The Jeffrey MacDonald Information Site is a compendium of information about the Jeffrey MacDonald case. MacDonald was convicted in 1979 of the murders of his pregnant wife and two small daughters. He is serving three life sentences for that brutal crime.


The Murders of Colette, Kimberley and Kristen MacDonald
 

The Jeffrey MacDonald Information Site

ARTICLE 32 HEARING TRANSCRIPTS
July 24, 1970: Chief Warrant Officer Bennie Hawkins (CID)

 

(The hearing reopened at 1457 hours, 24 July 1970.)

COL ROCK: The hearing will come to order. Let the record reflect those parties who were present in the hearing room at the recess are currently in the hearing room. Is the government ready to proceed with its next witness?

CPT SOMERS: Yes, sir, the government calls Mr. Hawkins.

(Investigator Bennie Hawkins was called as a witness by the government, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q State your name.
A Bennie J. Hawkins.
Q Your grade?
A Chief Warrant Officer.
Q Organization?
A Headquarters and Headquarters Company, 503d MP Battalion.
Q Your station?
A Fort Bragg, North Carolina.
Q And your armed force?
A Army.
Q What is your duty assignment?
A Criminal Investigator.
Q At Fort Bragg?
A At Fort Bragg.
Q Did you have an occasion to receive a report from New York reference the MacDonald case?
A Yes, sir, I did.

MR. SEGAL: Objection, that's objected to.

CPT BEALE: On what grounds?

MR. SEGAL: It's vague, its relevance or pertinence to time in connection with this matter is so remote that on the basis of the present state I don't think we can permit such an answer. I think we should get to the relevance.

CPT SOMERS: It is a preliminary question.

COL ROCK: Proceed, counsel.

Q Did you have occasion to receive such a report?
A Yes, I did.
Q What did you as a result --

MR. SEGAL: It's objected to. You don't know when the report was received, from whom, what circumstances and therefore what he did with it cannot be of any conceivable relevance.

CPT SOMERS: I think it will be. I think --

CPT BEALE: I think through the art of questioning you should be able to at least establish some vague relevancy of what this report has to do with this hearing.

CPT SOMERS: Well, I can make an offer of proof to explain what this witness is going to testify to.

MR. SEGAL: Could we just have the date of the report and from whom, instead of taking him out of the room for an offer of proof and delaying this. I'd like to have some bare factual outline, sir, to understand what we are talking about.

CPT SOMERS: Given the chance, I will establish the date. I'll withdraw that question.

CPT BEALE: Okay, well, fine. Try again.

Q Mr. Hawkins, approximately when did you receive that report?
A 9 May, sir.
Q And from whom?
A From a Detective Sergeant, Suffolk County Police Department.
Q Now what did you do as the result of receiving this report?
A On 11 May I proceeded to Suffolk County Police Department in New York.

MR. SEGAL: You are dropping your voice. I cannot hear your answer.

CPT SOMERS: Would you repeat your answer, please?

A On 11 May I proceeded to the Suffolk County Police Department.
Q What did you do there, if anything?
A I learned upon arrival that --

MR. SEGAL: That's objected to. That's hearsay.

CPT BEALE: Mr. Somers, direct the witness to answer the question in terms of what he did.

CPT SOMERS: I asked him what he did.

CPT BEALE: And he said he learned something from somebody.

Q Do you understand the direction? Phrase your response to it in terms of your own actions, if you will. When you arrived there, what did you do?
A I proceeded to identify a group which had been reported on the initial report on 9 May.
Q Can you describe this group?
A Yes, sir, it was a group of four. There were three males and one female in the group. The one male, Negro, approximately 5-9 in height, 170 pounds in weight, black hair, brown eyes. There were two Caucasian males, one of them approximately 5-10 in height with dark brown hair, hazel eyes, of about medium build. The other Caucasian male was approximately 5-6 in height, blond hair and blue eyes. The female approximately 5-5 to 5-6 in height, 110 pounds in weight. She had blond hair and blue eyes.
Q Did this group have any connection with one another?
A Yes, sir, they did. They ran together in a group.
Q Did you obtain any information about wearing apparel of these people?
A Yes, sir, I did.
Q What was that?
A They all were dressed with the hippie type clothing. They -- the colored male was seen wearing an army field jacket or fatigue shirt.
Q Did you learn anything about the apparel of the female?
A The female was known to wear a floppy hat and hip boots.
Q Did this group you are speaking about have any connection or association with Captain MacDonald or his family?
A They associated with Captain MacDonald's brother.

MR. SEGAL: That's objected to and move to strike. There's no evidence that Captain MacDonald's brother is involved in this case in any fashion whatsoever. In fact, there's no evidence that he even has a brother, sir.

CPT BEALE: What was your answer to that question?

WITNESS: My answer was that they associated with Captain MacDonald's brother.

CPT BEALE: Mr. Hawkins, did you learn this knowledge through questioning these four people?

WITNESS: Through questioning one of the four, sir.

CPT BEALE: One of the four, and that's how you came by that knowledge?

WITNESS: Yes, sir.

CPT BEALE: Your objection is overruled, Mr. Segal.

Q How long had that association been?
A I only know that the association was from a period of last summer to the time I was there.
Q And why last summer?
A The individual I interviewed there informed me that Captain MacDonald's brother and this group had lived in a house which they had rented on Fire Island during the summer.
Q Do you know as a result of your information whether Captain MacDonald had been up to New York and seen his brother last summer?

MR. SEGAL: That's objected to.

A Yes, sir.

MR. SEGAL: That's objected to.

CPT SOMERS: I'm trying to establish, sir, that Captain MacDonald had an opportunity to have seen this group of people.

MR. SEGAL: Well, how does Captain MacDonald know what that group of people the government talks about, they've never shown him a picture of the individuals? We have no way of knowing what he is referring to.

CPT SOMERS: The defense counsel can cross-examine this witness. The witness can tell us the names of these people, if necessary. I think the defense has any opportunity it needs to find out. All I am trying to establish is that Captain MacDonald had an opportunity to see these people.

CPT BEALE: Mr. Hawkins, if you would excuse yourself and just wait out there in the room and we'll be right back with you. Of course, don't discuss your testimony with anyone other than counsel who are here.

(The witness departed the hearing room.)

