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 21, 1970: Specialist E-7 William Ivory (CID)

 

(The hearing reopened at 0957 hours, 21 July 1970.)

COL ROCK: This hearing will come to order. Let the record reflect that those parties that were in attendance at the recess are currently in the hearing room. Is the government ready to proceed?

CPT THOMPSON: The government is ready to proceed, Colonel Rock. However, prior to the time that the government calls its next witness, Mr. William Ivory, we would like to settle a preliminary matter. On the 13th day of July this counsel, the first day in the hearing, a ruling was made precluding myself from verbally assisting the government in the presentation of this case. The ruling was made by Colonel Rock on that day precluding my participation on that same day. I appealed this ruling to Major General Flanagan, and it is my understanding that an endorsement has been sent down by Major General Flanagan requesting that the objectives set forth in my appeal be followed. He is interested in the expediting of this hearing. The government is still of the belief my participation would, in fact, aid in expediting a final determination of this hearing of all matters set forth, and at this time we would request that Colonel Rock reconsider the matter favorably to the government, and allow myself to present evidence -- argue issues, and in any other way assist the government by vocally and verbally participating in the presentation of the case. Thank you very much. The record should reflect, your honor, that my appeal in a letter dated 13 July 1970, was provided to the defense in the case, and I believe they in fact, although I've not seem them, made comments on that particular appeal.

COL ROCK: The comments of the counsel are noted. I have in fact received an endorsement addressed to me by the appointing authority, General Flanagan, in which he states that he leaves to my discretion the final determination on whether the granting of the government's request in this case will contribute to the accomplishment of the objective. My ruling still stands. Captain Somers will proceed.

CPT SOMERS: The government calls Mr. William F. Ivory.

(Investigator William F. Ivory was called as a witness by the government, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q State your full name, please?
A William F. Ivory.
Q Your grade?
A Specialist E-7.
Q Your organization?
A 503 Military Police Battalion, attached to Fort Bragg CID.
Q Your station?
A Fort Bragg, North Carolina.
Q Your armed force?
A United States Army.
Q Mr. Ivory, what was your duty on the evening of 16 and 17 February 1970?
A Sir, on that date I was duty investigator for the Fort Bragg CID.
Q Did you have an occasion on that evening to monitor a call with reference to an incident at 544 Castle Drive?
A Yes, sir, I did.
Q About what time was this?
A It was 0350 hours.
Q And what had you been doing prior to this? Were you tired when you heard this call?
A I was in bed sleeping.
Q What did you do as the result of having heard this call, if anything?
A As a result of hearing the call, sir, I got up from the bed, went to the radio, monitored it further, and inquired to patrols broadcasting as to whether any fatal injuries had been involved in the incident they were investigating.
Q What did you discover?
A They informed me that, yes, fatal injuries had been sustained.
Q What was your course of action at that time?
A At that time I notified the duty photographer by telephone, instructing him to come to the Military Police Station, to be transported further on down to the scene of the incident. I then gathered tools, investigative tools at the office, and then proceeded to the scene of the incident.
Q What investigative tools did you gather?
A Such items as evidence containers, items to mark evidence, items to collect evidence and other investigative aids.
Q And by what method did you travel to 544 Castle Drive?
A I traveled to 544 Castle Drive in a military sedan.
Q And were you alone in this sedan?
A No, sir, I was not.
Q Who was with you?
A The Provost Marshal Investigation Section Duty Investigator, Hagan Rossi, was with me.

MR. SEGAL: I didn't get that name. Would you have him spell it?

WITNESS: Hagan, H-a-g-a-n. Rossi, R-o-s-s-i.

Q What was the weather like at the time that you started this journey?
A As I departed the office the weather was a light rain, temperature was quite cool. The ground was wet.
Q Did you have any difficulty finding your destination?
A No, sir, I did not.
Q What time did you arrive at your destination?
A I arrived at my destination at 544 Castle Drive, approximately 0400 hours.
Q You say approximately -- how close is your approximation?

MR. SEGAL: That's objected to.

CPT BEALE: The objection is sustained.

Q Can you tell us any more specifically than that?

MR. SEGAL: That's objected to.

CPT BEALE: Sustained. Just let the witness answer approximately what time he arrived there.
Q Where did you park when you arrived?
A I parked the military sedan in a parking space in front of 540 Castle Drive.
Q Did you see any other military police vehicles?
A Yes, sir, I saw about four that I remember that were military police vehicles.
Q Did you see any medical vehicles?
A Yes, sir, I did. I saw one ambulance, a closed ambulance.
Q Where was that?
A That was parked, as I recall, on the grass in front of the house.
Q Now when you arrived, were there any military police outside the address at 544 Castle Drive?
A Yes, sir, there were.
Q How many?
A There was about five.
Q What were they doing?
A They were providing security for the quarters.
Q What did you do when you arrived?
A Upon arriving I went through the front door of 544 Castle Drive into the living room of the quarters.
Q Was there a guard at the entrance to that door?

MR. SEGAL: That's objected to as a leading question.

CPT BEALE: The objection is sustained to the extent that you can ask the witness whether or not there was an MP standing at the door. His specific functions will have to come from him personally.

Q Was there anyone at the door?
A There were two military policemen.
Q Did you have any difficulty getting by them?
A No, sir, I did not.
Q Did you know either one of them or had you ever seen either one of them?
A I could not call them by name. I had seen them before, and they recognized me.
Q And when you entered the door, what did you see inside?
A Inside the living room I observed Lieutenant Paulk, the Military Police Duty Officer, standing in the living room.
Q Were there any other personnel in the living room?
A Yes, sir, there was about four other military policemen there.
Q Where were they standing?
A They were standing by the living door in front of a desk that sits against the west wall of the living room.
Q What did you do when you entered the door?
A I went directly to the Military Police Duty Officer.
Q Did you speak to him?
A Yes, sir, I requested a briefing on what he had found.
Q And did you receive this briefing?
A Yes, sir, I did.

Q Did you take any steps at that time to reduce the number of personnel in the house?

MR. SEGAL: Again, that's objected to as leading. That suggests to him that he did take such a step. The only appropriate question is what did you do next.

CPT SOMERS: I think I can draw the witness's attention to any given matter.

MR. SEGAL: Suggesting a specific action is improper.

CPT BEALE: The objection is overruled.

Q Did you take any steps at that time to reduce the number of personnel in the house?
A Yes, sir, I did.
Q What did you do?
A I talked to Lieutenant Paulk and asked him at that time to reduce unnecessary personnel in the house; that you will eliminate unnecessary personnel in the house.
Q What happened as a result of that?
A He instructed the military police NCO who was nearby to reduce the number of personnel.
Q And what were the effects of these instructions?
A The effects were that two military policemen, that I know of, left the house at that time.
Q What happened -- where did you go from this position you were standing with Lieutenant Paulk?
A From that position where I got my initial briefing of what had occurred or what he had found, after observing my surroundings, I went with Lieutenant and he escorted me through the house to the master bedroom of the house, which is on the east end of the building.
Q I draw your attention to Government Exhibit Number 1, and ask that you approach it, familiarize yourself with it.

(Witness approached the diagram.)

Q Is it familiar to you?
A Yes, sir, it is.
Q Do you know what it is?
A It reflects the floor plan of 544 Castle Drive.
Q Now could you show us, please, with reference to Government Exhibit Number 1, where the military policemen you referred to were standing?
A Approximately this point here, sir.
Q You are pointing to a position in front of the front door, inside the front door, and a few feet from the west wall of the living room. Is that correct?
A Yes, sir, that's correct.
Q And would you indicate for us now the path you just told us you took through the house?
A I went from that point with Lieutenant Paulk through this hallway to the master bedroom of the house. From that point I went to the front bedroom and then to the rear bedroom of the house.
Q When you entered the master bedroom what did you do, if anything?
A Upon initial entry and observing the body of a woman lying on the floor in the master bedroom, I went to the body, looked for signs of life, and finding none, went with Lieutenant Paulk to the other bedrooms in the house.
Q Now what signs of life were you looking for?
A Such as respirations, any movements; observed the wounds to see if they -- there were any active bleeding, such as arteries being punctured, or the like.
Q Mr. Ivory, had you ever seen, at that time, dead bodies before?
A Yes, sir, I have.
Q Can you give us any approximate number of how many?

MR. SEGAL: That's objected to as irrelevant. The only question before the hearing is whether or not he observed any signs of life.

CPT SOMERS: I think his experience is relevant.

MR. SEGAL: There isn't any question that he found dead bodies. What he has seen before cannot be considered relevant now.

CPT BEALE: The objection is overruled.

Q Can you tell us approximately how many?
A I would say approximately twenty.
Q Very good. Now when you left the master bedroom, where did you say you went?
A I went from the master bedroom to the front bedroom of the quarters.
Q What did you do there, if anything?
A The room was not lit. I illuminated the room by means of a light switch on the wall.
Q How did you do that? By what method?
A By means of a pen, a fountain pen or a ball point pen, and flipping up the light switch.
Q And what did you do once you'd done that?
A I observed in that room a bed, the head of which was against the west wall of the room. In the bed was the body of a child. I approached the bed, again looking for any signs of life. And finding none I departed the room.
Q And what signs were you looking for in that room?
A Again, signs of respiration, movement. I inspected the wounds, or the visible wounds for signs of active bleeding, or an artery being punctured, and finding none, I left.
Q And once you had done that, what was your next movement?
A I went to the front bedroom of that house across the hallway to the rear bedroom.
Q What, if anything, did you do in the rear bedroom?
A The rear bedroom was also dark. I illuminated it in the same manner as the front bedroom, and observed a bed, the side of which was against the west wall of that bedroom, and lying in that bed was the body of a small child.
Q What did you do in this room, if anything?
A Again, as in all rooms, I made the initial observation of the surroundings and went to the body, looking again for signs of life, as I did in the other bodies.
Q What did you discover?
A I discovered that the child was dead.

CPT SOMERS: Would you have a seat, please.

(Witness complied.)

Q Now in the process of determining in your own mind whether these people were dead, did you touch them?
A No, I did not.
Q When you had finished in the rear bedroom, what did you do then?
A I went from the rear bedroom, again accompanied by Lieutenant Paulk, to the living room, dining room area, and into the kitchen.
Q What did you do in each of these areas, if anything?
A I observed the rooms and the surroundings, the furnishing, et cetera.
Q Once you had finished this observation, what was your next action?
A My next action after determining or assessing the situation at that point, I went to the next door quarters of 542 Castle Drive, the resident of CW3 Donald Kalin, and using his telephone I requested investigative assistance.
Q When you had finished with this telephone call, what did you do next?
A As I was in the quarters of the occupants, Mr. Kalin, Mrs. Kalin, and two of their children, I asked had they heard any noise, commotion, arguments, fights, anything in the next door quarters. I also at that time --

MR. SEGAL: That's objected to. There's no question before the witness at this time.

CPT BEALE: I presume he's giving his testimony in kind of a combination of narrative form and in response to questions.

MR. SEGAL: Well, I appreciate that. I think he has responded to the question. There has been no question as to what he did do at the Kalin residence. It seems to be better to question him, rather than him be allowed to narrate.

CPT BEALE: Well, your objection is overruled.

Q Mr. Ivory, what response did you get to those questions?

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

COL ROCK: This hearing will be recessed, temporarily.

(The hearing recessed at 1019 hours, 21 July 1970.)

(The Hearing reopened at 1037 hours, 21 July 1970.)

COL ROCK: This hearing will come to order. Let the record reflect that those parties who were present at the recess are currently in the hearing room, to include the witness. I remind you, Mr. Ivory, that you are under oath.
At the time of the break, counsel for the accused had entertained an objection to a question by the counsel for the government. I would like at this time for the question to be stated by the recorder.

(Recorder read back the last question.)

COL ROCK: At that time counsel for the accused objected.

CPT BEALE: Your objection is sustained on that particular point.

