ARTICLE 32 HEARING TRANSCRIPTS
July 6, 1970: Intro and Pre-Testimonies Issues
(This session was called to order at 0910 hours, 6 July 1970.)
COLONEL ROCK: This Article 32 investigation will come to order. Let the record reflect that the original session of this Article 32 investigation commenced at 1300 hours, 15 May 1970, at the Fort Bragg, North Carolina. In attendance were myself, Colonel Rock, Captain Beale, my legal advisor, Captain Somers, counsel for the government, Captain Douthat, counsel for the accused, and the accused himself.
Let the record also reflect that in attendance today are the same parties with the addition of the accused's retained civilian counsel, namely Mr. Segal, Mr. Eisman and Second Lieutenant Michael J. Malley. For the benefit of the civilian counsel who are now present the record will reflect that a summarized record of the proceedings held on 15 May 1970 has been furnished to the defense. The record will further reflect that the subsequent proceedings will be transcribed verbatim until the conclusion of this hearing by Mrs. Barbara Hodges, who is present.
I wish to inform counsel for both sides that in accordance with paragraph 34 of the Manual for Courts-Martial I intend to conduct this hearing in a manner that is both fair and impartial, to review all the relevant and necessary evidence that either side may care to present, and, based on the evidence as presented, to make a recommendation to the appointing authority as to whether or not the evidence warrants a trial or any other appropriate action.
For the interest of orderly administration of these proceedings counsel for the government will initially present his evidence. During this procedure counsel for the accused will be given full opportunity to cross examine each government witness or to register objections to any and all evidence that they might deem to be not properly before this Article 32 investigating officer.
I wish to at this time inquire as to the credentials of the additional accused's counsel who are present today for the first time. Lt. Malley, are you qualified under the provisions of paragraph 27b of the Uniform Code of Military Justice?
LT. MALLEY: Yes sir, I am. I've been certified by The Judge Advocate General as qualified under the provision of that paragraph and I am a member of the bar of the state of Texas.
COLONEL ROCK: Thank you. Mr. Segal, what state are you authorized to practice law in?
MR. SEGAL: I am admitted to the bar of the Supreme Court of Pennsylvania, Col. Rock, and I am admitted to the bar of the Supreme Court of the United States.
COLONEL ROCK: Are you licensed to practice before the highest court of that state?
MR. SEGAL: Yes, I am.
COLONEL ROCK: Thank you. Mr. Eisman, in what state are you authorized to practice law?
MR. EISMAN: I have been admitted before the bar of the Supreme Court of Pennsylvania.
COLONEL ROCK: Are you licensed to practice before the highest court of that state?
MR. EISMAN: Yes, I am.
COLONEL ROCK: Thank you. I would like to request that one counsel for the accused speak on behalf of the accused in any questioning of witnesses, or in presenting evidence for the accused. If a deviation from this procedure is required, please address your request to me.
Lastly, I wish to inform counsel for both sides that these hearings are open to the public at the specific request of the accused. Is this correct, Mr. Segal?
MR. SEGAL: That is correct, Col. Rock. We have requested on behalf of Captain MacDonald this morning that these hearings be held in open fashion.
COLONEL ROCK: They will be so held. Then does either counsel have any comment or questions concerning these procedural matters?
CPT SOMERS: None by the government.
MR. SEGAL: Nothing at this time on behalf of the defendant, your honor.
COLONEL ROCK: If not, counsel for the government will proceed.
