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Today Supreme Judicial Court Justice Scott Kafker denied and allowed parts of Karen Read’s appeal of Judge Beverly Cannone’s denial of the Rule 17 motion that would’ve given her access to Brian Albert and Jennifer McCabe’s cell phone records. Specifically, Justice Kafker denied access to Albert’s phone records entirely, but granted access to McCabe’s records for January 29, 2022 only.
The ruling, which you can read here, does NOT cite the testimony of the Commonwealth’s expert Jessica Hyde, because the Commonwealth is no longer using her as a witness. Adam Lally initially lied in court when he said that her findings determined that the 2:27 AM “hos long to die in cold” Google search never happened, when in fact she just said it was unknown why the time stamps read as they did. Now they’re going back to Trooper Nicholas Guarino’s assessment, since they’re using his/him pronouns.
So unless Jessica Hyde switched teams, she appears to no longer be the Commonwealth’s expert witness.
Justice Kafker used Cannone’s own words against her, when Cannone said in her denial in reference to Jennifer McCabe deleting her 2:27 Google search, that “the court assumes that she did only for the purposes of this motion.”
Judge Cannone said that she assumed the Google search happened, which should’ve led to her allowing the motion to give Karen Read access to McCabe’s cell phone records.
The Lampron decision in 2004 set the bar so that you can’t ask for someone’s cell phone records if it’s a “fishing expedition.” Because they have no proof what is on Brian Albert’s cell phone Justice Kafker denied them access to his records, and most of McCabe’s records.
However, because of Cannone’s own words – that she believed for the purposes of the motion that the search did happen and was deleted at 2:27 AM – it was no longer a fishing expedition. Karen Read was acting in good faith, and therefore Cannone should have allowed the Rule 17 motion, granting the defense access to McCabe’s cell phone records. Since the Google search happened on January 29, 2022, Justice Kafker granted access to McCabe’s records for the entirety of that 24 hour period (midnight to midnight 1/29/22).
The SJC has now alerted Norfolk Superior Court Clerk Jim McDermott that Cannone’s decision has been overruled. The court now must order Verizon to send all of Jennifer McCabe’s cell phone records to Karen Read’s defense team. A look at my own Verizon records show that this will reveal all calls AND text messages.
It will not reveal the content of those messages. However, it will show everyone Jennifer McCabe was in communication with from midnight to 6 AM when John’s body was discovered. It will also show all of her phone calls and how many minutes each one lasted.
Rick Green’s Cellebrite data extraction is what led to the discovery of the 2:27 Google search, along with 18 deleted phone calls between 5 and 9 AM. But there are more calls that were made to John O’Keefe’s phone, which show up in his call log, but don’t show up on Rick Green’s report. That means that there is more deleted data on her phone that even Cellebrite could not find. The Verizon records will show it all.
If Jennifer McCabe deleted phone conversations with Brian Albert, or any person that morning, that did not come up in the Cellebrite data extraction report, it could open up more doors for the defense. For instance, Albert’s Attorney Greg Henning said in a May 22 motion that there was “no record of any phone conversations between Brian Albert and Jennifer McCabe” on January 29, 2022.
If her records show that there was a phone conversation, perhaps shortly after she deleted her 2:27 Google search, it would prove that his Attorney lied in court, and it would no longer be a fishing expedition to ask to look into Albert’s phone records.
So although this was not a total win for the defense, it was still a victory in that:
- Cannone was overruled by a higher court
- It could open the door to more information about who Jennifer McCabe was in contact with the night she helped murder John O’Keefe.