Q When you had finished speaking to the Kalins, Mr. Ivory, what did you do then, sir?
A I then inquired of Mr. Kalin if he would accompany me to the next apartment to see if he could make identifications of the bodies in the house.
Q And what was his response to that?
A He agreed, and accompanied me, and we went to the next door apartment.
Q And did he, in fact, identify the bodies?
A Yes, sir, he did.
Q Would you describe how this was done?
A We walked through the living room, through the hallway to the rear bedroom. He observed the body of the small child on the bed, identified it as the body of Kristen MacDonald. We went to the next side bedroom or the front bedroom, observed the body in that bed, identified it as the body of Kimberly MacDonald; and then into the master bedroom and made identification of the body on the floor as that of Mrs. Colette MacDonald.
Q When he concludes this, what did Mr. Kalin do, do you know?
A Mr. Kalin then was escorted from the house.
Q During this period of time, what was the flow of personnel in the house like?
A At that time traffic had been reduced, although traffic was none through the house.
Q Now, you have described the three bodies in this house. Did you see Captain MacDonald at any time that morning?
A Yes, sir, I did. On my initial entrance into the living room, and as I was talking to Lieutenant Paulk, he was wheeled in a litter from the hallway through the living room, and out of the house.
Q When Mr. Kalin left the house, what were your actions then?
A I then retraced my initial steps through the house making additional observations, now being in possession of the knowledge that Lieutenant Paulk had, and continued my observations until the arrival of the photographer.
Q Mr. Ivory, do you know a man named Squires?
A Yes, sir, I do.
Q Who is he?
A He is the Chief of the Photo Section of the Post Photo Laboratory.
Q Did you see him on that morning?
A Yes, sir, I did.
Q In what capacity did you see him?
A He arrived at the house in the capacity of a photographer as I had summoned.
Q Did he perform some function in the house?
A He, under my direction, photographed the entire house.
Q At this time I show you Accused Exhibit A-9 and ask if you can identify that exhibit?
A Yes, sir, I can.
Q What is it?
A It is a photo taken by Mr. Squires and it depicts the living room of 544 Castle Drive as I saw it when I entered the apartment on the morning of 17 February.
Q I draw your attention to the right lower corner of this exhibit to a white object. Do you see that white object?
A Yes, sir, I do.
Q Do you know what it is?
A Yes, sir, I do.
Q What is it?
A It is a plastic type material; it is a flower or plant pot.
Q Is that an accurate depiction of its location as you saw it?
A Yes, sir, that is as I saw it when I came into the house.
Q Did you at any time see its position changed before it was photographed?
A No, sir, I did not.

MR. SEGAL: I would respectfully object. I think the question and answer is misleading on the record, in the sense that we have already established for the record that a prior witness knew that this object had been moved from the position when the initial investigators had found it, so therefore, it does not seem to me to clarify the record, but rather confuse it, to have this witness suggest that this is in fact the actual crime scene as it was at the time the first investigator arrived.

CPT SOMERS: I think it's clear that this witness is testifying to what he saw and has told us when he saw it.

MR. SEGAL: Then I object as it is irrelevant and immaterial as to what he saw. What is only relevant to this investigation of the physical fact in time when the investigators arrived, and where things are possibly moved or rearranged, it could not conceivably be relevant to this investigation.

CPT SOMERS: I think when they were moved and rearranged is relevant. I think even the defense would concede that.

CPT BEALE: Your objection is overruled.

Q At this time I show you Accused Exhibit A-8 and ask you if you recognize it?
A Yes, sir, I do.
Q What is it?
A It is an additional photo taken by Mr. Squires, depicting the living room of 544 Castle Drive, as it was and as I saw it upon entry into the house.
Q I show you Accused Exhibit A-7 and ask you if you recognize it?
A Yes, sir, I do.
Q What is it?
A It is another photograph taken by Mr. Squires, depicting the east end of the living room at 544 Castle Drive, the hallway, and a partial view of the master bedroom at 544 Castle Drive, as it was when I saw it on the morning of 17 February.
Q Now in the lower left corner of that picture, do you see a red object on what appear to be some stairs?
A Yes, sir, I do.
Q Did you see those on that morning?
A Yes, sir, I did.
Q Does that depict them accurately as you saw them?
A Yes, sir, it does.
Q I show you Accused Exhibit A-15 and ask you if you recognize it?
A Yes, sir, I do.
Q What is it?
A It is another photo taken by Mr. Squires depicting the hallway from west to east and that is from the living room looking into the master bedroom at 544 Castle Drive, as I saw it that morning of 17 February when I initially came into the house.
Q I show you Accused Exhibit A-17 --

CPT BEALE: Counsel, just a second. I think that probably it would be conceded by the defense that all these photographs that present the scene as Mr. Ivory saw it. Now if there are exceptions to this, I think we can cut this whole thing short. You can show him a series of photographs, and let him look at all of them and say do they all represent as you saw it on the morning that you came in. I think it will shorten considerably if you are going through a number of photographs, it would probably shorten the proceedings considerably.

Q Along with A-17, I show you Exhibits A-10, A-5, A-6, A-18, and ask you if these are accurate representations of the master bedroom at 544 Castle Drive as you saw?
A Yes, sir, they are accurate.
Q I show you Accused Exhibit 24 and ask you if you recognize that?
A Yes, sir, I do. It is a photograph of the master bedroom taken shortly after the body of Colette MacDonald had been removed by medical personnel.
Q I show you Accused Exhibit 23 and ask you if that's an accurate representation of the front bedroom as you saw it?
A Yes, sir, it is.
Q I show you Accused Exhibit A-11 and ask you if that's an accurate representation of the rear bedroom scene as you saw it?
A Yes, sir, it is.
Q And I show you Accused Exhibit A-12, and it is different from A-11, I think you'll find --

MR. SEGAL: I object to that. It is improper.

CPT SOMERS: I'm merely trying to expedite this.

CPT BEALE: Well, let him -- what is the basis for your objection, Mr. Segal?

MR. SEGAL: He suggested to the witness that the photograph is different. If the witness notices a difference, it his function to tell us. I don't understand how we expedite things by telling him what is the same and what is different.

CPT BEALE: Counsel, the objection is sustained. As far as identification goes, let the witness state if they're just alike, but if in fact there is something different then you know the proper way to elicit the question from the witness.

Q Mr. Ivory, I've show you Accused Exhibits A-11 and A-12. Are they in approximately the same area?
A Yes, sir, they are the same area.
Q Now is there a difference between the two?
A Yes, sir, there is a difference.
Q What is the difference?
A Exhibit A-11 was exposed prior to Exhibit A-12 in that A-11 was taken prior to medical personnel or a medical doctor making a thorough examination of the body and A-12 depicts the body of Kristen MacDonald after it had been viewed by the physician and the position of the body had been moved.
Q How was it moved? How is it moved, rather?
A The arm as depicted in A-11, the right arm is extended across the mattress and exposed. In Exhibit A-12 this arm and part of the waist area has been covered with a blanket.
Q I ask that the eight photographs which I now hand the investigating officer be marked as Government Exhibits.

COL ROCK: Government Exhibit 41 is photo of a portion of bed headboard with word PIG written on headboard. G-42, photo of six drawer bureau with white telephone among other objects visible on the top of the bureau. G-43, view of Colette MacDonald's body from the left side.

CPT SOMERS: So long as we are marking, we might just as well proceed to mark the rest of the photographs that I have.

COL ROCK: Okay. G-44, view of headboard and bed with the word PIG on headboard, partial view of Colette's body. G-45, view of Colette's body from hallway entrance to master bedroom. A partial of Colette's body showing part of small night stand and easy chair. Close up view of upper portion of Colette's body.

MR. SEGAL: Is that G-47, sir?

COL ROCK: Correct. G-48, view of rug and small knife under the bureau.

(G-41 through G-48 were handed to defense counsel.)

COL ROCK: G-49, view of bathroom sink depicting pink tissue in sink. G-50, view of child's body on bed. G-51, closer view of child's body on bed. G-52, another view of child's body on bed, apparently similar to G-50. G-53, view of footprint, reddish color, with black spot at rear portion of photo.

(G-49 through G-52 were handed to the defense.)

COL ROCK: G-54, view of footprint with green rug. G-55, view of footprint with tape measure. G-56, view of bed and shelves with children's toys. G-57, view of kitchen phone handset dangling on floor. G-58, view of kitchen phone receiver and cord. G-59, view of small spots on kitchen floor.

(G-53 through G-59 were handed to counsel for the accused.)

COL ROCK: G-60, view of kitchen with blender. G-61, view of kitchen with dish rack. G-62, view of spectacles on floor. G-63, close view of living room sofa and coffee table. G-64, view of stereo set. G-65, view of underside of coffee table. G-66, view of TV set. G-67, view of bed with blood spot and outline of child's form -- body.

(G-60 through G-67 were handed to counsel for the accused.)

COL ROCK: G-68, view of left portion of child's bed and bookstand. G-69, view of portion of child's body on bed exposing only hair, ear and hand. G-70, right side view of upper portion of child's body on bed. G-71, view of bedroom from hallway showing purple rug.

(G-69 through G-71 handed to counsel for the accused.)

COL ROCK: Mr. Ivory, 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 until the end of recess which will be 1330 today. Gentlemen, this hearing is recessed.

(The hearing recessed at 1121 hours, 21 July 1970.)

(The hearing reopened at 1331, 21 July 1970.)

COL ROCK: This hearing will come to order. Let the record reflect that all parties that were present prior to the recess are currently in the hearing room, with the exception of Mr. Eisman, assistant counsel for the accused.
At the recess, the witness was identifying certain photographs and additional photographs were entered as government exhibits, copies of which were also shown to counsel for the accused. Is counsel for the government prepared to continue with the witness?

CPT SOMERS: Yes, sir.

COL ROCK: I remind the witness that you are again under oath.

CPT SOMERS: Sir, I have one more photograph that I wish to have numbered.

COL ROCK: Government Exhibit 72, a photograph from the main bedroom doorway showing the entrance to the utility room.

(G-72 was shown to counsel for the accused.)

Questions by CPT SOMERS:
Q Mr. Ivory, I show you Government Exhibits 41 through 48, and ask you what room do they portray?
A Sir, these photos depict the master bedroom of the resident at 544 Castle Drive, as I saw them when I entered the apartment on the morning of 17 February.
Q Are they accurate in every detail or not?
A Sir, I find nothing that is inaccurate.
Q What time, approximately, did you first see that room?
A Shortly after 0400 and 0405 hours on 17 February.
Q I show you Government Exhibits 62 through 66, and ask you what do they portray?
A Sir, these photos portray the living room of the residence at 544 Castle Drive as I saw them upon entering the house about 0400 hours on the 17th of February.
Q Are they accurate?
A Yes, sir, they are accurate.
Q I show you Government Exhibits 50 through 56 and ask you what they portray?
A Sir, these photographs portray the rear bedroom of the residence of 544 Castle Drive to include the furnishings and the floor of that room, as I saw it on the morning of the 17th of February.
Q Approximately what time did you see that room?
A Shortly after 0405.
Q Are those photographs accurate?
A Yes, sir, they are.
Q I show you Government Exhibits 68 through 71 and ask you what they portray?
A Sir, these photographs portray the front bedroom in the residence at 544 Castle Drive as I saw them on the morning of 17 February.
Q What time did you first see that room?
A Sir, all rooms involved were viewed between 0400 and 0415 hours.
Q I show you Government 67 and ask you what it portrays?
A It portrays the bed in the front bedroom after the body of Kimberly MacDonald had been moved by medical personnel, and it depicts the outline of the body position on that bed.
Q Do you know who marked that outline?
A Yes, sir, it was marked by Mr. Shaw, from the CID office.
Q Is that an accurate depiction of that scene?
A Yes, sir, it is.
Q I show you Government Exhibit 49 and ask you what it portrays?
A This photo portrays the bathroom off the main hallway in the residence at 544 Castle Drive, and more particularly it depicts the sink in that bathroom.
Q Is it accurate?
A Yes, sir, it is.
Q I show you Government Exhibit 57 through 61 and ask you what they portray?
A These photos depict the kitchen and the kitchen floor of the residence of 544 Castle Drive, as I saw it on 17 February.
Q Are they accurate?
A Yes, sir, they are.
Q I draw your attention to Government Exhibit 59, which is what?
A It's a photo of the kitchen floor at 544 Castle Drive showing blood stains on the floor.
Q Can you orient that picture so that we know from what direction we're looking?
A If the picture were another half inch longer, it would include the bottom portion of the sink cabinets.
Q You are indicating toward the top of the picture?
A Yes, sir, the top of the picture being toward the west side of the kitchen.
Q And you are describing the top of the picture as being the edge closest to the large circle drawn on that picture?
A That is correct.
Q Mr. Ivory, I draw your attention to the large circle in this picture. Do you see something within it?
A Yes, sir, I do.
Q What?

