you spent there? [01:32:40] Speaker 3: I don't know how long I spent there. I don't know if I left and I came back. I don't recall. [01:32:47] Speaker 2: So if the records indicate that you were there from 9 a.m.-ish, after 5. [01:32:57] Speaker 3: I don't know how the records would indicate that. [01:33:02] Speaker 2: I'll show you in a second. [01:33:03] Speaker 3: Okay. [01:33:06] Speaker 2: While you were at Canton PD, did you speak again to Brian Albert? [01:33:10] Speaker 3: I don't remember. [01:33:13] Speaker 2: While you were at Canton PD, did you speak again to Chief Berkowitz? [01:33:17] Speaker 3: Most likely. [01:33:18] Speaker 2: While you were at Canton PD, did you speak with Brian Albert's brother, Kevin Albert? [01:33:24] Speaker 3: I don't believe so. [01:33:28] Speaker 2: May I approach? Yes. [01:33:30] Speaker ?: Thank you. [01:33:31] Speaker 2: That's a 167-page document. Just take a glance through it. Obviously, don't read the whole thing. Just glance through it and tell me if you recognize what that is. [01:33:42] Speaker 3: So it says, Canton police, all events, log by date. [01:33:45] Speaker 1: So don't read it out loud, please. Oh, I'm sorry. Just do you recognize it? Yes, I do. [01:33:48] Speaker 2: Okay. May I approach? Yes. This appears to be a log of key swipes in and around Canton PD, correct? [01:34:01] Speaker 3: Yes. [01:34:01] Speaker 2: And it's in reverse chronological order, in other words. [01:34:04] Speaker 3: I didn't note that, but okay. [01:34:06] Speaker 2: Okay. You acknowledge that that is a record of the key swipes that everybody uses moving in and around Canton PD, going through doors, every place that needs a key swipe is logged. [01:34:19] Speaker 3: I would assume that's what that is. [01:34:21] Speaker 2: It shows that you entered Canton PD for the first time on the 29th at 1 27 a.m. Does that sound about right when you got there, you say, to move your cars? [01:34:35] Speaker 3: It's possible. [01:34:36] Speaker 2: All right. It shows that you were granted access to floor corridor 227. Does that mean anything to you? No. What about floor corridor 226 on the second floor? [01:34:47] Speaker 3: The second floor would make sense because I went in the building and then to the second floor. [01:34:54] Speaker 2: By the way, did Brian Albert ever mention what time the officers cleared the scene? [01:35:00] Speaker 3: No. [01:35:01] Speaker 2: Without telling me the substance of the conversation. Did he tell you when he talked to you at 720 or? [01:35:06] Speaker 3: Not that I recall, no. [01:35:12] Speaker 2: But you remember by the time you got there, the scene had basically been cleared. There wasn't much of emergency vehicles, crime scene tape, nothing like that. [01:35:19] Speaker 3: I didn't see fire trucks. I might have saw a cruiser. I can't be sure. I don't recall. [01:35:25] Speaker 2: You're not sure about that either? [01:35:26] Speaker 3: Sorry? [01:35:27] Speaker 2: I'm not sure about even seeing a cruiser, correct? [01:35:29] Speaker 3: Not 100%, no. [01:35:30] Speaker 2: Certainly we're not contacted by a law enforcement officer who took your name and ID or anything like that. [01:35:35] Speaker 3: No, no, no. [01:35:36] Speaker 2: Parked and walked in the house? [01:35:38] Speaker 3: Yes. [01:35:41] Speaker 2: You want to, may I approach one more time? [01:35:42] Speaker 1: Yes. [01:35:44] Speaker 2: Same thing. Mr. Higgins, if you will, I'm sorry, are we ready? Thank you. May I proceed? [01:35:55] Speaker 1: Yes. [01:35:56] Speaker 2: Mr. Higgins, if you'll look at Bates page 3015, which actually is in order, that's not reverse chronological, it's the second to the last page. Can you take a look at the eighth entry from the bottom? [01:36:20] Speaker 3: I see it. [01:36:22] Speaker 2: Does that indicate that this all occurred on 129.22? This entry at least? [01:36:31] Speaker 3: Well, I mean, I only, on that eighth entry, I see that, that's, that's associated with my name. I don't know what the other ones are associated with. [01:36:39] Speaker 2: Right. It would be other individuals in Canton PD. I mean, there's the entire log for 129, right? [01:36:44] Speaker 3: Okay. But, but, but what, all I'm saying is that just my name is next to that. I don't see any other name. So. [01:36:48] Speaker 2: Right. [01:36:49] Speaker 3: Okay. [01:36:49] Speaker 2: So on 129.22, I'm just trying to orient you. At 120, I'm sorry, 127 and 52 seconds. I see it. Access granted, Brian Higgins, rear entry to secure corridor, rear entry to secure corridor. Correct? [01:37:05] Speaker 3: Yes. [01:37:06] Speaker 2: All right. So that appears to be what the, the log entry or the key swipe entry looks like when it's logged. Correct? [01:37:13] Speaker 3: Yes. [01:37:16] Speaker 2: If you look at page 2967. I'm sorry. I said it backwards. 2976. [01:37:26] Speaker 3: Okay. [01:37:27] Speaker 2: Take a look at. [01:37:28] Speaker 3: You said 2976. [01:37:30] Speaker 2: That's Bates page 2976. That's the bottom right hand. I see it. Yes. Look at the time entry for 923 and 39 seconds. [01:37:40] Speaker 3: 923 and what? [01:37:43] Speaker 2: 39. [01:37:46] Speaker 3: And that's on 2976? [01:37:50] Speaker 2: Should be. [01:37:51] Speaker ?: I. [01:37:57] Speaker 3: Give me the time again, please. [01:37:58] Speaker 2: Why don't we do it this way? May I approach? Yes. This is an exact copy. Yeah. [01:38:02] Speaker 3: This time's all over the place. My apologies. Okay. All right. Thank you. [01:38:05] Speaker ?: Thank you. [01:38:05] Speaker 3: Thank you. [01:38:05] Speaker ?: Thank you. [01:38:10] Speaker 2: At 923 39, I'm sorry. Have you got that in mind? [01:38:14] Speaker 3: I do. I see it. It's highlighted. [01:38:16] Speaker 2: At 923 39, that shows that you were granted access to the Sally Port to front exit, front entry to Sally Port, correct? [01:38:23] Speaker 3: Yes. [01:38:24] Speaker 2: There's only one Sally Port at Canton PD, correct? [01:38:28] Speaker 3: Yes. And there's a door on each side of the Sally Port. [01:38:31] Speaker 2: Two bay doors, right? [01:38:32] Speaker 3: Two bay doors on each side. Yes. [01:38:33] Speaker 2: And then there's a. [01:38:34] Speaker 3: Pass through. [01:38:35] Speaker 2: Personal pass through door as well. [01:38:36] Speaker 3: Yes. [01:38:37] Speaker 2: May I approach your honor? Yes. I want to try to speed this up just a bit because it's small print, reverse chronological order. On page 2976, there's also an entry, same page, should be right above that, 923 50, showing that you were granted access from booking to Sally Port as well, correct? [01:39:06] Speaker 3: Okay, 2976, and what was the time? [01:39:08] Speaker 2: Page. [01:39:08] Speaker 3: Yes. [01:39:09] Speaker 2: It's about maybe six entries above, six entries up. You'll look for time, 923 and 50 seconds. I see. Yes. All right, and that shows that you were granted access to the Sally Port, and then from Sally Port to booking, correct? [01:39:31] Speaker 3: Since booking to Sally Port, Sally Port to booking. [01:39:34] Speaker 2: Okay, so that's a key swipe. You either enter it into the Sally Port, from booking or from booking into Sally Port. [01:39:43] Speaker 3: Yes. [01:39:45] Speaker 1: Could you repeat the question? [01:39:46] Speaker 2: Of course, of course, of course. May I inquire, Your Honor? Yes. That indicates, I have no idea what the last question was. I'll see if I can make a new one up. At 923 and 50 seconds in the morning, you were granted access booking to Sally Port and Sally Port to booking, meaning swiped the key card in the door going from booking to Sally Port. I don't want to belabor this because we could get bogged down into it all day long. Would you have any quarrel if those logs indicated that you were moving in and around Canton PD at 928, 953, 953, 954, 954, 1140, etc.? We can look at every one of them if you want to. Does it refresh your recollection? [01:40:46] Speaker 3: It would not be uncommon for me to move around Canton PD at various times, the 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. [01:41:05] Speaker 2: Fair enough. If we moved from 1140 to 1144, 1145, 1147, 1151, 1152, and then jump to 205, would that be an explanation where you might have gone out for lunch, 1152? Could have. Okay, come back. If there's a 205 and 56 entry, then obviously you're there, right? [01:41:28] Speaker 3: If the card was swiped, I was there. [01:41:30] Speaker 2: I mean, you're not giving that card to anybody else. [01:41:34] Speaker 3: No, I'm not. [01:41:34] Speaker 2: No way, right? Let's just look at 2905, because I want you to be comfortable. Page 2905, and let's look at that 205 and 56 entry. [01:41:48] Speaker 3: I'm at 2905, where would you like me to look? [01:41:53] Speaker 2: About right there. Basically, middle of the page. May I approach? This might be a little easier. Highlight it for you. [01:42:06] Speaker 3: I see it. [01:42:06] Speaker 2: Okay, so that would indicate that you were back at Canton PD at at least 205.56, and you were granted access Sally Port to front door, correct? That's what it says, yes. Okay. At 310 p.m., you called Brian Albert's brother, Kevin Albert, correct? I don't know. [01:42:30] Speaker 3: It's possible. [01:42:30] Speaker ?: Okay. [01:42:31] Speaker 3: I don't remember every phone call I made that day. [01:42:33] Speaker 2: Understood. Do you remember talking to Kevin Albert? [01:42:35] Speaker 3: I don't. [01:42:35] Speaker 2: So you don't remember what you discussed with him? [01:42:37] Speaker 3: No, no. [01:42:37] Speaker 2: Do you remember that it was a 12-minute phone call? [01:42:39] Speaker 3: No, I