ARTICLE 32 HEARING TRANSCRIPTS
July 21, 1970: Discussion
COL ROCK: What else do you have, counsel?
MR. SEGAL: What I want to request of the investigating officer is that permission be granted for the examination of the house be made by counsel for the accused, in the absence that is that we be permitted to be inside of the house without representatives of the prosecution being present. Now I would suggest to the investigating officer two matters, one, that all the persons we have permission to enter the premises are attorneys at law, and are subject to the sanctions of the supreme court of various states; that any attempt by anybody to in any fashion, interfere with the evidence in that premises would be dealt with in the most severe fashion. But further, sir, I would suggest to the investigating officer, that myself and whoever else is permitted to enter the premises in the absence of a member of the prosecution be placed under oath at this time to state what their obligation will be and they will accept the responsibility to in no way interfere with the premises or the evidence contained therein, and we will respond again under oath tomorrow as to what, if anything, we may have done, if that kind of assurance is necessary. But I do think that we have arrived at the juncture now, almost five months after the crime that has taken place on the premises, that counsel for the defense at long last ought to be allowed to conduct its own investigation, without having looking over its shoulder the prosecution. We have never been given that privilege to look over the prosecution's shoulder, and it seems to me that the government has not articulated any reason at this time, they could reasonably expected anything to go wrong with us being allowed to be inside with the furniture and the boards that are left in that house. There are, among other things, inventories of the property there. There are photographs of the property there. The government has other assurance that nothing can happen or go astray. It seems to me that it would be regrettable at this point that we should even be arguing of our right to have access to the building. There can't conceivably be anything that is in the building that the government would not know instantaneously had either been removed or tampered with if someone was inclined to do so, from that standpoint of the accused. But I must say, sir, frankly, Colonel Rock, that I take some umbrage at the suggestion that counsel for the accused is less honorable than counsel for the prosecution. I think we are entitled to same credibility before this investigation or any other bar as attorneys of the court, as attorneys representing the accused, who are certified to some extent and are members of the bar of various courts, that we would in fact accept our responsibility to use these premises only in the legitimate purpose, and, of course, in no way attempt to impede this investigation or other investigation that might be made at a later time.
CPT SOMERS: Sir, to begin with, the regulations surrounding the security of evidence of this type will not permit personnel to be present in the house without the custodian or the person charged with the custody of the house present. Now the government counsel has never been present in that house except under those circumstances, and as I understood the regulation surrounding it, neither can the defense counsel. It is not a question of whether they could reasonably be expected or not reasonably be expected to change or alter, or in some way tamper with that house. It is a question of whether or not the army Regulations will permit it, and I do not believe that they do. I personally feel that it goes too far for the defense to go in there at all, however, if they are permitted to go in there I can be fairly certain, sir that it cannot be in the absence of the person charged with the custody of that house.
COL ROCK: Perhaps there may have been some misunderstanding, because it was my intention that if, in fact, arrangements can be made, that some representative of the government be charged with overall responsibility for the house, and its contents would be so present.
There is no question in my mind. Apparently this has been misconstrued, but there will be some governmental representative there at the time.
MR. SEGAL: That is the point of my suggestion, sir, that I think we should be entitled to be there, at least without a representative of the prosecution. If, in the interest of protecting the security of the property I would suggest--
COL ROCK: I had not intended--excuse me--that counsel for the government would be there, Mr. Segal.
MR. SEGAL: I did not assume that, sir, but I did assume the fact that one of the investigators in this case, who are really agents of the prosecution would be present. But my suggestion to the court will be twofold; that either a person who is totally uninvolved in any aspect of the investigation, designated military officer, be present for the purpose of securing the premises; or that the legal officer of this investigation be present. We would accept his presence as a neutral observer to assure the preservation of the premises.
COL ROCK: I'll have to determine what sort of an answer I get from this inquiry by Mr. Ivory, and whatever the regulations require of me in trying to accomplish basically what has been requested, I will have to accede to the regulations.
CPT SOMERS: May I bring up another matter, since we are now without the witness, and I do wish to bring it up on the record.
COL ROCK: Make it brief, please.
CPT SOMERS: Yes, sir. The government requests as the first order of business tomorrow morning that it be permitted to put Mr. Caverly of the FBI on the stand to testify. We have managed by purely--by personal favor of Mr. Caverly to delay his trip until tomorrow for him to testify, at the cost to him of some of his leave, and we cannot longer delay him for this purpose. We request, therefore that he be permitted to testify as the first order of business tomorrow morning, because as you are aware, from that point forward he will not then be available, for another two and a half weeks.
COL ROCK: This appears to be a reasonable request.
MR. SEGAL: I am very much troubled, sir, because I fear that Mr. Caverly's testimony will not be short, nor will its cross-examination be short, and we have a problem here of a witness who had now come to us on cross-examination. I would have been--I would have thought it more helpful if we had known earlier today that this was to be the situation, to hold this matter until a few minutes before five p.m., and to announce that we are going to have a disjunctive examination of this witness, presents a great problem. We have to abandon the preparation we are making of the cross-examination with Mr. Ivory, and to go ahead with the preparation on Mr. Caverly. I do feel that it really stretches the many courtesies this inquiry has extended to all counsel, to place this matter so out of context. I fear that we'd lose something substantial in not having the cross-examination of Mr. Ivory follow directly behind the direct examination and I think that we would be in a position of having to try and reconstruct what Mr. Ivory has said and done, and I fear that will lengthen the examination of Mr. Ivory because we are picking up pieces of today's testimony, all of which I think could have been obviated by a more prompt appraisal to all counsel of the situation involving Mr. Caverly.
I think we could have proceeded in other fashion that would have avoided this kind of bind it places certain counsel for the accused in.
CPT SOMERS: I would like to point out first that counsel for the accused has been aware for some time that Mr. Caverly would testify in this hearing in terms of preparation for him doing so. And, second, that insofar as the government is concerned, the examination of Mr. Caverly should be very brief, and, as I have already stated, it has only been by virtue of Mr. Caverly's generosity in giving up some of his leave, that we've been able to retain him here this long.
COL ROCK: When was counsel first advised that Mr. Caverly would be available tomorrow?
CPT SOMERS: Sir, I was advised of this about mid-afternoon today, and I wished then not to break up this proceedings until it came to a natural breaking place, and bring this issue up.
COL ROCK: The request is granted. Mr. Caverly will be the first witness of order tomorrow.
CPT SOMERS: Very good, sir.
COL ROCK: This hearing will be recessed.
(The hearing recessed at 1651 hours, 21 July 1970.)