January 20, 1971: Reply/Findings of Department of Defense
re: Freddy Kassab's allegations - Appeal to Congress
ALSO RELATED, SEE the following: December 1970: Freddy Kassab's Letter and Appeal to U. S. Senate and Congress in Support of Jeffrey MacDonald
December 6, 1970: Letter from First Lieutenant Michael Malley to Lieutenant General John Tolson
re: Request for investigation of Captain Clifford Somers, Captain William deF. Thompson, CID
Investigators Franz Grebner , Robert Shaw and William Ivory
December 9, 1970: Letter of Additional Inquiries from Senator Sam Ervin to Honorable Stanley Resor, Secretary of the Army with Attachment
January 5, 1971: Colonel Henry Tuffs' Reply to the Kassab-Malley Allegations, and Senator Sam Ervin's
Inquiry re: CID Misconduct
Note: I found this in Freddy's documents in an envelop addressed to him with a postmark suggesting it was mailed January 20, 1979 and was posted here under that date. This made no sense to me, so I started
calling and checking things out. I learned that it was actually written January 20, 1971. As was point
ed out to me, in January of 1979, trial had already been scheduled in Raleigh, N.C. Federal Court,
and that Freddy and Mildred had long ago come to terms with the fact that MacDonald had
murdered their beloved daughter Colette, and two granddaughters Kimberley and Kristen.
Note: Translation of the above document as I read it to be
Spelling, punctuation and grammar preserved
KASSAB'S ALLEGATIONS (APPEAL TO CONGRESS)
Allegation No. 1: Colonel Robert J. Kriwanek, the Fort Bragg Provost Marshal, made an excessive number of news releases concern the MacDonald murders.
Findings: During the period February 17, 1970 through June 15, 1970, at which time the Colonel Kriwanek's tenure as Provost Marshal ended, authorities at Fort Bragg made six short news releases and held two press conferences regarding the MacDonald murders. These actions were taken with the express approval of Lieutenant General Tolson, Commanding General, XVIII Airborne Corps and Fort Bragg. Colonel Kriwanek had no official responsibility for public information matters, but as the most knowledgeable staff officer concerning the case it was logical that he should assist the information Officer in preparing releases, and conduct press conferences when this medium had been selected. The decision to release limited amounts of information was based upon the belief that the Fort Bragg and local communities were entitled to be kept informed of important developments in the case, and upon the hope that the resulting publicity would prompt citizens have information regarding the case to come forward and contact the police.
It should be noted that both of the press conferences and four of the six news releases occurred within the first ten days following the murders -- more than a month before Captain MacDonald was first viewed as a suspect. The remaining two releases were merely announcements that Captain MacDonald had been advised that he was a suspect in the case and was therefore being placed in a restricted status (April 6, 1970), and later that he has been formally charged with having committed the murders (May 1, 1970).
Allegation No. 2: Reacting angrily to February 19th statement of Robert M. Murphy, F.B.I. agent-in-charge for North Carolina, that" there were to be no more news releases," Colonel Kriwanek claimed that the Army had primary jurisdiction over the case and dispensed with the services of the F.B.I.
Findings: On February 18, 1970, following two press conferences held by Fort Bragg authorities on that date, Special Agent-in-charge Robert M. Murphy, F.B.I. Field Office, Charlotte, North Carolina, advised Colonel Kriwanek against additional press conferences or news releases, on the ground that they might impair the investigation. No additional press conferences were ever held.
Although Colonel Kriwanek may have told F.B.I. Special Agent Lothspeich on February 17th that he believed the Army to have primary investigative jurisdiction over the case, he and Mr. Lothspeich agreed on that occasion that the investigation should be handled as a joint Arm/F.B.I. matter. Neither at his meeting with Mr. Murphy on February 20th nor any other time, did Colonel Kriwanek repudiate this agreement or otherwise indicate that the Army no longer needed or wanted F.B.I. assistance. Subsequently, by letter date February 25, 1970, Mr. Murphy informed General Tolson that in view of the results of the investigation to date and the fact that the U.S. Army Criminal Investigation Laboratory, Fort Gordon, Georgia was processing the physical evidence collected at the crime scene, the F.B.I. was discontinuing its active participate in the investigation.
The allegation that Colonel Kriwanek brought about the F.B.I.'s withdrawal from the case would seem conclusively rebutted by the following excerpt from a letter sent by Assistant Attorney General Will Nelson, Criminal Division, to Mr. Kassab on January 11, 1971:
As you indicated in your letter, the Army investigation of the case continues and, for our part, the
case remains open in the hands of the United States Attorney for the Eastern District of North
Carolina. At this time neither he or we see any basis for further activity on the part of the Federal
Bureau of Investigation. At such time as the available information indicates action by other than Army
Army personal is necessary, we will of course cooperate in such fashion as we deem appropriate and
feasible under the then existing circumstances.
While as interest and that of Army authorities in bringing whoever did these dreadful killings to justice
cannot match in any measure your grief, please accept our assurance that we do have a great interest
in resolution of the case and will not allow any picayune considerations to impede necessary actions
to that end.
It should be noticed that following the F.B.I.'s withdrawal from the case, various F.B.I. field offices which had previously been requested to investigate undeveloped leads by the Fayetteville office continued their investigation of those leads. A copy of the F.B.I. Report of Investigation, dated April 2, 1970, was furnished to the Fort Bragg CID.