MR. SEGAL: I would respectfully object. These pictures all speak for themselves, sir, and the best evidence. We are repeating, first of all, the identification of the photos which the investigating officer has already done for the record. I think we are under obligation to move forward with this witness' testimony rather than repeat what is all perfectly clear and which is visible to the investigating officer without this witness being asked to repeat what the pictures show.

CPT SOMERS: This witness supervised the taking of the pictures. What I wish to ask him with respect to this picture is certainly not self-evident.

CPT BEALE: The objection is overruled, but however, it is a valid suggestion from counsel for the accused to the effect that we should move on to the areas that you are going to use these pictures for rather than just merely identify, etcetera; as he has stated, Colonel Rock has identified them, so if possible, when you show him a picture, make the point that you want to make as opposed to all other.

CPT SOMERS: I believe if I can ask the answer to this question and one more I will make my point.

CPT BEALE: Okay.

Q What is within that circle?
A There are five drops of Type B blood.

MR. SEGAL: That's objected to.

Q Do you know that?

MR. SEGAL: Wait a minute. I've got an objection and I get a ruling on it.

CPT BEALE: The objection is sustained.

Q Finally, I show you Government Exhibit 72, which has been described for the record; would you just briefly tell us what it is?
A This is a photo depicting or showing a scene from the master bedroom through a utility or storage room to the rear entrance of 544 Castle Drive.
Q Is that an accurate depiction, as you saw it.
A No, my initial observation, the door was open.
Q I see. Now, Mr. Ivory, when you first entered this house, what were you thinking about?

MR. SEGAL: That's objected to, irrelevant and immaterial.

CPT BEALE: Sustained.

Q What are the duties of an investigator who enters the scene like this?

MR. SEGAL: That's objected to. All the court's concerned with is what he did when he got there.

CPT BEALE: The objection is overruled until we can find whether it has any relevancy. You may answer the question, Mr. Ivory.

A Yes, sir. Would you repeat it, please?
Q What are the duties of an investigator who enters a scene like this?
A The primary being to obtain as much information as possible, as quick as possible, and to make all efforts to protect and preserve the scene as it is found; identify the location of any apparent evidence, protect that evidence.
Q Were you aware of those duties on the morning of the 17th?
A Yes, sir, I was.
Q Now when you first entered the living room, would you describe for us in detail that scene?
A Would you repeat the last part of that question, please?
Q Would you describe in detail the scene as you first entered the living room?
A Yes, sir, as I entered through the door which is on the south side of the building, as I described before, I saw the military policemen, Lieutenant Paulk was standing by a desk, which is against the west wall of the living room. I observed next to that desk a TV set. Next to that we go to a corner -- in observing this entire room, as all rooms, in a clockwise direction -- there was a stereo, record player with speakers. Next to that we have an arm chair, wooden back arm chair; and at that point the living room branches off into the dining area of the house. The dining area being furnished with a small folding type table, a dining room table which was surrounded by four chairs. As I recall, there were two candles sitting on the table. Also, a china or crystal ware cabinet. There was a floor lamp and another wooden back arm chair, a little stool with plants on it; and next the wall breaks into the hallway leading to the master bedroom. Just to the right of that hallway, as I looked at it from my position at the desk, was a wooden couch, of wooden frame with a dark colored cushion. On this couch or divan, whatever you'd like to term it, there was some small, what I term, throw pillows and also an afghan. I could back up, or should back up to say that on the stairway leading into, or from the living room to the hallway, there were articles which would appear to be a small child's clothing, night clothing or what have you. To the right of the couch, from my vantage point, there was a table, small octagonal, as I remember, with a lamp. A small board, similar to a checkerboard, much too small in my estimation to be a checker board was on top of that. There were some different colored candles laying next to that, of course, with some paperback books. In front of the couch there was a tipped over table. Tipped over -- that is tipped on its edge, rather than being completely tipped over. Underneath the edge of the table there were numerous magazines, and there was a red and white box on top of the magazines all under the edge of the table. I could see the -- at that time, a plant pot just to the edge of the table, a white plant pot, and to the right of that table, there was a rocking chair which had two pillows on it, as I recall, and next to that a black leatherette type lounge chair with a footstool; and also hanging between the rocking chair and that leather type chair there was a light fixture, globe type light fixture hanging quite low in the room. As we go right from that lounge chair we are back at the front door of the building.
Q Now when you entered the master bedroom, would you describe for us, please in detail, what you saw there?
A Again, observing a clockwise direction -- I think I should make a point -- if I may. I first went to the body of Mrs. MacDonald and then backed off and made a more detailed observation of the room. At this time on the doorway leading from the hallway to the master bedroom was a terry cloth robe hanging on the top of the corner of the door. Behind that door was a closet which later was found to contain women's wearing apparel. Next to the right of that closet in the corner of that room is a doorway leading out to the utility room. Next to the right of that door was a dresser, by the dresser I mean a -- it was a double dresser, if I can explain that, two piece wooden piece of furniture with a large mirror affixed to the rear of it. On top of the counter of the dresser, as I recall was a flower pot with a redcolored flower, I believe, and there were various items of property obviously belonging to a female such as perfumes, jewelry boxes. They were two jewelry boxes there, one being a small almost a green colored jewelry box, about five to six inches high, and on the right of that was another jewelry box, which was a multi-colored thing with a fabric coloring. A fabric colored jewelry box. Next to that was a white telephone, the receiver of which was not on the hook, but hanging from its cord down the side of the dresser, that is the east side of the dresser. Directly in front of the dresser and just left of center of the dresser I observed a small paring knife, wooden handle and short metal blade. To the right of the dresser is the corner of the room, the window. In front of that window, a green leatherette type chair, arm chair. On this arm chair was items of female apparel and just in front and to the right front corner of the arm chair lay the body of a woman later identified to me as that of Colette MacDonald.
To the right of the body and above the head of the body was a night stand, on top of which was numerous pieces of colored yarn such as used to tie pigtails or pony tails on girls or women's hair. There was green shaded lamp on top of that night stand. The shade was tilted, the bottom tilted to the right as I looked from the door of the master bedroom. Next to the night stand was a bed, the headboard being against the east wall of the room, and on the headboard written sideways in large letters were the letters P-I-G. Up on the headboard and on the wall there were spatters of dried blood. To the right of the bed were numerous pillows, small pillows and a pillow that might be used to sit up in bed and read or convalescent type pillow that had arms on it, and by that was another end table or night table with another lamp. The shade of that lamp was not in any disarray. Going again clockwise along that wall, which is the south wall of that bedroom, there were some items of clothing on the floor, a set of army fatigues and a man's tee shirt. Next to these items there was a six-drawer dresser or chest of drawers. The top of this was -- on top of this dresser there were numerous items of property belonging to a man, such as, oh I've seen them coming from Avon companies, these cars that contain aftershave and the like. And to the right of that is a corner, and then goes to the west wall of the room. Most of the wall -- 90% of that section of the wall is covered with sliding closet doors. On the closet doors were also blood spatters. Between the doorway to the hallway and to these closet doors is a light switch, a belt and some kind of a neckerchief hanging from a hook there. I should say also that right at the foot of the bed and near the door, as I looked from the door of the master bedroom, to the left side of the footboard was a bundle of bedding, the bedding consisting of a light blue sheet, which matched the sheet which was on the bed, and also a multi-colored bed spread. These items were stained with blood.

CPT SOMERS: Would you describe for us, please, the appearance of the body on the floor?
A The body on the floor of the master bedroom was that of a Caucasian female who was quite bloody. Across the stomach and abdomen region of the body there was a white heavy material, a bath towel, with the word "Hilton" right in the fabric itself. The body was dressed in what appeared to be pink pajama pants. Also across the lower chest and breast area of the body there was blue type shirt later found to be a top of a pajama shirt. The upper portion of the body was dressed also in a -- what appeared to be a pink pajama shirt. This was quite bloodstained.
Q Describe for me, please, Mr. Ivory, the appearance of the hallway as you first saw it.
A The hallway, if I can describe it from the living to the master bedroom, there is a stair or it takes two steps to reach the level of the hallway. Right there at the beginning of the hallway by the living room were these articles of children's apparel that I've described before. There was also a little beret laying there in with the clothing. Walking further along the hallway there were signs of nothing out of the ordinary, until I reached the doorway to the rear bedroom. At about that point, I discovered the first series of blood stains that I found on the floor. There were stains by the rear bedroom in the hallway and also, peering into the room, I could see a bloody footprint that appeared to have been made by a bare foot. And on further from there, there were numerous locations in the hallway on back to the master bedroom which were blood stains.
Q Do you know a Doctor Neal?
A Yes, sir, I do.
Q Did you have occasion to see him on that morning?
A Yes, sir, I did.
Q And how did that come about?
A A doctor was summoned from Womack Army Hospital to view the remains -- the bodies in the house and make official pronouncement of death. When he arrived he was escorted through these rooms and through the house to the bodies by myself.
Q About what time did he arrive, do you know?
A I am not sure of the exact time of his arrival; however, I first came in contact with him at 0458 hours.
Q Which of the bedrooms did you enter first?
A We entered the rear bedroom.
Q What did the doctor do there?
A The room was lit at that time. Prior to him going into the bedroom photos had been taken and I cautioned him or requested that he move the bodies as least as possible without actually impairing his function, and he said that he would. He went to the body of Kristen MacDonald. He did move that body in examining the wounds which were apparent on both chest and the back of the child. He felt for pulse, checked movement, or he just moved the body to check the wounds on the body, and then placed the hand of the child under the covers and pulled the covers up to about her waistline.
Q Did the doctor pronounce that body dead?
A Yes, sir, he did.
Q At the time he moved the body was anything said?
A I beg your pardon?
Q At the time he moved this body was anything said?
A Not then, but immediately after.
Q What was that?
A I asked him again and requested that he move the bodies the least that he had to to perform his duties, and he said yes, he'd do that.
Q And from there, where did you go?
A We went from there to the master bedroom.
Q What did the doctor do there?
A In the master bedroom he viewed the body of Colette MacDonald. He went to the body, checked the outstretched left arm of Colette MacDonald, for pulse without moving the arm. He then looked into the eyes of the body, one eye being open, he opened the left eye and closed it again, and then he walked around and stood in the position almost directly over and behind her head, and reached down and touched under her jaws, and he, at that time, said, she's also dead, and then he left that room.
Q Where did he go from there?
A He went from that room to the front bedroom, and viewed the body of Kimberly MacDonald. He walked to the -- as I viewed it -- from the doorway to the left side of the bed, the side closer to the window and the south wall. He walked directly opposite the body. I was right next to him and he peered over and down onto the head of the child, placed his hand on the child's check area, and then he looked -- it was obvious that he was looking down into the wounds in her throat, and then reached his hand over and took her -- Kimberly's extended left hand or wrist.
Q Did he do anything else to that body?
A No he did not.
Q And did he pronounce that body dead?
A Yes, sir, he did.
Q How long did this process take?
A It took approximately ten, fifteen minutes at the very most.
Q Now you say that you sent for investigative help. Did such help arrive?
A Yes, sir. Assistance began arriving shortly after 4:30, and from that point on it was continuous as investigators were notified, they came to the scene.
Q Were you present when the bodies were removed from the house?
A Yes, sir, I was.
Q Did you see them removed?
A Yes, sir, I did.
Q Would you describe, please, the removal of the body of Colette MacDonald?
A There were two medics from Womack Army Hospital and they had an ambulance litter in the master bedroom. One of the medics was in a position straddling the lower extremities of the body. The other medic being directly over and behind the head region of the body. The medic at the foot of the body or the lower part of the body gripped one hand on each leg and the medic at the head region lifted from under or around the armpits of the body, lift the body directly upwards, straight up and straight over to the nearby ambulance litter.
Q Were you present during this entire process?
A Yes, I was.
Q Did you subsequently collect any evidence from that room?
A Yes, sir, I did.
Q How soon after -- thereafter was this done?
A Immediately after the body was lifted from its original position and placed on the litter, and was being rolled out.
Q And what did you do?
A As the body was being lifted, I looked under the body and right under where the head had been there was what appeared to be a clot of blood, and sticking from that clot of blood was object which I went immediately to see what it was and saw that it was a thread.
Q Did you do anything with that thread?
A I did. I collected it and put it in a plastic pill vial.
Q Did you collect anything else from that area?
A Yes, sir, after finding that particular thread, I did a complete scanning of the body outline. Prior to the removal of the body, the body had been outlined in a felt tip magic marker, and I scanned the entire region where the body had been and collected numerous threads from the floor and in the mat of the rug.
Q Did you find anything else of this nature in the bedroom?
A Like threads, you mean, sir?
Q Or fibers, yes.
A Yes, sir, I -- after the body was removed, the room was thoroughly scanned for additional threads, and all like threads, all blue threads that were found, as I have described, within the body outline. They were found behind the headboard of the bed. They were found at the foot of the bed, and one thread that I know of what was found between the green chair and the telephone.