don't remember having any phone call, but I'm sure it's possible that we spoke. [01:42:41] Speaker 2: Do you remember Kevin Albert providing you any information about the ongoing investigation into John O'Keefe's death? No. Did you ask him about additional information concerning John O'Keefe's death? [01:42:48] Speaker 3: No. [01:42:49] Speaker 2: Were you providing details back to Brian Albert that you were receiving while at Kevin PD? Absolutely not, no. Do you recall that two minutes after you cleared the call with Kevin Albert, you then called Brian Albert? It's possible. [01:43:02] Speaker 1: So I think the question was, do you remember? Do you remember that? [01:43:04] Speaker 3: 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. [01:43:12] Speaker 1: Yes. [01:43:15] Speaker 3: Thank you. [01:43:19] Speaker 2: Just to close this loop, that appears to be your phone record, correct? [01:43:24] Speaker 3: Yes. [01:43:25] Speaker 2: And it appears that you made a call at 310 for 12 minutes with Kevin Albert, correct? [01:43:34] Speaker 3: Yes. [01:43:36] Speaker 2: 310 plus 12 is 322, correct? Yes. You cleared the call about 322, is that right? Yes. And then it shows a 324 phone call to Brian, I'm sorry, Brian Albert then calls you at 324, correct? [01:43:52] Speaker 3: Yes. [01:43:53] Speaker 2: And you two speak for six minutes, is that right? [01:43:55] Speaker 3: Six minutes, five seconds, yes. [01:43:56] Speaker 2: May I approach? Yes. Does that refresh your recollection that you made those calls? [01:44:02] Speaker 3: Based on the record, yes. [01:44:08] Speaker 2: Was that just a coincidence that you were talking to Brian Albert and Kevin Albert within minutes of one another? [01:44:15] Speaker 3: 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. [01:44:23] Speaker 2: Do you remember providing information that you were learning from Kevin Albert to Brian Albert? [01:44:27] Speaker 3: Absolutely not. [01:44:31] Speaker 2: If you 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? [01:44:42] Speaker 3: Yes. [01:44:44] Speaker 2: Mr. Higgins, it looks an awful lot like you're gleaning information from Canton PD. Were you doing that? [01:44:52] Speaker 4: Objection. [01:44:52] Speaker 1: So I sustained the objection in that form. You can ask one part of that question. [01:44:57] Speaker 2: Sure. Were you getting any information from Canton PD? [01:45:01] Speaker 3: No, I wasn't. [01:45:03] Speaker 2: Did you provide any information to Brian Albert? [01:45:05] Speaker 3: No, I did not. [01:45:06] Speaker 2: Based on any conversations or conduct at Canton PD? [01:45:10] Speaker 3: No. [01:45:11] Speaker 2: May I approach? Yes. But you were, in fact, on the phone with all of those interested parties throughout the day. You'll agree? [01:45:22] Speaker 3: I was... [01:45:23] Speaker 2: Answer that. [01:45:24] Speaker 3: Okay. There's no objection. Yes, they're friends and I was on the phone with them, yes. [01:45:29] Speaker 2: And, sir, you were not on duty that day, correct? [01:45:31] Speaker 3: No. [01:45:32] Speaker 2: You are not a Canton police officer, correct? That's correct. You were not assigned to this investigation in any formal capacity, were you? I was not. As a matter of fact, you were a witness in a homicide investigation. That's your only role in this, correct? [01:45:47] Speaker 3: That's correct, but they're still my friends, yes. [01:45:49] Speaker 2: And yet, you're still having conversations with Kevin Albert at Canton PD while you're at Canton PD, correct? Not about this. And you're having conversations with Chief Berkowitz of Canton PD while you're at Canton PD, correct? [01:46:03] Speaker 3: I had conversations with him, but not about this, no. [01:46:05] Speaker 2: And you're consistently through the day calling Brian Albert, aren't you? [01:46:11] Speaker 3: I had conversations with Brian Albert, John was founded on his lawn. Yes, of course, I had phone conversations with him. [01:46:19] Speaker 2: I want to take you back for a second to a couple of other entries, including one at 357, one at 358, and one at 407. And I'm going to draw your attention to 2885, and 2886. [01:46:39] Speaker 3: 2885? [01:46:41] Speaker 2: 2885, and 2886. We'll start with 2886 and then work backward. [01:46:47] Speaker 3: Okay. [01:46:48] Speaker 2: First entry is at 357 and 54 seconds. [01:46:57] Speaker 3: 357 and 54 seconds, I see it. [01:46:59] Speaker 2: Brian Higgins booking to Sally Port. Correct? [01:47:05] Speaker 3: It says, Brian Higgins, communication to pedestrian Sally Port, communication to pedestrian Sally Port. [01:47:14] Speaker 2: Look at the one just above it. That's 358.24. Look at 357.54. The one probably is going to be just below it because it's reversed. [01:47:23] Speaker 3: You said 357.54, correct? [01:47:25] Speaker 2: Correct. [01:47:26] Speaker 3: That's what I just read. [01:47:27] Speaker 2: Got it. Look at five, six entries below at 357.36. [01:47:39] Speaker 3: 357.36. I see it. Access granted. Brian Higgins. Booking to Sally Port. Sally Port to booking. [01:47:53] Speaker 2: And there's one more on page 2885. Look for 407.47. [01:48:03] Speaker 3: 407.47? [01:48:04] Speaker 2: Correct. [01:48:05] Speaker 3: I have it. Access granted. Brian Higgins. Booking to Sally Port. Booking to Sally Port. [01:48:09] Speaker 2: And there's no record in that document of you exiting. Correct? That's just booking to Sally Port. [01:48:19] Speaker 3: Yes. I don't. Yeah, there's no record. I don't know if it records you going up. That's fine. [01:48:30] Speaker 2: There's no record, correct? [01:48:32] Speaker 3: Not that I can see here, no. I'm sorry. [01:48:36] Speaker 2: And you're aware that that's about 90 minutes before Karen Reed's SUV was delivered to that Sally Port, correct? [01:48:48] Speaker 3: No, I'm not aware of that. [01:48:50] Speaker 2: Are you aware that her car ended up in that Sally Port where you were at 536? [01:48:56] Speaker 3: I'm aware her car ended up there, yes. [01:49:00] Speaker 2: Are you aware that there was other evidence that was also being held in the Sally Port? [01:49:05] Speaker 1: Objection. Sustained. [01:49:07] Speaker 2: Did you see any other evidence in the Sally Port related to this case? No. Did you see a bag, a grocery bag with six solo cups there? [01:49:16] Speaker 4: Objection. [01:49:17] Speaker 2: Did you see anything that seemed out of the ordinary there? [01:49:20] Speaker 3: All I would do is use that as a cut through. I did not see anything. [01:49:32] Speaker 2: Are you aware that at 5, well, let me ask you this. You and Chief Berkowitz were moving in and through, at least in some parts of the day, in and through Canton PD together, correct? [01:49:43] Speaker 3: At some points we might have been together. I'm not, I mean, we weren't together all day. [01:49:48] Speaker 2: Matter of fact, he was also in the Sally Port around the same time you were, correct? [01:49:54] Speaker 3: I don't recall that, no. [01:49:55] Speaker 2: But the records would reflect that, right? The records that are in front of you? [01:50:01] Speaker 4: Objection. [01:50:02] Speaker 2: Sustained. You were in the Sally Port the last time you're logged into the Sally Port. It's 4.07. Do you remember seeing Chief Berkowitz at Sally Port at 4.14? [01:50:16] Speaker 3: No. And if that says that I'm logged, that could be me cutting through. [01:50:20] Speaker 2: Sir Higgins, all I'm asking you through, I'm not asking what you did. I'm asking where you were. [01:50:24] Speaker 3: I don't know where I was at that specific time. [01:50:27] Speaker 2: Well, you walked into the Sally Port, we know that. If I walked in, I'm cutting through, yes. Right. Was Chief Berkowitz in the Sally Port at 4.14? [01:50:35] Speaker 3: Not that I recall, no. [01:50:36] Speaker 2: Was he there at 4.30? [01:50:37] Speaker 3: I don't remember ever seeing him in the Sally Port, no. [01:50:40] Speaker 2: Was he there at 4.33? [01:50:42] Speaker 3: I don't remember ever seeing Chief Berkowitz in the Sally Port. [01:50:45] Speaker 1: At 4.50. [01:50:46] Speaker 3: Objection. [01:50:47] Speaker 1: Sustained, let's move through this, please. [01:50:51] Speaker 2: Finally, was he there at 5.36 and 37 seconds at the same time Karen Reed's vehicle was delivered? [01:51:00] Speaker 3: I don't remember. [01:51:04] Speaker 2: Do you remember Chief Berkowitz, or were you with Chief Berkowitz when he made a call to the front desk? [01:51:12] Speaker 3: No, I don't remember anything like that, no. [01:51:14] Speaker 2: Do you remember Chief Berkowitz calling the front desk at 5.42 and saying, shut the door? [01:51:18] Speaker 3: Objection. [01:51:19] Speaker 2: Sustained. Do you remember any kind of call shutting the barracks, meaning shutting the Sally Port? [01:51:25] Speaker ?: Objection. [01:51:25] Speaker 1: Do you remember that? [01:51:26] Speaker 2: I don't remember anything like that, Your Honor. [01:51:28] Speaker 1: Any next question? [01:51:30] Speaker 2: You didn't leave Kenton PD until close to 6 p.m., isn't that right? I don't know what time I left. Could it have been 5.50, 6 o'clock? [01:51:41] Speaker 3: I don't recall what time I left. [01:51:45] Speaker 2: You're aware that there's video surveillance feeds in the Sally Port garage, correct? [01:51:49] Speaker 3: That's correct, yes. Around the building. [01:51:53] Speaker 2: Were you in the Sally Port at 5.36 when the car was delivered? [01:51:58] Speaker 3: I don't have any recollection of that, no. [01:52:01] Speaker 2: It's one thing to say I don't remember. It's another thing to say, no, I was not there. [01:52:06] Speaker 3: I don't