Allegation No. 3: Colonel Kriwanek was secretly replaced as Provost Marshal and transferred to Korea as a result of his actions in this investigation.
Finding: Colonel Kriwanek was selected for assignment as Provost Marshal, Eight U.S. Army, Republic of Korea, on 19 January 1970, and officially nominated for that assignment on 20 January 1970, almost a month before the MacDonald murders. Assignment instructions were forwarded to the Commanding General, Third U. S. Army, on 4 March 1970, and official written orders were published in paragraph 46, Special Orders 57, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, on 13 March 1970.
Allegation No. 4: During the course of the CID's first interview of Captain MacDonald as a suspect on April 6, 1970, Colonel Kriwanek reacted to Captain MacDonald's expression of angry by immediately informing him he was "under house arrest, under guard and incommunicado. (He was not even allowed to call a lawyer.)"
Finding: Colonel Kriwanek was not present during the April 6, 1970 or any other interview of Captain MacDonald, and never spoke to him on any occasion regarding his status as a suspect or the restrictions imposed upon his activities thereof. The April 6th interview began at 0930 hours, and was conducted by CID investigators Grebner, Ivory and Shaw. At the onset, Captain MacDonald was informed that he was about to be questioned as a suspect, and advised of his rights to legal counsel and to remain silent. After completion of almost a full day of questioning, during which Captain MacDonald in no way expressed a desire for legal counsel, he went to the office of the Staff Judge Advocate and requested counsel. He was then informed that his appointed military defense counsel would be Captain James Douthat (whom MacDonald visited the following day).
At about 1630 hours on April 6th, Captain MacDonald was personally notified by Colonel Francis Kane, his commanding officer, acting with the approval of General Tolson, that he was was being placed iin a restricted status during which his movements would be controlled. He was relieved of his assigned duties and given written instructions outlining the limits of his restrictions. Essentially, he was required to remain on post in his bachelor officer's quarters (which was air conditioned and equipped with radio and television) except when visiting the office of his defense counsel, dining facilities, chapel services, and the Post Exchange. To inforce the restriction, and to prevent unauthorized persons from entering the building, a guard was posted in the hallway outside his room. His visitors were limited to those whose names appeared on an access list prepared by Colonel Kane on the basis of Captain MacDonald's requestes. This list included his military and civilian counsel and his friends.
Initially, Captain MacDonald was not permitted to leave his room unless in the company of his defense counsel or an assigned escort officer. Since there was no telephone in his room and he had to make use of the telephone in the adjoining hallway, strict enforcement of this rule prevented him from using the telephone when neither his escort officer nor his defense counsel was present. This situation was soon corrected by relaxation of the rule; however, it should be noted that even on the evening of April 6, 1970, the first day of his restriction, Captain MacDonald was not prevented from using the telephone to call his mother, who reportedly took immediate steps to retain Mr. Bernard Segal as civilian counsel.
There is no evidence that either Captain MacDonald or his counsel ever complained to any responsible authority concerning the existence or nature of his restriction.
Allegation No. 5: By holding a news conference on April 6, 1970 and announcing to the world that Captain MacDonald was a suspect in the triple slaying, Colonel Kriwanek committed the Army to prosecution.
Finding: No news conference regarding the MacDonald case was held after February 18, 170, for the alleged purpose or any other. On April 6, 1970, however, the Fort Bragg Information Officer made a news release which indicated that Captain MacDonald had been advised that he was suspect in the case and had been placed under restriction. While Colonel Kriwanek concurred in this news release, which he helped prepare, it was not made on his authority, but on that of the Commanding General, after full staff coordination. The fact that the charges subsequently preferred against Captain MacDonald were later dismissed would seem to refute any claim that this news release committed the Army to prosecution.
Allegation No. 6: Colonel Kane, Captain MacDonald's commanding officer was "none too willing" to sign the charges against him, and was ordered to do so by General Flanagan.
Finding: Although General Flanagan was kept advised of developments in the case, neither he nor anyone else ever directed Colonel Kane t0 prefer charges. The decision to do so was Colonel Kane's alone, and was made by him after having been briefed by CID investigators handing the case, and after having received legal advise from Major Pedar Wold, the Judge Advocate of the Kennedy Center for Military Assistance.
Allegation No. 7: After he had worked for two weeks on preparation of the defense case, one Captain MacDonald's military lawyers, Captain William Thompson, was transferred from the defense to the prosecution.
Finding: The question of the assignment of Captain Thompson as assistant trial counsel in the case was litigated ex parte in MacDonald v. Flanagan, USCMA 585, 42 CMR 187 (1970). The court acknowledged that an affidavit submitted by Captain Thompson denied the allegation that he had worked on the defense prior to his appointment as assistant trial counsel, thus raising a factual issue that would more properly be addressed to the military judge should the case come to trial. The allied papers of MacDonald v. Flanagan include sworn affidavits executed by Colonel Daniel Lennon, Staff Judge Advocate, XVIII Airborne Corps and Fort Bragg, and Captain Thompson, who was assigned to the 82d Airborne Division at Fort Bragg. These materials reveal that Captain Thompson was performing duties as defense in cases arising in the 82d Airborne Division, a general court-martial jurisdiction, prior to his association with the MacDonald case. He was personally acquainted with Captain Douthat, appointed military defense counsel for Captain MacDonald, and before either of them was associated with the case they both discussed it from the Prospective of defense counsel. Their discussions were of necessity based only upon such facts as were then in the public domain, as neither had become involved in the case in any capacity. Captain Douthat and Thompson agreed that, should either become involved in the case as counsel, he would request that the other be detailed as well so that they could both participate in this case. Captain Thompson indicated that this arrangement was based upon their mutual professional esteem and their professional interest in a case involving issues such as the MacDonald matter.
