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Jeffrey MacDonald's Article 32 investigation hearing: 1970 - Volume 17
Lt. Colonel Bruce H. Bailey (MD); Lt. Edwin G. Casper; Lt. Joseph Paulk;
Staff Sergeant William Boulware; CWO Franz Grebner (CW3 CID Chief Investigator);
Captain Jeffrey MacDonald (recalled)

(The hearing reconvened at 0830 hours, 10 September 1970.)

COL ROCK:  This order will come to order.  Let the record reflect that those parties who were in attendance at the recess yesterday are currently in the hearing room.  At this time, does the government have any further rebuttal witnesses or evidence to present before this hearing?

CPT SOMERS:  Sir, the government has no further witnesses and no further evidence save should it find that laboratory report.  In other words, with that exception, we rest.

COL ROCK:  Does counsel for the accused have any rebuttal witnesses or additional evidence to present?

MR. SEGAL:  Nothing as far as rebuttal to the government's rebuttal, sir.  I do have at this time a photograph I wish to offer into evidence to substitute for the actual white floppy hat that was here, and I hand up to the investigating officer a black and white photograph which has been previously agreed to be substituted for the original hat and make available to the government a copy for its files.

COL ROCK:  That is accused exhibit 42.  At this time the investigating officer has certain witnesses and or evidence to present before this hearing.  First will be Lieutenant Colonel (Doctor) Bailey.

(Lieutenant Colonel Bruce H. Bailey was called as a witness, was sworn, and testified as follows.)

Questions by COL ROCK:
Q  Would you please state your name, rank, arm of service, and current military address?
A  Bruce H. Bailey, Lieutenant Colonel, US Army, Medical Corps.
Q  And your current military address?
A  Walter Reed General Hospital, Washington, D. C.
Q  What is your present duty assignment at Walter Reed?
A  I am Chief of Psychiatry Services at Walter Reed Hospital.
Q  Doctor Bailey, would you please describe to me your educational background?
A  After graduation from high school in New York City, I attended the University of Kansas and the University of Illinois; went on to medical school at the University of Illinois; graduated in 1958; had my internship at Brook General Hospital at Fort Sam Huston; had three years of psychiatric residency at Walter Reed Hospital; and subsequently assigned as Chief of Neuro-Psychiatry at Fork Rucker, Alabama for approximately eighteen months; returned to Walter Reed Hospital for approximately two and a half years as Assistant Chief of Psychiatry; left the service at that time, was Superintendent of the Madden Mental Health Center, M-a-d-d-e-n Mental health Center on south side of Chicago; subsequently went full time with Loyola University School of Medicine as Assistant of Psychiatry for approximately two years; and then reentered the Army to my present position, and since September of 1969.
Q  Doctor Bailey, are you a member of any professional societies?
A  Yes, sir, I am a member of the American Medical Association and of the American Psychiatric Association.
Q  Are you board certified?
A  Yes, sir, I am board certified by the American Board of Psychiatry and Neurology in 1966, and have served as an examiner for that board since that time.

COL ROCK:  I wish to offer this hearing at this time Doctor Bailey as an expert witness.  Does counsel for the government desire to cross examine?

CPT SOMERS:  No, sir, the government has no objection.

COL ROCK:  Does counsel for the accused desire to examine?

MR. SEGAL:  No, sir, we accept Doctor Bailey's qualifications in psychiatry.

COL ROCK:  It will be so noted in the record.

Q  Now, Doctor Bailey, have you recently had an occasion to conduct a psychiatric evaluation of Captain MacDonald?
A  Yes, sir, I have.
Q  Sir, I hand you herewith a document and ask you if you can identify this document?
A  Yes, sir, this is a report of psychiatric evaluation which was conducted by myself and two other psychiatrists at Walter Reed General Hospital.

COL ROCK:  At this time, I'd like to announce for the record that both counsel for the government and counsel for the accused have copies of this particular document.