COL ROCK: Let the record reflect that I have also excused myself at this time.

(Col Rock departed the hearing room.)

CPT BEALE: Captain Somers: would you please elucidate to some extent to show what you are driving out -- what the relevancy of this whole line of questioning is?

CPT SOMERS: Well, obviously, the government's contention here is that Captain MacDonald --

MR. SEGAL: Excuse me, please. Is this on the record or off the record?

CPT BEALE: On.

CPT SOMERS: The government's contention is that Captain MacDonald committed these offenses.

CPT BEALE: Well, that's obvious.

CPT SOMERS: Now he's given description of four people as the supposed assailants in this case. We are attempting to show that he has had an opportunity to see four people just like this, and from this source derived a possible source of description for these four people, and that they are memories of his from having seen them in the past, and that the opportunity to have fabricated this story presents itself from his seeing these four people.

CPT BEALE: Now, what is this witness going to testify to?

CPT SOMERS: He can testify that Captain MacDonald was in New York during the time that his brother was associating with these people, and that he saw his brother at this time and therefore had an opportunity to see these four people.

MR. SEGAL: May I say, sir that the rule of flexibility that we've applied about when statements made by other persons are admissible seems to be have reached the stretching point with this issue. It is very clear that if this witness has such knowledge and assuming it is admissible or of any value, then the witness who Mr. Hawkins talked to might be of some interest to this investigation. I doubt it. I doubt it, that one has to produce somebody, you know, who fit the description in order to say that a person made up a story used in that description, you know, nine months, or six months later, and it is so remote, it is so tenuous in this connection and its possible prejudice on the balance. It can't possibly be admitted and certainly not through this witness.

CPT BEALE: This hearing will be recessed.

(The hearing recessed at 1512 hours, 24 July 1970.)

(The hearing reopened at 1528 hours, 24 1970.)

CPT BEALE: The hearing will come to order. Let the record reflect that Colonel Rock is again not present, as is the witness. Everybody else is here who was here at the break.
I've considered both the pro and the con of this particular question to the extent to which this witness will be permitted to testify. I have decided that the hearsay notwithstanding, he will be permitted to testify concerning the fact that he went to New York, he visited with these four people, I gather that's what he did, that he had a certain conversation with one of these individuals, one portion of that conversation being that the group did, in fact, at least know Captain MacDonald's brother; and secondly, the witness will be permitted to testify as to the description of the four individuals, if he, in fact, visually saw the individuals. And he will only be permitted to testify as to what they looked like at the time he saw them.

MR. SEGAL: Might I suggest in order to implement your ruling, Captain Beale, that we strike from the record all the testimony after the point at which Mr. Hawkins who said now that he went to Suffolk on the May the 11th and he interviewed a person, and then the questioning should begin anew from that point in the light of the order that you have just entered. It seems to me otherwise we would have to go back and edit this record and I think it is difficult to recall the words exactly of Mr. Hawkins. It would be easier from all stand points to start afresh, pursuant to your decision.

CPT BEALE: I think that's a valid suggestion and I will instruct that the record -- that it will be stricken from the record that portion of Mr. Hawkins testimony after the fact that he testified that he went to Suffolk County, New York. Any other matters to be taken up?

CPT SOMERS: Yes, sir, something that I wish to make clear. The witness did not testify that he has seen all four of these people. He has seen and talked to one of them. He has seen photographs of all four of them, and he has descriptions of all four of them.

CPT BEALE: Where did he derive the description from?

CPT SOMERS: From the Suffolk County Police Department, I believe, who had apprehended them, photographed them, and made up their description, and that is the description which he has given. Like I say, he's seen one of them and he's seen photographs of all of them.

MR. SEGAL: I'm not at all certain that having seen the photographs, since Mr. Hawkins did not see the people in Captain MacDonald's house on February 17th, other than the fact that they indicate, probably, whether they were Caucasians or they were Negro, or they were male or female. But aside from that, it seems to me all the rest of it now calls for substantial addition of hearsay as to the procedure or techniques of Suffolk County Police, how they establish height, weight, and other points of identification, age, whether those were facts by questioning these people, by actual measurements, or by estimation, is beyond me, and I don't think I would ever get to see the validity of it without going into an interview with one of the persons who conducted these particular measurements.

CPT SOMERS: If I may, we are not requesting that this witness testify -- in fact, we have not had this witness testify, nor would we, that these people as a conclusion meet the description given by Captain MacDonald. Now this witness knows that description, and could give it.
All we are doing is presenting his testimony as to these four people. You can decide for yourself, and of course, more particularly Colonel Rock can decide for himself how closely or how far from the original description that Captain MacDonald gave, the description of these people comes.

MR. SEGAL: We don't know the basis of how this information was gotten. We can't cross-examine Mr. Hawkins as to whether he just guesstimated it, the height or weight, or whether he read it from something -- how they got it. I mean it is really absurd to speculate.

CPT SOMERS: He saw him.

MR. SEGAL: Excuse me; speculate as to how those figures were arrived at.

CPT BEALE: What were you going to say, Captain Somers?

CPT SOMERS: He saw one of them; he has photographs of all of them. He has seen the police descriptions made up by the people who apprehended them. That's all I can offer as basis for his description.

CPT BEALE: Well, I am going to again stick to the ruling I've made. I am going to let him testify as to those things I've mentioned to include the description of the four individuals. The weight to be given this testimony, if any, is of course solely within Colonel Rock's determination, and I rest assured that through the art of cross-examination that counsel for the accused will be able to make the continuances of the testimony at least apparent if that is in fact true. So does both sides understand the ruling?

CPT SOMERS: I'm not sure I completely understand the ruling.

CPT BEALE: Let's permit him to testify to the fact that he talked to this one individual who stated that Captain MacDonald's brother was known to have associated; secondly, we will permit him to testify as to the description of the four individuals.

CPT SOMERS: If I may, then, in a counter proposal. I think he's already testified to all those things. Probably the best thing to do is eliminate the last question which raised the objection with respect to whether Captain MacDonald was in fact in New York, which I gather is what you are excluding.

CPT BEALE: Yes.

CPT SOMERS: And just leave it at that. I think that does, in fact, what your ruling has stated.

