ARTICLE 32 HEARING TRANSCRIPTS
July 8, 1970: Discussion
(The hearing reopened at 1038 hours, 8 July 1970.)
COL ROCK: The hearing will come to order.
Does the counsel for the government have additional witnesses?
CPT SOMERS: Yes, sir.
MR. SEGAL: Sir, at this time, if we may, there are certain requests the defense thinks would be appropriate to make at this juncture of the proceedings. We will call upon the government at this time, sir, to produce and make available to this inquiry the statement that was referred to this morning by Specialist Mica in regard to information received from an individual which was reduced to a former witness statement by the criminal investigation division as to the disappearance and possible subsequent relocation of the wallet that was seen in the living room of the MacDonald household. And secondly, sir, we have an additional request to make, and with the leave of the investigating officer, Captain Douthat will make that request at this time.
CPT DOUTHAT: Colonel Rock, at this time, we would like to renew the request of the defense that you -- that was originally put forth in our letter dated 22 May to yourself and request that the government make available to the defense any and all photographs of the scene which were taken on 17 February or thereafter. It is probably apparent from the photographs that have been introduced so far that the photographs that have been given to the defense contain large discrepancies when compared with the actual memory of the individuals who were on the scene. Therefore the defense feels that if a complete set of photographs were given to the defense we might be able to ascertain possibly exactly how the scene did appear and would be better prepared and able to cross examine further witnesses and find by the use of different photographs how the scene actually appeared.
COL ROCK: You say the witnesses have indicated discrepancies in the photos in how they remember? I'm not quite clear as to what discrepancies. It didn't become apparent to me that there were discrepancies.
CPT DOUTHAT: Specialist Mica stated that the flower pot that was pictured in one of the photographs of the living room was not as he remembered it; that the phone was not as he remembered it; and although at this time it has not been shown by the defense, there are other witnesses who will state that they have been shown other photographs which shows objects to be in different places in the MacDonald house. Captain MacDonald himself has been shown photographs showing the same object in two different locations. Other witnesses have been shown photographs which show objects to be in different places. Specialist Mica also stated, I believe, that he specifically recalls that the white towel was not on the body of Mrs. MacDonald as was shown on the photograph in the master bedroom.
COL ROCK: In other words, you are saying that for instance, there are photographs in existence of Mrs. MacDonald's body without the towel. Is this essentially it, as an example?
CPT DOUTHAT: I do not know if there are photographs in existence which would depict that. I have been told by witnesses that they have seen photographs which showed the materials which are pictures at the end of the hallway in the MacDonald house on the sofa in the living room, and not at the end of the hallway. I have -- and there are other photographs, and I cannot recall at this moment which show discrepancies in the location of objects in the MacDonald household.
COL ROCK: Does the counsel for the government have other photographs which will be introduced at an appropriate time and available for the defense?
CPT SOMERS: The counsel for the government has no photographs which it intends to use except some autopsy photographs which are not of the scene; has no photographs of the scene which it intends to use which is not provided to the defense. I would like to point out that the photographs that we have so far, were introduced into this hearing by the defense. They were not introduced by the government. The government is capable of delineating precisely when these photographs were taken under what conditions which may help to explain some of the difficulty the defense is having with photographs which it did not attempt to explain how they were taken.
CPT DOUTHAT: If the investigating officer please, on the letter dated 22-May, in which the defense requested that all photographs be furnished to the defense in paragraph 2, we requested that the identity of the photographers who took the requested photographs and the dates also be furnished. We have not as of yet been told who took the photographs and on what date, at what time, and under what circumstances they were taken. And it is for this reason we'd like all photographs and this information that CPT Somers has alluded to in order that we may properly have an idea of the crime scene and therefore be able to present to yourself the exact -- exactly what did transpire, or what physical evidence was at the crime scene. In addition, the defense would not like to be limited to that evidence which the government intends to introduce. It would appear to the defense that there are numerous photographs which show different arrangements of items in the house and quite possibly, when presented to the witnesses on the scene, might be in more detail, in a more accurate manner reflected exactly how the scene was reflected on the 17th of February. We would like to bring to you, as you might say all of the facts and in the most open manner possible, and all photographs which might, might do this in front of all witnesses who might be able to explain exactly how the scene was.