Colonel Lennon's affidavit corroborates these facts. He states that he first requested that Captain Thompson be made available to serve as Government counsel sometime prior to April 16th, and, and he renewed the request on April 22nd. On April 24, 1970 he was advised officially that Captain Thompson would be made available from the 82d Airborne Division to serve as assistant trial counsel. It was not until May 1st that the defense requested that Captain Thompson be made available as assistant defense counsel in the case. This request was denied after Colonel Lennon questioned Captain Thompson as to his association with the defense, and Captain Thompson responded by affirming that he had neither been associated with the defense into any relationship with either MacDonald or Captain Douthat.
Allegation No. 8: When the pretrial hearing under Article 32 of the Uniform Code of Military Justice began on July 6, 1970, the presiding officer, Colonel Warren Rock, granted Captain MacDonald's request that it be open to the public. The first morning's testimony was so critical of the CID's handling of the investigation, however, that during the noon recess General Flanagan ordered Colonel Rock to close the hearings to the public and the news media, falsely justifying the actions as being taken to protect Captain MacDonald's rights.
Finding: Pursuant to Captain MacDonald's request, Colonel Rock did admit the public to the initial session of the Article 32 hearing on July 6, 1970, and during the noon recess General Flanagan did direct that future sessions be closed to the public and the news media. The evidence clearly indicates, however, that General Flanagan's action was not related to the allegedly embarrassing content of the first morning's testimony, the nature of which was unknown to him, but was based upon there commendation of the Fort Bragg Staff Judge Advocate, Colonel Daniel Lennon, first communicated to General Flanagan about noon on July 6th through Major Pedar Wold, Judge Advocate of the Kennedy Center for Military Assistance.
It is well established that both the Article 32 Investigating Officer (Colonel Rock) and the officer directing the investigation (General Flanagan) had the legal authority to direct that its sessions be closed to the general public, including the news media. Considering this question ex parte on Captain MacDonald's petition in MacDonald v. Hodson, 19 USCMA 582, 42 CMR 184 (1970), the Court of Military Appeals pointed out that the "Article 32 investigation partakes of the nature both of a preliminary judicial hearing and of the proceedings of a grand jury." It is not a "trial" within the meaning of the Sixth Amendment to the Constitution, and, consequently, its proceedings need not be "public" in nature, although they can be and often are when the risk of prejudicial pretrial publicity is not significant. The court found, furthermore, that in this case the authorities at Fort Bragg had not abused their discretion in this matter.
Turning from the issue of the legality of General Flanagan's action to the question of its motivation, the facts appear be these. Colonel Lennon, the senior legal officer at Fort Bragg, states that prior to the July 6th session, he assumed that the issue of closing the hearing to the public would be routinely decided by the investigating officer in favor of closed sessions. He knew that the investigating officer had a legal advisor with him during the hearing, and it was common knowledge that the case had been the subject of intense coverage in the news media. Colonel Lennon therefore expected Colonel Rock's legal advisor to recommend that the hearing be closed, and Colonel Rock to implement that recommendation. Although he had personally concluded that the hearing should be closed to the public, and in fact communicated that conclusion by telephone to General Harold Parker, Assistant Judge Advocate General for Military Law, prior to July 6, 1970, Colonel Lennon expected the issue to be resolved by Colonel Rock, and wished to avoid interfering in the case absent real necessity. He therefore did not discuss the matter in advance with General Flanagan.
Colonel Lennon first learned that the morning session on July 6th had been conducted with newsmen present when an information officer called him abut midway through the morning's proceedings. The information did not, Colonel Lennon recalls, tell him what testimony had been given, or make any judgment as to whether it has been embarrassing to the Government. (As a matter of fact, the only substantive testimony which had been presented at that point was that of the local telephone operator supervisor, whose testimony was not critical of the military police or the CID.) Colonel Lennon's reaction to the news that Colonel Rock was conducting an open hearing was one of surprise. It was his view that the United States Supreme Court's decision in Sheppard v. Maxwell, 384 U.S. 333 (1966) obligated the Government to restrict press coverage of a celebrated case such as that involving Captain MacDonald. The Sheppard decision recognized that society has a legitimate interest in seeing that the integrity of the judicial process is not frustrated by publicity, and held that a trial judge could, if necessary, impose restrictions even upon a defendant and his counsel to prevent prejudicial publicity. Colonel Lennon therefore believed that the fact that Captain MacDonald now wanted the Article 32 sessions open to the public would not operate to preclude the defense from attacking any conviction that might result, on grounds of prejudicial pretrial publicity.