MR. SEGAL: I would not want to speculate at all to the bits and pieces that we have left in the record. For that reason it seems to me the only way to really proceed within limits of your ruling, sir, is to start from the juncture that on May 11th, 1970, Mr. Hawkins went to meet with Suffolk County Police and thereon he made the questioning, but not allowed to ramble on but answer specific questions in detail which may be subject to your ruling so that we may know that the record is correct, and that all is entered is within the confines of the ruling. We are treading on a very difficult area. I am very much troubled about the judicial potential of this, and I am particularly troubled when we are dealing with proceeding within the determining authority is not a trained law person, all due deference to the investigating officer, is not the same thing as an experienced judge sitting and weighing and rejecting evidence, and although I am certain that the investigation officer will do everything within his power to, you know, weigh these things properly, I cannot say with confidence, that a person without legal training and substantial legal experience could treat this in a proper manner, and because of the danger of prejudice and potential harm to the accused I think we must move with great caution and start from a point on this record clearly where we all know where we are at, where we all know what has gone before that, and we can judge whether each answered question fits within the limitation of the rule made by the legal advisor.

CPT BEALE: And I think that's best and what we are going to do. We will just strike that in accordance with my previous direction and we'll start anew and we'll have the appropriate questions directed to the witness. We will recess.

(The hearing recessed at 1538 hours, 24 July 1970.)

(The hearing reopened at 1539 hours, 24 July 1970.)

COL ROCK: This hearing will come to order. Let the record reflect that both the witness and the investigating officer have returned. Counsel for the government and the accused are present. I would like to remind you, Mr. Hawkins that you are under oath. Please proceed, counsel.

MR. SEGAL: May we advise the investigating officer at this time the status of the record of the case, sir.

CPT BEALE: Oh yes. Let the record reflect that I am informing Colonel Rock that all the testimony that had been given after the question of -- Did you in fact go to Suffolk County, New York on a certain date and he responded, yes I did -- all the testimony after that has been stricken from the record, sir.

COL ROCK: Okay, proceed.

Questions by CPT SOMERS:
Q Did you have occasion in New York to interview someone?
A Yes, sir, I did.
Q Would you describe that person, please?
A That person was a colored male, approximately 5-9 in height, 170 pounds in weight, black hair and brown eyes.
Q Did you derive from this individual a description of any other individuals?
A Yes, sir.
Q Who were associated with him?
A Yes, sir, I did.
Q And what was that description?
A One --

MR. SEGAL: That's objected to as double hearsay. We were up to single hearsay, now we are up to double hearsay, and I question the credibility of the colored man, whose name is not even known to this inquiry as to his ability to observe, describe or honestly state what he may have seen, and who he means when he was describing his associates.

CPT BEALE: Captain Somers, in accordance with my ruling, why don't you elicit that information through other means, or establish it by other means?

Q Did this individual whom you have interviewed have other associates?
A Yes, sir, he did.
Q Now with respect these other associates, do you have -- let me retract that. With respect to these people have you seen their pictures?
A Yes, sir, I have.

MR. SEGAL: That's objected to. We do not know who -- or how to determine who these associates were. I mean I beg anyone to tell me how they will determine who we describe as my associates or not associates. This is improper questioning of this witness, an improper area and it seems that it goes beyond what was specifically ruled upon by the legal advisor in our discussion before.

CPT SOMERS: I disagree. I think it quite within the ruling.

CPT BEALE: Well, Captain Somers, I can envision a way in which you can establish what I ruled, and you are not presently proceeding on that course. I don't want to tell you how to do it.

Q Did you, in New York, have occasion to investigate a group of individuals?
A Yes, sir, I did.
Q How many people were in the group?
A Four, sir.
Q Did you have an occasion to interview any of these people?
A Yes, sir, I did.
Q And is that the individual you've already described?
A Yes, sir.
Q Would you describe them, please -- him, please?
A He was a colored male, approximately 5-9 in height, 170 pounds in weight, black hair and brown eyes.
Q Would you describe the other members of this group, please?

MR. SEGAL: That is objected to.

CPT BEALE: All right, let me ask this witness a question. Did you, in your course of the investigation, have a reason to come in contact with the photographs of other three people?

WITNESS: Yes, sir.

CPT BEALE: Were these people, in fact, identified to you to be the other three that the person you talked to -- were these three all the associates?

WITNESS: Yes, sir, they were.

CPT BEALE: Now, how did you determine in fact that these other three were, in fact, associates of the fourth that you talked to?

WITNESS: From the interview of the man, sir.

CPT BEALE: From the interview of the man?

WITNESS: Yes, sir.

CPT BEALE: And you had occasion to examine those photographs?

WITNESS: Yes, sir.

CPT BEALE: And from that can you give a description of the other three?

WITNESS: Yes, sir.

CPT BEALE: Would you do so?

WITNESS: There were two Caucasian males, one approximately 5-10 --

MR. SEGAL: Now, that's an objection. The photograph couldn't possibly show that. It had to be hearsay from another source beyond the photograph itself. I think if we ask Mr. Hawkins where he obtained the vital details it may become apparent as to what objection basis is.

CPT SOMERS: Did you have any other source of information about the description of these people?

A Yes, sir.
Q And what was that?
A Police records of Suffolk County Police Department.
Q And did you see those records?
A Yes, sir.
Q Now, as the result of having seen those records and the pictures that you have reference to, can you describe those individuals?
A Yes, sir.
Q Would you do so?

MR. SEGAL: That's objected to. He cannot describe those individuals. He can report, report perhaps, if you allow it, sir, what the records say in New York. He cannot tell us how they made it, either by measurement or by guess, or by the hearsay statement of the individuals themselves, and that has to be made clear on this record before we get beyond this.

CPT BEALE: All he will be giving is merely the facts and figures as were reported on some police report, and that's all he's doing. Proceed.