MR. SEGAL: That's objected to unless it is of his own personal knowledge.

CPT BEALE: Sustained.

MR. SEGAL: May the answer be stricken then. The answer referring to the last item.

CPT BEALE: It will be stricken.

Q Prior to the time that Colette's body was removed, was anything removed from her body?
A Yes, sir, the bath towel and the blue pajama shirt I have previously described were removed from the body.
Q By whom and how?
A By myself and Mr. Shaw.
Q By what method?
A By lifting it from the body and placing it in a plastic bag.

CPT SOMERS: I ask now that these items be marked as government exhibits, sir.

COL ROCK: G-73, white bath towel marked "Hilton."

(G-73 was showed to counsel for the accused.)

COL ROCK: G-74, blue stained pajama top which is torn.

(G-74 was shown to counsel for the accused.)

CPT SOMERS: If the defense would like to take a few minutes recess --

MR. SEGAL: No that's all right. We just want to examine it in place. We'll give it right back to you.

CPT SOMERS: Sir, I request that at the close of this witness' testimony he be permitted to take these items with him and keep them in his custody and that we substitute for them in the record photographs thereof.

MR. SEGAL: I would object to that. At this time I would say that at the close of these proceedings, they may be returned if necessary, but we would want an opportunity to examine those items. I have no objection to them being kept in plastic bags in the care of the recorder in this case, but I think they must be available to us, at least during these proceedings. I don't consider them available in the hands of the investigators.

COL ROCK: I do not have any safe place for evidence of this type. The request will be granted, should the counsel for the accused wish to see them again, can they be made available?

CPT SOMERS: Yes, sir.

COL ROCK: The request is granted.

Q Mr. Ivory, I show you Government Exhibit 73 and ask you if you can identify it?
A Yes, sir, this is the towel, the heavy towel that was removed from the lower region of Colette MacDonald's body.
Q Is there any way possible that you can identify that?
A Yes, sir, by the general appearance, the blood stains, the name "Hilton", and the fabric, and by my initial and the date that it was obtained, 17-2-70.
Q There appears to be a hole in the exhibit, Mr. Ivory. Do you have any idea how that hole got there?
A Yes, sir, that was done at the CID Laboratory.

MR. SEGAL: That's objected to unless it was in the presence of this witness. It is obviously hearsay, in my judgment.

CPT BEALE: Sustained.

CPT SOMERS: If I may, before we proceed, speak to that objection. Or may I not?

CPT BEALE: Well, was this witness there when the hole was cut?

CPT SOMERS: No, sir, but he does know how that hole got there, and I submit that this is the type of hearsay which can cause little or no damage in this hearing, and this investigating officer is permitted to accept hearsay evidence.

CPT BEALE: What is the purpose or the actual relevance? What difference does it make how the hole got there?

CPT SOMERS: Well, the investigating officer is going to be able to see this exhibit. He may wonder why there is a hole in it, that's all.

COL ROCK: I waive that right.

Q Now Mr. Ivory, I show you Government Exhibit 74 and ask you if you can identify it?

A Yes, sir, this is the blue pajama top which was removed from the upper portion or the upper regions of Colette MacDonald's body.

CPT SOMERS: At this time I hand these exhibits to the investigating officer for his scrutiny.

(The exhibits were examined by the IO.)

COL ROCK: The investigating officer has completed his viewing of Exhibits G-73 and G-74 and returns them herewith to counsel for the government.

Q Now at the time Mrs. MacDonald's body was removed, what position was it in?
A It was on its back.
Q And what was its position relative to the position it was in the first time you saw you saw it?
A I really don't believe I understand your question, sir.
Q Was it in the same position that it was in the first time you saw it?
A Yes, sir, it had not been moved.
Q Did you collect any other evidence from the master bedroom?
A Yes, sir, I did.
Q And what was that?
A Just at the foot of the body of Colette MacDonald, there was found the pocket to that blue pajama shirt, which I have just seen.

CPT SOMERS: I ask that this be marked as a government exhibit.

COL ROCK: G-75, cloth material purported to be pocket to Government Exhibit G-74.

(G-75 was examined by counsel for the accused.)

Q I show you Government Exhibit 75 and ask you if you can identify it?
A Yes, sir, this is the pocket which was found by the foot of Colette MacDonald on the morning of 17 February.

CPT SOMERS: Does the investigating officer wish to examine it further?

COL ROCK: Negative.

Q Did you ever receive assistance from the Fort Gordon Criminal Investigation Laboratory on the 17th?
A Yes, sir, I did.
Q In what form did that assistance come?
A At the time I don't recall offhand. A call was placed to the Fort Gordon Laboratory Duty Officer requesting that a team of their technicians be sent to Fort Bragg to assist us in processing the house for evidence. They arrived at approximately 1100 hours.
Q What did this team consist of?
A The team consisted of two representatives of the fingerprint section, one from the photo section, one from the chemistry section.
Q Do you know what that team did there?
A Yes, sir, I do.
Q And what did it do?
A The fingerprint team began processing the house for fingerprints in the living room, hallway, bedrooms, utility room and doors of the house. The chemistry section representative began collecting samples of blood, additional samples of fabric and other items which would be used or tested or analyzed or further examined at the chemistry section.
Q How long was that lab team there? Do you know?
A They were there from 1100 hours, 17 February, until the evening or afternoon of 21 February.
Q Were you present in the house while this team was working?
A Yes, sir, I was.
Q And what function did you perform?
A I, at first, supervised the search of the living room area, which includes a search of the floor for foreign debris, foreign items; escorted the fingerprint technician throughout the house and collected items of evidence from within the master bedroom and the other bedrooms throughout the house.
Q Now you've spoken of thread or fibers. Do you know whether any fibers were found in the living room?
A No, sir, there were no fibers found in the living room.
Q Do you know if any fibers were found in the hall?
A There was one fiber which was similar to the others found in the hallway.
Q Do you know where most of the fibers were found?
A The greatest concentration --

MR. SEGAL: I would object. That calls for a conclusion as to whether it was the most or not. I would ask that he be limited to describing what quantity and what particular location.

CPT BEALE: Sustained.

Q How many fibers were found in the master bedroom?
A In the master bedroom, while I did not count them, they were just numerous, there was a great number.

MR. SEGAL: Objective. Move to strike as a conclusion.

CPT BEALE: Well, now Mr. Segal, the witness can testify to the best of his knowledge how many were found, and I think he can be helpful if he can specify at least a rough estimate of how many.

MR. SEGAL: I would be satisfied if he wants to say in excess of a hundred, or in excess of ten, which would be more appropriate to make a conclusion than numerous. I have frankly no idea of what that really encompasses.

CPT SOMERS: I do intend to try to pinpoint this down. That was the next question.

CPT BEALE: All right. Proceed then.

Q What does numerous mean to you? Would you say more than ten?
A Oh, yes.
Q More than twenty?
A Yes.

COL ROCK: Just tell us approximately what number.

WITNESS: I would say approximately twenty, twenty-five.

COL ROCK: We realize it's an approximation.

Q You said, as I understood -- how many did you say were found in the hall?
A One, sir.
Q Were any found in the front bedroom?
A Yes, sir, in the front bedroom there were fibers found on and behind the pillow on the north side of the bed, the north pillow of the bed, and also under the bedclothing.
Q How many total?
A In total, the maximum three.
Q Were any found in the rear bedroom?
A Yes, sir, there were like fibers found in the rear bedroom.
Q How many?
A Two that I can accurately recall, one being on the bedspread and one fiber which, while not being found in the rear bedroom, was found in the fingernail of Kristen MacDonald.
Q Were any found in the dining room?
A None, sir.
Q Were any found in the kitchen?
A No, sir, not in the kitchen.
Q Were any found in the living room?
A No, sir, not in the living room.
Q Where the fibers in the master bedroom located?
A In the master bedroom?
Q Yes.
A They were located under the body or in the body outline, where the body of Colette MacDonald had been laying; by the headboard of the bed; by the footboard of the bed; one, I know, was found between the green chair and the telephone; others were scattered along the rug, outside of the body outline between the body and the bed.
Q I show you Government Exhibit 65. Do you see a red object in the right center of the picture?
A Yes, sir, I see a box, a red, white and black box.
Q What is immediately under that box?
A Under that box is the magazine, Esquire magazine.

Q Was there anything unique about that magazine?

MR. SEGAL: That's objected to. It calls for an opinion by the witness.

CPT BEALE: The objection is sustained. I think perhaps you could rephrase your question.

Q I will. Would you describe the general appearance of that magazine?
A The magazine is an Esquire magazine, the edition of which I don't remember at this time. When the articles were removed from their position, the original position there, and were examined, it was found that underneath the box and hidden from view from this position, that there was at the top edges of the page, there was a blood stain in the configuration of a finger.
Q Now where was that located?
A In the photo of the cover, it can be seen in the first two letters of the book -- ES. The blood stain was found directly over the QU.

CPT SOMERS: I hand this exhibit to the investigating officer.

(G-65 was examined by the IO and returned to CPT Somers.)

CPT SOMERS: Sir, the government has at least another half hour of direct examination of this witness. Perhaps we can take a ten minutes recess?

COL ROCK: I have one question prior to that recess, although your idea is accepted. When you refer to threads, in your own words, what is the difference between your description of fiber as opposed to a thread?

WITNESS: Perhaps we should draw a line on those. What I refer as threads are threads from the seam of the garment. When I say fibers such as the fibers, or fiber found on the hand of Kristen MacDonald, I would term that as a fiber. I am not sure what terminology I used upon the item found in the hallway, however it was a thread.

COL ROCK: And are they readily identifiable by the naked eye as such? Or, excuse me; were they readily identifiable by you with the naked eye?

WITNESS: Yes, sir, the fibers being of a lighter blue, and the seam threads being of a darker blue.