Colonel Lennon states that this was his only concern; he did not know of any embarrassing disclosures and did not consider their likelihood when he contacted Major Wold on the morning of July 6, 1970, and for the first time recommended that he advise General Flanagan to close the hearing to the public. He simply felt that notwithstanding the request of the defendant -- who clearly had no legal right to create error in his own case -- the intense press interest in the case necessitated taking appropriate measures to prelude prejudicial publicity. It should be further noted that the defendant is entitled to a transcript of the proceedings, and as soon as the case is resolved he may release all or any part of it to the press.
Allegation No. 9: Colonel Kriwanek told Mr. Kassab that immediately following discovery of the crime scene on the morning of February 17, 1970 the post had been sealed off and everyone leaving it had been questioned, when in fact this had not been done.
Finding: Colonel Kriwanek does not remember telling Mr. Kassab during their telephone conversation that Fort Bragg had been sealed off on the morning of February 17, 1970. He considers it very unlikely that he would have have made such statement, furthermore, since he knew at the time that Fort Bragg is an open, unfenced post with an area of more than 30,000 acres and a population of 50,00, traversed by several major highways and dozens of smaller roads and tank trails, and that it would therefore have required a carefully planned effort involving far more men than he had available that morning to effectively seal the post to vehicular traffic.
Immediately following his arrival at the crime scene at about 0420 hours on the morning of February 17th, however, Colonel Kriwanek contacted the Military Police Desk Sergeant to check his actions since the incident. The Desk Sergeant was instructed to put all available patrols on the most traveled routes with instructions to stop every vehicle moving on post and checking its occupants. He was also instructed to contact the Military Police unit and obtain additional assistance. Shortly thereafter, the Desk Sergeant informed Colonel Kriwanek that he had called the next Military Police shift on early, and that they were on duty checking vehicles. Although these patrols brought a number of individuals in to the Military Police headquarters for questioning; none proved to be a possible suspect. At about 0600 hours, the post patrol were forced by the normal morning increase in traffic density to cease stopping cars; however, they continued looking for a vehicle carrying persons fitting the descriptions provided by Captain MacDonald.
Mr. Kassab's apparently false impression might be explained by the fact that Colonel Kriwanek recalls that during their conversation, with the above measures fresh in his mind, he made a statement to the effect that everything that could possibly be done to apprehend the assailants was being done.
Allegation No. 10: About an hour after the murders, CID agents allowed an unknown civilian with long hair and wearing dungarees to wander through the house, and did not known when he arrived or departed.
Finding: There is no evidence that an unauthorized civilian was present inside Captain MacDonald's quarters after the arrival of Military Police and CID investigators on the morning of February 17, 1970. The individual who is believed to have been initially described by one or more of those persons present as "an unknown civilian with long hair and wearing dungarees" has since been identified as Private James Paulsen, an ambulance driver from Womack Army Hospital, Fort Bragg, who states that he either stood or walked around the house for some time while awaiting instructions to remove the victims' bodies. Private Paulsen states that because his hospital whites were dirty, he was wearing a navy blue civilian shirt, fatigue pants, field jacket and combat boots. This outfit would have set him apart from the other authorized personnel present, who were either Military Police personnel in full uniform, CID agents in more conventional civilian attire, or Private Paulsen's three fellow medics, all of whom were dressed in hospital whites.
Allegation No. 11: Captain MacDonald's wallet appears in an Army photograph taken at the crime scene at approximately 0500 hours, but had disappeared by 0600 hours.
Finding: In a statement made to U.S. Army CID investigators on December 21, 1970 Private James Paulsen, an ambulance driver from Womack Army hospital, Fort Bragg, who was sent to Captain MacDonald's quarters immediately following discovery of the murders on February 17, 1970, admitted that while awaiting orders to remove the victims' bodies he noticed the wallet lying on a desk inside the front door, and surreptitiously took it outside and hid it in his ambulance. He stated further that the disappearance of the wallet was discovered within ten minutes, and both his person and his ambulance were searched, but that the hidden wallet was discovered. Later, on his way back to Womack Army Hospital, Private Paulsen removed six one dollar bills from the wallet and threw it out the window as he approached the hospital entrance. The wallet was recovered from this location by the CID later on February 17th and subsequently returned to Captain MacDonald.
Allegation No. 12: CID Agent Robert Shaw, when questioned during the Article 32 hearing as to why unidentified sets of fingerprints found in the MacDonald house were not forwarded to the F.B.I. for identification, replied: "I didn't know the F.B.I. performed that service."
Finding: None of the 33 unidentified fingerprints found in the MacDonald quarters comprised a full "set" of prints. Each was a single latent print, and 26 of the 33 were :partials" which could have been made by the victims. Such possible identification of the "partials" were precluded, however, by the CID's failure to obtain full rolled impressions of the victims' hands. The CID did not initially submit these prints to the F.B.I. for identification, because they knew that in the absence of a name or identification number, the F.B.I. could not check single latent prints in its main fingerprint file, a search of which requires classification of all ten of an individual's fingerprints. When questioned concerning this matter during the Article 32 hearing, Agent Shaw responded roughly as alleged by Mr. Kassab; however, he did not stop there, but went on to explain what he knew to be the F.B.I.'s capabilities. Subsequently, at the request of the Article 32 Investigating Officer, Colonel Warren Rock, the CID submitted the unidentified prints to the F.B.I. for a check against the small "notorious criminals" file in which it maintains the single prints of the known perpetrators of a limited class of serious crimes (to include kidnapping, e.g., but not murder). This check was made, with negative results.