COL ROCK: Does the counsel for the government have any further statements?
CPT SOMERS: Yes, sir, if I could have just a moment.
Among the other things that the government wishes to say, the request that the defense made relevant to photographs, the paragraph they refer to in which they request the name of the photographer, the defense was furnished with a second endorsement in answer to many of these requests, of which paragraph 8 reads, "The photographs were taken and developed by Mr. Hugh M. Squires, GS-9, Pictorial Officer, Post Signal Division, Office of the Assistant Chief of Staff for Communications and Electronics." That information was furnished to the defense on the 27th day of May. So the photographs which the defense has, it has known who took them since that time. Now the government, if I may say so, in its various agencies has expanded untold amounts of money and time and effort, and the materials which may be in government hands either here or with the CID or with the FBI is very extensive. The government has at this time no intentions of attempting to provide either to the defense or to this hearing the entire volume of this material, and that's the position of the government, sir.
COL ROCK: Captain Somers, are there, in fact, photos which exist that would show discrepancies in scenes as alluded to by counsel for the accused?
CPT SOMERS: I'm not aware of any, sir. If they are talking about discrepancies between one photograph and another, no, sir, I am not aware of any.
COL ROCK: In other words, there would perhaps be additional photographs of the same scenes?
CPT SOMERS: Different in that they were taken later.
CPT DOUTHAT: Colonel Rock, at this time I believe I could show you two photographs which have been furnished to the defense which bear marked discrepancies. If you will give me but a moment, sir.
COL ROCK: Furnished to the defense by whom?
CPT DOUTHAT: By the government.
COL ROCK: These will be accused exhibits 11 and 12, and which do you want to present first?
CPT DOUTHAT: I'd like to present this one, Accused Exhibit 11.
COL ROCK: This will be 11 and this is a photo of a female child.
CPT DOUTHAT: Photo of a female child, yes, sir.
COL ROCK: Currently I am considering these photographs only from the standpoint of identification, and this one will be marked Accused Exhibit 12, and is another apparently -- another photograph of the same child.
(Accused Exhibits 11 and 12 were shown to CPT Somers.)
CPT DOUTHAT: I might state, sir, that Accused Number 12 has written on the back of it the initials "RBS" with the date 5 July 70, the notation "body position change by doctor." These initials are the initials of Mr. Robert Shaw, a criminal investigation agent, who was assigned to this case who made this notation on the back of Accused Exhibit 12 on that date to explain why this photograph was different from that photograph which is now marked Accused Exhibit Number 11. If you will look at these two photographs and look at the positioning of the right arm of the child, you will note that the right arm appears on one photograph and not in the other.
COL ROCK: Well, I don't see any -- any discrepancies, if you were provided with information as to why a particular change occurred, and I am assuming that at sometime this will be entered into evidence either by one side or the other; the facts are known as to the change wherein lies the discrepancies?
CPT DOUTHAT: We were originally given the photographs and it was not until after we had questioned the CID at length about the photographs that we discovered which of these photographs was the true photograph of the scene. Now that we were told that the photograph showing the right arm was the true photograph. We have also had this brought on, as I mentioned, with the clothes on the couch and at the end of the hall, and we have also talked to the witness, one of the MP's whose name I cannot remember at this time, he said that when he was being interviewed by Captain Thompson he was given two photographs showing the east or the master bedroom which showed the bed and the covers on the bed to be in two different positions. It is the contention of the defense that if we were given all photographs we might well find that some of these photographs which were given may not be the exact state of the crime scene on the 17th of February, but we could present the different photographs to all the witnesses, therefore gain a true picture.