COL ROCK: This hearing will recess for ten minutes.

(The hearing recessed at 1445 hours, 21 July 1970.)

(The hearing reopened at 1501 hours, 21 July 1970.)

COL ROCK: This hearing will come to order. Let the record reflect that all parties who were present at the recess are currently in the hearing room. Proceed, counsel.

Questions by CPT SOMERS:
Q Mr. Ivory, I draw your attention to the coffee table in the living room at 544 Castle Drive. Have you ever had occasion to tip that coffee table over?

MR. SEGAL: I object.

A Yes, I have.

MR. SEGAL: I object. That's objected to. It's irrelevant and immaterial as to whether this witness has ever tipped over any piece of furniture.

CPT SOMERS: I think I can establish the relevancy of this particular line of questioning.

CPT BEALE: Why don't you give an offer of proof?

MR. SEGAL: May it be given out of the hearing of the witness?

CPT BEALE: Very well.

COL ROCK: The witness is excused, temporarily.

(Witness saluted the IO and departed the hearing room.)

CPT SOMERS: If the witness were permitted to proceed, he could testify that he has tipped this coffee over in excess of thirty times with force varying from a strong kick to balancing on its legs and letting it go, under the circumstances ranging from having the table free to fall, to having it blocked by a rocking chair which is near it, and that no matter what circumstances this table was tipped over by him under, it never landed on its side. It always landed on its top; and that furthermore, when this is done with the magazine and other materials on top of the coffee table, they do not land underneath the edge of the table, but land in front of the table on each and every occasion that he has conducted this particular experiment, if you will. I think this is relevant to the scene that is found in the house.

MR. SEGAL: May I respectfully suggest, sir, that what counsel for the government has just described is an interest premise for a scientific experiment by a physicist; the suggestion that a Specialist Seven of the United States Army in the Criminal Investigation Division should be allowed to testify about matters he cannot even give us the measurements for, that is for instance, he could not even tell us what force was applied. He would say I kicked it soft or hard, and similarly unscientific, unmeasurable, unattackable and questionable kinds of standards, it is conceivable that a test might be arranged by persons of appropriate scientific background and experience who could, in examination here in the courtroom, explain to the court in scientific terms the measures that were applied, and its relevance, for instance, to the strength of a human foot as between one person's strength and that of another. But to suggest that this kind of ad hoc experiment, you know, done by a criminal investigator, which I think is so totally unscientific and unreliable, should be admitted into evidence is to suggest a matter which I feel, while not greatly relevant to this case, is certainly prejudicial, possibly under those circumstances ought not to be admitted from this particular witness.

CPT SOMERS: Certainly, we do not contend that Mr. Ivory is a physicist. He can describe in some detail the way in which this experiment was conducted by him. He can tell us the number of times; he can tell us the results. Now precisely what these results mean to the investigating officer, that's up to the investigating officer. How reliable he considers these results depends on his judgment. The factors which the defense counsel suggests go to the weight of this testimony or the credibility of it and not to the admissibility of it. This is something that has been done repeatedly, under varied conditions and I submit that the results would be of interest to this investigating officer who is to be investigating any and all relevant circumstances surrounding the offense in question, and I would therefore submit that the answer to the question asked in this line, and the questioning in general are admissible and should be considered.

MR. SEGAL: May I make one further observation?

COL ROCK: Please go ahead, counselor.

MR. SEGAL: I want to make this further observation, that aside from the total lack of scientific basis, it is also requested that this matter strikes me as totally irrelevant and immaterial since there's no evidence in this case of the circumstance under which this particular table came to be resting on its side in the MacDonald household. If in fact the very limited amount of facts that this inquiry has before it that has come through the prior witness such as Captain MacDonald's statement of a struggle involving four persons. If the alleged experimenter suggested here conducted the experiment with certain people in or about, it was done pursuant to a struggle, I don't know, these are all possibilities; but there's no relevance to this case in just trying to tip a table over because there's been no evidence in this case to suggest the government's theory of the prosecution, relates to someone, you know, tipping the table over. All that we know of in this particular case is the fact that Captain MacDonald stated on February 17th that there was a struggle which involved several other people, and it seems to me from that standpoint, there's even graver area here to admit this alleged experiment on the basis of the facts which the witness set it up. It also strikes me that an additional factor that should be considered about the so-called experiment, it seems to me that the government has failed to show that its particular witness is going to be able, is qualified in any way to have made the experiment, other than being identified as an investigator. We know that evidence of experiments is really basically opinion testimony of the witness. He's going to be allowed, if we permit this, to give an opinion. We also know that opinion testimony is viewed in the law as the lowest form of testimony. The law of values -- of direct knowledge -- the law of value eye witness testimony -- the law of values of that kind of personal information. But the opinion, albeit of a qualified expert, is treated as a low quality of evidence and received with great caution. If you have a case here where you have a person whose qualifications are totally absent -- as a matter of fact, we probably can assume that his qualifications do not exist of all, based upon the government counsel's concession that he is certainly not scientifically trained, and again we have a matter that even under the best of circumstances, I do not think it can come into any court.

CPT SOMERS: May I respond to that?

COL ROCK: Yes.

CPT SOMERS: First, we have here in this case a table which was found by all witnesses lying as it's shown in the picture on its side. Now, how it came to be on its side is relevant, since it's part of the scene of the house as it was found. The evidence which I wish to present will help to decide by what method, help the investigating officer to decide, because I don't intend that this witness shall tell us anything with regard to his opinion, help us decide whether this table got to this position by being tipped over. And again I say this witness is not going to attempt to testify whether it could have, or could not have. Neither will this witness testify as to his opinion about anything. He would simply describe what he has done, and what the effects was.

COL ROCK: This hearing will recess for ten minutes.

(The hearing recessed at 1511 hours, 21 July 1970.)

(The hearing reopened at 1530 hours, 21 July 1970.)

COL ROCK: This hearing will come to order. Let the record reflect that those parties who were present at the recess are currently in the hearing room. Proceed, counselor.

MR. SEGAL: May I ask leave of the investigating officer -- one of my law clerks, Mr. Hayes, was required to return to Philadelphia several days ago, and we have been without his assistance, and another clerk in our office has come down. May we have permission to have her replace Mr. Hayes? There will still be the same number of people available and the same rules as the investigating officer has set forth as to conduct will remain throughout her role in these matters.

COL ROCK: Your request is granted.

MR. SEGAL: Thank you, sir.

COL ROCK: At the time of the recess the question was raised before the hearing, and there was an objection by counsel for the accused. My ruling is as follows:
The objection is overruled; however the relative weight that I will give to this testimony is solely dependent upon the strength of Mr. Ivory's testimony on both direct and cross-examination.
Would you please bring the witness back in.

(Investigator Ivory returned to the hearing room.)

COL ROCK: Mr. Ivory, you are again reminded you are under oath.

WITNESS: Yes, sir.

COL ROCK: Proceed, counselor.

Questions by CPT SOMERS:
Q Mr. Ivory, I back up a question so it will be clear in your mind what we were getting at. Have you ever had an occasion to tip that coffee table over?
A Yes, sir, I have.
Q And how many times was this done?
A I'd say thirty times at a minimum.
Q And with what degree of force was it done?
A The degree of force was anything from being violently over thrown, kicked in varying degrees on down to balancing the table on its legs and let it fall.
Q Would you describe for us what the effect of these experiments was?
A The effect was that each time the table was kicked or whatever, instead of landing on its edge, as it was found by myself that morning, it would -- it was a very top-heavy table -- in other words, it would just keep right on rolling until it landed on its top with four legs straight in the air. Now, as I say, this was done with varying forces and so many times that I know of -- thirty times that I have done it -- other people have done it and observed the same end results. It would just roll over by itself or there is a rocking chair that was sitting by the over turned or the upturned coffee table, and if the table were to hit that chair, rather than stop it is so top-heavy that it would keep right on going, and slip right on the chair. When it was tipped, of course the magazines were placed on top of the table. The plant pot with the plant and root ball inserted in the plant pot were put on the table, and again, each time it was overthrown, overturned, however you want to term it, the magazines, instead of just falling under that table would just slide right across the rug, and the plant with its pot, if a lot of force was exerted upon the table to turn it over, it would fly -- root ball and pot would stay together each time, and it stayed together regardless --

MR. SEGAL: Excuse me. I really must interrupt this interesting dialogue because I didn't know we were having experiments with the plant pot also and unless the investigating officer's ruling encompasses that experiment too, I would respectfully object and move to strike all reference to the plant experiment too.

CPT SOMERS: I withdraw the reference to the plant experiment.

CPT BEALE: That will be struck from the record.

Q Did you conduct any other experiments in the living room area?
A Yes, sir.
Q And what was that?
A There were two other experiments conducted in the living room area, one being a mock struggle which took place between myself and another investigator, trying to stimulate actions in that confined space, and during this time was also when the coffee table was knocked over during that experiment. This was only conducted once.
Q What is that?

MR. SEGAL: It is objected to as irrelevant and immaterial why they did it once.

CPT SOMERS: I think I can establish the relevancy.

MR. SEGAL: The objection is renewed.

CPT BEALE: Counselor, the relevancy of a staged fight between this particular witness and another person is beyond my scope. We are going to strike all the testimony with reference any staged fight, between Mr. Ivory and another investigator.

Q Did you have an opportunity to observe the china cabinet in the dining room?
A Yes, sir.
Q Do you know what's in the top of that cabinet?
A In the portion that is covered with glass, there are numerous articles of crystal, glassware. There is a large ornamental -- not ornamental, but what you might call a fancy carving set, that is a large carving knife with the meat fork.
Q Are these items visible without opening the china closet?
A Yes, it is right behind the glass.
Q Do you know how stable that china closet is?
A Yes, sir.
Q How stable is it?

MR. SEGAL: Objection.

CPT BEALE: What is your objection, Mr. Segal?

MR. SEGAL: The question how this witness -- this witness being asked his opinion as to how he knows how stable that item is. Again, it calls for opinion testimony from this witness, and the basis for his giving an opinion I don't think has been established, nor for that matter the relevancy.

CPT BEALE: Would you care to say something?

CPT SOMERS: Well, this witness has had an opportunity to do some things physically, which would give an indication. I am willing to have him describe those things and let the conclusion be drawn by the investigating officer.

CPT BEALE: Captain Somers, the experiment that you conducted on the table apparently, although this man is not a physicist, at least it was conducted a number of times. Now all these other various things, the staged fight and the relevant stableness or unstableness, stability of the china cabinet, do you have an offer of proof that you ran this particular experiment on twenty or thirty times also?

CPT SOMERS: No, I don't, but I can offer to show that this particular experiment with reference to the stability of the china cabinet was run only once because it is so unstable that it was not safe to proceed.

CPT BEALE: I think Mr. Segal's objection is well taken. I think the best thing is to move on to another area.

Q Mr. Ivory, did you have an occasion to examine the contents of the kitchen cabinet?
A Yes, sir, I did.
Q What did you find in that cabinet?
A In the kitchen cabinets, above the sink, there were numerous items of normal everyday eating wares, dishes, food stuff. In the cabinet underneath the sink, I examined those contents and found a large supply of cleaning equipment, rags, some vegetables such as potatoes and the like, and over in the far left corner, as I faced the cabinet I found a -- I found eight packages of -- I think the brand name was Perry latex surgical gloves.
Q Do you know what security measures have been taken with the house at 544 Castle Drive to prevent the ingress of unauthorized personnel since the 17th?
A From the 17th until the 21st when the -- finished with the laboratory technicians, the house was locked at night and placed under armed guard. There were two and sometimes three armed guards on the building. When the armed guards were removed, we began a system using railroad seals, plus placing our own locks on the doors and initiating padlocking.
Q What are railroad seals? Can you tell us that?
A They are a thin strip of metal, numbered metal, numbered in succession, and they are used primarily in sealing doors on freight cars, I'd say at one end of the shipment, and when it is received at its destination, the inspector, or whoever is unloading, determines if the railroad cars have been entered between the two stations. The seals cannot be removed from the door itself and render them useless.
Q Were you ever given a description of the four people who are alleged to be the assailants of Captain MacDonald?
A Yes, sir, I was.
Q Do you know whether -- let me rephrase that. Do you now how many people, or whether any people were interviewed in this vicinity in an attempt to find those people?
A Yes, sir, there were in excess of a hundred persons interviewed in the area.
Q Do you know whether any personnel who met the description given were located?