remember being there, no. [01:52:08] Speaker 2: Is it possible that you could have been there when that car was delivered? [01:52:10] Speaker 3: I don't believe I was, no. [01:52:12] Speaker 2: You don't believe you were? [01:52:13] Speaker 3: I don't believe I was, no. [01:52:15] Speaker 2: 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, it's missing, right? [01:52:31] Speaker 4: Check action. [01:52:32] Speaker 1: Sustained. [01:52:37] Speaker 2: 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? [01:52:52] Speaker 4: Check action. [01:52:53] Speaker 2: Sustained. Did you receive a call at all, without telling me what the conversation consisted of, around 6.12 p.m. from Brian Albert? [01:53:03] Speaker 3: I don't know what day you're referring to. [01:53:07] Speaker 2: The 29th. [01:53:08] Speaker 3: No, I don't remember any phone calls like that. [01:53:11] Speaker 2: Do you remember three minutes later getting another call from Chief Berkowitz at 6.16 p.m. that lasted about 5 minutes and 15 seconds? [01:53:18] Speaker 3: No. [01:53:21] Speaker 2: You look at the entries for 6.12, 6.16. Let's see if that refreshes your recollection. [01:53:33] Speaker 3: Are you referring to the? [01:53:37] Speaker 2: 6.12 and 6.16. [01:53:39] Speaker 3: Okay, I see those, yes. [01:53:40] Speaker 2: There was a call at 6.12 that Brian Albert made to you for a duration of 1 minute and 7 seconds, correct? Yes. Then right after that, there was a call from Chief Berkowitz to you at 6.16, at 6.16 that lasted 5 minutes and 15 seconds, correct? [01:54:00] Speaker 3: Yes. [01:54:01] Speaker 2: Did I approach? Yes. Are they telling you that taillight pieces had been found at the location? [01:54:11] Speaker ?: Objection. [01:54:12] Speaker 2: Sustained. Your Honor, may we approach briefly? Okay. So, may I inquire? Yes. Your testimony is that you don't recall the substance of those conversations at 6.12 and 6.16. [01:54:27] Speaker 3: I don't, no. [01:54:28] Speaker 2: Isn't it true that you were asked about those phone calls at another hearing? [01:54:33] Speaker 3: I might have been, I don't recall. [01:54:35] Speaker 2: 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? [01:54:43] Speaker 3: No, that's not what that was in reference to. [01:54:49] Speaker 2: Were you being provided information from your friend, Chief Berkowitz, about the progress of the investigation? [01:54:59] Speaker 3: No. [01:55:00] Speaker 2: Were you providing your friend, Brian Albert, information about the progress of the investigation or what you perceived it to be? [01:55:08] Speaker 3: No, I didn't have any information on the investigation. [01:55:12] Speaker 2: You were not interviewed about this case in any formal capacity until five days later, correct? [01:55:18] Speaker 3: That sounds about right. [01:55:21] Speaker 2: February 1st, Trooper Proctor? [01:55:24] Speaker 3: I'm not exactly sure the date, but it was, it was several days after, yes. [01:55:27] Speaker 2: I'm sorry, I said February 1st, maybe it's February 3rd. [01:55:30] Speaker 3: I don't know the date, but it was, we were into February. Where did that interview take place? Sharon Mass. I'm sorry? Sharon Mass. [01:55:42] Speaker 2: At what location? I'm sorry? What location? [01:55:45] Speaker ?: Action. [01:55:48] Speaker 1: I don't see counsel very quickly. It's high. [01:55:53] Speaker 2: Okay, the interview was not at the police station. [01:55:57] Speaker 3: It was not, no. [01:56:02] Speaker 2: By the time you interviewed with Trooper Proctor, you had already had numerous conversations with Brian Albert. Is that safe to say? [01:56:10] Speaker 3: Well, the interview was with both Trooper Proctor, Trooper, Sergeant Buchanek, and of course I've talked to Brian Albert because of what took place. [01:56:21] Speaker 2: That was a yes or no question. [01:56:23] Speaker 3: Yeah, of course I've talked to him, yes. [01:56:25] Speaker 2: Okay, the answer is yes, right? Do we agree? [01:56:28] Speaker 3: The answer is yes. [01:56:29] Speaker 2: Thank you. By the time you spoke with Trooper Proctor and Trooper Buchanek, you had already had numerous conversations with Chief Berkowitz, correct? [01:56:38] Speaker 3: Yes. [01:56:39] Speaker 2: You had already had numerous conversations with Kevin Albert. [01:56:42] Speaker 3: Yes. [01:56:43] Speaker 2: You had already had this meeting with the Alberts and the McCaves over at 34th Fairview. Is that right? I went to the house. And discussed this case, as you earlier described in your testimony. I discussed what, we're trying to figure out what happened. You discussed this case, Mr. Higgins. [01:57:00] Speaker 3: Well, at that point, it wasn't a case. [01:57:02] Speaker 2: Okay, I'm not parsing words about what a case is versus a matter versus an issue. You understood my question, didn't you? [01:57:09] Speaker 3: Yes. [01:57:09] Speaker 2: Is there a reason you don't want to answer that question? [01:57:11] Speaker 3: I don't have a problem. Well, I feel you're trying to make it sound like something it wasn't. [01:57:19] Speaker 2: 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? [01:57:26] Speaker 3: I did discuss things when I went back to the house, yes. [01:57:28] Speaker 2: And that was before you met with Trooper Proctor and Trooper Buchanek, correct? [01:57:31] Speaker 3: Yes, that's correct. [01:57:32] Speaker 2: You had already spent an enormous amount of time at Canton PD. We've just gone through those records. Is that right? [01:57:37] Speaker 3: I have been at Canton PD, yes. [01:57:38] Speaker 2: And you had been able to talk to, you had access at least, to all the officers, correct? [01:57:43] Speaker 3: What do you mean by, can you? [01:57:45] Speaker 2: Anybody that was coming and going at Canton PD. [01:57:47] Speaker 3: Access for what purpose? [01:57:49] Speaker 2: Just to walk by them, to hear what they were saying, see what they were doing. [01:57:52] Speaker 3: Yeah, that's not what I was doing, no. [01:57:55] Speaker 2: I'm not accusing you of doing anything. I'm saying you had access to the individuals within the Canton PD, correct? [01:58:01] Speaker 3: To interact if needed, yes. [01:58:03] Speaker 2: And very obviously, you had access to the Sally Port. [01:58:07] Speaker 3: And access, yes. And that's a cut-through I used all the time. [01:58:11] Speaker 2: And anything that was in it, correct? [01:58:17] Speaker 3: I wouldn't need anything in it. [01:58:19] Speaker 2: It was only after all that that Michael Proctor thought that you were worthy of a conversation. I'll rephrase that. I'll rephrase that. It was only after all of that that you were interviewed by Michael Proctor and Trooper Buchanek, correct? [01:58:33] Speaker 3: I wasn't interviewed until the following days. That's correct. [01:58:37] Speaker 2: At some point on February 4th, Chief Berkowitz called you to personally inform you that he had personally found taillight at 34 Fairview. Is that right? He did tell me that, yes. And to be clear, that's the same Ken Berkowitz that you were with in the Sally Port. [01:58:58] Speaker 3: I don't recall being in the Sally Port with him, no. [01:59:01] Speaker ?: Right. [01:59:02] Speaker 2: What did you do with that information when you learned from Chief Berkowitz that there was, that he personally saw a taillight piece as he drove by? [01:59:10] Speaker 3: I didn't do anything with the information. [01:59:11] Speaker 2: Did you call Brian Albert? [01:59:13] Speaker 3: No, Brian Albert called me. [01:59:15] Speaker 2: You were asked a specific question in the other proceeding in June of 2023, correct? [01:59:21] Speaker 3: I don't know if it was a specific question. I was asked a series of questions on how the phone calls came in. That's what I was asked. [01:59:27] Speaker 2: And your answer was, it's 100% probable that I told him about that, meaning I told Brian Albert about my conversation with Ken Berkowitz, correct? [01:59:37] Speaker 3: It's possible. Was that your statement or not? It was my statement then, but I've thought about it, yes. And you've changed your statement somehow? 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. [02:00:02] Speaker 2: What you actually said was, it's 100% probable that I told him about that. Yes, 100%. I'm not hiding that fact, but you're asking me if I recollect specifically. I know I called him after that. [02:00:12] Speaker 4: Objection, Your Honor. [02:00:14] Speaker 2: All right, so, too many facts. Go slowly. Sure. You said, yes, 100%, correct? [02:00:24] Speaker 3: In that testimony, I did, yes. [02:00:26] Speaker 2: And then in that testimony, you went on to say, I'm not hiding that fact, but you're asking me if I recollect specifically, correct? [02:00:33] Speaker 3: I don't have it in front of me. That's what you're telling me. [02:00:36] Speaker 2: You went on to say, I know I called him after that phone call, correct? [02:00:41] Speaker 3: I don't know. [02:00:43] Speaker 2: And you went on to say, 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 prior hearing, correct? So I'm going to strike the end. You want to, ma'am? [02:00:58] Speaker 1: Yes. [02:01:03] Speaker 2: You said you don't recall that entire testimony, right? [02:01:06] Speaker 3: Not that push, but I know I was asked about how the phone calls came in and what was said. [02:01:11] Speaker 2: Do you think it would refresh your recollection to see a transcript of your answer? [02:01:15] Speaker 3: Is this it right here? [02:01:16] Speaker 2: That's it. [02:01:17] Speaker 3: I'm going to read it. [02:01:20] Speaker 2: May I have a moment? Yes. Thank you. Does that refresh your recollection to what your testimony was under oath in June of 2023? [02:01:28] Speaker 3: I do. [02:01:30] Speaker 2: And you said, if that's what Chief Berkowitz told me, if I, listen, I didn't do anything wrong in this, correct? [02:01:38] Speaker 3: That was the statement I made, yes. [02:01:48] Speaker 2: Why did you say, listen, I didn't do anything wrong in this? [02:01:53] Speaker 4: Jackson. [02:01:53] Speaker 1: Why did you say that? [02:01:55] Speaker 3: Because I felt they would be an 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% positive. And then when I went on to say, it's probable. But I felt like they were being accusatory and I was trying to explain how the phone calls came in. I've had time to reflect about it after that, since that testimony. And that information about the taillight that was found was provided by each person. I didn't provide any information to anybody. [02:02:25] Speaker 1: Next question. [02:02:26] Speaker 2: Thank you. 