Letter from 1st Lieutenant Michael J. Malley to Lieutenant. General John
Tolson re: Request for investigation of Captain Clifford Somers. Captain
Somers, Captain William deF. Thompson and CID Investigators
Franz Grebner, Robert Shaw, and William Ivory
1 Lt Michael J. Malley
HHC, 159th Engineer Group
APO San Fernando, California
Subject: Request for reinvestigation
Lieutenant General John J. Tolson
XV111 Airborne Corps and Fort Bragg
Fort Bragg, North Carolina 28307
(1) The undersigned was individual military counsel to Captain Jeffrey R. MacDonald, 6th Special Forces Group (Abn), 1st Special Forces, Fort Bragg, North Carolina. In that capacity, the undersigned has had occasion to participate in the preparation of CPT MacDonald's defense in an Article 32 Transcripts (UCMJ) investigation conducted to see if CPT MacDonald should stand trial for the killings of his wife and two children. Upon recommendation of Colonel Warren V. Rock, Investigating Officer, the charges against CPT MacDonald were dismissed without trial.
(2) The undersigned requests that an officer be appointed to investigate the conduct of three CID agents in the MacDonald case. In addition, the undersigned requests that two prosecuting attorneys' conduct during the course of the Article 32 Hearing be investigated
Listed below, briefly, are instances of what I consider to be gross negligence, possibly in violation of Article 92 (c), UCMJ, on the part of the CID investigators. Also listed are instances of possible perjured testimony on the part of some of these agents, a violation of Article 131 (UCMJ). Because the government prosecutors were in charge of the government's case before the hearing officer, it is suggested that their conduct be investigated to see if they were aware of the possible perjury. If so, they would be responsible for suborning of perjury, a violation of Article 131. In addition, other conduct on the part of both prosecutors and CID agents may constitute conduct unbecoming to officers and or conduct which is prejudicial to the good order and discipline of Armed Forces, violations of Article 133 and 134 (UCMJ). The specific individuals whose conduct should be investigated are: CPT Clifford L. Somers, Office of the Staff Judge Advocate, XV111 Airborne Corps; CPT William deF. Thompson, Office of the Staff Judge Advocate, XV111 Airborne Corps; CW3 Franz Grebner, CID Detachment, Fort Bragg, North Carolina; WO Robert Shaw, CID, Fort Gordon, Georgia (formerly at the CID Detachment, Fort Bragg); and Specialist Seven William Ivory, CID Detachment, Fort Bragg, North Carolina.
(3) The following instances of investigatorial or prosecutorial misconduct serve as basis of this request. However, I would like to point out that the entire CID investigation seems to have been conducted in such a grossly incompetent fashion, that the officer appointed to study my charges should not necessarily confine himself to the specific instances I mention. These should serve merely as points of reference.
(a) CID investigators did not take ordinary investigatory steps to determine how the crime scene had been changed prior to the time the investigators arrived and began to take photographs. MP's on the scene could have supplied much information, yet they were never interviewed in depth. This led the investigators recklessly and erroneous to place undue weight on the position of certain items of clothing, threads, fibers and a white flower pot and the presence or absence of mud, standing water and debris in the MacDonald household. The CID's April 6, 1970 interrogation of CPT MacDonald should be consulted for the CID confused state of mind regarding this evidence and compared with the transcripts of the Article 32 Hearing regarding this same evidence.
(b) CID investigators negligently failed to follow AR 195-10, paragraphs 3 -17 and 4-17, by failing to submit numerous identifiable finger and palm prints to the FBI and by failing to inventory the crime scene. This lead to disastrously erroneous conclusions by the CID, conclusions negligently represented as true to the SJA, XV111 Airborne Corps and Colonel Francis B. Kane, who signed charges against CPT MacDonald. These conclusions were that nothing was missing from the MacDonald house and that unidentified persons could not have been in the house. Both these conclusions are clearly unsupported. In fact it appears that at least one man's wallet was stolen from the MacDonald house while CID agents were present. It also appears that some women's jewelry was stolen and that numerous fingerprints in the MacDonald house are still unidentified.
