ARTICLE 32 HEARING TRANSCRIPTS
August 14, 1970: Discussion
(The hearing reopened at 1107 hours, 14 August 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that all parties who were in attendance at the recess are currently in the hearing room. I believe at this time the counsel for the accused has an announcement to make.
MR. SEGAL: Sir, I would at this time that we defer the commencement of the cross-examination of Captain MacDonald because of the unexpected availability here of a civilian witness, who has agreed to come in on his own, and whom we cannot compel to remain. And while I recognize it is somewhat out of order, I think that the--in view of the fact of the availability of this person at this time, that it will not interrupt government cross-examination since it has not commenced. I would ask your permission to call Mr. Sutton at this time.
COL ROCK: Does the government agree to this procedure?
CPT SOMERS: The government has no objection to it, sir.
COL ROCK: However, before the new witness is called, does the government have available for me copies of the taped testimony of Captain MacDonald on 6 April of this year?
CPT SOMERS: Sir, I have copies of the taped interview with Captain MacDonald. I hand you now two documents, one representing the morning session of that interview, another representing the afternoon session of that interview, and a third document representing the comments by counsel for both sides with respect to certain questions in that testimony.
COL ROCK: Have these documents been shown to counsel for the accused?
CPT SOMERS: They have, sir.
MR. SEGAL: After you have marked the third document, sir, I'd like to just amplify on the significance of that.
COL ROCK: Surely. Government Exhibit 101, 35 pages of morning interview with accused. Government Exhibit 102, 38 page transcript of afternoon interview with accused. Government Exhibit 103, stipulation of fact between opposing counsel regarding April 6 interview.
CPT BEALE: Now, Mr. Segal, I am going to treat this as a stipulation of fact. It's really not, but we'll treat it as such, and appearing thereon there does not appear to be three signatures, the most important of which is the accused's signature, and therefore I desire to ask Captain MacDonald whether or not he does concur in this?
MR. SEGAL: Yes, sir.
CPT BEALE: Captain MacDonald, have you had an opportunity to read this two-page document entitled comments by counsel on statement of yourself on 6 April?
CPT MACDONALD: Yes, sir.
CPT BEALE: And do you, in effect, concur in the comments contained therein?
CPT MACDONALD: Yes, sir.
CPT BEALE: Very well, then this document will be accepted as such.
COL ROCK: I believe also that counsel for the accused wished to make some comments concerning Government Exhibit 103.
MR. SEGAL: Yes, sir, if I may. I would like to indicate for the record that A-103 was developed in lieu of the necessity of bringing in all three of the CID investigators, who participated in that interrogation of 6 April, as a result of mutual agreeable conferences between counsel for the government and the accused which was held with the knowledge of the investigating officer. An attempt was made to treat with certain statements made by the investigators, in that two-part interview, so that it should be properly received and understood by all those who may have occasion to review this record, that the statements made by the investigators and certain enumerate circumstances were not to be considered actual facts or true facts; in view of the circumstances that occasionally the investigators may find it desirable to state certain things to a person being interrogated, simply as part of their technique, sometimes it may be inaccurate, sometimes it may be based upon erroneous information, and other occasions it may be based simply upon misapprehension of the investigator, and to avoid any necessity for prolonging this proceeding, I think to almost needless extremes, this document was developed in place of calling those investigators. I think that it represents a fair commentary by both sides in that matter.
COL ROCK: This will be noted. Proceed, counsel, with your next witness.
MR. SEGAL: I call Mr. Sutton, please.