CPT SOMERS: Sir, if I may I would like at this time to outline briefly what the counsel for the government intends to present in the order in which I intend to present it. To begin with I shall attempt to lay a chronological picture of the events of the morning of the 17th of February 1970. To do so I shall start with a telephone operator from the telephone exchange downtown. I shall then introduce testimony from several of the military police who went to 544 Castle Drive in response to this telephone call or telephone call. I shall introduce then evidence of the identification of the persons who were in the residence and the medical testimony as to the pronouncement of death. This will be followed by testimony as to the condition, the medical condition of Captain MacDonald, that morning from a doctor, perhaps two doctors, and one of the medics who saw him that morning. I shall follow this with testimony from a medic and a Criminal Investigation Division agent as to the receiving of the bodies in the morgue and the taking of the evidence there. This will be followed by testimony from the pathologist who conducted the autopsies on those bodies. Following this testimony I will introduce testimony from the agent of the Criminal Investigation Division who are principally responsible for the investigation of this case. They will testify regarding the preservation of the scene, the taking of the evidence at the scene and certain other matters which are relevant to the residence at 544 Castle Drive. I will follow this with testimony of a neighbor who lives nearby as to possible identification of some of the weapons found on the scene. This will be followed by testimony from another neighbor as to disturbances which did or didn't occur in that vicinity that evening. I will follow up with another neighbor with similar testimony and intend to conclude with the testimony of a Federal Bureau of Investigation agent who took a statement from Doctor MacDonald on the 27th of February. My first witness, sir, is a civilian, the lady from the telephone exchange, who is, as far as I know, not in the building at this moment, but who will be within minutes.
MR. SEGAL: This might be an appropriate juncture, Colonel, to raise two matters based upon the government's outline of the case. I note that the government indicated that regard to the condition of Captain MacDonald; they intend to call one or possibly two doctors. We are apprised that at least of the physicians who the government most certainly intends to call is Doctor Straub, your honor, the radiologist. We are of the opinion, based upon our investigation, sir, that there are several other physicians, one of them--at least one of them--is going away and will no longer be a member of the military service and will not be readily available to this court after possibly the next week or two. It seems to me that, also based upon our in-vestigation, one witness physician that we are certain the government intends to call may not be the person who has the most pertinent information with regard to that question. We would therefore suggest it is appropriate at this time to consider making arrangements at the earliest possible time to take the testimony of the other physician because of these problems I've indicated. Secondly, sir, in regard to the statement by counsel for the government, that it intends to call an FBI agent, I wish to advise the court that as of late last week that agent was not available for interview by counsel for the defense because he stated to counsel for the defense that he has not been given authorization by the Federal Bureau of Investigation in Washington to testify or appear in these proceedings on behalf of either party, and that therefore he led us to believe at that time he was not available to the government. Now if the government intends to call him, I would suggest that it is appropriate that the clearance be obtained at the earliest time, so that he may also be interviewed by the defense prior to the time of his being called. Otherwise it might necessitate a needless delay and I would like to avoid that at all cost, sir.
COLONEL ROCK: Would you care to address the business on the doctors?
CPT SOMERS: Yes, sir. The government intends to call Doctor Straub, certainly. It also will probably call a Doctor Jacobson. There are several other physicians who could conceivably be called but the government doesn't feel that are relevant to the case. If the defense wishes to make these witnesses available as its own, the government will be happy to see what it can do to facilitate this. Now insofar as the FBI agent is concerned, if you wish me to address that--
COLONEL ROCK: Please do.
CPT SOMERS: The FBI agent has in fact been made available to testify at these Article 32 proceedings on behalf of the government. I have personally received a phone call--I believe it was Thursday of last week--from the FBI agent, who stated simply that he could not talk to the defense until he had been given clearance by his superiors. I will today contact the US Attorney, Mr. Coolidge, and attempt to acquire for the defense this clearance.
COLONEL ROCK: I think that the answers by the government are satisfactory in both respects. In the event you have difficulty in obtaining the support of the agent for the accused, the FBI agent, please inform me at the earliest moment.
CPT SOMERS: I will, sir. If you will excuse me just one moment, I will check on the status of my civilian witness.
COLONEL ROCK: Let us know soonest.
CPT SOMERS: Sir, if I may, I suggest we take a five minute break in place and I will then have this witness.
COLONEL ROCK: We will recess for five minutes.