A Two Caucasian males, one approximately 5-10 in height, 180 pounds. He had dark hair and brown eyes. The other was approximately 5-6 in height. He was approximately 150 pounds, blond hair and blue eyes. The fourth individual was a female, approximately 5-5 to 5-6, 110 pounds and she had blond hair and blue eyes.
Q Did these descriptions tell you anything about the habitual wearing apparel of these people?
A It only gave the wearing apparel at the time they were arrested.
Q What was that?
A The two Caucasian males were dressed in dungarees or blue jeans with shirts. The colored -- the female was dressed in a, what was described as a mini-skirt on that record with sandals and a blouse; and the colored male was in dungarees with tennis shoes and a plaid shirt.
Q Did your investigation, particularly the interview with this individual, reveal any relationship between the four?
A I misunderstood, sir.
Q Did your investigation, particularly this one interview with this individual, reveal any relationship or association between the four?
A Yes, sir, they were associates.
Q And by that, what do you mean?

MR. SEGAL: Objected to, not what he means at all.

CPT SOMERS: He's used the term. I think he knows what he means when he said it.

MR. SEGAL: It is objected to.

CPT BEALE: Mr. Hawkins, please explain in a little bit more detail what you mean by the term associate.

WITNESS: They associated together in that they ran together. They were close friends. They were a group.

Q And did your investigation, particularly in this interview, disclose whether these people had any association or relationship with any member of the MacDonald family?
A Yes, sir, it did.
Q And what was that?
A It was a friendship with Captain MacDonald's brother.
Q Do you know how long that association existed?
A I know that it existed from a period of last summer to the time I was there in May.

CPT SOMERS: I think that covers the ruling.

CPT BEALE: Well, of course, you can ask him other questions, or at least attempt to. I just -- as pertains to the visit to New York, that's what that ruling went to. I don't know what else you might want to elicit from him.

Q You mentioned the summer, what is it about the summer that makes you give that date? Are you speaking about last summer, 1969?
A Yes, sir.
Q And what is it about that summer?
A Well, the summer of 1969 there was a house on Fire Island, rented on Fire Island and it was occupied by this group of four, Captain MacDonald's brother, and others whose names I could not obtain.
Q Do you know from your investigation whether this group habitually had any particular type of apparel?

MR. SEGAL: That's objected to. That's not from his investigation.

CPT BEALE: Sustained.

Q Did that person tell you anything about the habitual wearing apparel?
A Yes, sir, he did.
Q And what was that?
A The individual I interviewed told me that the female dressed in boots and a floppy hat. He, on numerous occasions, wore what he called a field, army-type field jacket.
Q Mr. Hawkins, have you been involved in the investigation of this MacDonald case otherwise than this?
A Yes, sir, I have.
Q Do you know the description given by Captain MacDonald of his four assailants?
A Yes, sir, I do.
Q What was that?
A Captain MacDonald gave a description of a group of four to include one colored male, two Caucasian males and one Caucasian female.
Q Do you know anything more than that?
A No, sir, I don't.

CPT SOMERS: Your witness.

Questions by MR. SEGAL:
Q Now Mr. Hawkins, what is the name of this individual that you interviewed on May 11th?
A His name was Joseph Lee, sir.
Q And at the time you interviewed him was he in anyone's custody as a prisoner or inmate?
A No, sir.
Q Where did the interview take place?
A The interview took place at the Suffolk County Police Department.
Q And did Mr. Lee give you a home address for himself?
A He gave me a town, sir.
Q Did you ask him for a home address?
A Yes, sir.
Q And what did he say in response to the request for a home address?
A Patchogue, New York.
Q And you have no more definite address from him than that?
A I have an address, a street name which was obtained from the police records.
Q Did you reduce into writing the statement given to you by Mr. Lee?
A Pardon, sir?
Q Did you reduce to writing the answers to questions that Mr. Lee gave to you?
A In my own handwriting, yes, sir.
Q And when did you do that?
A On May the 11th, sir.
Q Were you doing that at the time that Mr. Lee answered your questions or after you finished your interview?
A During the time.
Q And did you show your record of recording his answers to Mr. Lee for verification?
A No, sir, I did not.
Q Did you ask Mr. Lee to sign any statement for you?
A No, sir, I did not.
Q Why did you not ask him to sign a statement?
A I did not feel it was relevant to obtain a sworn statement from Mr. Lee.
Q Why not?
A It was my intention at that time to talk to the other three which he had described.
Q And after you talked to all three, all four, what would you do?
A Then I would have went back and got the statements to verify his story that he told me.
Q And then would you have asked for a written statement?
A Yes, sir, I would have.
Q Then why didn't you do that -- do those other steps?
A I could not locate the other three, sir.
Q What efforts did you make to locate them?
A I visited their home addresses as listed in the police department.
Q And what else did you do besides that?
A That's all I could do, sir.
Q Well, did you ask the New York Police authorities to help you locate the three?
A Yes, sir, they were with me.
Q You mean they accompanied you to the house?
A They did take me to the address.
Q Have you caused to put out through circulation a wanted notice for questioning or interview the description of these names and addresses of the persons you are talking about?
A I did not, no sir.
Q Did you ask anyone else to do that?
A No, sir.
Q Did you ask the local authorities to do that?
A No, sir.
Q Have you asked the Suffolk County authorities to continue to look for these persons for you?
A Yes, sir.
Q When did you ask them to do that?
A This morning, sir.
Q This morning?
A Yes, sir.
Q At whose request did you make that inquiry this morning? Who requested you to do that?
A It was at the request of my chief, sir.
Q Mr. Grebner?
A Yes, sir.
Q Was anybody else present at the time Mr. Grebner made that request? Let me be specific -- was anyone connected with the prosecution of the MacDonald case present when Mr. Grebner asked you to call the Suffolk County authorities?
A No, sir.
Q What did you ask the Suffolk County authorities to do this morning?
A To determine if this group was still in and around Suffolk County.
Q And did you get an answer?
A Yes, sir, I did.
Q When did you get an answer?
A Approximately one-thirty this afternoon.
Q And what did you ascertain?
A I ascertained that the group was still there, yes, sir.
Q You mean that on the basis of four hours, they were able to locate all four of these people. Is that right?
A To determine that they were still in town.
Q Well, did that lead you to believe that they were still in Patchogue, Long Island?
A Yes, sir.
Q Well, you weren't able to find them with the assistance of Suffolk County authorities on May 11th, were you, sir?
A No, sir.
Q Could you indicate to us what was the extent of the investigation you made on May 11th to locate these three persons, other than going to an address -- the address on those police files?

CPT SOMERS: I object. I think he's answered the question.

CPT BEALE: Sustained.