Q  Do you have a carbon copy of that document, sir?
A  Yes, sir.
Q  If you would please, return that and I will mark this as Investigating Officer's Exhibit R-1.
Now, Doctor Bailey, would you please describe in layman's terms, generally how this psychiatric examination of Doctor MacDonald was accomplished?
A  Well, after the initial request was made for an evaluation, Captain MacDonald and Captain Douthat arrived at Walter Reed on the 17th of August and at that time Captain Douthat briefed me as to his understanding of the request for evaluation, and subsequently, that afternoon, Captain Somers and Captain Thompson, briefed me as to their understanding of the request as well as to information in regard to the case.  I made a decision at that time to--I had already made a decision to involve two other medical officers, both of whom are board certified, and arranged a series of interviews, initially with myself as outlined in the report.  I had available to me at that time the testimony of Doctor Sadoff, as well as a psychological report from Doctor Mack, who Doctor Sadoff had asked to assist him in his evaluation.  I interviewed the subject myself on the 18th of August and on the 20th of August.  Captain MacDonald was interviewed by Lieutenant Colonel Morgan on the afternoon of the 28th, and was interviewed by Major Edwards on the 19th.  Both Lieutenant Colonel Morgan and Major Edwards had minimal information as to the nature of the case, very sketchy ideas as to what was going on, primarily because it was most useful if they used their time to get acquainted with Captain MacDonald the best they could as a person.  After we met on the 20th and 21st of August it became clear that we were being asked for a formal sanity evaluation and statement and I felt that before we could proceed with any such comment or investigation we would need additional information, and such was required, as is again outlined in my report.  We received that information and, I believe, also to include, I had a conference with Captain Beale on the 27th of August.  Captain Beale brought the information we had requested and Captain Douthat had arranged for us to receive the raw psychological data for us to go over.
Q  Do you think you were provided with sufficient information either from Fort Bragg sources, Doctor Sadoff, Doctor Mack, or other sources to make a proper evaluation?
A  Well, sir, I--in a situation like this, when one is some eight months away from a given event, one wants to have access to every piece of information available.  I think I am satisfied with as much information as was available was provided to me, yes, sir.
Q  Proceed.
A  We then accomplished an electroencephalogram, which is a brain wave test, on the 1st of September, which read normal, and Captain MacDonald was interviewed again by Colonel Morgan on the 1st of September and by myself on the 3rd of September.  We were at that point satisfied that we had had sufficient information, again as much information as was available, on which to offer an opinion as to the questions we were being asked.
Q  Now in view of the fact that Doctor Sadoff saw Captain MacDonald approximately two months following the murder, you and your associates saw him some six to seven months afterwards, in your opinion does this time differential affect the accuracy of your diagnosis to any significant degree as compared to that of Doctor Sadoff?
A  Well, I think we took into account the fact that Captain MacDonald had been going through this procedure, as well as had been interviewed at some length by Doctor Sadoff, and therefore there many areas that we would talk with him about which were not “virgin territory” for us.  I think in terms of our ability to gain an assessment sufficient to respond to the questions that we were asked, and given the collection of testimony of people who have offered testimony in this hearing, who saw Captain MacDonald, dealt with him immediately following around the morning of the 17th, I think that the time factor is not significant, no.
Q  Now I notice on page three of the report, Doctor Bailey, that there are three signatures.  Does this indicate that each signatory concurs in the findings listed in this document?
A  Yes, sir, it does.
Q  Now would you please describe in general terms your findings and elaborate upon them in any manner that you see fit?
A  Well, as finally understood, it was my understanding that we were asked to offer opinion in terms of sanity of the subject, Doctor MacDonald, which in terms of how we are asked to make this response, this is structured in a series of questions.  The question, the primary question that precedes any question in such an evaluation is--is there any evidence of emotional disease, defect or derangement, or was there any evidence of emotional disease, defect or derangement, and I can say that this was the primary point of our inquiry in attempts to evaluate Doctor MacDonald.  The opinions that we offer essentially are based upon that primary evaluation.  The first question that we dealt with was--was there disease, defect, or derangement which would have impaired ability to know the difference between right and wrong?  We felt there was none.  The second question is whether there was evidence of disease, defect or derangement as to be able to adhere to the right at that particular time with regard to the acts charged.  It was my opinion, and on the basis of available information, there is no evidence that such a defect existed which would impair that ability.  A more delicate question, which has actually been more recently introduced into our military procedures, relates to the capacity to formulate intent with regard to a specific act.  Again, the primary point is--is there evidence of disease, defect or derangement such as to impair, and this is the major thrust of the question, and on the basis of the information that we have available, there is no evidence of such defect such as to impair ability to formulate intent with regard to those acts at that particular time.  The next question relates to is there impairment on the basis of the disease, defect, or derangement as to ability to cooperate in his own defense.
We felt that there was no evidence of such defect.  These are the standard forms of the questions that we respond to.
Q  Now what further questions were you asked specifically by the investigating officer, and what were your findings?
A  Well, it was my understanding that we were asked to deal with a question as to whether this person, the subject, Captain MacDonald, was capable of committing this act; and secondarily, on the possibility that he had committed this act, is he hiding it from his self or from other people?  I can say that a great deal of deliberation and discussion was invested in an attempt to responsibly respond to those two questions.  My opinion, and the opinion of my staff, is that the question regarding capability to commit a given act is not within the realm of the psychiatric expert in terms that--that is the psychiatric expert is not especially quali-fied to respond as to a person's capability of committing a given unique, most unusual, act.
With regard to capability of hiding, it's my opinion that this is possible.  I have no evidence or impression that this is the case in terms of deliberate behavior on the part of the subject, and feel that I can go no further again in offering psychiatric expert opinion.
Q  Thank you, doctor.  It's certainly not our intention that you go beyond what you feel you are professionally capable of providing.  One final question, sir--in your capacity as Chief of the Psychiatric Services at Walter Reed, do you feel that your position influenced, because of that position, and your rank, the opinions of the other two doctors involved in the evaluation?
A  No, sir, I do not.