(c) CID investigators negligently failed to take account of the fact they had not preserved CPT MacDonald's pajama bottoms; they thus recklessly assumed that the presence of certain fibers and threads (which in all likelihood had been disturbed anyway by MP's, CPT MacDonald himself, the doctor who pronounced CPT MacDonald's family dead and the investigators themselves) must be attributable solely to CPT MacDonald's pajama top. From this assumption, a fanciful and totally unsupportable thesis was manufactured and presented as conclusively proven to the SJA and Colonel Kane, who chose to believe this reckless fabrication. Again, the April 6, 1970 interview of CPT MacDonald should be compared to the transcript of the Article 32 Hearing.
(d) CID investigators recklessly assumed that positive identification had been made of some of the weapons thought to have been used in the assault on CPT MacDonald and his family. This was false and could have been easily verified.
(e) CID investigators recklessly failed to interview CPT MacDonald himself before he was a suspect, under conditions in which he could have supplied a coherent story and pointed out whatever uncertainties he himself was aware of. Yet, these same investigators drew wildly fanciful conclusions from fragments of interviews with CPT MacDonald held by agents of the FBI while CPT MacDonald was under sedation and emotionally upset. Again, the April 6, 1970, interview should be consulted. It is possible that the reason the CID did not interview CPT MacDonald was that they considered him a suspect from the beginning, however, if this is true, then Colonel Kriwanek, then XV111 Airborne Corps Provost Marshal, lied when he denied that CPT MacDonald was a suspect.
(f) CID investigators recklessly failed to determine the seriousness of CPT MacDonald wounds and recklessly failed to determine the impossibility of predicting before hand the consequences of self-inflecting such wounds. Instead, the investigators merely assumed the wounds were not serious, which is grossly in error. The one attempt to discover the hypothetical possibility of self-inflicting CPT MacDonald's wounds, a coroner from Baltimore was retained, as a consultant was ludicrously inept. The data given to the coroner (who had not seen a living patient in over 20 years) was faulty and as he testified, he feels he was misled.
(g) CID Investigators recklessly conducted interviews into CPT MacDonald's background and the background of his family, using at times techniques, which may be termed character assassination and which in all likelihood, distorted whatever value the information gathered had. Further, the CID investigators never carefully evaluated the results of their own investigation into CPT MacDonald's background and family, but merely assumed their own conclusions. Most people interviewed stated that CPT MacDonald appeared to be a normal person, who loved his family very much and who never exhibited any suspicious character traits. Yet, apparently the CID completely ignored the relevance of this.
(h) CID investigators never discovered any motive for the crime yet they recklessly assumed this fact was insignificant. It appears that the motive ultimately advanced by the prosecutors at the very end of the hearing was fabricated by the prosecutors themselves, since the CID investigation concentrated on finding evidence of drug abuse or marital discord in the MacDonald family, neither of which existed.
(i) CID investigators recklessly placed on CPT MacDonald the onus of explaining any facts which the CID itself could not explain and concluded because CPT MacDonald's inability to explain some things, he must be guilty of the crime.
(j) CID investigators recklessly represented to SJA and to Colonel Francis B. Kane, that it had thoroughly investigated this case, which was patently untrue. Further, the CID several times performed a ludicrous experiment in tipping over a coffee table in the living room of the MacDonald home. The purpose of this experiment was to demonstrate to Colonel Daniel Lennon, the SJA (who to this day seems to believe the CID's distorted version of what happened) and to Colonel Kane that the living room scene had been staged. When Colonel Rock did this same experiment under proper conditions (taking account of all evidence present in the CID's own photographs of the crime scene), it was apparent that the living room scene was natural and not staged. See the transcript of the Article 32 Hearing.
(k) The prosecutors (it is not clear which one) told at least one government witness, Specialist Four Kenneth Mica, a military policeman, not to volunteer information to the defense which was clearly relevant namely, that Mica had seen a girl matching the description of one of the assailants standing on a corner near the MacDonald house shortly after the crime occurred.