Allegation No. 13: It was apparent from the footprints found in the master bedroom that Kimberly MacDonald was there in when her mother was being attacked, yet she was found in her own bedroom. In regard to this, this following "fantastic" statement was made by the a CID agent: "When hippies kill someone, they let the body stay where it falls, they don't move it."
Finding: During the CID's interview of Captain MacDonald on April 6, 1970 )at which time he was suspected of having committed the crime), Agent Franz Grebner did make a statement to this effect. Agent Grebner was probing Captain MacDonald's account of the morning's event by confronting him with various aspects of the crime scene which might be considered inconsistent with that account, and evaluating his response. One such circumstance was the fact that blood stains (not footprints) found on the floor of the master bedroom, and on a sheet from Captain and Mrs. MacDonald's bed which also bore Mrs. MacDonald's blood and was found crumpled on the master bedroom floor, seemed to indicate that Kimberly had bled profusely in the master bedroom, and then had been carried in the sheet back to her own bed. Calling attention to the fact that Kimberly had clearly been moved to her bed and carefully covered up after being severely beaten in the master bedroom, Mr. Grebner suggested that "Hippies let bodies fall where they may," to which Captain MacDonald reportedly replied, "Right, I agree with you."
Allegation No. 14: The Army's fingerprint expert admitted that many of the photographs he took of fingerprints found in the MacDonald house did not come out, which necessitated re-photographing them. When he removed the tape he placed over them, however, he inadvertently destroyed them.
Finding: Eighty-seven latent fingerprints were found in the MacDonald quarters and photographed. Clear plastic tape was then placed over the latent prints in order to preserve them. When the pictures were developed, seven exposures were not of the quality required for identification purposed. It was necessary to re-photograph the seven prints, which should have been possible without removing the tape. In the meantime, however, the dusting powder adhered to the protected tape, thus distorting some of the characteristics of the prints and rending them unidentifiable. The explanation for this unfortunate occurrence is unknown; however, the time interval between the accomplishment of the initial fingerprint work on February 17th and the attempted re-photographing on March 9th is considered to have been excessive.
Allegation No. 15: When questioned as to his qualifications as an expert the Army's fingerprint technician admitted that his "formal education" in fingerprinting consisted of a six weeks correspondence course.
Finding: When questioned concerning his training and experience during the Article 32 hearings, the Army's fingerprint technician, Master Sergeant Hilyard Medlin, stated that he was first assigned to the U.S. Army Criminal Investigation Laboratory, Fort Gordon, Georgia, in 1963. After completing the eight-week Criminal Investigation course, he had two years residency training as a fingerprint examiner under the guidance of a fully qualified fingerprint technician. He had previously completed the Institute of Applied Sciences Fingerprinting correspondence course in 1957. Since completion of his residency in 1965, Master Sergeant Medlin has been one of the Laboratory's fully qualified fingerprint technicians, and has been accepted as an expert in numerous other judicial proceedings. He presented a paper to the annual conference of the International Association for Identification in 1967, and has published articles pertaining to fingerprint indication work in the Military Police Journal and other Professional magazines.
Allegation No. 16: Only after much prodding by the defense did the Army admit that blood and unidentified fingerprints were found on Mrs. MacDonald's jewelry box.
Finding: Examination of the fabric covered jewelry box revealed, on the inside, a reddish brown stain and two latent prints. One print has been positively identified as Captain MacDonald's fingerprint. The other appears to be a partial palm print, which to date has not been identified. The report of the laboratory analysis of the stain indicates that it was not blood. It does not appear that CID investigators or Government counsel sought to conceal these findings, or that any "prodding" by the defense was necessary to effect their disclosure.
Allegation No. 17: No inventory was ever taken of the contents of the MacDonald house, and the Army admits that it never thought to ascertain whether any jewelry was missing. In fact, two family heirloom rings were gone.
Finding: The CID did not make a complete inventory of the contents of Captain MacDonald's quarters. Such an inventory is warranted principally when there is evidence that the crime involved theft. In this case, however, both Captain MacDonald's account of the crime and the CID's initial examination of the premises -- which revealed no signs of forced entry or ransacking and numerous items of high intrinsic value and a considerable quantity of medical supplies left untouched -- seemed to militate against the possibility that any theft had occurred in connection with the murders. The CID therefore decided that a full inventory was not necessary, and limited its inventories to items of evidentiary value and the quantity of medical supplies.
Jewelry and other small items of high intrinsic value were placed in a sealed plastic bags and left in the dresser drawers in MacDonald's bedroom. Contrary to the best investigative practice, no inventory of these valuables was made. From the day of the crime until December 4, 1970, at which time Captain MacDonald retook possession of all items not required for evidentiary purposes, the house was either under armed guard or locked (with new door locks and bars placed over the windows) and periodically inspected by Military Police patrols. It appears highly probable, therefore, that with the exception of the wallet mentioned in Allegation No. 11, those items sent to Fort Gordon laboratory for analysis, and those items furnished to Captain MacDonald at his request -- of which a complete record was kept -- that nothing was removed from the house subsequent to the arrival of law enforcement personnel on the morning of February 17, 1970.