MR. SEGAL: That's objected to, became obviously it calls for a conclusion of what other people saw and did?

CPT BEALE: You can restrict your questions to what this witness did and what his -- the results of his investigation were, Captain Somers.

CPT SOMERS: Well, now with respect to some information which may be available from any number of sources, this witness has information, some of which may be derived from hearsay source, some of which may not, and I suggest to the investigating officer that this may be the easiest way to present it, and perhaps the only possible way in some respects in view of the limitations of the ability of this Article 32 proceeding to bring distant witnesses here. And so that I suggest that this may be in the area in which, to the extent to which this witness' knowledge may be hearsay which should be accepted by this investigating officer.

COL ROCK: Aren't there some official records to which some individual can attest to as bearing out the facts of whatever items you wish to bring before the investigating officer?

CPT SOMERS: Well, sir, I do have records which I can produce, but they are equally hearsay in nature.

MR. SEGAL: May I suggest, sir, that it seems to me that when you are talking about the CID reading file and this type, that if the government is going to make that available so that we may know the extent of what these persons were and who they were, and certain of their arrest, it may be possible that we would consider withdrawing our objection. But absent such an offer by the government, I could not agree that this witness be allowed to tell about what other people at distant places did, the conclusions that they arrived at, as to the resemblances or non-resemblances, and other such remote collateral and indirect matters, because it seems to me that the government is really not taking the position today that there are four people who fit the description or who do not fit the description. The government takes the position today that Captain MacDonald committed these crimes, and therefore it's irrelevant as to any groups who fit the description because the government does not believe that.

CPT SOMERS: I would like to respond to at least one section of the defense counsel's remarks. I am attempting now to address myself to an issue which was raised by the defense counsel in his cross examination of the first witness in this case, over the objection of the prosecution, that is the extent to which the CID and other authorities investigated the individuals who were supposed to have been the assailants of Captain MacDonald. It has become an issue here, whether the criminal investigation division and other investigative agencies did, in fact, carry out their duties in this respect, and I respectfully suggest that since this has become an issue, it is entirely fitting and proper that the government be permitted to show that this is not the case, that in fact the investigative agencies involved carried out their duties at great length.

CPT BEALE: The question has been considered and Mr. Segal's objection is sustained, to the extent that this witness will be permitted to testify reference what he personally did concerning interviews of potential suspects, if any. He will not be permitted to testify as to what the many other investigators did with reference to questioning other suspects. Now if you care to bring that information before the 32 officer, there are other ways to do it, I'm sure. I'm sure you are talented enough to realize that.

CPT SOMERS: Your honor, at this time, the government would beg an indulgence of the investigating officer. I know we've had two recent recesses, but we would like to request one more recess for approximately five minutes before proceeding.

COL ROCK: This hearing is recessed for five minutes.

(The hearing recessed at 1550 hours, 21 July 1970.)

(The hearing reopened at 1559 hours, 21 July 1970.)

COL ROCK: The hearing will come to order. Let the record reflect that those persons who were in the hearing room at the beginning of the recess are currently in the hearing room. I remind the witness once more that he is under oath. Proceed, counselor.

Questions by CPT SOMERS:
Q Mr. Ivory, what other evidence did you collect in the master bedroom?
A In addition to the threads I previously described, I collected some -- from the floor of the -- or the rug of the bedroom, near the body -- some wood splinters that were bloodstained. I found portions of a rubber substance, like from a rubber glove, clear rubber glove. Also in the bedding which was found on the floor near the foot of the bed in the master bedroom. On examining this I found in the sheet bloody sections -- a finger, entire finger portion, of a rubber glove such as a surgeon's rubber glove.
Q Now these threads that you've described, how long were they?
A On the average to an inch to two and a half inches.
Q From the time that you arrived at the house until the bodies were removed from the house, did you see anything moved or removed or tampered with in the house?
A The only thing that I observed were the body of Kristen MacDonald being moved by Doctor Neal. He of course touched the other two bodies, but did not move them, and the -- just prior to the body of Colette MacDonald being removed from the house, the pajama shirt and towel, which had been on top of her body, were removed.

CPT SOMERS: No further questions at this time.

CPT SOMERS: Your witness.

Questions by MR. SEGAL:
Q Mr. Ivory, would you be good enough to give up the exact weight of the coffee table in the living room of the MacDonald house?
A The exact weight I cannot give you. I can give you an approximate weight of 25 to 30 pounds.
Q Is that approximate weight being based upon your having put it on a scale at sometime in the past, but your inability to recall that exact weight?
A No, it's based upon my experience of having lifted items 25 to 30 pounds.
Q In other words, part of this experiment that you conducted with the coffee table, you never bothered to weigh that particular item. Is that right?
A That's correct.
Q You don't know what the weight of the coffee is, as opposed to its legs, do you?
A No, I only know that the top is heavier than the legs.
Q Well, perhaps you could tell us to the extent that you could tell us the exact dimensions of the coffee table?
A Off the top of my head I cannot give you those exact dimensions.
Q Is that because you, yourself have never measured the coffee table?
A I did not personally measure it. It has been measured, but I do not have the dimensions.
Q You have told us that the table was measured by some person other than yourself. Is that right?
A That's correct.
Q Would you be good enough to provide us who measured that table?
A It was one of two persons, either Mr. Robert Shaw or Mr. Hagan Rossi.
Q And did they reduce those measurements to writing somewhere?
A Yes, they did.
Q Have you had occasion to look at those measurements at sometime?
A No, I did not.
Q You did not. So you do not have any idea what the exact measurements of that table are?
A I do not.
Q You just have a guesstimate, I suppose, based upon looking at them?

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

MR. SEGAL: This is cross examination. I think you are entitled some latitude to develop the basis --

CPT BEALE: The objection is overruled.

Q Now would you be good enough to tell us, please, on what date you performed the first experiments referred to here this afternoon on the coffee table?
A It was subsequent to the laboratory team going back to Fort Gordon.
Q You mean sometime after February 21st?
A That's correct.
Q Could you be a little bit more precise as to what date the first of these experiments of the coffee table were performed?
A I would say the date following, as close as I can recall.
Q And then on how many succeeding days did the coffee table experiment continue? How many days?
A Every time I went in the house, not once, but every time I went in the house, the majority of the time, I would conduct it. I would leave it, go do something else and come back and try it again.
Q Would you give an estimate of how long a period of time the experiment took place?
A I would say over a period of a few weeks.
Q A few weeks. And how often were you in the house on Castle Drive during that period of time?
A Almost constantly.
Q Well, do you mean once a day, twice a day?
A Taking into consideration the break for lunch, I'd say twice a day.
Q And that would be over a period of two or three weeks?
A That's correct.
Q Now who else participated in the coffee table experiment besides yourself?
A Myself, there was Mr. Shaw.
Q Did Mr. Shaw knock the table over?
A Yes, he did.
Q And who else?
A There was Colonel Kane.
Q Colonel Kane participated in the coffee table experiment?
A Yes, he did.
Q Are you telling us that he, himself, knocked the table over?
A Yes, he did. Other investigators were there, Mr. Grebner, the Chief of the CID here at Fort Bragg, and at least one member of the Federal Bureau of Investigation, that I know of. I don't know his name. I can't -- it may be Mr. Tool, I'm not sure.
Q Would you be good enough to tell us approximately when Colonel Kane participated in the coffee table experiment?
A I do not know.
Q Would that be April of 1970?
A Possibly.
Q It wasn't shortly after the CID, or the investigating teams from Fort Gordon left?
A Oh, no, no.
Q Much more recent than that?
A Yes.
Q And may I ask what the circumstances in which Colonel Kane came to be invited to participate in the experiment?
A I was not present. I do not know.
Q Do you know who was present when that was done?
A Mr. Shaw and I believe Mr. Grebner was there, and I'm not sure if Colonel Kriwanek, the Provost Marshal was there or not. I do not know. This is just something that's back there. I don't know for sure.
Q Something that is in the back of your mind that you can't be positive about?
A Yes, about Colonel Kriwanek.
Q Right. How about the other persons you have named?
A Those others I am sure of.
Q You are sure because someone has told you about that. Is that right?
A Yes.
Q Who told you about that particular incident when Colonel Kane was there?
A Mr. Shaw and Mr. Grebner.
Q And they, I suppose, also told you the results of the experiment?
A Yes.
Q They didn't -- you, yourself, didn't observe that experiment when Colonel Kane was there. Is that right?
A No, I didn't.
Q Now you've testified in some detail this afternoon about the MacDonald house and the location of various items there. Is that correct?
A That's correct, sir.
Q And you've also testified to certain to certain details, where you went, and at various times, what you did. Is that correct?
A That's correct.
Q You've also given us time intervals, or time fixes as to when you did certain things on the morning of February 17th?
A Correct.
Q And you've also given us certain other details as to the locations of blood spots, et cetera. Is that right?
A That's correct.
Q Now I assume that you had occasion to look at your file or some other document before coming here, so that you could give us accurate answers in those regards. Am I correct?
A You are correct.
Q Now, may I ask what it is that you looked at in preparation for your testimony here today?
A Nothing really specifically, just in keeping myself abreast of the case, and I have periodically reviewed the photographs.
Q Well, the photographs don't indicate to you the various times that you performed certain acts.
A That's correct.
Q The photographs don't indicate when the doctor, say when Doctor Neal came and what Doctor Neal did. Is that correct? The photographs don't tell you anything about what Doctor Neal did when he came to the house?
A No.
Q Well, do I assume correctly that you had occasion to look at your records and determine to refresh your recollection about these various points?
A Yes, well, if those are referring to records and my memory.
Q I understand that obviously you have a certain amount of memory in this regard. Is it fair to say that the records that you referred to is your reading file that you are in charge of in connection with this investigation?
A That's correct.
Q And may I ask when was the last time you had occasion to look at the reading files for the purpose of refreshing your recollection?

CPT SOMERS: I object to this question. It is irrelevant. In fact, this whole line of testimony is irrelevant.

CPT BEALE: Would you care to make an offer of proof as to what you are driving at?

MR. SEGAL: Yes, sir, I want to determine to what extent the witness is testifying of his own independent recollection as opposed to past recollection refreshed by review of his own records, and I think there is some indication already that the witness has indicated he referred to documentation for purposes of refreshing his recollection. And then we will go to the appropriate questions as to the matter. I think the direction of where we are going should be apparent. I would be glad to elucidate further. I think it is fairly obvious, though.

CPT BEALE: The overrule -- the objection is overruled. You may continue.

Q If I may ask the question again to you, Mr. Ivory. Is it fair to say that you have recently reviewed these reading files in preparation for your coming to testify?
A Yes.
Q And to the best of your recollection how recent was that review of your files?
A Today being Tuesday -- prior to the weekend.
Q Prior to the weekend that just passed?
A Yes, sir.
Q Are you indicating that you had occasion to review the files, say, on last Friday?
A I am in a continuous process of reviewing the files. It's a continuous thing.
Q Well, did you have occasion, however, last week on both Tuesday and on Friday to review the files for the purposes of refreshing your recollection about the investigation you were involved in?
A Yes, I did.
Q Did you have occasion to believe that you might be called to testify last week in connection with this hearing?
A Yes, I believe so.
Q So that it would be natural for you, in anticipation of being called here, to look at your records and your file to get ready to give the court the knowledge you have?
A Correct.
Q Do I assume again correctly that the reason you looked at your records was for the purpose of making sure that your recollection was not in conflict with anything you'd written down before, so you would be able to accurately testify here?
A Correct, to see if I had forgotten anything.
Q And is it also fair to say that in looking at the reading file, that it in fact did refresh your recollection to specific details of what you did and what other people did in the course of the investigation?
A Not to refresh my memory; I had known normally, just reaffirmed what I had already known.
Q You are not suggesting are you that every single detail that you testified to is, you know, on instant recall?
A Oh, no, of course not.
Q And that in fact it is easy to say that you looked at the file for the purpose of making sure that you could recall properly the details?
A That's correct.
Q And I would gather that since February 17th, 1970, you had some other official duties assigned to you besides the investigation of this case?
A Yes, that's correct.
Q As a matter of fact, you were assigned to the investigation now of a very serious explosion that took place on Fort Bragg in the last few weeks. Is that right?