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? [02:02:37] Speaker 3: Objection. [02:02:38] Speaker 2: Is that correct? [02:02:40] Speaker 3: Absolutely not correct. That's wrong. [02:02:41] Speaker 2: And you knew that was going to look like collusion, which is why you said, look, I didn't do anything wrong in this. [02:02:47] Speaker 4: Objection. [02:02:48] Speaker 2: Objection sustained. 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? [02:03:03] Speaker 3: Over my career, yes. [02:03:04] Speaker 2: You've probably even written search warrants for them, things of that nature, right? [02:03:07] Speaker 3: Yes. [02:03:08] Speaker 2: If you wanted to destroy evidence on your cell phone, what kind of steps might you take to do that? [02:03:13] Speaker 4: Objection. [02:03:14] Speaker 2: If you wanted to just get rid of information on your cell phone, it would be unrecoverable, what steps might you take? [02:03:21] Speaker 4: Objection. [02:03:22] Speaker 2: Objection. Do you know how to get rid of information on your cell phone? [02:03:26] Speaker 3: Objection. [02:03:27] Speaker 1: That's a lot. You can answer that. [02:03:30] Speaker 3: Do I know how to get rid of information? I mean, I think there's different ways. You could possibly, you could wipe your phone. [02:03:36] Speaker 2: Anything else? [02:03:40] Speaker 3: You could wipe your phone. Factory reset. [02:03:44] Speaker 2: Factory reset might be one. Wiping your phone. Taking the SIM card out. [02:03:48] Speaker 3: I don't know that the SIM card is going to take information that's on the phone out. [02:03:52] Speaker 2: So that might be one avenue. You could break the SIM card in half or snap it, correct? [02:03:56] Speaker 3: It could, yes. [02:03:57] Speaker 2: You know that the SIM card stores an enormous amount of data that the phone's just to break, right? [02:04:02] Speaker 3: No, I don't know that. [02:04:03] Speaker 2: Okay. You could also, if you take the SIM card out, just get rid of the phone somehow, right? Just destroy it. Yes. 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. Objection. It's his team. 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 Captain PD. You would agree with that, correct? [02:04:36] Speaker 3: No. You said I spent much of the morning at Brian Albert's house? [02:04:39] Speaker 2: Correct. In other words, you went over there at whatever it was, 7.50, 8 o'clock, something like that, and then until about 9 o'clock. [02:04:45] Speaker 3: No, I got over there around 7 o'clock, and I was there less than an hour. I wasn't there most of the day. Okay. I never went back there. [02:04:52] Speaker 2: So you spent time at Brian Albert's house, then much of the rest of the day at Captain PD, correct? [02:04:56] Speaker 3: Yes. [02:04:57] Speaker 2: And then the very next day, that Sunday, you called a friend of yours, a guy named Matt Kelch, didn't you? [02:05:03] Speaker 3: Yeah, he's my best friend, yes. [02:05:05] Speaker 2: And he's a special agent with the FBI, isn't he? [02:05:07] Speaker 3: No, he's not. Was he then? He's never been a special agent with the FBI. He's a special agent with ATF. [02:05:14] Speaker 2: My mistake. My mistake. I thought he was with the FBI. He's a federal special agent. [02:05:19] Speaker 3: He's a co-worker of mine, yes. [02:05:21] Speaker 2: Which makes him a federal special agent, right? [02:05:24] Speaker 3: An ATF agent, yes. [02:05:25] Speaker 2: And does he work for or have access to the Regional Computer Forensics Lab? [02:05:30] Speaker 3: Yes, he works over there. [02:05:31] Speaker 2: Okay. That's the FBI Regional Computer Forensics Lab, correct? [02:05:36] Speaker 3: Yes. [02:05:37] Speaker 2: That's how I got my mistake. I apologize. [02:05:38] Speaker 3: Well, I just want to make sure the record's reflected correctly. [02:05:41] Speaker 2: You and me both. So you reflected it correctly. So Matt Kelch is an ATF agent who works at the FBI Regional Computer Forensics Lab, correct? [02:05:52] Speaker 3: Yes. [02:05:52] Speaker 2: And he's an expert in digital forensics, is he not? [02:05:55] Speaker 3: He has a level of expertise more than myself, yes. [02:05:57] Speaker 2: And he's one of your best friends? He is my best friend. You spoke to him about the death of John O'Keefe, did you not? Yes. And you asked him for a personal favor sort of off the books, correct? [02:06:09] Speaker 4: Jackson. [02:06:10] Speaker 1: In that form, I'll sustain you. [02:06:12] Speaker 2: Did you ask him for a personal favor? No. 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? [02:06:22] Speaker 3: I asked him how I could pull text strings off my cellular telephone for the purpose of providing them to law enforcement. [02:06:31] Speaker 2: This was not in connection with any case that he was working, correct? That's correct. It was not in connection with any case you were working, correct? [02:06:39] Speaker 4: Jackson. [02:06:40] Speaker 1: The objection is sustained, but you've already answered. I'll strike that answer. Second question you can answer. Is this in connection to any case you were working? [02:06:49] Speaker 2: No, Your Honor. [02:06:50] Speaker 1: Next question. [02:06:53] Speaker 2: 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? [02:07:04] Speaker 3: 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. [02:07:11] Speaker 2: And that information was selected by you, correct? [02:07:15] Speaker 3: Two particular text threads, yes. [02:07:17] Speaker 2: Right. In other words, there was nobody else that was picking and choosing what to get off your phone. That was just you. It was me, yes. 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? Jackson. [02:07:29] Speaker 1: Is that why you did it? [02:07:30] Speaker 2: No, I did it because I wanted to provide it to law enforcement, Your Honor. [02:07:33] Speaker 1: Okay, next question. [02:07:34] Speaker 2: But you could have just provided your phone to law enforcement and let them image the entire thing, correct? [02:07:40] Speaker 3: I guess that was an option, yes. [02:07:42] Speaker 2: And you knew that was an option at the time. And you're a trained ATF agent. [02:07:47] Speaker 3: What's the question? [02:07:48] Speaker 2: You knew it was an option to just hand your phone over, just pick it up and give it to them. [02:07:52] Speaker 3: And there was also an option to provide it to them as well. [02:07:54] Speaker 2: Right. But you chose the one that you got to select the information, not the one where they would get everything, correct? [02:08:01] Speaker 4: Jackson. [02:08:02] Speaker 1: Stand just to that form. [02:08:05] Speaker 2: Did you actually go to the FBI computer forensics lab? [02:08:08] Speaker 3: Yes. Let me correct that. I didn't go to the lab itself. I went to a kiosk, what they refer to as a kiosk, on the first floor over at FBI. [02:08:17] Speaker 2: Okay. [02:08:18] Speaker 3: And all local PDs, law enforcement, have access to that. [02:08:21] Speaker 2: And those are, that's obviously... [02:08:24] Speaker 3: It's an unrestricted area. You can be in there, as I understand it, unaccompanied if you're local law enforcement. It's on the first floor. [02:08:31] Speaker 2: That is a federal facility, however. [02:08:33] Speaker 3: Yes, it is. [02:08:33] Speaker 2: Did you utilize any computer or data, sorry, any data extraction machinery, if you will? A computer or something to extract this data? [02:08:47] Speaker 3: Well, it was a machine. I don't know what it's called. [02:08:49] Speaker 2: 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? [02:08:54] Speaker 3: Yes. [02:08:55] Speaker 2: And that machine belonged to the FBI. It didn't belong to you. Is that right? That's correct. So that was a federal resource, not for anything having to do with any official case that you were working. Isn't that right? [02:09:05] Speaker 4: Objection. [02:09:06] Speaker 1: So I need to see you. I know this is... I need to see you. While we're doing that, council, come on back. Yes. Thank you. Council, why don't you come on over, please? Mr. Conley. If you just go and just stand next to your client, Mr. Jackson's going to make an offer of proof of a 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 the counsel is not aware of a potential issue. So you'll hear the offer of proof. I'll let you speak to Mr. Higgins before this actually happens, before the jury. Could I just have him identify? Yes, I was just going to ask you to identify yourself. [02:09:58] Speaker 3: Sure. My name is William Conley, spelled C-O-N-N-O-L-L-Y. [02:10:10] Speaker 1: All right. [02:10:12] Speaker 2: May I hear him? Yes. 