On March 9, 1970 Captain MacDonald requested that the CID obtain from his quarters and release to him an "expensive diamond ring," for which he produced an insurance policy with an attached photograph. CID Agent John W. Hodges proceeded to the house and examined the contents of Mrs. MacDonald's two jewelry boxes -- which had been empty into plastic so that the boxes themselves could be sent to the laboratory for examination -- and found two expensive looking rings. One had what appeared to be diamonds in a square setting and looked identical to the ring in the photograph; the other was set with what appeared to be diamonds in a heart or arrowhead configuration. Seeing no other rings or other pieces of jewelry which appeared to have substantial monetary value, Mr. Hodges delivered only the two diamond rings to Captain MacDonald, who signed a receipt for them. During May and June 1970, Captain MacDonald made repeated requests through his defense attorneys for a blue sapphire ring which he claimed was in the house. CID agents twice searched the quarters in an effort to find this ring, but met with no success.
On November 23, 1970, before he had retaken possession of his belongings, Captain MacDonald filed a claim against the Unite States for, among other things, the loss of one "heart shaped diamond" ring and one "star sapphire" ring. When asked on December 4, 1970 whether the "heart shaped" ring was not the one released to him on March 9th, Captain MacDonald replied in the negative, explaining that it was a different ring which closely ressembled the one released to him earlier. Captain MacDonald's claim has subsequently been processed and paid by the U.S. Army Claims Service, Fort Holabird, Maryland.
Allegation No. 18: The CID did not follow up statements by neighbors that they had heard the voices of at least two men and a girl going in the direction of the MacDonald's backyard immediately prior to the murders.
Finding: Beginning on the day of the murders, the CID and FBI conducted a house-to-house canvas of the MacDonald's neighborhood, asking everyone who lived in the area whether they had seen or heard anyone or anything unusual in the vicinity on the night of February 16-17. More than 39 neighbors were interviewed, and every substantive lead -- including reports similar to those referred to in the allegation -- was investigated.
Allegation No. 19: Many persons called the defense lawyers with information on possible leads to the murders, stating that they had previously called the CID and offered the information, but had never been questioned or asked to come to the CID office.
Finding: There are no indications that the CID failed to explore substantive leads. The publicity given the case generated many calls and letters, some helpful and others patently useless. It appears that a conscientious effort was made by the CID and FBI to follow up all potentially useful leads.
Allegation No. 20: During the Article 32 hearing the defense produced a witness who testified that a girl who lived next door door to him fit Captain MacDonald's description of the female assailant, and had made a number of statements implicating herself in the murders; however, the CID failed to pursue this lead.
Findings: The girl identified by witness Posey as meeting the description of the female assailant was Miss Helena Stoeckley of Fayetteville, North Carolina. She was questioned early in the investigation by members of the Fayetteville Police Department and FBI agents -- not as a suspect, but because of her knowledge of the local "hippie" community.
Following witness Posey's testimony that Miss Stoeckley had hinted at having participated in the crime, she was re-interviewed by the CID agent Ivory. She claims to have spent the night of February 16-17 riding around alone in a car, but is unable to recall where she went. During the Article 32 hearings, Captain MacDonald was shown a police photograph of Miss Stoeckley (exhibit G-105) by Government counsel, and asked if he had ever seen her before. Captain MacDonald replied in the negative. No evidence has ever been produced linking her to the crime, and she has never been considered a suspect in the case by any investigative agency.
Allegation No. 21: When asked by Mr. Kassab to provide protection for the defense witness who had testified that Miss Helena Stoeckley might be the female assailant, the Provost Marshal's office refused on the grounds that these people were civilians over whom the Army had no jurisdiction.
Finding: The office of the Provost Marshal, Fort Bragg, received a request from Captain MacDonald's defense counsel that the Army furnish protection for witness Posey. Since the Army lacks the jurisdiction to protect civilians in a civilian community, this request was referred to civilian authorities. Upon contacting the FBI with a similar request, the defense counsel is believed to have been advised to hire a private security officer.
Allegation No. 22: Captain MacDonald described the female assailant as carrying a lit candle, but only after insistence by the defense did the CID admit that candle drippings had been found in various rooms of the house. Further argument ensued before the protection would produce the lab reports which showed that the drippings did not come from any candle found in the MacDonald house.
Finding: Small quantities of what appeared to be candle drippings were found in three places in the MacDonald house: on the arm of an overstuffed chair and on a bedspread in Kimberley's bedroom, and on the top surface of the coffee table in the living room. This information, although known to the Government by late February, was not provided to defense counsel until late June, just prior to commencement of the Article 32 hearings. At this time, the defense was furnished a copy of a laboratory report which had been received at Fort Bragg on April 6, and which indicated that the drippings did not originate from any of the candles which the CID had selected for comparative analysis from among the many found in the MacDonald house. Because of an excessive delay in sending the remaining candles found in the house to the Fort Gordon laboratory for analysis, the final laboratory report was not received at Fort Bragg until approximately August 15, 1970. The conclusions of this report -- that none of the drippings matched candles found in the MacDonald house -- were presented orally by Government when the Article 32 hearings reconvene on September 8th, following a three-week recess.
