November 4, 1975: Michael Malley's letter to Brian Murtagh
re: Chain of Custody
SEE: November 9, 1975: Defense's Proposed Stipulation re: Chain of Custody and Witnesses
November 4, 1975
United States v. Jeffrey R. MacDonald
Dear Mr. Murtagh:
This will confirm our discussion during the past several days regarding Dr. MacDonald's attorneys' willingness to stipulate to certain matter in return for your forwarding to us promptly all Jencks material.
We propose that you will draft a generally described chain of custody which will cover all physical exhibits listed in all CID and FBI laboratory reports in this case. The chain of custody so described will be based on your representation that, if called upon to do so, you will be able to prove that the evidence produced in court is that evidence which was gathered and which has been uncontaminated and unchanged during handling except for laboratory testing which you will note.
We propose that the chain of custody you establish will be shown to each and every laboratory technician and investigator who personally handled the evidence (other than those persons who merely carried or transmitted the evidence) during the course of laboratory investigation. We would expect that each and every laboratory technician would verify that he or she gathered the evidence (if that is the case) labeled it, removed it for testing, performed certain tests, returned all unused portions of the material, labeled the material, and recorded the results of the tests he or she ran. We would expect that each laboratory technician could verify that he or she accurately transcribed laboratory findings, and that those finding have been accurately transcribed on the final consolidated laboratory report. We would expect that you will produce an affidavit from each and every laboratory technician that the technician has personally verified his part in the chain of custody, and if called upon to testify, would so testify under oath.
We will in no way stipulate to the accuracy of the results of any laboratory test, nor will we in any way waive our rights to cross-examine each and every laboratory technician and investigator about how the evidence was gathered, what test was run, how they were run, and how the results were arrived at. We will however, stipulate that the technician or investigator did not contaminate or alter the substance after gathering except for testing purposes.
In the case of certain major pieces of evidence (e.g., the blue pajama top, sheets, articles of clothing, the bloody footprints removed on pieces of flooring, etc.), we would expect that you draw up separate and unique chains of custody, and note any alteration in the physical appearance of the evidence during the course of the years. For example, we know that certain cloth samples have been removed from the blue pajama top, and that the bloody footprints have virtually disappeared with the passage of time. These matters should be noted explicitly, and appropriate affidavits prepared.
We would expect that in any case where there has been a break in the chain of custody which you as a lawyer could not explain by first-hand testimony in court, you will note this and we will exclude that particular piece of evidence from the purposed stipulation.
In return for this stipulation, we expect that we will be provided no later than November 14 with a complete list of witnesses you plan to call at trial for your case in chief, and copies of all statements within the meaning of the Jencks Act made by those witnesses. Included in such statements, and anything else required by the ACT. However, since we do have a copy of the transcript of the Article 32, we would not expect you to supply us with Article 32 testimony.
We must stress that our needs for trial preparation in a matter of this magnitude and complexity require that the Jencks Act materials be supplied in a timely fashion. Accordingly, this offer cannot remain open for your acceptance past November 14, 1975.
Finally, I would like to thank you for your cooperation in supplying me with photographs during my visit with you. As you know, we did not complete the process of identifying all government photographs while I was there. As I understand it, you will complete this process by numbering and identifying all "fixing" and "set-up" photos, and all autopsy photos, and supply us a set for verification. We, in turn, will integrate these photos on our master list and supply you with a copy of that list. I would also like to remind that you should send us a copy of the positive prints of FBI photographs of Dr. MacDonald's torso, etc., taken in Raleigh in August, 1974. If possible, we would also like to have a copy of each and every photograph of suspects shown to Dr. MacDonald, which you represented to me are contained in a book now in Raleigh.
You mentioned that you would like us to stipulate to the accuracy of a three-dimensional model of 544 Castle Drive. Because I have not seen that model, of course, I cannot give you an answer at this time. However, I would expect that if the model can be verified by me or another of Dr. MacDonald's attorneys at some later time, there should be little difficulty in entering into such a stipulation.
Your prompt response in these matters will be appreciated.
Michael J. Malley
Brain M. Murtagh, Esq.
Organized Crime Section
Department of Justice
Washington, D.C. 20530
Copy to Jay Stroud, Esq.
Assistance United States Attorney
P.O. Box 26897
Raleigh, North Carolina 27611