(l) The prosecutors, in conjunction with the CID agents, failed to produce CID laboratory reports concerning wax samples taken from the MacDonald house although Colonel Rock repeatedly asked for these reports. When Colonel Rock sought an explanation, Mr. Grebner said he had lost the reports. It is suggested that possible perjury and suborning of perjury, is involved here.
(m) The prosecutors, in conjunction with the CID, delayed submitting into evidence the results of certain laboratory testing of hair samples forcibly taken from CPT MacDonald for comparison with certain hairs allegedly found at the crime scene. When the laboratory showed that the hair samples did not match, a revised laboratory report was written to cast doubt on the exculpatory nature of the first report. This appears to be conduct, which was clearly designed to prejudice the defense of CPT MacDonald, when it turned out that the government's hope for laboratory results would not be forthcoming. In addition, Mr. Grebner said that the reason for the long delay in submitting the reports to the Hearing Officer, again, loss of the reports. This is difficult to believe. It is again suggested that possible perjury and suborning of perjury may be involved.
(n) During the course of the defense's case, the name of a certain female resident of Fayetteville, North Carolina was supplied by a defense witness and a very strong possibility that this person may have been involved in the MacDonald family murders. Subsequently, at the instigation of the government prosecutors (who alone could have been aware of the girl's identity, because of the close nature of the hearing) specialist Ivory interviewed this girl whose identity was known all along, but never revealed to the defense either by the CID or prosecutors. Ivory's testimony stated that not only was the story about this girl, told by the defense's witness, true, but that the CID dismissed this story as not fitting their theory of the case and so the CID chose not to pursue this story. Further, it became known through Ivory's own testimony that this girl was a drug pusher and informer, who were being protected by the Fayetteville police and by the CID. It is suggested that this information was so clearly exculpatory that active misconduct on the part of the CID and the prosecutors, who apparently knew all along of the identify of this girl and her possible implication in the crime, can be inferred in the concealing of this information from the defense. Moreover when Ivory interviewed this girl a second time at the instigation of Somers and Thompson, the purpose seemed to be solely to discredit the importance of her and not to pursue all of the information which she seems to be capable of supplying. It is suggested that the conduct of Somers, Thompson and Ivory indicates that their only purpose in again interviewing the girl, after the defense stumbled on to her, was to cover the government's misconduct in not revealing this information sooner and pursuing the matter further. It is suggested that not only might this be perjury, but it also might be conduct clearly prejudicial to good order and discipline and a clear obstruction of justice. By the end of the hearing, when these incidents took place, it was obvious that the prosecutors and the CID had only one goal in mind, to bring CPT MacDonald to trial at all costs, regardless of the evidence that might have been suppressed or distorted. It is suggested that this clearly oversteps the bounds of vigorous representation the government may expect of its agents.
(4) Request that Thompson, Somers, Grebner, Shaw and Ivory be suspended from all further duties pending the outcome of this investigation, for the good of the service.
(5) Request that the undersigned, as well as all persons to whom official informational copies of this letter have been furnished, be kept informed of the progress of the investigation and the results.
(6) It is suggested that the sort of gross incompetence and misconduct alleged, infringing on the rights and lives of other people, cannot be allowed to happen again. If the law is to be humane, the people who enforce it must be responsible for their decency and humanity or lack of it. Otherwise, law is only fear, and we all must be either bullies or cowards.
Michael J. Malley
Honorable Stanley R. Resor, Secretary of the Army
MG L.B. Ramsey
MG Kenneth J. Hodson
BG Henry E. Emerson
Office of the Secretary, DA, ATTN: Office of the General Counsel
Colonel Francis B. Kane
HQ, XV111 Abn Corps, ATTN: SJA
HQ, XV111Abn Corps, ATTN: Provost Marshal CO, Third MP Gp (C1)
Mr. Bernard L. Segal, Esquire
Dr. Jeffrey R. MacDonald
CPT James F. Douthat
CPT Clifford L. Somers
CPT William deF. Thompson
CW3 Franz Grebner
WO Robert B. Shaw
Specialist Steven William Ivory