Allegation No. 23: In presenting the autopsy reports at the Article 32 hearing, the Army did not follow the normal procedure of calling the doctor who performed them as a witness to report verbally, but brought in a projector and a large screen and, over defense objections, forced Captain MacDonald to sit through autopsy of his wife and children.
Finding: At the Article 32 hearing, the autopsy reports were present by the pathologist who prepared them. He used a slide projector and photographs of the victims was a routine procedure often employed where the nature and location of the victim's wounds is relevant. The presiding officer overruled the defense objections to this procedure; however, during the slide presentations, the seating arrangement was altered by agreement with the defense so that, with the exception of a very brief period during which time he was being cross-examined, Captain MacDonald could avoid viewing the screen.
Allegation No. 24: In the middle of the Article 32 hearings the defense took the Army to Federal Court and asked for a sworn statement that the Army was not wiretapping phone conversations between Captain MacDonald and his lawyers. The Army refused to provide such a statement.
Finding: Both Captain Somers, the principal Government counsel, and Colonel Kriwanek, the Provost Marshal, have stated unequivocally that no telephone conversation between Captain MacDonald and his lawyers (or anyone else) was monitored or recorded. Captain Somers states further that he conveyed such assurances to members of the defense on several occasions. Upon being asked to sign a sworn statement to this effect, however, Captain Somers refusing that was both unnecessary and demeaning. Captain MacDonald's petition to the United States District Court for the Eastern District of North Carolina, which sough such a sworn statement in addition to numerous other forms of relief, was dismissed by the Court for lack of jurisdiction.
Allegation No. 25: During the Article 32 hearings, the Army insisted that was imperative to its case that they have samples of Captain MacDonald's hair, due to the fact that samples sent to the Fort Gordon laboratory labeled "known hairs of Captain MacDonald" turned out to be horse.
Finding: Hair found clutched in Mrs. MacDonald's fist was sent to the U.S. Army Criminal Investigation laboratory for examination. In an effort to identify its source, the CID sought to obtain other hair samples for comparative analysis. Because the defense objected to the taking of hair samples from Captain MacDonald's body, the CID initially sent to the laboratory several samples found on his clothing in his quarters, incorrectly labeling these samples "known hairs of Captain J. MacDonald." One such sample, removed from a sweatshirt, was subsequently determined to be horse hair -- not a surprising discovery in view of the fact that Captain MacDonald owned a horse at the time.
Allegation No. 26: When asked to permit the taking of hair samples from his body, Captain MacDonald informed the CID that he would cooperate if given a direct order to do so by his commanding officer. Instead of obtaining such an order, however, seven jeeps and two civilian cars full of military policemen and CID agents ran Captain MacDonald's car off the road, beat up one of his civilian lawyers and slammed the other against the car, took hair sample from Captain MacDonald's body.
Finding: This allegation has been thoroughly investigated by both the Army and the FBI, and determined to be unfounded. The matter is presently under consideration by the Department of Justice. This being the case, we do not feel to comment on it further. When we are free to do so, we will be happy to provide you with the detailed results of our investigation of the incident. It should be noted, however, that the Army voluntarily refrained from taking any action to obtain hair samples from Captain MacDonald until both the U.S. Court of Military Appeals and the U.S. District Court for the Eastern District of North Carolina had dismissed his petitions to prohibit the taking of such samples.
Allegation No. 27: On about August 5, 1970, the CID received a laboratory report stating that the hair samples taken from Captain MacDonald's body did not match the hair found in Mrs. MacDonald's hand. During the subsequent Article 32 hearings, however, the government repeatedly responded in the negative to Colonel Rock's daily queries as to where the results of the hair tests had been received. When questioned concerning this discrepancy, CID Agent Grebner stated that when the report came in he put it in his safe and, due to other pressing matters, forgot about it.
Finding: The hair samples taken from Captain MacDonald's body on July 20, 1970 were forwarded the same day to the U.S. Army Criminal Investigation Laboratory at Fort Gordon, Georgia. The laboratory report, dated July 29, 1970 and containing the finding that "comparative examinations of the hairs [found in Mrs MacDonald's hand] revealed same to be dissimilar to the hairs [removed from Captain MacDonald's body]," was received by the CID at Fort Bragg on July 30th. Mr. Franz Grebner, the CID Detachment Commander, had previously been informed of the laboratory's finding by telephone, and when he received the written report on about August 3rd, he filed it without having read it.
Mr. Grebner states that the Investigating Officer's first query concerning receipt of the laboratory report came through Lieutenant Ossman, Captain Somer's assistant, who inquired about it on August 17th. Mr. Grebner responded that he could not recall having received it. Upon checking his files, however, he discovered that the report had in fact been received. At this time, the Article 32 hearings were in recess, and both Government and defense counsel were away from Fort Bragg. Mr. Grebner therefore notified Lieutenant Ossman that the report was in his files, and advised him of its contents by telephone. Neither then nor later did he prove Lieutenant Ossman or Colonel Rock with a copy of the report, because he believed this to be the prerogative of Captain Somers. When called to testify when the Article 32 hearings reconvened on September 8th, and asked to explain why the report had not been promptly submitted to the Investigating Officer, Mr. Grebner was unable to offer a satisfactory explanation. As alleged by Mr. Kassab, he stated that when the report came in he put it in his safe and, due to other pressing matters, forgot about it.