CPT SOMERS: Sir, the defense has had these photographs for some time. It has had access to the witnesses of the scene, and it could have found out simply by showing the pictures to the witnesses if there were differences between the pictures and the scene. I say again that these pictures have been introduced by the defense with no intent to explain the conditions and time at which they were taken. The government does not intend to do that. It intends to explain the conditions and time that they were taken. The discrepancies which the defense has mentioned it has an explanation for and got the explanation because the prosecution gave the pictures to the defense and the witnesses were available to the defense. Now there may be other pictures which may have been taken later on in the day, and in which there may be other differences, and again you would have explanations for those differences if those pictures were presented.
MR. SEGAL: May I be heard on this matter? These photographs now in the possession of the defense were submitted in response to the communication of 22 May which asked for, in effect, the photographs of the crime scene. They were then provided without explanation to the defense and offered to us as allegedly being photographs of the crime scene. The person who told the explanation as to how these photographs were taken or the circumstances of any changes made in the crime scene did not respond willingly or readily. As a matter of fact, the investigators in this case had originally declined to answer questions to counsel for the accused unless they had counsel present. They persisted in taking the position that literally they would not have to answer questions and only upon threat of taking proceedings to higher authorities, on threat of being prosecuted for failing to answer direct questions given by superior order, did we, in the last week, obtain the depositions of the CID investigators who are responsible for the photographs and the overall control of the crime scene. Now it is critical, sir, to this case, to realize and for the court to be able to have before it, the facts of how the investigation developed. It is apparent to us the government will rely upon what it considers to be alleged circumstances and by virtue of some physical facts at the crime scene to build its case. Yet there is no one who is prepared to say that the defense has been given access to all of the photographs that were taken with or without adjustment. I want to state at this time that I am prepared at this time to call, out of turn independently, Captain MacDonald and under oath have him testify to this officer here that he was shown a photograph, and if I may, sir, see the originals here, sir -- that during the course of questioning he was shown a photograph similar to A-7, which purports to show the sofa in the MacDonald house in the living room; that the photograph that he was shown, if Captain MacDonald was called to testify, sir, would show that a substantial number of clothing belonging to one of the children was placed on the sofa, and then presented to Captain MacDonald in the course of interrogation for the purpose of his allegedly explaining how these clothing items got there. These photographs were put forth purportedly by the investigators in this case as part of their investigation of what the original crime scene looked like. Now it seems to us, sir, that we cannot really adequately determine whether the government's case based upon certain circumstantial evidence, based upon physical facts at the crime scene, is in fact truly and honestly and fully presented without having access to all the photographs. I do not ask the government to look through all of its files for all its information. It is a very simple matter to determine. There could not have been, sir, more than two photographers, and three photographers, at most. It is doubtful whether the photographers were anybody but persons who is here now present on this establishment. It is unlikely that they are photographers that belong to the Federal Bureau of Investigation, but unless the government so represents that these are things that would be extraordinarily difficult to present, I cannot fathom any legitimate reason, sir, as to why we should hold back on that particular data. It is not like testimony where one fears than someone might tamper with them when they got a hold of it. These photographs have been taken and cannot be altered in any fashion. I'd like to say finally, sir that it seems to me if we are going to have a debate here about, well, whether these photographs represent the right scene or the right time, that we should compel at this time the appearance, out of order, of the persons responsible for the photographs. So that we may hereafter intelligently interview witnesses and examine witnesses using photographs that all of us may rely upon. It seems to me there is no reason for the court to proceed in darkness as to whether we have photographs that are helping us or that we are succeeding in confusing the record.