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 unsecure 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. [02:11:20] Speaker 1: 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 to a kiosk on the first floor where all local police departments can go. It's unrestricted. It's on the first floor. And we just got to the part about a machine in the kiosk when you mentioned an FBI resource. So what is your question? What questions do you intend to ask this witness now? [02:11:46] Speaker 2: Whether he is aware that under 5 CFR 2635.702, it is a federal offense to use his public office, to use any public office for his own private gain or for the gain of persons or organizations with which you are associated personally. In other words, an 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 and I'm going to turn over to law enforcement, that's a federal offense. [02:12:40] Speaker 1: All right. So those questions are going to be asked. I don't know that there's been an objection to them. I'm not sure I'm going to let them in. But I wanted to give you the opportunity to speak privately with your client in the bathroom there. Can you do it in short order? [02:12:55] Speaker 3: I can do it in about 10 seconds. [02:12:57] Speaker 1: Okay. Sure. All right. If you feel the need. So why don't we go, why don't you go back and talk to him? I'll stop bringing the jury or getting the jury lined up to come back. Thank you, Your Honor. [02:13:09] Speaker 3: Thank you, Your Honor. [02:13:14] Speaker 1: All right. So we're ready to proceed? [02:13:18] Speaker 2: I am, Your Honor. Thank you. [02:13:19] Speaker 1: So let's bring the jurors in, please. We have a very few minutes left, Mr. Jackson. [02:13:35] Speaker 2: Understood. Mr. Higgins, you indicated that the phone was hooked up to some sort of machine at the FBI kiosk, correct? Yes. 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? Are you aware that under 5 CFR 2634.704, it's a felony to quote an employee, I'm sorry, for 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? That objection sustained. [02:14:33] Speaker 1: That objection sustained. [02:14:34] Speaker 2: Sir, notwithstanding those regulations, you utilize the services of Matt Kelch as a friend and a colleague, but utilizing federal resources to pull information off your phone, correct? Jackson. [02:14:47] Speaker 1: Sustained as to that form. [02:14:48] Speaker 2: In fact, you were successful in getting information off your phone, which is the text that you turn over to the commonwealth, correct? [02:14:58] Speaker 4: Jackson. [02:14:59] Speaker 1: In that form, you're almost there, Mr. Jackson. That form was improper. [02:15:05] Speaker 2: 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? Correct? [02:15:15] Speaker 1: Jackson. Is that correct? [02:15:17] Speaker 3: No, Your Honor, if I could explain. Sure. 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. [02:15:30] Speaker 2: And then you did that? I did do that. [02:15:32] Speaker 3: That's correct. [02:15:33] Speaker 2: And that's what you turned over to the police? [02:15:34] Speaker 3: That's correct. [02:15:35] Speaker 2: And any other information would still be on your phone ending in 5421, correct? [02:15:40] Speaker 3: Well, that information stayed on my phone. I just took those strings off and provided them to the Mass State Police. [02:15:46] Speaker 2: So where's your phone? [02:15:47] Speaker 3: I do not have that phone anymore. [02:15:49] Speaker 2: You've destroyed that phone, haven't you? [02:15:51] Speaker 3: No, I threw the phone away. [02:15:53] Speaker 2: Well, that's destroying the phone, isn't it? I had every right to do that. [02:15:56] Speaker ?: I didn't ask you about your rights. I asked you what you did. [02:15:58] Speaker 3: Jackson. Sustained. [02:16:00] Speaker 2: You destroyed the phone by removing the SIM card. Correct? Jackson. [02:16:03] Speaker 3: Sustained. [02:16:04] Speaker 1: Did you do that? [02:16:05] Speaker 2: Did you pull the SIM card out? Objection. Did you pull the SIM card out of your phone? [02:16:09] Speaker 3: 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. Okay. [02:16:41] Speaker 2: 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 [02:16:51] Speaker 4: the phone. [02:16:52] Speaker 1: Jackson. Sustained. And that's it. [02:16:55] Speaker 2: Your Honor. [02:16:56] Speaker 1: One more question. [02:16:57] Speaker 2: I can do this in 30 seconds, I think. You were aware that there was a court order that you not alter, delete or destroy or in any way manipulate your phone or the electronic data associated with it. Correct? [02:17:17] Speaker 1: Check action. As to what date? [02:17:19] Speaker 2: As of September 23rd, I'm sorry, September 30th, 2022. [02:17:28] Speaker 4: Objection. I don't believe that's what the court order was. I think it's -- [02:17:33] Speaker 2: I can make a quick offer to prove that's exactly what it was. It was notified. [02:17:37] Speaker 1: Were you aware of that? Was that your understanding? [02:17:42] Speaker 3: What's the question exactly? I'm sorry. [02:17:44] Speaker 2: That's the question. 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. [02:17:56] Speaker 3: I was served an audit, yes. That's correct. [02:17:59] Speaker 2: Okay. This isn't true in another hearing if you explained that on September 29th, the day before you claimed you got that notice, you changed phone carriers and changed phone numbers. [02:18:11] Speaker 3: And I maintained the phone. [02:18:13] Speaker 2: Until you didn't. When you destroyed it a month later by pulling the SIM card out and throwing it away. Correct? [02:18:20] Speaker 4: Objection. [02:18:21] Speaker 2: Sustained. Did you do that in October? Did you destroy that phone? [02:18:25] Speaker 4: Objection. [02:18:26] Speaker 2: Sustained. Pull the SIM card out of your phone, Mr. Higgins. [02:18:32] Speaker 1: Did you? [02:18:33] Speaker 3: It's possible that I did. I believe that's how I've testified. Yes. You testified? It's possible that if I took it out, that it was either cut or broken. [02:18:42] Speaker 2: It's not just possible. [02:18:44] Speaker 3: And that would have been after the date the order was already denied. [02:18:47] Speaker 2: Mr. Higgins, I have one question left. One question. Did you? Mr. Lally's already standing. I haven't even started. [02:18:54] Speaker 1: Have a seat, Mr. Lally. Go ahead. Last question, Mr. Jackson. [02:18:59] Speaker 2: Quiet, please. Quiet. Mr. Higgins. Very simply, and then we're done. Did you remove the SIM card for that phone, drive onto a military base, throw the SIM card in one dumpster and the phone in a different dumpster? That is not correct. Did you testify? [02:19:16] Speaker 1: It was your one question, Mr. Jackson. Can I proceed, Yoram? Yes. [02:19:19] Speaker 5: Sir, you provided to investigators what you claim were the complete text exchanges between yourself and Karen Reed and yourself and John O'Keefe, correct? [02:19:37] Speaker 3: What I, what I provided was the complete, I let them know that there was a complete exchange between myself and the defendant. And I said that I may have had other text strings at other times with Mr. O'Keefe. [02:19:52] Speaker 5: I'm going to proceed to ask you a series of questions which call for a yes or no answer. Can we, we agree that you will answer yes or no to those questions? [02:20:03] Speaker 3: If I can answer yes or no to the best of my ability, I will. [02:20:06] Speaker 5: All right, I'm going to keep the question very simple, sir. Okay? You did not provide to investigators any other text messages between you and anyone else? [02:20:16] Speaker 3: That's correct. [02:20:18] Speaker 5: In September of 2022, you were served with a preservation order for your phone, were you not? Yes. After September of 2022, you never received anything in writing that cancelled or lifted that preservation order, correct? [02:20:36] Speaker 3: That's correct. [02:20:38] Speaker 5: After September of 2022, you made the decision to dispose of your phone without consulting anybody about the decision to throw out your phone, correct? Yes. Before you threw the phone away, you did a factory reset of it, did you not? [02:20:56] Speaker 3: No, I did not. [02:20:57] Speaker 5: Well, you previously testified that you testified in another proceeding on June 1st, correct? Of 2023? [02:21:09] Speaker 3: Yes. [02:21:10] Speaker 5: Prior to that June 1st testimony, you met with some people and gave a statement on May 5th of 2023. Did you not? [02:21:19] Speaker 3: I did meet with them. I don't know if that was the date. [02:21:24] Speaker 5: It was prior to June, correct? Yes. All right. May 5th doesn't sound wildly inaccurate, does it? [02:21:32] Speaker 3: No. [02:21:33] Speaker 5: And when you met with those people on or about May 5th, we'll say, or whatever date it was prior to June 1st of 2023, you told them that you did a factory reset of your phone ending 15421, did you not? I don't recall that, no. [02:21:52] Speaker 3: I don't recall making that statement. [02:21:54] Speaker 5: You don't recall what you said about the factory reset during that interview, we'll call it, in May of 2023, correct? That's correct. [02:22:05] Speaker 3: May I approach your honor? [02:22:06] Speaker 5: Yes. Directing your attention to the first highlighted line there, sir. Why don't you give them a second? If you read that silently to yourself and look up at me when you're done. May I approach? Yes. Having read that document, sir, does that refresh your memory about telling those people in May of 2023 that you did do a factory reset of your phone? [02:22:34] Speaker 3: No. That's not accurate. I