COL ROCK:  Does counsel for the government have any questions of this witness?

CPT SOMERS:  Yes, sir, I do.

Questions by CPT SOMERS:
Q  Doctor Bailey, did you have occasion to consult with an expert outside your own staff with respect to this evaluation?
A  Yes, as we got into the process evaluation, I think primarily because of the nature, and rather unusual nature, of this question in this case, unusual in our experience and probably in most people's experience in this area of forensic psychiatry, I decided that it would be useful to ask for consultation from someone who primarily works in this field, to offer me and my staff technical consultation as to how we had conducted our evaluation and as to how we might most usefully respond to the questions.
Q  Can you tell us, sir, who this consultant was?
A  Yes.  The consultant was Doctor Jonas Rappapor, who is Chief Medical Officer of the Supreme in Baltimore, who is well recognized, I think, as a man experienced in this area.  I believe he's also president of the newly formed Association of Psychiatry and the Law.
Q  Did Doctor Rappapor essentially agree with the conclusions that you reached, you and your staff reached?
A  Well, that would be putting him at a disadvantage.  Doctor Rappapor had only what we had to offer him in terms of information, ideas and we spent about three hours together talking.  The task I asked him to perform for us was to serve as a technical consultant in terms of how we had conducted our evaluation, to offer ideas, if any, as to other areas we might get into, and to help us think about the questions on page three, specifically with regard to capability, and essentially I would say that Doctor Rappapor concurred in our findings based on what we knew of the information that was available.
Q  Well, directing your attention, sir, specifically to the question of capability of committing an act, did Doctor Rappapor and your staff agree with your conclusions that this is a question which is probably outside the scope of the expertise of the psychiatrist?
A  Very definitely.
Q  Then what you are saying, sir, is that it is your conclusion--not simply that you are personally not expert in dealing with such a question, but that probably psychiatrists as a whole are not particularly expert in dealing with this question?
A  I would agree with that, yes.
Q  Now in paragraph 5a, doctor, the second sentence of your report, the sentence appears “Our answer to the question regarding capability is that it is possible.”  You go on then to state that you don't feel that you can offer an opinion as to the probability?
A  That's right.
Q  If I may rephrase this, since it's relatively simple language, but I like to make sure that I understand it, you are saying that as best you can determine, Captain MacDonald may be capable of such an act, but you cannot hazard any sort of an opinion as to whether he probably either committed it, or is probably capable of it?
A  That's correct.
Q  In evaluating Captain MacDonald, how do you assess his self-image?  Can you answer--is that a meaningful term that you can answer?
A  How do we do it?  Is that what you are asking?
Q  Well, now I don't think I intended to ask how you did it.  What is your evaluation of his self-image or--if you can use that term?
A  Well, my hesitation relates to my attempts to again keep within my province as an expert.
My impression of Doctor MacDonald is that for him, as well as for the rest of us human beings, his self-concept is important to him, how he sees himself is important.  I think at the time that we accomplished this evaluation, his self-concept was troubled, primarily because, or related to the fact that, as I stated in the report, we see him as having a current depressive reaction, a current depression, and his self-concept is troubled, muddy, by the feelings related to failure, feeling related to not having fully handled or conducted himself in such a way as to prevent or obviate or negate the events of February 17th.  In terms of his overall life style, I think his concept of himself is as an achiever, as a striver, as a man who is capable of committing his energy to a task and accomplishing it, and as having been able to do that better than most of the time.  Again, I don't know whether I am muddying or confusing by offering that, but that's how I would assess or--that's how I would assess.