CPT SOMERS: It will take me a while to respond to all of these points. It is true that Captain MacDonald was shown photographs showing a variation of position in the clothing in the hall. It is also true that it was explained to Captain MacDonald how that clothing got moved and the difference between the two photographs. It is true that there have been some threats to witnesses in this case by the defense. It is not true that the defense had to threaten anything to talk to the CID because I have worked with the defense in getting them to talk to the CID. It is also true that these photographs were put in this hearing by the defense, out of order, and before they were authenticated by the prosecution, and I submit that the defense is in a very poor position now to complain about that. It is not true that all of the photographers who took pictures are from Fort Bragg, nor is it true that all photographs are at Fort Bragg since some of them were taken by photographers at Fort Gordon and some of the photographs are at Fort Gordon. These photographs were presented to the defense some time ago and I might add the defense has gotten these photographs along with a number of other things much earlier in the proceedings than is normally the case, much before they were in any way entitled to this evidence. Now any discrepancies they may see in the pictures they have can be explained and the government has every intention that they should be explained. Any discrepancies they may see, they could have talked to the witnesses that were available, and they could have done it ever since they got those pictures. Now the government does not feel that it is incumbent upon it to prepare the defense's case for it, which is almost tantamount to what it is asking for. The government intends to use some of the pictures which the defense already has. It does not intend to use any other pictures. It intends to authenticate the pictures that it uses, and it does not intend, unless ordered to, to attempt to ferret out all of the pictures which may have been taken at any time on that day or subsequently of this scene.
MR. SEGAL: May I ask your indulgence, Colonel Rock, to make one very brief statement? I do not wish to belabor the point. I am satisfied that the investigating officer understands what we are driving at, but it seems to me that within the short span of two statements by the government, we have heard two substantially different and perhaps unintentionally misleading remarks made by the government. First of all we were told that in response to our letter of 22 May requesting the names of all photographers, in the plural, who took photographs. The government's counsel has read to this investigation this morning a statement that it was a certain government employee here on Fort Bragg who took the photographs. We are now told within a matter of a few moments thereafter that there are other photographers who took photographs that may be relevant to this investigation, and, sir, does not help this court to achieve the initial purpose which is to try and find out what the true facts are. I do not believe the posture of the counsel for the accused has been in any way to ask the government to do anything more than to present to this court all of the relevant facts.
CPT SOMERS: Well, since the defense counsel has imputed to the government some sort of inconsistency, I think it should be explained. Paragraph 8 of the reply, which the government has referred to and which the government has read, reads, "The photographs already furnished to the defense was taken and developed" and the name of the person having taken them was given. The government does not contend that this paragraph which it read says it is naming all possible photographers. Perhaps the defense asked for that, but that's not what the answer gives them, and the government doesn't say that it gives them that. It gives them the answer to who took the photographs they have in their hands.
MR. SEGAL: May we remark in evidence, sir, in regard to this particular subject matter, but not as to the hearing in chief, a copy of the letter of 22 May 1970 submitted to this investigating officer by counsel for the accused.
COL ROCK: I have a copy of this in my files. I'll just review it and return it. Thank you, I have a copy of this.
COL ROCK: If there are no further comments, this investigation will be recessed for fifteen minutes.
(The hearing recessed at 1104 hours, 8 July 1970.)
(The hearing opened at 1130 hours, 8 July 1970.)
COL ROCK: The investigation will come to order.
Mr. Segal, I have considered your request for the statement of the unknown witness with reference to the alleged missing wallet. At this time I am going to deny your request. However, if later it appears relevant to my investigation, you may renew your request.
Reference your second request, I grant the defense request to the extent that I am going to require the government to produce a copy of each photograph taken at the alleged crime by and all photographers prior to the time the deceased victims were removed from the premises.
Captain Somers, I'd like to know how long you think it will take the government to provide these photographs to the defense.
CPT SOMERS: Sir, I can't estimate. I would hope to be able to do it by tomorrow, but it would be a guess, at that.
COL ROCK: Under these conditions then, do you think if we recessed -- it is now 1130 -- that by our regular session, say 1330 you could give us a final guesstimate as to the amount of time?
CPT SOMERS: Yes, sir.
