Jen McCabe begins testimony in Karen Read trial; judge warns defense "no more nonsense"
Key witness Jen McCabe took the stand Tuesday in the sixth day of witness testimony in the Karen Read trial after a cellphone expert finished his testimony about McCabe's disputed Google search and John O'Keefe's movements the night of his death. When court was done for the day, Judge Beverly Cannone issued a stern warning for defense attorneys.
Read is facing trial for a second time and has pleaded not guilty to second-degree murder, manslaughter while operating under the influence of alcohol, and leaving the scene of personal injury and death.
Prosecutors say she hit and killed O'Keefe, a Boston police officer who she was dating, with her SUV and left him to die outside a Canton home during a blizzard. Read's defense has argued law enforcement and several other people are working to frame her.
Special prosecutor Hank Brennan is handling direct questioning of prosecution witnesses, including McCabe. When jurors were dismissed for the day Tuesday, McCabe was still on the stand. She is expected to return Wednesday morning.
Judge warns defense "No more nonsense"
On Monday, two crash reconstruction experts who were hired as part of the now-closed federal investigation into the handling of O'Keefe's death were questioned without the jury present at the request of Judge Cannone. During the hearing, one of the experts revealed he deleted text messages with defense attorney Alan Jackson.
On Tuesday after testimony was done for the day and jurors had left the courtroom, Brennan asked Cannone to bar the witnesses from testifying about any new testing and opinions, as well as opinions from prior to the first trial.
Cannone heard Brennan's arguments, then asked defense attorney Bob Alessi how she reconciles discovery that was not provided to the prosecution. Then, she stopped Alessi.
"Mr. Alessi, you know what, you're going to win this, so why don't you let me make my ruling. I understand there have been repeated violations of the reciprocal discovery orders, and my orders. Repeated and deliberate. And Mr. Brennan I understand completely the Commonwealth's argument, completely the ambush that has been set upon here. However, a defendant's right to a fair trial is paramount to everything," Cannone said.
Cannone said she will allow the witnesses to testify to everything they have said, including new testing that is expected to be completed by May 7. Before court ended for the day, Cannone issued a warning to the defense.
"No more nonsense. Let's just try this case," Cannone said.
Jen McCabe testifies in Karen Read trial
Jen McCabe is the sister of Nicole Albert, who is married to Brian Albert. The couple owned the home at 34 Fairview Road where O'Keefe's body was found on the lawn.
McCabe began her testimony Tuesday with questions about her own background, and how she came to meet O'Keefe. Brennan asked what her relationship was with like with O'Keefe on January 28, 2022.
"He was a very good friend of mine that I knew I could call for anything," McCabe said.
McCabe got to the Waterfall Bar & Grille in Canton around 9 p.m. on January 28, 2022, eating and drinking with members of her family. She said the group was joined a short time later by Brian Albert and Brian Higgins, two men who Read's attorneys plan to say as part of their third-party culprit defense could be responsible for O'Keefe's death.
Higgins was an agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives. It was revealed during the first trial that he exchanged "flirty" text messages with Read.
Read and O'Keefe later joined the group at Waterfall.
"Just a typical, average night," she said.
Just after midnight on January 29, 2022, McCabe said she left the Waterfall with her husband Matt. She said she spoke to Read and O'Keefe. According to McCabe, Read and O'Keefe planned to join her at Brian and Nicole Albert's home on Fairview Road, along with Higgins and Caitlin Albert.
Party at 34 Fairview Road
McCabe said she and her husband arrived at 34 Fairview Road and several people were already there, including her niece, nephew, and Julie Nagel. The group was celebrating McCabe's nephew Brian Albert Jr.'s birthday.
McCabe said Brian and Nicole Albert were also in the house, as was Higgins.
When she arrived, McCabe testified that she sat down with them. They were listening to music, laughing and telling stories. She said someone in the group played the music video for "It's Raining Men," which has significance as an ongoing family joke.
"Could I have hit him? Did I hit him?"
McCabe said that she looked outside several times, expecting O'Keefe and Read to arrive. She said she saw a dark-colored SUV out front. Read drove a black Lexus SUV.
"I believed it was Karen's," McCabe said. She added that she only took quick glances, but McCabe said she saw the SUV first straight in front of the front door, then in front of the flag pole, and a third time further up from the flag pole.
McCabe texted O'Keefe "Here?" and "Pull behind me," but he never answered.
"I was expecting John and Karen to come into the house," McCabe said. Brennan asked if Read and O'Keefe ever came inside. McCabe said no.
McCabe said she left the house around 1:45 a.m. with her husband driving. Nagel and Sarah Levinson, who were also at the party, were also in the car. McCabe said she was in the front passenger seat as they passed the flag pole, but she was looking back and talking to Nagel and Levinson, who were in the back seat.
Just before 5 a.m., McCabe said O'Keefe's niece called her and she could hear Read screaming in the background.
McCabe said that during another phone call, she told Read she had seen her and O'Keefe outside Brian Albert's home.
"She told me she didn't remember being there. Then she started saying 'Could I have hit him? Did I hit him?'" McCabe said, adding that Read then told her she had cracked her taillight.
McCabe, Kerry Roberts and Read met at O'Keefe's house, then left from there together to search for O'Keefe. Roberts was driving, McCabe was in the front passenger seat, and Read was in the back seat.
According to McCabe, at one point in the driveway of O'Keefe's home, Read pointed out the broken taillight to her and Roberts. McCabe said Roberts pointed out a piece that was sticking out and was worried someone would catch their coat on it.
"Ms. Read was pretty adamant that we went to Fairview first," McCabe said.