Q Who is the person that you spoke to today in Suffolk County Police Department?
A A detective Hahn.
Q Do you know how to spell that, sir?
A H-a-h-n.
Q And is he a county detective of Suffolk County Police Department?
A Yes, sir.
Q Is he the person you spoke to with your original request this morning?
A Yes, sir.
Q Is he the person who called you back this afternoon?
A Yes, sir.
Q Now when you went to look for these three people to interview them, were you accompanied by detectives from Suffolk County Police Department?
A Yes, sir.
Q Were you accompanied by Detective Jack Scott and --
A No, sir.
Q Well, who were the detectives who accompanied you?
A Detective Hahn and Detective Mullney.
Q Mullney?
A Right, sir.

MR. SEGAL: At this time, may it please the investigating officer, I call upon the government to make available the notes of the interview with the witness Joseph Lee, since the witness has been permitted to testify as to the hearsay nature, that informal statement, we should be able to cross examine by the use of those notes.

CPT SOMERS: The witness didn't bring those notes with him. He's not referring to them, and he can testify without them.

MR. SEGAL: That is known as suppression of evidence, sir, to allow a witness to testify on hearsay when he had full notes, is to keep from the full examination of this inquiry the facts about this case. It is absurd to purport that he has committed to memory every single word on that. As a matter of fact, I'll ask to hold in abeyance the ruling on my request until I ask Mr. Hawkins that question.

Q Mr. Hawkins have you memorized everything you wrote down as a result of your interview with Mr. Lee?
A Yes, sir, I have.
Q Every word? When did you examine the paper that had the notes of Mr. Lee's interview on it?
A I have examined that paper on numerous occasions.
Q When is the last time you examined it, sir?
A This morning, sir.
Q This morning. Where were you when you examined that?
A In my office, sir.
Q Why did you examine it this morning?
A Just to refresh my memory, sir.
Q So that you would not omit any details? Is that right, sir?

CPT SOMERS: I object to that.

Q Did you use it to refresh your recollection?
A Yes, sir.

MR. SEGAL: I call upon the government to make that statement available again, sir.

CPT SOMERS: The government has replied to that request and takes umbrage at the suggestion of suppression of evidence which I think is a terminology which the defense too lightly uses.

CPT BEALE: Mr. Hawkins, when you read that document, was your memory in fact refreshed?

WITNESS: No, sir, I recall everything I read.

CPT BEALE: No, you misunderstand my question. When you read that document this morning, and when you finishing reading it, was your memory then refreshed? Did you then -- were you able to recall all the facts that you had on the document? As when you came here to testify today?

WITNESS: I don't understand what you mean, sir. It refreshed my memory, yes, sir.

CPT BEALE: Okay, fine. Then your request for the production of the document is denied.

Q Mr. Hawkins, what is the first sentence on your memoranda or handwritten notes with Mr. Lee? Quote it for me, please, sir.
A The first sentence on it, sir?
Q Yes, sir.
A Proceeded to Suffolk County, New York.
Q And what is the second sentence?

CPT BEALE: Mr. Segal, the ruling has been made.

MR. SEGAL: I want to know how good his recollection is, sir. I don't think we can allow him to preclude our finding out by simply giving a bare conclusion. Every witness says that he knows what is on the paper -- he doesn't have to refer to it, but we'd never in fact find out whether he does know. I suggest that we are entitled at this time to ask the witness certain points of recollection and how good his recollection is.

CPT SOMERS: I do object. The ruling has been made. This is just another way of doing what the ruling has already said he cannot do.

CPT BEALE: The document will not be required to be produced, so you may go to another area.
Q Mr. Hawkins, have you told this investigating officer everything you wrote down?

CPT SOMERS: Objection. This is the same, exact same technique.

MR. SEGAL: Sir, we now want to explore what he learned from Mr. Lee. I want to know whether he has told us everything. I don't want to ask additional questions if he says he's told us all.

CPT BEALE: Your objection is overruled, Captain Somers.

Q What is your answer, Mr. Hawkins?
A Yes, sir, I have.
Q You've told us all that Mr. Lee told you?
A Yes, sir.
Q There are no other facts that Mr. Lee told you at that time that you recorded in your interview or have any memory of?
A No, sir.
Q Mr. Lee, therefore, did not tell you that he had ever seen Captain MacDonald, did he?
A No, sir, he didn't.
Q Mr. Lee did not tell you that Captain MacDonald had ever seen him either?

CPT SOMERS: I object to this. The question has been answered. He asked the generic question, then he goes through a bunch of details. If he wants to ask the details, ask them, but don't ask the generic questions.

CPT BEALE: Your objection is sustained, Captain Somers.

Q Did you ever show the picture of Mr. Lee to Captain MacDonald?
A No, sir.
Q Did you ever show the picture of the other three to Captain MacDonald?
A No, sir.
Q Who investigated the whereabouts of these four people on the morning hours of February 17th, 1970?
A I did, sir.
Q You did? When did you make the investigation of their whereabouts on the morning of February 17th?
A 13 May.
Q 13 May? How did you make that investigation in the absence of having interviewed three of these people?
A Through other friends of this group, that were identified at the police department.
Q You mean Mr. Lee said he gave an alibi for the other three persons in his groups?
A No, sir.
Q Well, who gave them an alibi?
A Other friends, sir.
Q And how did you get the names of the friends?
A From the police department records, sir.
Q What do you mean, from the police department records? Are you telling us that the Suffolk County Police Department investigated at some point the whereabouts of these people on February 17th? Or that you investigated their whereabouts?
A I investigated their whereabouts, sir.
Q And how many persons did you talk to to determine the whereabouts of the four people of this group that you've described?
A There were two, sir.
Q You talked to two? Who were the two persons that you talked to?
A I don't recall their names, sir, but I can tell you that one of the two who verified the group was on Long Island the night of 16-17 February.
Q How do you know, sir?
A One of the two that I talked to was a police officer undercover type who was living in the same building.
Q Was that Mr. Scott?
A I don't recall his name. I know him by the first name, Joe.
Q By the way, where did you call Detective Hahn this morning?
A In his office at the Suffolk County Police Department.
Q Now what would you say, sir, if I were to tell you that upon a phone call made in the last five minutes to Suffolk County Police Department, they said that Detective Hahn has not been on duty all day today?
A I'd have to say that I talked to Detective Hahn this morning, sir.
Q Might you have talked to someone else and be incorrect, sir?
A No, sir, I don't think so.
Q What if I were to tell you that Detective Loth, L-o-t-h, of the Suffolk County Police Department, has stated by telephone to counsel for the accused, that detective Hahn has been nowhere around the police department on duty today at all?