COL ROCK: All right, now I would like to also mention at this time that I will wish to view the apartment at 544 Castle Drive as soon as possible in the presences of counsels for both sides and the accused, and I would like to estimate at 1330 this afternoon of when we might view that scene.
CPT SOMERS: I can provide that, sir.
COL ROCK: Are there any other points to be raised at this time?
MR. SEGAL: Yes, sir. I don't want to burden Captain Somers with many more details between now and 1330. I would only ask whether we might have some idea by that time as to the availability of the fact sheet that was prepared by Lieutenant Paulk that was referred to yesterday, and which the court has authorized that we may have. And, secondly, sir, Captain Somers has indicated that he would ascertain the availability of the FBI agent for the interview by counsel for the accused, and we would hope that we might have some report to the availability so that we could do that expeditiously, sir.
COL ROCK: Would you need more time then, beginning the next session at 1330 to answer these two additional requests which I think are appropriate?
CPT SOMERS: No, sir, I can answer one of them right now with respect to the statement or list made by Lieutenant Paulk. Two CID agents have been working, attempting to locate the whereabouts of this statement now since the request was made. I cannot locate anybody who has ever seen it, nor can they locate that statement, and I would guess, although I have not stopped them from looking at this point, that they are not going to be successful in that request. I will be able to provide information with respect to the FBI man this afternoon at 1:30 and I will be able to give some estimate of time as to the other two matters, and I do not require any more time for that purpose.
COL ROCK: All right for the purpose of this investigation, we will not hear any further witnesses until these photographs have been provided to the defense, and I will then make a determination at that time as to when the proceedings will continue. This is for planning purposes.
MR. SEGAL: Perhaps then, sir, if it can be arranged, Captain Somers might determine that we can undertake the viewing this afternoon in the interim while the photographs are being arranged.
COL ROCK: This will depend entirely upon what he has to say at 1330. I do not know whether they can arrange it in that short of notice. If there are no further matters to be brought, this hearing will be adjourned until 1330 this after.
(The hearing recessed at 1135 hours, 8 July 1970.)
(The hearing reopened at 1404 hours, 8 July 1970.)
COL ROCK: The proceedings will come to order.
Captain Somers, are you prepared to answer any of the questions relative to the matter discussed just prior to our last break?
CPT SOMERS: I am, sir. With respect to the residence at 544 Castle Drive, I have been in contact with the Criminal Investigation Division agents who are working to clean up the debris in that house for this viewing, and they are not certain when they will complete that work, but I am to receive a call as soon as they do. I anticipate that it will be sometime this afternoon.
COL ROCK: I might further state that at such time as we move to that area to view the premises, I'd like to have an appropriate number of military police stationed there to keep any crowds away from the immediate area.
CPT SOMERS: I can do that, sir.
COL ROCK: Very good.
CPT SOMERS: With respect to the pictures I now hand the investigating officer sixteen black and white glossy, 8 X 10, photos which comprise the entire number of pictures taken before the bodies were removed from the house other than those which the defense already has. I would state to the investigating officer that many of those pictures are one of a kind which the government has no duplicates for, and I will represent to the investigating officer that there are no other pictures taken of that scene that the government knows of prior to the time the bodies were removed.
COL ROCK: Can you state the photographer who, the name of and the location of the photographer, or address of the photographer?
CPT SOMERS: The photographer, I believe is a Staff Sergeant Alexander. He works in the criminal investigation division, Fort Bragg, North Carolina.
COL ROCK: And currently here on active duty?
CPT SOMERS: He is currently here on active duty, yes, sir.
COL ROCK: Mr. Segal, I now hand to you the sixteen photographs. I've counted them myself. There is that number. If you wish to verify that. You have the name and address of the photographer, and I request that upon conclusion of your use of these photographs, in view of the fact that they are the only copies, that they be returned after you are finished with them, or at the conclusion of this investigation.