did not tell them that. And I also didn't tell them that I saved texts with my father. [02:22:41] Speaker 5: All right. So your testimony is that they got it wrong, correct? My testimony is I didn't make those statements. Your testimony is that they got it wrong. Yes or no? Objection. Sustained. Well, in any case, you took the SIM card out of your phone, correct? No. What I testified to was that it's- Did you take the SIM card out of your phone? Yes or no? I don't know. Did you testify that that's what you do when you get rid of phones, sir? [02:23:14] Speaker 3: What I said was that might have been the extent of it if I was to have done that. [02:23:21] Speaker 5: And you either cut up the SIM card or ripped it up, correct? I believe what I testified to was I would have- I'm not asking you what you testified to. I'm asking you today, did you either cut up the SIM card or rip it up? Cut it up or broke it. Okay. And you will agree with me that cutting up or breaking the SIM card destroys the SIM card. Does it not? [02:23:47] Speaker 3: The card itself, yes. [02:23:49] Speaker 5: That would have been the purpose in terms of cutting it up or ripping it up, to destroy it, correct? [02:23:56] Speaker 3: Well, so nobody else could use the phone. Well, that was my next question. In another phone. [02:24:02] Speaker 5: But the purpose of cutting up or ripping up the SIM card is to destroy the SIM card, is it not? Yes. And you wanted to make sure that somebody couldn't put that SIM card in their phone and potentially access your data, correct? [02:24:21] Speaker 3: No, that wouldn't be the reason why. Okay. [02:24:25] Speaker 5: Well, we already talked about the fact that you testified under oath on June 1st of 2023, correct? [02:24:36] Speaker 3: Yes. [02:24:37] Speaker 5: And you were under oath when you were testifying on June 1st of 2023, correct? Yes. You swore to tell the truth. Yes. [02:24:46] Speaker 3: You raised your right hand. [02:24:47] Speaker 5: That's correct. And June of 2023, June 1st of 2023 was about a year ago, correct? Yes. It was about a year closer to your throwing your phone away, correct? [02:24:59] Speaker 3: Yes. [02:25:00] Speaker 5: And in that testimony that you gave in June 1st of 2023, did you say the following? Quote, I made sure that somebody couldn't put it in their phone. [02:25:14] Speaker 3: Yes, I did say that. [02:25:17] Speaker 5: In fact, by either cutting up or ripping up your SIM card, you also knew that that SIM card couldn't be put back in your phone either, correct? [02:25:30] Speaker 3: Yeah, I believe that would be correct. [02:25:33] Speaker 5: And you'll agree with me that you took that destroyed SIM card and put it in a trash bag, did you not? [02:25:39] Speaker 3: I believe it went in a trash bag, yes. [02:25:42] Speaker 5: Well, you used a passive voice. It went in a trash bag. Did it fly out of your hand unexpectedly into a trash bag, sir? No, sir. [02:25:52] Speaker 3: It would have been disposed of with the phone. No, I understand. [02:25:55] Speaker 5: But are you reluctant to say that you put it in a trash bag, sir? Objection. [02:26:00] Speaker 1: Can you answer that? Are you reluctant to say that? [02:26:03] Speaker 3: No, Your Honor. I put it in a trash bag. Or with my trash. [02:26:08] Speaker 5: And you also took your phone, now without the SIM card, and you put that in the trash bag too, did you not? Yes, sir. Then you drove to a military base, and you threw both the destroyed SIM card and the phone into a dumpster, did you not? [02:26:25] Speaker 3: Well, I was cutting through the base, and I believe how I testified was- [02:26:29] Speaker 5: Did you drive to a military base, sir? [02:26:31] Speaker 3: I was cutting through a base, yes. [02:26:32] Speaker 5: Did you drive to it? Yes, sir. [02:26:34] Speaker 3: Yes, sir. [02:26:35] Speaker 5: And then you put both the destroyed SIM card and the phone itself, which were in a trash bag, into a dumpster on that military base, did you not? I believe that's what I did, yes. [02:26:46] Speaker 3: I believe that's what I did, yes. [02:26:47] Speaker 5: And as you were driving away, you knew that that destroyed SIM card and the phone would be gone forever, correct? Yes, I threw it away. [02:26:55] Speaker 3: Yes, I threw it away. [02:26:56] Speaker 5: And before you drove away, you did not transfer anything from your old phone to the new phone, correct? [02:27:03] Speaker 3: That's correct. [02:27:04] Speaker 5: Correct. You lost all of your photos on that phone, did you not? [02:27:09] Speaker 3: Whatever photos I had on there, I did, yes. [02:27:11] Speaker 5: You lost all your videos on that phone, did you not? [02:27:15] Speaker 3: To the extent if I had any. [02:27:17] Speaker 5: You lost all of your other text messages, besides the ones that you had with Karen Reed and John O'Keefe, correct? That's correct. And you knew that you did have text messages on that old phone with Kevin Albert? [02:27:29] Speaker 3: He's a friend, most likely. [02:27:32] Speaker 5: You also had text messages on your phone with Nicole Albert? [02:27:36] Speaker 3: Most likely, yes. [02:27:37] Speaker 5: And you had text messages on your phone with Brian Albert? Yes. It was important to you that no one see those text exchanges that you had with those three members of the Albert family? [02:27:54] Speaker 3: Jackson. [02:27:55] Speaker 1: I'll let him have it. [02:27:57] Speaker 5: No, sir, that's not true. You took no steps to preserve those text messages, did you? That's correct. You did not ask your friend, Matt Kelch, the agent, to help you extract those text messages, did you? [02:28:12] Speaker 3: That's correct. [02:28:13] Speaker 5: And when you went to that machine, you did not extract them yourself, did you? [02:28:19] Speaker 3: He walked me through it. I did do the extraction. [02:28:22] Speaker 5: You did not extract the three strands of text messages with Nicole Albert, Kevin Albert, and Brian Albert to preserve from that machine, did you not? [02:28:36] Speaker 3: No, I did not extract those. [02:28:38] Speaker 5: So the only place you knew they existed was on your old phone, correct? Yes, that's correct. The same phone that you put into a dumpster on a military base with a SIM card removed from the phone and destroyed, correct? [02:28:54] Speaker 3: Well, I did throw the SIM card and the phone on the military base. [02:28:59] Speaker 5: Right, and the SIM card was destroyed. You've already testified to that. [02:29:02] Speaker 3: I said to the extent of if I did that, I would have done that. [02:29:05] Speaker 5: And we're talking about the actual phone that would have had your text messages, again, with Brian, Nicole, and Kevin Albert, correct? [02:29:13] Speaker 3: Yes, because the motion was denied. [02:29:16] Speaker 5: Well, you've already testified, sir, earlier that you never received anything in writing that either canceled or lifted the initial preservation order, correct? That is correct. You knew when you were throwing that phone and the destroyed SIM card in the dumpster that from that day forward, no one would ever be able to access the content of what you and Brian Albert had discussed by text messages on your old phone, correct? [02:29:53] Speaker 3: Anybody. [02:29:54] Speaker 5: I have nothing for it. [02:29:58] Speaker 4: Mr. Lally. Morning, sir. [02:30:02] Speaker 3: Good morning, sir. [02:30:04] Speaker 4: If I could take you back just for a moment to January 29th early in the morning, you're pulling away from the Albert home, correct? Yes. And you had the plow down in the front of your Jeep Wrangler, is that correct? Initially, it was still on the ground, yes. About how long distance, again, was that on the ground before you pulled that up? Maybe a foot. And with relation to the curb, specifically in front of the area with the platform, fire hydrant, how close to the curb were you when you were pulling away from the Albert house? [02:30:39] Speaker 3: I believe I looked both ways. There was no vehicles coming in either direction. I pulled out into traffic. And because that's a one lane road, if there's no other vehicles, I'd be more to the center of that road. [02:30:49] Speaker 4: Now, maybe a silly question, but with reference to the front of your Jeep Wrangler, that didn't have any red plastic pieces or anything like that on the front of it, correct? At what time? [02:31:01] Speaker ?: At what point? [02:31:02] Speaker 4: At any time. No. And that's the same Jeep Wrangler that you then drove to the Cannes Police Station immediately after? Directly from there, yes. And then you drove that same Jeep Wrangler back to your home in West Roxbury? Yes. And then you drove that same Jeep Wrangler back to Fairview Road later on that morning? Yes. And then you drove that same Jeep Wrangler from Fairview Road to the Cannes Police Station again later that morning, correct? Yes. Now, the text communications between yourself and Ms. Reed, again, who initiated those? [02:31:34] Speaker 3: The defendant did. [02:31:35] Speaker 4: And that was on January 12, 2022, correct? [02:31:38] Speaker 3: About 8:23 in the evening, I believe. [02:31:41] Speaker 4: Now, with reference to that, what she claimed happened in Aruba, that was something that she mentioned to her. That was something that she mentioned to you via text, correct? [02:31:52] Speaker 3: The incident itself, I believe, was through text, but I believe the actual location was when she had stopped by my place in West Roxbury. [02:32:03] Speaker 4: So that's to my point. So, sir, with regard to the incident itself, she referenced that both via text and in person to