CPT SOMERS: I object. He's answered the question.

MR. SEGAL: Well, I ask him specifically as to whether he believes the detective may have informed us incorrectly, or whether he may be correct as to who he spoke to today.

CPT BEALE: The objection is overruled, Captain Somers.

Q What would your response be to that information?
A I would have to say that I talked to an individual and I asked for Detective Hahn by name and this individual called me by my first name.
Q What was the first name of Detective Hahn?
A Bob.
Q Robert Hahn?
A Right, sir.
Q Now, Mr. Hawkins, when did you have the fingerprints of this group of four individuals compared with any of the fingerprints found in the MacDonald house?
A When did I, sir?
Q Yes, sir.
A I obtained fingerprints of the four individuals. I did not send them to the crime lab myself.
Q What are you doing with the fingerprints of those four individuals in connection with this investigation?
A They were sent to the crime lab with the prints that were developed in the house.
Q Did you ever see a written report back in this regard?
A This I don't know, sir.
Q May I ask when you sent the fingerprints of these four individuals to the crime lab?

CPT SOMERS: I object. In the first place, this witness has said that he did not send them.

CPT BEALE: Okay, sustained on that basis.
Q Let me rephrase it. What steps, if any, to your knowledge has been taken to compare the fingerprints of these four individuals that you were checking into on Long Island with the prints found in the MacDonald house?

CPT SOMERS: I object to that. I think that question's been answered.

MR. SEGAL: If it's been answered, the answer escapes me. I want to find out from this witness what steps he knows has been taken.

CPT BEALE: Your objection is overruled, Captain Somers. Answer the question, Mr. Hawkins, if you can.

A I know the fingerprints were sent to the lab for comparison with latent prints from the house of the crime scene.
Q Do you know at approximate what date the prints were sent?
A No, sir, I do not.
Q Would it have been within a matter of a week or two after you returned from Patchogue, Long Island?
A It was later than that, sir.
Q Would it have been within the last two or three weeks, sir? Within three weeks of today's date, the last three weeks?
A It was prior to that.
Q Did the pictures of any of these individuals that you either saw, or the pictures you observed, show a man wearing a mustache?
A Yes, sir.
Q Was it a black or white male with a mustache?
A The black male and one white male.
Q Two persons had mustaches?
A Yes, sir.
Q Now in reference to this house on, you say on Fire Island, do I understand that there were a group of at least six people who were residing in that house?
A I can only say, sir, that the group of four, Captain MacDonald's brother, and others. The others, I have no knowledge of how many.
Q Well, did this entire group rent those premises?
A Yes, sir, the entire group.
Q And was it fair to say these people all considered themselves to be friendly with each other?

CPT SOMERS: I object. He's testified he's only talked to one of these people. How can he testify as to what all of these people might consider?

MR. SEGAL: The same way he testified the others were associated. The question of how many associates did Mr. Joseph Lee have in New York.

CPT SOMERS: Then he can ask whether the man he spoke to considered this, but he can't ask whether somebody else can be considered associates.

CPT BEALE: Your objection is sustained to that extent. You may rephrase your question, Mr. Segal.

Q Mr. Hawkins, did you ask Mr. Lee what his relationship was with the group of people that lived in the rented house on Fire Island?
A He was just a friend, sir.
Q The request was -- did you ask him what his relationship was?
A No, sir.
Q Then why did you just try to answer that he was just a friend if you never asked him what his relationship was?
A Because they all ran together, sir.
Q Why did you attempt to answer the investigating officer that Mr. Lee was just a friend of the other people if you never asked him what his relationship was?

CPT SOMERS: I object to that. In the first place, he's answered it, and in the second place I think the counsel is now badgering the witness.

MR. SEGAL: Sir, this is a critical question as to the credibility of a witness who purports to make an answer, and when confronted and admits that he never asked the question that would have provided him with the basis for giving the answer. That type of witness credibility certainly has to be examined and scrutinized carefully.

CPT BEALE: Your objection is overruled, Captain Somers.

Q What is your answer, Mr. Hawkins?
A Would you repeat the question, sir?
Q Why did you tell the investigating officer a moment ago that Mr. Lee was only a friend of the other people in the Fire Island house when in fact you never asked Mr. Lee what his relationship was with those people?
A They were all friends, sir.
Q You told us, I believe, that Mr. Lee never told you what his relationship with the other people were. Did you not say that a few minutes ago?

CPT SOMERS: I object. That's not what he said.

MR. SEGAL: I've asked him, sir, if that's what it was, and you may answer yes or no, and explain --

CPT BEALE: Let the witness answer the question.