MR. SEGAL: Very well, sir. Might I request, if it can be arranged by the government that at some point, that perhaps the photographer be asked to make some additional copies so that the government may not be without its photographs, and that we may have them for as long as we need them without interfering with the government's need or access to the same material.
CPT SOMERS: If I can get these pictures reproduced, I will, sir. There is some question right now as to the location of the negatives.
COL ROCK: All right, what is the next information we have?
CPT SOMERS: With reference to the statement or list referred to by Lieutenant Paulk, I have conferred with the CID agents who have been looking for this list since it was requested, steadily since that time. They cannot locate anybody whom they know of or whom they have been able to discern who knows anything about this list other than Lieutenant Paulk, nor can they find it. I have not stopped them from looking. I intend that they shall continue to look as it doesn't interfere with their other duties, but I would represent now that it is very unlikely we will find that list.
MR. SEGAL: May we ask the names of the investigating officers who are responsible for the check for the existence of this document so that if necessary we may have an opportunity to talk with them also.
COL ROCK: Mr. Segal, I am satisfied that the government has made and is making every reasonable effect to attempt to find the alleged document and at this time, assuming that the search is still continuing, your request is denied.
CPT SOMERS: Now then sir, with respect to the Federal Bureau of Investigation Agent, Mr. Caverly, I will relay as best I can the information received from the US Attorney. This was done through an intermediary because I was here in this hearing room when the phone call was received, and I do not wish to misquote it, but I will do the best I can to tell you the message. The message was the US Attorney, Mr. Coolidge, had, I believe, checked with the Justice Department people in Washington, both his own and in the Federal Bureau of Investigation procedures to make their agents available to the defense in any preliminary proceedings and they do not intend to make him available for interview to the defense except on cross examination in this proceeding. They do intend to make him available to testify in this proceeding. That is the best I can relay that message as I understand it.
COL ROCK: Okay.
CPT SOMERS: I think, sir, that that covers the items that I was to check on.
MR. SEGAL: May it please the investigating officer. In regard to the position that has apparently been taken by the Federal Bureau of Investigation or the Justice Department, in view of the fact that we have reason to believe that the agent has been interviewed by the prosecution or the investigating officers working on behalf of the prosecution, or that the agent in fact allowed some statement or report of his to come to the hands of the prosecution, we believe it is inconsistent with the rules provided in the Uniform Code of Military Justice to allow a witness to be called by the prosecution who, not of his own choice and free will, has declined to be interviewed by counsel for the defense, which I believe is the right of any witness to decline to do that, but rather he has been ordered not to talk to the counsel for the defense, while on the same token he has given some statements, some information to the prosecution. If it is in the position of the United States Government that they will not permit this agent to be interviewed by counsel for the accused, it would be my request at this time, sir, to not permit the prosecution to call such a witness because it would be in derogation of the rights of the accused in this case to interview witnesses called by the government.
COL ROCK: What is your authority, sir, in the Uniform Code of Military Justice?
MR. SEGAL: Sir, we do have our copy of the code.
COL ROCK: Here is a copy.
CPT SOMERS: If I might add one fact while we are waiting for the defense, if the defense is concerned with the desires of the witness himself, the witness himself has expressed the desire not to be interviewed by the defense.
MR. SEGAL: Well, I think that is something that can best be handled by a meeting between counsel for the defense and the agent at which time he may assert whatever position he desires to assert, but we are at least entitled to have the opportunity to talk to him.
CPT SOMERS: Well, the defense, sir, has asserted that he may very well wish to talk to them, and it is only because the government is preventing him. I simply want to produce a counter at this time.
CPT DOUTHAT: Paragraph 42c, page 9 -- 6, titled "Interviewing Witnesses."
(The manual was handed back to the legal advisor.)
COL ROCK: I will hold the ruling on this pending more thorough review of the record. Are there other points to be raised at this time?
MR. SEGAL: Might at this time, sir, on behalf of the accused -- that is in regard to matters we've already discussed?