Captain Somers states that he learned the results of the laboratory's analysis in early August, at which time he was telephonically informed by the Ft. Gordon laboratory that the results were: "indeterminate." Captain Somers states that he did not convey this information to Captain Douthat, one of Captain MacDonald's defense counsel, until mid-August. The reason for the two-week delay has not been satisfactorily explained. It is probable, however that Captain Douthat was already aware of the laboratory's findings at the time, since another defense counsel, Lieutenant Malley, had telephoned the Fort Gordon laboratory on August 5th and obtained a verbal report on the hair comparison.
Upon returning to Fort Bragg and reading the report for the first time, Captain Somers discovered that its findings were not those conveyed to him by the laboratory. Instead of that the comparative had proved inconclusive, it stated that the hair taken from Captain MacDonald were "dissimilar" to the hairs found in Mrs. MacDonald's hand. Captain Somers therefore dispatched a letter to the laboratory, dated August 25, 1970, requesting clarification as follows:
It is of critical importance to the Government to know and be able to show the meaning of this
language. Does this mean that the hair [taken from Captain MacDonald] is so dissimilar to that
[found in Mrs. MacDonald's hand] that the source of the hair [taken from Captain MacDonald]
is positively eliminated as a possible source of the hair [found in Mrs. MacDonald's hand].
On September 2, 1970, the Fort Gordon laboratory sent Fort Bragg the following addendum to its original report:
The following statements are to be added to page 2 of the subject report for clarification:
a. Therefore, it is the opinion of the examiners that the hairs [found in Mrs. MacDonald's
hand] probably did not originate from the same point sources as the hairs [taken from
b. However, it must be pointed out that the requested opinion regarding positively eliminating
the subject as a possible source of the hair cannot be given without first examining numerous
other point sources of body hair from the subject.
Captain Somers furnished the amended laboratory report to the Investigating Officer within two or three days of the time he received the addendum from Fort Gordon. The Government's failure to submit the amended report earlier can be attributed to Captain's Somer's belief that it was ambiguous as written, and the timing of its submission was within his discretion as chief Government counsel
Allegation No. 28: During the Article 32 hearing, the Government based it case upon two contentions: First, that the scene found in the MacDonald living room was staged by Captain MacDonald, because if the coffee table had been upset during a scuffle, as he alleged, it would not have landed on its side (as it was found), but on its top; second, that Captain MacDonald was awakened on the sofa, the lighting conditions were such that he could not have seen the faces of his assailants as he claims. Yet when the Investigating Offer, Colonel Rock, visited the house and kicked over the table, it landed on its side; and upon assuming the same position that Captain MacDonald stated he was in at the time, Colonel Rock could clearly see the faces of two men standing where the murderers had allegedly been Standing.
Finding: While both of the arguments attributed to the Government were advanced at one time or another during the investigation, neither was ever consisted "basic" to the case against Captain MacDonald.
The CID's belief that the living room scene has been deliberately staged by someone who wanted to create the impression that a struggle had taken place in that room was merely one of a number of factors which lead both the responsible officials at Fort Bragg and Dr. Russell S. Fisher, the Chef Medical Examiner of the State of Maryland, who was brought in as an expert consultant, to conclude that Captain MacDonald's story was a fabrication. This belief was based upon the results of numerous controlled experiments with the coffee table. These experiments, conducted by the CID, Government Counsel, and Dr. Fisher, indicated that the table was so top-heavy that when overturned it would come to rest on its side only in the unlikely event that it struck the adjacent chair flush, and along its entire length. Colonel Rock reported that when he knocked over the coffee table during an inspection visit to the MacDonald quarters, it struck an adjacent chair and landed on its edge. CID agent Grebner was present during this experiment, and contends that the test was not reliable because the adjacent chair was turned broadside to the table, thus preventing it from tumbling onto its top, whereas photographs taken on the morning of February 17th show the adjacent chair sitting at an angle of approximately 30 degrees to the overturned table.
During their April 6, 1970 interview, CID agents may have raised the question of Captain MacDonald's ability to see the faces of the murders under the circumstances he described; however, Colonel Rock cannot remember any CID agent addressing this question during the Article 32 hearings, and no mention of it appears in the transcript of Mr. Ivory's testimony. Colonel Rock states that the question merely occurred to him during the course of the investigation, and he conducted an experiment in order to answer it. The results of this experiment were as alleged by Mr. Kassab; however, it might be noted that slightly more was available during Colonel Rock's experiment (due to replacement of a burned out lightbulb in the kitchen with one of a high wattage).
Allegation No. 29: In order to prevent public disclosure of the Government's suppression of evidence and perjured testimony, the Army has consistently refused to make public the transcript of the hearings and the Investigating Officers' report, or to provide Mr. Kassab with a copy thereof.
Finding: After each session of the Article 32 hearing, Captain MacDonald was furnished with a copy of the verbatim transcript. Upon dismissal of charges against him on October 28, 1970, he was free to make these transcripts public if he desired to do so. On November 30, 1970 Captain MacDonald was furnished a copy of the Investigating Officers' report. On December 31, 1971, Mr. Kassab was informed by letter from the Office of The Judge Advocate General that he would be furnished a copy of the Article 32 transcript provided he obtain Captain MacDonald's written consent and paid the costs of reproduction.