A I don't recall saying that, no, sir, I don't.
Q As far as you were able to determine, were all of these persons who occupied the Fire Island house friends of Mr. Lee?
A As far as I was able to determine, yes, sir.
Q And that their relationship was sufficient with each other that they chose to live in a house for a period of days or weeks?
A Yes, sir.
Q And Mr. Lee said that he wore, sometimes, an item of apparel that he called a field jacket. Is that right, sir?
A Yes, sir.
Q Did you ask him to let you examine that jacket?
A When I interviewed him as to the jacket he told me he threw the jacket away because it was worn out.
Q How close was it to February 17th, 1970; did he throw that jacket away?
A He said he threw it away in January, sir.
Q In January? Did you ask him where he threw the jacket?
A Yes, sir.
Q What did he say?
A He said in a garbage can.
Q Now did you question him about those matters?
A Yes, sir.
Q Could I ask you in the beginning of my cross-examination whether you told us everything that Mr. Lee said to you?
A Yes, sir.
Q And did you not tell me that you had already told us on direct examination everything that Mr. Lee said to you?
A I did bring out the jacket.
Q Did you mention anything about Mr. Lee having thrown this jacket in a garbage can in the month of January 1970, less than a couple of weeks, apparently before the killing at the MacDonald house? Did you tell us that?
A No, sir, I did not.
Q Is that in your notes of your interview of Mr. Lee?
A No, sir, it is not.
Q Now are you aware that civilians sometime confuse an army fatigue shirt with a field jacket?
A Yes, sir, I am.
Q Is that the reason why you chose to characterize what Mr. Lee said to you that he had owned what he called a field jacket?
A Yes, sir.
Q Because you, yourself, are uncertain as to whether he actually knew what a field jacket was?
A Yes, sir.
Q Did you ascertain whether Mr. Lee had ever been in the armed forces?
A No, sir, I did not.
Q You did not. So you don't know whether he actually knows the difference between a fatigue shirt and a field jacket?
A No, sir.
Q Did Mr. Lee discuss any of the paraphernalia or designs or embroidery that he wore on this jacket?
A No, sir.
Q Did you ask him about it?
A No, sir.
Q Were you aware that Captain MacDonald described a black male wearing a field jacket with E-6 Army Sergeant stripes on it?
A Yes, sir.
Q Why did you not ask Mr. Lee whether his jacket or his fatigue shirt had such stripes on it?
A Because I was told by the undercover man, who was living with -- in the same building, that this did not have any type of insignia on it.
Q Well, would it have been significant if Mr. Lee had perhaps given you a conflicting story?
A It probably would, yes, sir.
Q Did the undercover agent who lived in the building with these people give you any description of the clothing worn by those people, other than the jacket of Mr. Lee?
A Yes, sir.
Q Whose clothing was described to you?
A The girl's clothing, sir.
Q What did he say about the girl's clothing? Now this is by the undercover agent?
A Yes, sir, this is the undercover. He stated that the girl did wear the hippie type boots, what I call knee boots, floppy hat, wigs.
Q Wigs?
A Wigs, right, sir. She had different shades of wigs than what her natural hair was.
Q Did he know what her nature hair was?
A Her natural hair was blond, sir.
Q Now the undercover agent wasn't referring to observations he made of the Fire Island house was he?
A No, sir.
Q Some residence in Patchogue, Long Island?
A I think the residence was in Bailport.
Q Is that a different community from Long Island?
A Yes, sir.
Q Do you know of your own personal knowledge whether Captain MacDonald was ever in Bailport, Long Island?
A No, sir, I don't. Not to my knowledge.

MR. SEGAL: I have nothing further.

CPT BEALE: Redirect?

Questions by CPT SOMERS:
Q Where did you say this group was on 16, 17 February of this year?

MR. SEGAL: That's objected to, since we never asked if the persons were on Long Island with Mr. Lee.

CPT SOMERS: The defense opened this area.

MR. SEGAL: The ruling of the legal advisor, I understood, was that we could learn what Mr. Lee said to Mr. Hawkins, and Mr. Hawkins has already told us that Mr. Lee didn't tell him anything more than what we've brought out here.

CPT SOMERS: Now, the defense has already elicited information from the undercover agent and other sources, and the defense also raised this issue of where the group was. All I am doing is asking, and where was this group.

CPT BEALE: Well, my ruling was applicable to the government during their direct examination. Now whatever you care to open up, Mr. Segal, of course is fine. I think he does have the opportunity to redirect on anything that you might have brought out. So your objection is overruled.

Q Do you remember the question? Where was this group on the 16th and 17th of February?
A This group was, on the 16th of February, the afternoon and early in the evening, on Long Island. Later in the night they went into the borough of Queens.

CPT SOMERS: No further questions.

Questions by MR. SEGAL:
Q Mr. Hawkins, the whereabouts of this group of individuals on the 16th and 17th of February 1970, that was determined by you, by talking to the two other people, as I understand. Is that right?
A The whereabouts, sir, came from the undercover agent, the undercover policeman.
Q That was the man you talked to?
A Yes, sir.
Q And did you determine how he happened to know on May the 11th where this group of individuals was on the 16th and 17th?
A As I said earlier, sir, he was living in the same building with this group and they had asked him to accompany them into Queens.
Q I understand that, sir, but what I am asking you, did the undercover agent indicate how three months after the date in question he knew where they were on February 16th and 17th?

CPT SOMERS: I object. That's not three months.

MR. SEGAL: Well, all right, two months and three weeks later, Mr. Hawkins, I'm sure you will forgive me that.

A Well, sir, the undercover agent was living in this building with this group on the 16th and 17th of February.
Q I appreciate your saying that, but did he keep a log or a diary of whereabouts of himself and these people in the building?
A No, sir, he recalled this from memory, as far as I know. He was telling me this.
Q In other words, when you interviewed this person on May 11th, 1970, he recalled from memory where this group of people was on February 16th and 17th?
A Yes, sir.
Q And did he indicate to you what happened on that date that was so unique or special to allow him to be able, two months and three weeks later, to recall with specificity where they had been?
A No, sir, he did not.
Q And did you ask him, sir, how he could recall with specificity where the group had been two months and three weeks earlier?
A No, sir, I did not.
Q Why not?
A I don't know, sir, I just didn't.
Q Now the agent who gave you all this information, is he a police officer or a civilian who is working as an informer for the police?
A He is a police officer.
Q And did you ask him to make available to you any police reports any of them had to verify the whereabouts of these people on February 16th and 17th?
A No, sir, I did not.

MR. SEGAL: That's all.

COL ROCK: Mr. Hawkins, do you know when these photographs of the four people were taken, how old they were or anything about their origin?

WITNESS: The photographs were taken by the Suffolk County Police Department, sir; on the date they were taken, I don't know. They were fairly new photographs. The group had been arrested.

COL ROCK: They had been arrested? Do you know approximately when they were arrested?

WITNESS: In March, March something; I don't know the date, sir.

COL ROCK: Of what year?

WITNESS: '70.

COL ROCK: I have no further questions.

CPT SOMERS: No questions.

COL ROCK: Do you wish the witness excused?

CPT SOMERS: Yes, sir.

COL ROCK: Mr. Hawkins, you are advised that you will discuss your testimony with no person other than counsel for the government, or counsel for the accused. Do you understand?

WITNESS: Yes, sir.

COL ROCK: You are excused, subject to recall. (Witness departed the hearing the hearing room.)

COL ROCK: Does counsel for the government have any further witnesses?