COL ROCK: We are taking up new matters now.
MR. SEGAL: Yes, a new matter. If I may please, we would request leave of the investigating officer to have present here in the hearing room, on an as needed basis, persons associated with my office who are law clerks in that office. I refer to, sir, Mr. Michael Renfro, R-e-n-f-r-o, Mr. John -- Mr. Joseph Burkett, B-u-r-k-e-t-t, and Mr. John Haynes, H-a-y-n-e-s, sir. Those three gentlemen are law clerks in my office. They are students at law school the rest of the year, but are employed by me during the course of the summer, but they are in fact, sir, actively engaged in assisting me in the defense of this case. More specifically, these men have participated, as a matter of fact, all of last night and early this morning in regard to both the role that we play in the civil action which was heard today before Judge Butler in the district court in Clinton. They are assisting me in the preparation of the action that will be filed before the clerk before the week is out in the United States Court of Military Appeals, relating to certain matters taking place here. Their assistance is required at various times in regard to legal matters that may arise in these proceedings and that, I believe, sir, in the same fashion as lawyers amenable to the discipline of this hearing and will respond to the discipline of this hearing. I have reviewed with Captain MacDonald the role that they may be asked to play under a necessity and he has authorized me to state that he requests of the hearing officer that any one or all three, if necessary, on an as needed basis, that the men be made available to us here in court.
COL ROCK: What has counsel for the government to say regarding this request?
CPT SOMERS: Counsel for the government has no desire whatsoever to deprive the accused of the effective assistance of counsel. We would point out however that available to the accused at this point are four attorneys, two civilian and two military. I seriously doubt the as need necessity, and would wish a few minutes more to completely formulate a response
COL ROCK: Does counsel for the accused feel that these gentlemen would actively participate during the hearing in the questioning of witnesses or in what respect would they be of assistance in the hearing itself to the accused?
MR. SEGAL: Col. Rock, I might say first that we do not seek permission to have law clerks sit at our counsel table, just to have them seated in any one of the number of chairs here in the hearing room. But it has arisen periodically in the course of this case that one or the other counsel for the accused has been required to leave to carry out the administrative matters, to obtain certain documents and records, which are kept both at our office in this building and in the office of the military counsel. We have been required to have these persons go to the library facilities of XVIII Corps Judge Advocate General's office. We are in this matter not only dealing with the immediate hearing but we are dealing with two additional pieces of litigation and I expect beyond that further matter of litigation, the basic function of the law clerks would be, of course to obtain whatever legal matters we need without requiring counsel to leave the room to obtain those. On occasion it may be to follow up on leads of names that are given to us here in the courtroom, in these proceedings, to begin to determine the whereabouts of those persons while we are still in this courtroom, so at the adjournment we may be able to promptly locate people.
COL ROCK: We will adjourn to consider both of these matters. I cannot at this moment say when we will reconvene, but it will be as soon as possible.
(The hearing adjourned at 1421 hours, 8 July 1970.)
(The hearing reconvened at 1508 hours, 8 July 1970.)
COL ROCK: The investigation will come to order. Let the record reflect that persons present at the break are now back in the hearing room.
Mr. Segal, I have considered the issue of whether or not to permit Mr. Caverly, the FBI agent, to testify if he declines to discuss his testimony with you prior to testifying at this hearing. I have decided that Mr. Caverly will be permitted to testify regardless of whether or not he grants you a pre-hearing interview. Naturally you will be accorded the right to subject Mr. Caverly to cross examination at the appropriate time. Therefore, your motion to exclude his potential testimony is denied.
Reference the request for three law clerks to be permitted to sit in the hearing to assist counsel for the accused, I have taken this under advisement and will render a decision soon. Does counsel for the government have additional witnesses to present at this time?
CPT SOMERS: He does, yes, sir.
COL ROCK: Please continue.
CPT SOMERS: The government calls Sergeant Tevere.