you as well? [02:32:10] Speaker 3: Yes, that's correct. [02:32:11] Speaker 4: And the kiss that she planted on you in the garage at Mr. Aruba? That was, again, something that she mentioned both in text and verbally in person. Is that correct? Yes, that's correct. Now, as far as the ghosting that you were asked questions about last Friday, there were some text messages between you and the defendant on January 19th, correct? [02:32:39] Speaker 3: What was the date, I'm sorry? [02:32:42] Speaker 4: January 19th. [02:32:43] Speaker 3: 19th? Yes. [02:32:45] Speaker 4: Yes. And do you recall if there were any text messages between you going either way, between yourself and the defendant, between January 19th and January 23rd? Yes. [02:32:55] Speaker ?: Yes. It looks like the 19th and the 23rd, both text messages. [02:32:55] Speaker 3: But in between those dates, what I'm asking about is January 20th, January 23rd. [02:32:59] Speaker 4: January 22nd, there's no text messages on any of those dates, correct? Yes. I don't see any. And then as far as between January 21st and January 22nd, there's no text messages on any of those dates, correct? [02:33:03] Speaker ?: I don't see any. [02:33:03] Speaker 4: And then as far as between January 21st and January 22nd, there's no text messages on any of those dates, correct? I don't see any. And then as far as between January 23rd and January 28th, January 22nd, there's no text messages on any of those dates, correct? I don't see any. And then as far as between January 23rd and January 28th, January 22nd, there's no text messages on any of those dates, correct? I don't see any. And then as far as between January 23rd and January 28th, January 22nd, there's no text messages on any of those dates, correct? I don't see any. And then as far as between January 23rd and January 28th, January 22nd, there's no text messages on any of those dates, correct? [02:33:28] Speaker 3: I don't see any. [02:33:29] Speaker 4: And then as far as between January 23rd and January 28th, January 28th is when you texted her while you were both within the waterfall, correct? [02:33:39] Speaker 3: On the 28th, yes. [02:33:41] Speaker 4: So between the 23rd and the 28th, so on January 24th, January 25th, January 26th, January 27th, you didn't send any text messages to her, you didn't receive any from her, correct? I don't believe so, no. And then beyond that one text message that you testified to on the 28th, the next text message you received from the defendant was in regard to John being dead on the 29th, correct? [02:34:05] Speaker 3: Yes, that's correct. [02:34:06] Speaker 4: You asked some questions about these text messages and whether or not you discussed them with various people. Did you discuss those text messages with anyone? Not to my knowledge, no. [02:34:19] Speaker 3: Why not, sir? To be honest with you, I mean, I'm a personal, on a personal level, I kind of keep things to myself. I was a little embarrassed, wasn't really proud of him, kind of maybe didn't show me in a good light with respects that I was John's friend. [02:34:41] Speaker 4: And so with regard to that text on January 28th that you had sent her in the waterfall, she didn't respond as she was in the waterfall with her boyfriend, Mr. O'Keefe, correct? [02:34:51] Speaker 3: That's correct. [02:34:52] Speaker 4: Now, if the defendant did not have a boyfriend, wasn't dating Mr. O'Keefe, would you have been interested in pursuing anything further with the defendant? I can't say, I don't know. What of any reservations would you have based on the conversations that you had? [02:35:12] Speaker 3: Just everything was so out of left field. I just found it hard to believe. [02:35:18] Speaker 4: Now, with reference to going to the Cannon Police Station after Fairview Road and moving the vehicles around, which is closer to the Cannon Police Station? Your home in West Roxbury or the home on Fairview Road? [02:35:34] Speaker 3: The home on Fairview Road would be. [02:35:36] Speaker 4: And with the impending weather, why was it that you went to the Cannon Police Station to move vehicles around on that occasion? [02:35:42] Speaker 3: Because as I stated before, if I didn't do it then, I would have had to come back in the morning. And I knew the weather was going to be getting worse. I knew that I had a long day. I had been in New York. I had been out the night before in New York. And I just thought it was best to get them moved at that point. [02:35:59] Speaker 4: Now, you were asking questions on Friday about a phone call or something in a call log from about 2 o'clock or 2:22 in the morning of January 29th. Do you recall that? [02:36:13] Speaker 3: I recall the questions, yes. [02:36:15] Speaker 4: And you have an iPhone or you had an iPhone, is that correct? Yes. Now, when you make a call on an iPhone, as you sort of place that call, you hit the button, there's sort of a timer that comes up and it starts counting off seconds as the call is being connected, correct? I believe so. [02:36:33] Speaker ?: Okay. [02:36:34] Speaker 4: I'll allow it. I'll allow it. [02:36:36] Speaker 1: And so seconds are ticking off while the call is being connected, correct? [02:36:39] Speaker 4: I believe so, yes. And if a call is connected, then it starts ringing unless someone picks up immediately, there are further seconds that are ticking off on an iPhone while that call is ringing through, correct? I believe so. [02:36:55] Speaker 1: The objection sustained is to the form. [02:37:04] Speaker 4: You were asked some questions about a call or a call back between yourself and Brian Albert around that timeframe. Do you recall that? Yes. And you were trying to explain sort of what your answers were in that prior proceeding in reference to the record? Yes. What, if anything else, did you want to explain to the jury in regard to that? Objection. [02:37:24] Speaker 1: In that form, I'll sustain it. [02:37:26] Speaker 4: You were asked some specific points as far as your testimony in the prior proceeding, correct? Yes. What, if anything else, did you say in reference to that in the prior proceeding? Objection. [02:37:36] Speaker 1: Sustained as to the form, Mr. Warren. [02:37:41] Speaker 4: Did you ever speak with Brian Albert at 2:22 in the morning on January 29th? [02:37:46] Speaker 3: No, I did not. [02:37:50] Speaker 4: Do you recall making a call or receiving a call from Brian Albert around that time? No, I do not. You were asked some questions on Friday regarding key card access within the Cannon Police Station, correct? [02:38:05] Speaker 3: Yes. [02:38:06] Speaker 4: Now, as far as that door that you utilized, you testified on Friday that you would sort of park down towards the back and then come in through the Sally Port area, is that correct? [02:38:17] Speaker 3: So, I believe I was referring to one of the two Sally Port doors. [02:38:21] Speaker 4: And that was sort of your cut through in order to get to your office? [02:38:24] Speaker 3: Yes. [02:38:25] Speaker 4: Now, with reference to that particular area as far as going in and out from the parking lot of the Sally Port, does the key card, do you have to swipe the key card in order to go in and to go out? [02:38:38] Speaker 3: Yes. So, sometimes if you're close to the door, maybe having a conversation with somebody, it could activate the key card itself. But physically, if I'm going into the door, I would take it out and I would swipe it. I would hold it to the card reader. Some are more sensitive than others is what I'm trying to say. [02:38:54] Speaker 4: And similar to when you're going in, when you're going out, does that require sort of swiping or using the key card in order to go outside? [02:39:01] Speaker 3: So, there are some doors that you need to swipe out of and I believe the booking room and the Sally Port itself are doors such as those. [02:39:12] Speaker 4: May I approach? [02:39:13] Speaker 1: Yes. [02:39:18] Speaker 4: May I show you a document that has placed one before you. If you could just take a look at that and look up when you're finished. Do you recognize that, sir? Yes. Is that the same document that was, essentially the same document that was placed before you on Friday? Yes. And that's a 167-page document encapsulating different key swipes within the Cannes Police Station on January 29, 2014. Correct? [02:39:49] Speaker ?: Yes. [02:39:50] Speaker 4: And from those 167 pages, at least on that first page, does there appear to be about 27 entries there? Yes. And so, from 27 entries over a course of 167 pages, that would be somewhere north of 4,500 entries within those 167 pages. Does that sound right? [02:40:11] Speaker 3: Well, I went to public high school, but I'll take your word for it. [02:40:15] Speaker 4: Would it surprise you that there are 18 entries within those 4,500? Yes. [02:40:21] Speaker 1: So, not what would surprise him. Ask the question differently, Mr. Lillard. [02:40:25] Speaker 4: Do you know that there are 18 entries that contain your name within those records? Objection. Formative question. [02:40:30] Speaker 1: No, I'll allow that. [02:40:32] Speaker 3: Are you asking me if in the 167 pages there's only 18 entries with me? Yes. I did not know that. No. [02:40:41] Speaker 4: Would that surprise you as far as your... Well, let me rephrase that for a minute. Now, with respect to your travels around Cannon Police Station on that particular day, would you quarrel with 18 entries as far as where you went and what you did in Cannon PD that day? No. [02:40:59] Speaker 3: In and out? [02:41:00] Speaker ?: Nope. [02:41:03] Speaker 4: Now, sir, with respect to your phone, you were