CPT SOMERS: I object. That's irrelevant.

CPT BEALE: Objection sustained. The last comment will be stricken from the record.

Q How many other investigations not related to the MacDonald case have you been involved with since February 17th?

CPT SOMERS: I object. It is irrelevant.

MR. SEGAL: The basis of the question is to establish whether or not this particular witness is dealing only with recall of the specific items of a single matter, of a single case, as opposed to having to keep track of a number of different investigations. We have reason to believe on the basis of information we have, that, as any other investigator, that this person is in fact involved in a number of investigations, and that it is necessary to keep track of his file in each particular case, to keep his memory current and accurate for the purpose of testifying.

CPT BEALE: Mr. Segal, based on what you said, then the logical question to ask this witness is very simple. Are you, in fact, involved in other investigations?

MR. SEGAL: I will accept that, and place the question to you in that fashion.

Q Are you, or have you been, since February 17th, involved in other investigations, other than the MacDonald case?
A Yes, I have.
Q Could you give us just an approximate number of those investigations?
A Three.

CPT SOMERS: Object.

CPT BEALE: Mr. Segal, I think that Colonel Rock has gotten the gist of what you are trying to establish. I think perhaps you should go ahead and move to another area.

MR. SEGAL: May it please the court, at this time I would respectfully request that the government make available for examination by the defense the file that this investigator has had occasion to review for the purpose of refreshing his memory or recollection before coming here.

CPT SOMERS: I object to that. The witness has come in here without notes. He has not referred to any notes. He's said that he has done nothing but reaffirm and refresh his memory prior to coming here. There's no foundation laid for the production of these records, and we certainly object to their production.

MR. SEGAL: May I say that it is the very fact that the witness appears in the courtroom without notes and testifies to great details that gave me cause, and cause to counsel for the accused to ask a number of questions of this witness. It is very apparent that the enormous detail you are referring to, including such things as precise times, 0405 for certain persons, and 0445, other persons, does not seem readily apparent to me a detail or fact that would necessary be on top of a person's mind, particularly as it has likewise been established this individual has other responsibilities, for other investigations, where obviously times and dates for people involved. However, the witness has gone beyond my surmise, or the surmise of the investigating officer, and that is he has said in anticipation of giving testimony here, he has sought his own file out for the purpose of refreshing his recollection, for the purpose of determining how accurate his own recollection was. It is clear, therefore, that the testimony the witness has given today, or a portion of it, or a substantial portion of it, is not entirely of his own recollection, and aided by the use of documentation, and that documentation therefore becomes as much the subject of the cross-examination as his memory, because it is not entirely his memory, that he relies upon. This is a classic rule in terms of the fact that when a witness makes reference to documents for the purpose of aiding him in court testimony, the documents must be examined by the cross-examining counsel, otherwise we do not really examine the witness' own recollection in that regard.

CPT SOMERS: This witness has testified that he is testifying from his recollection. The rule which the defense counsel has made reference to does in fact exist and it refers to notes or other materials which are brought to the hearing room and used to refresh the recollection of the witness. This witness is, however, a trained investigator and it is not apparent to me, even though it may be apparent to the defense counsel, that it is necessarily unusual for him to remember specific times or dates or anything else; and for that reason I persist in my position that there is no basis whatever for the production of these records.

MR. SEGAL: There is one other matter, if I may, I think the investigating officer ought to be aware of; that part of the reason for the rule of law which says that if a witness relies upon the examination of records for the purpose of refreshing his recollection, that since examination may be selective by the witness, that he may either intentionally, or inadvertently review certain portions of his records for the purpose of refreshing his recollection, and not reviewing other portions which may, in fact, conflict with his memory or conflict even with his own testimony. It is even conceivable that within the same set of memoranda that he has occasion to refer to there were conflicting versions of facts, and that in selecting a special version or a single version to give, he nevertheless has rejected, accepting recollection of other facts, perhaps that are contrary and therefore cross-examining counsel has a right to say why did you select to recall a, or reply upon a version, when b version also appears in your file, which appears to be contrarily different. And it is for that reason that the underlying documentation becomes the subject of a cross-examination, not because we seek to do anything improper, but simply because the witness, I think, has very candidly admitted with no hesitation really, that only on reflection, having -- yes, last week I anticipated coming here. I looked at the file Tuesday. Having not been called last week the witness has, again on Friday, re-looked at the file for maintaining and bring up to date his recollection of the facts. It seems to me that the suggestion by government's counsel that simply the failure to bring the records into the court -- doesn't prohibit us from examining. It is very obvious, therefore, that the witness did not want another party to examine his records, because of inconsistency. He makes his examination at another place and closes the file and comes unarmed with those records. The law doesn't recognize that kind of approach as a valid one to preclude the examination of the records of this witness.

CPT BEALE: Mr. Segal, at this time your request for the CID reading file or files is denied.

Q Now, Mr. Ivory, did you make some notations about the experiments you performed on the coffee table?
A Yes.
Q What kind of notations did you make about it?
A The notations such as the reading file notations.
Q Well, what is it that you wrote down about those experiments? Did you indicate the date on which you performed it?
A Yes.
Q Do you recall what were the dates that you performed the experiments?
A They began as I said before, after the laboratory team departed. So it would be the 22nd of February.
Q Are you indicating to us that if you examined the file you could then tell the investigating officer on what dates you performed the coffee table experiments? Is that correct?

CPT SOMERS: I object to this question, and this line of questioning again. The defense is again attempting to get at the issue of the reading files in this case. The witness has testified to the best of his recollection on this matter.

CPT BEALE: Well, now, counsel, I believe the witness just stated that his past recollection is recorded and would be refreshed were he to look at it. Is that correct, Mr. Ivory?

WITNESS: Correct. Now this would not be for each time the experiment was conducted. It would be recorded for, say the initial one, and maybe some indication, some entries later on where subsequent experiments were performed, but not all of them, because it would be just in passing by the table and I would give it a flip and then it would go over, not being a planned experiment, but just being coming to mind, I'll try it again, and doing it right then.

CPT BEALE: Well, now, Captain Somers, you have made an issue of this particular experiment. Then to give the defense the full opportunity to cross-examine, it would be fair to let them have knowledge of when, if and when these experiments were conducted, and if the witness cannot recall it from his memory, but just sitting there without any notes, if in fact his memory can be refreshed then he should be given the opportunity to refer to those notes.

CPT SOMERS: Well, the government will contend that when these experiments were performed would be totally irrelevant regardless. How they were performed would be relevant, and the method of one of them can be inquired into by the defense counsel and answered by this witness, but whether it was done on a Tuesday or a Friday would be entirely irrelevant as to anything which could have anything to do with any issue in this case.

MR. SEGAL: It seems the issue is not clear before the investigating officer, at this time. We have not asked for anything at this junction, and I persist that I have a right to examine this witness further with regard to other details about the experiment. It may be at the conclusion, that we will have to renew the motion for the records, but I think at this juncture it's irrelevant for the government to argue about the records. We haven't asked for them now.

CPT BEALE: That's quite correct, and I think the problem here, CPT Somers, you are trying to be selective about what is relevant and what isn't relevant reference these experiments.
The least you can do is give the defense their opportunity to examine this witness on the experiment, so therefore your objection is noted, but overruled.

Q Would your notations indicate the last time you performed the experiment?
A Perhaps not.
Q Perhaps not? But would it give you a date that would enable you to calculate how long thereafter, that is how long after your last entry, did you perform your last experiment?
A No, it would not.
Q Now would the records show that you have made or notation you have made for yourself tell anything else other that the fact that on, say 27 February you performed the coffee table experiment? Does it say anything else other than that with regard to this particular experiment?
A It would probably say something like the coffee table was again tipped over and again landed on its top.
Q Would it indicate to you on how many occasions the coffee table was tipped over against, say, the rocking chair that was located in the MacDonald house?
A No, it would not.
Q No notations of that at all?
A No.
Q Can you indicate to us on how many occasions, in fact, you tipped over the coffee table against the rocking chair?
A It was never done purposefully to knock it against the coffee table -- I mean against the rocking chair, but on occasion it did hit against the rocking chair.
Q Well, can you indicate to us how many times the coffee table was tipped over and fell up against the rocking chair?
A A few times that I can recall.
Q A few times?
A Two, three, four.
Q Does the record that you made of these experiments show the number of occasions that it was tipped over against the rocking chair?
A Probably not.
Q Now do your records show the location of the coffee table at the time you performed these experiments?
A No, it would not, except probably to say that it was put in a position thought approximately to be its normal position by the couch, or something like that.
Q And do I gather that that was an estimate made by you?
A That is correct.
Q Because no one had ever marked on the floor the position of the coffee table as it was found at the MacDonald house?
A It was marked by other investigators.
Q No, you don't understand. Did you ever mark up the position of the rug on which the coffee table was found on the morning of February 17th?
A The table was not marked. However, measurements were taken.
Q The measurements were taken. Will you indicate to us, now, please, exactly the measurements from which the coffee table was found relevant to the sofa and to any other fixed object in the room?
A I cannot. I did not take the measurements.
Q Have you had occasion to refer to those measurements at any time?
A No, I have not.
Q Well, how could you reconstruct the experiment of the coffee table if you didn't know exactly how close the coffee table was to the sofa, say?
A As I started to say, we put it in a position we thought may be a normal position varying in degrees and distances away from the couch. We could never say we know exactly that's how the coffee table was standing before it was initially put on its edge. We couldn't say that because we never saw it before it was laying on its edge.
Q My question is to you if you took the measurements on the morning of February 17th or shortly thereafter while the coffee table was still in its position, did you not use those measurements for the purpose of running your experiment again?
A I did not.

CPT SOMERS: I object. He's said that he did not take these measurements. He's also said he hasn't seen them.

MR. SEGAL: He has volunteered the information with regard to the existence of the measurements. I think it is appropriate now to discuss those.

CPT BEALE: Well, it is true that the witness has stated that he did not in fact take the measurements, so therefore the objection is sustained.

Q Did you ever read those measurements?
A No, I did not.
Q You did not. You don't know to this date what those measurements look like. Is that right?
A That's correct.
Q How about the location of the rocking chair in the living room? Do you have any notations as to the exact position of the rocking chair in reference to both the coffee table and the sofa and the near wall?
A No, I do not; in reconstructing the scene, photographs were used.
Q You were aware, of course, that there are problems with perspective and distortion that arises sometime, the angle at which a photograph is taken. Is that correct?
A This is correct.
Q And would you not agree that the more accurate way of trying to reconstruct the scene, when it's available, is to use measures taken of the actual location?

CPT SOMERS: I object. Counsel has reverted to the procedure of testifying for the witness and then asking him whether this is right or not, and in doing so, using extremely long and involved factual situations.