John O'Keefe's body found
McCabe's sister is married to Brian Albert, who at the time of O'Keefe's death owned the home at 34 Fairview Road in Canton where his body was found.
During her testimony, McCabe recalled the morning she, Read and Kerry Roberts found O'Keefe's body in the snow outside the home.
McCabe said that as the women pulled up to the home, she looked toward the area of the flag pole, but she couldn't see anything due to the snowfall. When she got closer, McCabe said she saw Roberts removing the snow from O'Keefe's face.
"I was frozen. I was shocked. I couldn't believe that it was him lying there," McCabe said.
Outside court, Read said "no comment" when asked if she noticed a change in McCabe's demeanor compared to the first trial.
On Wednesday, there is expected to be more direct testimony with McCabe, then cross examination with Alan Jackson, which, during the last trial was very tense and lasted days.
"So, they're going to be trying to get under her skin, pushing her. But she's already done this once, right," WBZ Legal Analyst Katherine Loftus said. "So, her job from the Commonwealth's perspective is not to give in to that sort of, you know, attempt to get underneath her skin. Whether she's able to do that is what the big question is."
"Hos long to die in cold" search
Court ended for the day Monday as Alessi was cross-examining Ian Whiffin, who works for Cellebrite, a company that does forensic phone extractions. Whiffin returned to the stand Tuesday and with cross-examination complete after about three hours, Brennan returned for redirect questioning.
Whiffin testified about the timing of key witness McCabe's Google search about how long it would take someone to die in the cold, saying it happened after 6 a.m. on January 29, 2022. Defense attorneys have said McCabe made the search at 2:27 a.m., hours before O'Keefe's body was found.
According to Whiffin, the search registered at 2:27 a.m. because McCabe opened an internet browser tab, then hours later used the same tab for the search she said was made at Read's request.
On cross-examination, Alessi said that during the first trial, one of the tools Cellebrite used did show 2:27:40 a.m as the time McCabe searched "hos long to die in cold," but it was later deleted. Alessi also said that a Cellebrite competitor found the same, and still has it in its record, while Cellebrite removed the time stamp.
Whiffin said it was removed in response to his research.
"It was changed due to the research I did and it was verified by the forensic research team," Whiffin said.
He was asked by Brennan on redirect, "Did you go into your company's software and change it to accommodate law enforcement?" Whiffin said no, and Brennan asked him why he would not do that.
"Aside from being unethical to change the data in that way, this is an artifact that is easily validated by any examiner. If I was to tamper it for the purposes of changing the outcome of a case, it would be detected by all of our customers immediately and would destroy the reputation of Cellebrite, which I've got no intention of doing," Whiffin said.
Did John O'Keefe enter 34 Fairview Road?
Whiffin also testified that based on his analysis, on the night he died O'Keefe's phone never left the area of the flag pole in the yard outside 34 Fairview Road in Canton after he arrived at Brian Albert's home. O'Keefe's body was found in the snow near the flag pole.
The prosecution attempted to use Whiffin's testimony to show that O'Keefe never went inside the home after getting out of Read's SUV. The defense has argued that he was killed during a fight inside the home, then dragged outside and left in the lawn.
Alessi highlighted Tuesday that in Whiffin's report he notes that when O'Keefe's phone arrived at 34 Fairview Road, the device turned in a westerly direction toward the home. Whiffin wrote in his report that it was "difficult to say with any degree of certainty if the device actually moved."
On Monday, Whiffin displayed a satellite image of 34 Fairview Road, which was owned at the time by Brian Albert. The photograph included dots that give a general area where the phone was located throughout the night.
During cross-examination, Alessi highlighted that Whiffin did not include a second photo from his report that also has circles showing a wider range based on the data of where the phone may have been. Alessi said that when the circles are shown, "a substantial amount of the house" is included.
"Interesting and notable, you did not include that depiction in your timeline that you discussed with the jury yesterday, did you? But it was important enough or you to put that depiction in your report," Alessi said.
Whiffin was asked if based on that photograph if the phone could have been in the house.
"Based on the low accuracy information yes," Whiffin said.
Later during redirect questioning by Brennan about the accuracy of location data, Brennan asked if a human lying on top of a phone could impact the accuracy of that data. Whiffin said he believes it could.
Whiffin's report noted that the final health event recording on O'Keefe's phone came around 12:32 a.m. on January 29, 2022, when he recorded 36 steps covering about 84 feet. Alessi showed Whiffin a report by Massachusetts State Police Trooper Nicholas Guarino that shows the measurement from the flag pole to the front door of the home is 72 feet.
Brennan later asked Whiffin on redirect if there is any way to know if the steps were taken in a straight line, or if they could have been pacing or in a circle. Whiffin said there is no way to know.
John O'Keefe's cellphone battery temperature
Whiffin's direct testimony also attempted to show that the temperature of O'Keefe's cellphone battery also shows he never made it inside the house.
On cross-examination, Alessi tried to show that during Whiffin's experiments putting a phone in cold temperatures, the phone battery temperature dropped more quickly than O'Keefe's battery did the night he died. Alessi said there was a "much more dramatic" drop in temperature in the experiments than there was on O'Keefe's phone battery data.
Brennan asked on redirect if Whiffing covered the phone with anything when it was in the freezer.
"If a person, a human was lying prone on a cellphone outside, and had a body temperature directly touching the phone, in your opinion could that slow the process of the temperature decreasing as compared to simply just putting a phone in the freezer," Brennan asked, prompting an objection that was sustained.
Alessi also noted that Whiffin did not know what the temperature was in Canton the night O'Keefe died. Whiffin said he did not believe it was important because he did not know factors such as if the phone was in a case or if the phone was in a pocket.
"I know it was a blizzard. But I don't know what the temperature was," Whiffin said.