provided notification in regard to a preservation order in regard to your phone sometime in September of 2022, correct? [02:41:19] Speaker 3: I received a subpoena on September 30th, 2022. [02:41:24] Speaker 4: And that was in regard to a hearing at which counsel for the defendant was seeking your physical phone, is that correct? [02:41:32] Speaker 3: Yes. [02:41:33] Speaker 4: And is it your understanding or were you informed after that date sometime in early October of 2022 that that motion had been denied? [02:41:41] Speaker 3: No. So, I believe it was October 21st of that year. I was made aware that that was denied on actually October 5th. [02:41:54] Speaker 4: Are you aware of a 30-day period by which the defendant has to file some sort of notice of appeal of a motion? Objection. [02:42:01] Speaker 1: I'll allow that. [02:42:03] Speaker 3: I know typically there's appeal periods. In this particular sense, I wasn't familiar with the preservation order itself. What a preservation order was with respects to, that was kind of all new to me. Usually in an investigation that I'm conducting, it's a search warrant. I take the phone. I don't ask people to preserve it through a court order, if that makes sense. [02:42:26] Speaker 4: And so when was it that you disposed of your phone? [02:42:31] Speaker 3: It would have been, it was about two months after that. [02:42:34] Speaker 4: And why was it that you disposed of the phone? [02:42:38] Speaker 3: Because it was beaten. It was broken up. And I had already had a new phone. And I just, only explanation is I threw it away. That's it. [02:42:46] Speaker 4: Now, beyond sort of this case, what if anything else was going on with reference to your personal phone that led you to want to get with it? [02:42:57] Speaker 3: So in July of 2022, I had a target of an investigation I was working who alleged that he called me on my personal cell phone. And when I questioned him as to the fact how he obtained my personal telephone number, he told me that his girlfriend had obtained it off of open source internet, which I later confirmed that it was, that number was out there. [02:43:34] Speaker 4: What if any concerns did that raise for you, sir? [02:43:37] Speaker 3: Well, I had a lot of concerns. And that's, so July of 22 is when I probably started thinking about, you know what, I got to get rid of the telephone number itself. [02:43:47] Speaker 4: And a lot of the work that you were doing at least at that time was, was undercover work. Is that correct? [02:43:53] Speaker 3: Before this case right here? Yes. [02:43:56] Speaker 4: Now, as far as the SIM card that you're talking about, do you have any specific memory of doing anything with that SIM card? [02:44:06] Speaker 3: No, and that's how I testified in that other hearing that to the extent of what I would have done is I would have cut it up or broke it. And the concern would be that that, to my understanding, that's not holding any photos. That's not holding videos. That's not holding my contacts. It's holding phone information itself. [02:44:29] Speaker 4: As far as photos or videos or what, if anything like that, did you, did you even have one? [02:44:34] Speaker 3: I didn't have much in the sense that I'm divorced. I don't have kids. I didn't have the typical memories that somebody would have had on their phone that they wanted to preserve. They were more like the text messages with the defendant where it would be a drink glass at a bar, food, something along those lines. I had more of a connection to my work phone and more of a value to my work phone than I did my personal phone. [02:45:05] Speaker 4: Now, as far as that military base down the Cape, how often, let me ask you this, when you lived at the residence in Barnesville County, what would you do with your trash down there? [02:45:19] Speaker 3: Well, if I was going through, and I had trash or some recycling, and I was either getting gas on the base or hitting the duty free, I would occasionally toss a bag of trash in one of the dumpsters there. Or, if I forgot, I would throw it out when I got back to my other property. And at the time, at one point, I was living in Canton, and I had the house there, and then I sold it, and then I had the in-law I was renting, so I had other options to throw things away. [02:45:46] Speaker 4: Did you have trash pickup at your residence in Barnesville? [02:45:49] Speaker 3: No. [02:45:50] Speaker 4: So, if you were to throw away anything, any sort of trash, it would have to be either at the base or at one of your other homes? [02:45:56] Speaker 3: It would be somewhere else. [02:45:59] Speaker 4: And so, with reference to the phone and the SIM card, if you even did, did you drive specifically to the base to throw your phone away, or were you throwing it away with other trash? [02:46:12] Speaker 3: It was just with other trash. [02:46:15] Speaker 4: You were shown some call logs or some toll records or something to that effect last Friday with respect to calls that you had made or received around January 29, 2022. Is that correct? [02:46:29] Speaker 3: Yes. [02:46:30] Speaker 4: And was that anything that you had specifically preserved and given to the troopers, or that was something that someone was able to obtain even without your phone or without your SIM card, correct? That's correct. That's correct. May I approach this to a tree gun? Yes. Well, sir, going back to January 29, pulling away from the residence on Fairview Road, you didn't see anything on the side of the road, is that correct? Absolutely not, no. And what is it that you would have done had you seen anything or had you seen Mr. O'Keefe on the side of the road on January 29? [02:47:09] Speaker 3: Working in the profession that I work now, being a tactical medic. If I had saw John O'Keefe on the side of the road, I would have done something to make a difference. [02:47:22] Speaker ?: No further questions. Can we approach one? [02:47:24] Speaker 4: Yes. [02:47:25] Speaker 1: Juries, feel free to stand up and stretch. [02:47:29] Speaker 5: Sir, you testified that a prime motivator of you to get rid of your phone was a July 22nd call from a target of an investigation that you were working on? I never said it was a prime motivator. Was it a prime motivator? No. [02:47:54] Speaker 3: What I testified to was the phone number was what I was concerned about primarily. Right. Didn't have anything to do with the phone. [02:48:02] Speaker 5: You did not change your phone number on July 22nd, correct? [02:48:06] Speaker 3: July of 2022? Is that what you mean? [02:48:11] Speaker 5: The date that you received a call supposedly from a target of an investigation you were working on was July 22nd of which year? [02:48:22] Speaker 3: So I believe it was July 25th of 2022. I was so concerned that I reported it to my supervisor. [02:48:29] Speaker 5: Right. But you did not change your phone number after that for quite a while, correct? [02:48:34] Speaker 3: I believe it was September. [02:48:37] Speaker 5: Okay. So for those months, you kept the same phone number and kept the same phone, correct? [02:48:43] Speaker 3: I did. [02:48:44] Speaker 5: And September happened to be the month that you received the preservation order from this court, correct? [02:48:53] Speaker 3: September 22, yes. September 22, yes. Right. [02:48:56] Speaker 5: Now, with regard to the text exchanges that you had with Karen Reed, you testified that you were embarrassed about them? [02:49:17] Speaker 3: Well, I wasn't proud of them. [02:49:20] Speaker 5: I think your word was embarrassed, correct? [02:49:23] Speaker 3: I can agree to that. [02:49:24] Speaker 5: That's fair. Well, you already testified to that, right? [02:49:27] Speaker 3: I believe that might have been- [02:49:28] Speaker 5: Five minutes ago? Might have been a word I used, yes. And you also explained that you would keep things like that to yourself, correct? [02:49:38] Speaker 3: That could be something, yes. [02:49:41] Speaker 5: However, you would also agree with me that while they were going on, you told your boss about that text exchange, correct? [02:49:53] Speaker 3: Well, I told her about the kiss. [02:49:56] Speaker 5: Do you deny telling your boss about the texting that you were doing with Karen Reed? [02:50:02] Speaker 3: I don't know if I specifically recall that, no. But you don't deny it, sir, correct? It's possible that I told her about that. I'm not going to deny it. All right. [02:50:13] Speaker 5: And in any case, those text exchanges were preserved. You preserved those before disposing of your phone, correct? Correct. And with regard to the other text exchanges that you did not preserve with the Alberts, including Brian Albert, are you familiar with the term consciousness of guilt, Mr. Higgins? Objection, Your Honor. [02:50:37] Speaker 1: The objection sustained. [02:50:39] Speaker 5: Can I have a moment? [02:50:40] Speaker 1: Yes. [02:50:43] Speaker 5: Just one more thing. With regard to the date that you changed phone numbers on your phone, you would agree with me that was September 29th of 2022? [02:50:53] Speaker 3: When I actually changed the phone number? That's what I just asked. Yes. I also got a new phone. Yes. [02:51:00] Speaker 5: Okay. September 29th of 2022, you changed your phone number and got a new phone. And then September 30th, the next day, you were served with the preservation order, correct? [02:51:12] Speaker 3: I got the preservation order on the 30th. That's correct. [02:51:16] Speaker 1: All right, Mr. Higgins, you are all set, sir. [02:51:20] Speaker 3: Thank you, Your Honor. Thank you. [02:51:22] Speaker ?: Thank you.