MR. SEGAL: I would suggest that if there is any problem in that regard, of course the witness can be advised that if he does not understand the question, he has the right to ask for it to be explained. Although, I think that needless because Mr. Ivory has already indicated to us this afternoon that when a question was unclear he was in a position to ask us for a clarification. Secondly, so far as positing various facts, I again reiterate, it is a fundamental rule of cross-examination, it is the right of cross-examination to posit certain possibilities to a witness and to ask him whether in fact he accepts the facts that are posited to him. He has the right to refuse to accept them. He has a right to accept them, or he has a right to accept them in part and reject in part. And if, in fact, we posit facts and he agrees to them, then in fact that becomes his testimony. But that, as I have learned it for many years is what cross-examination is about, and what distinguishes it from direct examination where you may not suggest the existence of any given fact.

CPT BEALE: The objection is overruled.

COL ROCK: However, I would request for the benefit of the investigating officer, once again try to make these as simple as possible so that we can get simple and clear answers. It is my impression that the basic experiment was conducted to determine whether this item would land on its edge, and the witness has indicated that in none of his experiments did it so land on its edge, but on its top, and therefore I fail to see the relevance of the measurements which were made indicating where it was located at the time the photographs were made. I'm a little bit confused, counselor, about your line of questioning.

MR. SEGAL: May I explain the basis for my questions then, sir, and that is that as we examined the physical evidence together with the investigating officer, and as we have looked at various photographs, there appear to be other items of furniture in very close position to the coffee table, and specially I had occasion to refer to the placement of the rocking chair, which in some photographs appears to be cheek and jaw against the coffee table. It seems to me that if the experiment is to receive any weight whatsoever, let alone be even admitted into evidence, there should be some indication here as to whether the experimenter took cognizance of the fact the photograph of the crime scene placed the coffee table not in some general position unrelated to other items, but in fact it places it in a position of one close to the sofa, at least at one end of it, and then again almost up against a chair that was in the room and is still there.

COL ROCK: Fine. I understand your reasoning. I would suggest that perhaps maybe some of the photographs would expedite the procedure.

MR. SEGAL: In view of the hour, sir, I want to just very briefly shift to another matter, because I think we will have to resume this particular subject tomorrow.

Q May I ask, Mr. Ivory, what experiments or investigations you have made in the MacDonald house since May the 1st of 1970, if any.
A Since May the 1st?
Q Since May the 1st, that's right. That's the date on which Captain MacDonald was formally charged in this case, and I picked that arbitrarily as a point of demarcation.
A Possibly to try the table again. To draw on dates exactly, I would have to go to the seal log, the register, which is posted inside the house, and then I could say, yes, I was in the house in this period and that period.
Q Can you indicate from your recollection, at least from this point, what, if anything, of major significance to you has been done inside the MacDonald house since May the 1st, 1970, in regard to the investigation of this case?

CPT SOMERS: I object, as I don't see the relevancy.

CPT BEALE: Would you indicate it, please?

MR. SEGAL: The relevance is that we believe that we are entitled at this time to request tonight for permission for counsel for the accused to be in these premises for the purpose of making an examination so that when we renew tomorrow's cross-examination, we will have a further opportunity to view this physical location of the crime. We have never had this opportunity to do so except on the single occasion in the presence of the investigating officer. We think we are entitled to, in particular in this crucial time in this case, to have counsel for the accused alone without the prosecution present and to have access to these premises, and we think it is undesirable and improper that we have been denied them up to now, and I think at this point we are entitled to pursue and have the government show what, if anything, meaningful they have done for the last two months in regard to this building, because I put to the investigating officer that I have reason to believe that nothing of any great importance has been done, that we have simply been denied the act just because the government is unwilling to let us use the physical premises for the purpose of our own investigation, and that we have now arrived at that point in this hearing that they no longer can deny us that opportunity, and I desire to now establish it, if need be, although I frankly, I think it's so clear at this point that it may be necessary now for me to ask any additional questions in that regard.

CPT SOMERS: The house at 544 Castle Drive is secured against all personnel except investigators. It is secured that way because it is, in itself, evidence. There will be -- the regulations surrounding such evidence do not permit it to be left in the custody of anyone other than an authorized agent, or personnel responsible for the custody of that evidence, or if such personnel are there, that they must be in the presence of such investigators or other personnel responsible for the custody of that evidence. Now, the defense in this case has been in the house when we viewed the scene in a group, and they have access to Captain MacDonald who lived in the house.

COL ROCK: Mr. Ivory, is it reasonable for you to make the keys and yourself or Mr. Shaw or some other agent available this evening to allow two members of the counsel for the accused to accompany you to the address at 544 Castle Drive?

WITNESS: Sir, before I could honestly answer that, I would have to check with my commanding officer. I would have to have his authorization.

COL ROCK: All right, how long do you think that would take you? Fifteen minutes, or so?

WITNESS: I beg your pardon, sir, I don't know. I may have to trace him down.

COL ROCK: Well, this hearing will recess until you've had sufficient time to try to determine the feasibility of this course of action.

WITNESS: Yes, sir.

(The witness departed the hearing room.)

COL ROCK: What else do you have, counsel?

MR. SEGAL: What I want to request of the investigating officer is that permission be granted for the examination of the house be made by counsel for the accused, in the absence that is that we be permitted to be inside of the house without representatives of the prosecution being present. Now I would suggest to the investigating officer two matters, one, that all the persons we have permission to enter the premises are attorneys at law, and are subject to the sanctions of the supreme court of various states; that any attempt by anybody to in any fashion, interfere with the evidence in that premises would be dealt with in the most severe fashion. But further, sir, I would suggest to the investigating officer, that myself and whoever else is permitted to enter the premises in the absence of a member of the prosecution be placed under oath at this time to state what their obligation will be and they will accept the responsibility to in no way interfere with the premises or the evidence contained therein, and we will respond again under oath tomorrow as to what, if anything, we may have done, if that kind of assurance is necessary. But I do think that we have arrived at the juncture now, almost five months after the crime that has taken place on the premises, that counsel for the defense at long last ought to be allowed to conduct its own investigation, without having looking over its shoulder the prosecution. We have never been given that privilege to look over the prosecution's shoulder, and it seems to me that the government has not articulated any reason at this time, they could reasonably expected anything to go wrong with us being allowed to be inside with the furniture and the boards that are left in that house. There are, among other things, inventories of the property there. There are photographs of the property there. The government has other assurance that nothing can happen or go astray. It seems to me that it would be regrettable at this point that we should even be arguing of our right to have access to the building. There can't conceivably be anything that is in the building that the government would not know instantaneously had either been removed or tampered with if someone was inclined to do so, from that standpoint of the accused. But I must say, sir, frankly, Colonel Rock, that I take some umbrage at the suggestion that counsel for the accused is less honorable than counsel for the prosecution. I think we are entitled to same credibility before this investigation or any other bar as attorneys of the court, as attorneys representing the accused, who are certified to some extent and are members of the bar of various courts, that we would in fact accept our responsibility to use these premises only in the legitimate purpose, and, of course, in no way attempt to impede this investigation or other investigation that might be made at a later time.

CPT SOMERS: Sir, to begin with, the regulations surrounding the security of evidence of this type will not permit personnel to be present in the house without the custodian or the person charged with the custody of the house present. Now the government counsel has never been present in that house except under those circumstances, and as I understood the regulation surrounding it, neither can the defense counsel. It is not a question of whether they could reasonably be expected or not reasonably be expected to change or alter, or in some way tamper with that house. It is a question of whether or not the army Regulations will permit it, and I do not believe that they do. I personally feel that it goes too far for the defense to go in there at all, however, if they are permitted to go in there I can be fairly certain, sir that it cannot be in the absence of the person charged with the custody of that house.

COL ROCK: Perhaps there may have been some misunderstanding, because it was my intention that if, in fact, arrangements can be made, that some representative of the government charged with overall responsibility for the house, and its contents would be so present.
There is no question in my mind. Apparently this has been misconstrued, but there will be some governmental representative there at the time.

MR. SEGAL: That is the point of my suggestion, sir, that I think we should be entitled to be there, at least without a representative of the prosecution. If, in the interest of protecting the security of the property I would suggest --

COL ROCK: I had not intended -- excuse me -- that counsel for the government would be there, Mr. Segal.

MR. SEGAL: I did not assume that, sir, but I did assume the fact that one of the investigators in this case, who are really agents of the prosecution would be present. But my suggestion to the court will be twofold; that either a person who is totally uninvolved in any aspect of the investigation, designated military officer, be present for the purpose of securing the premises; or that the legal officer of this investigation be present. We would accept his presence as a neutral observer to assure the preservation of the premises.

COL ROCK: I'll have to determine what sort of an answer I get from this inquiry by Mr. Ivory, and whatever the regulations require of me in trying to accomplish basically what has been requested, I will have to accede to the regulations.

CPT SOMERS: May I bring up another matter, since we are now without the witness, and I do wish to bring it up on the record.

COL ROCK: Make it brief, please.

CPT SOMERS: Yes, sir. The government requests as the first order of business tomorrow morning that it be permitted to put Mr. Caverly of the FBI on the stand to testify. We have managed by purely -- by personal favor of Mr. Caverly to delay his trip until tomorrow for him to testify, at the cost to him of some of his leave, and we cannot longer delay him for this purpose. We request, therefore that he be permitted to testify as the first order of business tomorrow morning, because as you are aware, from that point forward he will not then be available, for another two and a half weeks.

COL ROCK: This appears to be a reasonable request.

MR. SEGAL: I am very much troubled, sir, because I fear that Mr. Caverly's testimony will not be short, nor will its cross-examination be short, and we have a problem here of a witness who had now come to us on cross-examination. I would have been -- I would have thought it more helpful if we had known earlier today that this was to be the situation, to hold this matter until a few minutes before five p.m., and to announce that we are going to have a disjunctive examination of this witness, presents a great problem. We have to abandon the preparation we are making of the cross-examination with Mr. Ivory, and to go ahead with the preparation on Mr. Caverly. I do feel that it really stretches the many courtesies this inquiry has extended to all counsel, to place this matter so out of context. I fear that we'd lose something substantial in not having the cross-examination of Mr. Ivory follow directly behind the direct examination and I think that we would be in a position of having to try and reconstruct what Mr. Ivory has said and done, and I fear that will lengthen the examination of Mr. Ivory because we are picking up pieces of today's testimony, all of which I think could have been obviated by a more prompt appraisal to all counsel of the situation involving Mr. Caverly.
I think we could have proceeded in other fashion that would have avoided this kind of bind it places certain counsel for the accused in.

CPT SOMERS: I would like to point out first that counsel for the accused has been aware for some time that Mr. Caverly would testify in this hearing in terms of preparation for him doing so. And, second, that insofar as the government is concerned, the examination of Mr. Caverly should be very brief, and, as I have already stated, it has only been by virtue of Mr. Caverly's generosity in giving up some of his leave, that we've been able to retain him here this long.

COL ROCK: When was counsel first advised that Mr. Caverly would be available tomorrow?

CPT SOMERS: Sir, I was advised of this about mid-afternoon today, and I wished then not to break up this proceedings until it came to a natural breaking place, and bring this issue up.

COL ROCK: The request is granted. Mr. Caverly will be the first witness of order tomorrow.

CPT SOMERS: Very good, sir.

COL ROCK: This hearing will be recessed.

(The hearing recessed at 1651 hours, 21 July 1970.)

 

 

Home  -  Contact  -  Scholarship Fund  -  New Upload  -  Christina's Corner  -  Resource Page
Chronology  -  Claims vs. Facts  - 
Various Documents  -  CID Records  -  FBI Records
April 6, 1970 Interview  -  Article 32 Hearing  -  Psychiatric/Psychological Data  -  DNA Results
July 23-24, 1970: John Cummings' exclusive interview with MacDonald  - 
Polygraphs
Affidavits  -  Grand Jury Transcripts  -  1979 Trial Transcripts  -  MD License Revoked
1987: MacDonald v. McGinniss  -  Mildred Kassab sues MacDonald  -  Court Records

 Parole Hearing  -  Kassab's Work  -  Bob Stevenson Answers Your Questions
Photograph Pages 

 


Go to top