CPT SOMERS: No, sir. At this time we do, however, have some documentary evidence we wish to introduce.

MR. SEGAL: Before proceeding to that, sir, I wish to move to strike all the testimony of Mr. Hawkins. It is so faintly -- irrelevant, immaterial, and potentially suggestive of things that I can't even begin to fathom the depth of. We certainly have a relevancy here to allow that testimony to remain in the record as if to indicate to the investigating officer could give it any weight at all is, I think, prejudicial to the accused in this case and denies this accused of an appropriately fair hearing. This testimony here brought out that a group of individuals was fine -- was found to -- with a certain description -- to have known a relative of Captain MacDonald. There is utterly no evidence that Captain MacDonald was ever in the same community with these persons; that there was no evidence that these persons knew Captain MacDonald, ever saw him, or that he ever saw them. In fact, to the contrary, for the witness specifically said that they did not see Captain MacDonald or he did not see them. Under those circumstances, there was utterly no evidentiary basis, no evidentiary usefulness for this information, and yet letting it remain in the record will present the possibility that some reviewing authority would consider it as evidence reviewed or considered by the investigating officer.

CPT SOMERS: May I respond?

COL ROCK: Certainly.

CPT SOMERS: The evidence as it stands now, from Mr. Hawkins, is in the form specified in a ruling of the legal advisor. The ruling on this issue has already been made and the government requests that we adhere to the ruling.

COL ROCK: I will make my ruling on this matter at our next session on Monday. Does the government have further -- I believe the government has documents to present at this time?

CPT SOMERS: Yes, sir. Request this be marked as a government exhibit.

MR. SEGAL: May we see the document, sir, before it is submitted for marking? (The document was handed to Mr. Segal.)

MR. SEGAL: Sir, may it please the investigating officer, I would object to the reception and marking at this time in evidence of documents that are in the hands of counsel for the government. One of these documents purports to be a Photostat -- I'll accept it as a Photostat -- of a World Health Organization Certificate of Vaccination for preparation of travel between countries, and that, I gather, the purports to introduce something on the last page purporting to relate to the blood type of the individual. There is no evidence whatsoever how that information was gotten and I'd be glad to testify from personal knowledge of about one weeks duration of how one gets a blood type on a World Health Organization card. I'm sure the court could find it most unsatisfactory in a way of determining blood type. Secondly, the other document offered by the government, I believe, is a ophthalmological record made in July of 1969, for whatever relevance that might have, it does not deal with apparently any injury that I can observe which is in close proximity to February of 1970, and again for that reason I would respectfully object to its relevance as being remote, and not being current evaluation of eyesight or eye condition, and in being suggestive to facts which are not necessarily existent in February of '70 which may have existed in July of '69.

CPT SOMERS: These exhibits, both of them, and I don't notice that the defense counsel is contesting this, are in fact copies from the medical records, the official Army medical records of Captain MacDonald, and as such must be acceptable to this Article 32 proceeding to show on their face that what they do purport to show. Now if the defense counsel cares to try to impeach these records, that's fine, but that doesn't go to their admissibility.

CPT BEALE: The defense is overruled. Captain Somers, are all of these pages relevant to this proceeding?

CPT SOMERS: No. The only reason that they are all there is because the original of that document contains all of those things. I'd be happy to offer the cover page and the page I consider relevant if you prefer it.

(The document was returned to Captain Somers.)

CPT SOMERS: This exhibit now consists of two pages, the cover page and this one.

(The document was shown to counsel for the accused.)

COL ROCK: Government Exhibit 97, Ophthalmologic Consultation and Spectacle Prescription for Captain MacDonald. Government Exhibit 98, International Certificate of Vaccination showing blood group designation of Captain MacDonald. Does the government at this time have any other matters to present before the investigating officer?

CPT SOMERS: Yes, sir, and I've just presented it to the defense to give them an opportunity to read it.

MR. SEGAL: In regard to a statement that was handed to counsel for the accused, of a person by the name of Rebecca Jane Cohen, dated July 15th, 1970, we are checking certain prior representations made to counsel for the accused by the government with regard to witnesses, but while we are checking that, I would ask that the legal advisor review this statement for the purpose of rejecting it on the grounds of inadmissibility even on the fact of what it contains therein, is not the facts known of the personal knowledge of the witness, but representations about what was said to her by a third person, her opinions and observations of what a group of persons in a classroom in school did, and not involving children, a group of adults, doesn't involve Captain MacDonald and that it contains just the grossest kind of conclusory opinions about what a group of third parties, how they reacted or not reacted. On that basis, I ask for a ruling on this matter on the basis of relevancy, on the basis of materiality.

COL ROCK: Let the record reflect that I have excused myself from the hearing during which time counsel can discuss this with my legal advisor.

(Colonel Rock departed the hearing room.)

CPT BEALE: Captain Somers, I've read this statement. Would you please relate to me how this was relevant to the particular proceedings that we have now before us?

CPT SOMERS: Yes, it relates to a state of mind of Mrs. MacDonald who is, of course, now dead, with respect to a specific situation, out of which the government contends the motivation for this crime arises.

CPT BEALE: Which is what?

MR. SEGAL: Urinating on the bed, sir, contact between the parents of the child who was in the bed.

CPT BEALE: Mr. Segal, I believe you've stated your position already.

(The reporter asked for a recess.)

CPT BEALE: All right, we are in recess.

(The hearing recesses at 1645 hours, 24 July 1970.)

(The hearing reopened at 1652 hours, 24 July 1970.)

COL ROCK: This hearing will come to order. Let the record reflect that those parties who were in attendance at the recess are currently in the hearing room, with the exception of Mr. Eisman, counsel for the accused, and Captain Thompson, counsel for the government.

CPT BEALE: Very well, let the record further reflect that I have considered the offer of proof of Captain Somers reference the statement of Mrs. Cohen, and the contents thereof, and I have determined that it is in fact not relevant to these proceedings and therefore it will not be permitted to be offered into evidence.

COL ROCK: Is there any other evidence to be presented at this time by counsel for the government?

CPT SOMERS: Not at this time, sir.

COL ROCK: If not, this hearing will be recessed until 1330 hours on Monday.

(The hearing recessed at 1653 hours, 24 July 1970.)

 

 

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