Q  Well, in general--if you can state in general--and particularly before the events of the 17th, how does Captain MacDonald see himself in terms of his own masculinity?
A  My own assessment is that Captain MacDonald sees himself as very much of a man, and in terms of achievements, as he understands his role and his function as a man is important to him, quite important.  That's an assessment that I make on the basis of my evaluation.
Q  Is Captain MacDonald more sensitive than perhaps the ordinary person would be to any attack on his masculinity?
A  I am in trouble with the “more” because it gets into more or less.  If you are asking me, is this of significant importance to him, in terms of how he looks, how he presents himself, I think yes, that's significantly important to him.  To put it on a scale of more or less with regards to other people is extremely difficult.  I do not by any means intend to say that I think this is beyond some kind of normal range of human behavior.
Q  Are you saying then, you don't think it's abnormal?
A  I am certainly saying that I don't think it is abnormal.
Q  Do you think that Captain MacDonald reacts in that area as the average man would react?  If you have difficulty with that term, let me ask you in a more general question.  How do you think he reacts to failure?
A  Well, my own assessment, based essentially on what Doctor MacDonald was able to tell me about himself, is that he hasn't failed--I was going to say very often--but he hasn't failed, with the exception of this event, in terms of his own concept of his ability to handle the situation.
Q  He sees then himself as not having ever failed with the exception of this incident?
A  I think you are pushing me to put “not having ever” but, yes, I think his general picture of him is that he succeeds.  He does things which he sets out to accomplish without experiencing failure.
Q  If Doctor MacDonald can be characterized to have a weakness, would it be fair to state that that weakness could well be his own concept of his masculinity?
A  If he can be characterized as having a weakness?  If it is accepted and understood that this has something to do with a general picture of a human being, among whom I have yet to meet a perfect one, and if we're talking about an area of sensitivity, or possible vulnerability
--what I think I am trying to do is not deal with the word “weakness” because I think it has connotations that are grossly mis-interpretable--okay, I've clarified the part of your question.  We deal with the next part.  What was the second part?
Q  Could that weakness or that area of sensitivity or vulnerability be his picture of his masculinity?
A  I think, you know, I think it makes sense to me; whether it can make sense to other people or not, or a layman or not, I don't know, to--yeah, that can make sense to me.

COL ROCK:  I'm not sure I quite understand you, doctor.  You say that that makes sense to you.  Are you saying that you agree with the latter part of that question?

WITNESS:  Okay, may I ask that it be restated again, please?

COL ROCK:  Yes, please.

Q  If Captain MacDonald can be said to have a weakness, or, as you have defined it, an area of sensitivity or vulnerability, do--could it be said that that area of weakness or sensitivity or vulnerability was his own image of his masculinity, or his own feelings toward his masculinity?
A  Yes, as I have tried to define out of your question this concept of weakness, because I--I think it is--it ain't a professional term.  It does not help in getting how a particular person operates, or how his life style is. 
Q  Very good, sir.  If we eliminate the word “weakness” and substitute the word “sensitivity” and “vulnerability”, then you agree with the general comport of that statement?
A  I do.
Q  Doctor, in evaluating a man psychiatrically, would you say that objectivity is a necessity for the psychiatrist, at least a striving for objectivity?
A  Well, I can say that it is for me.  I think--yeah, I can say that it is for me.  To attempt to maintain a position where one objectively assesses information, data, observations, feelings that he observes, ways of handling feelings, and if objectivity means that one keeps oneself open to all sources of information possible--if that's an understood concept of objectivity, yes, I think it is important.
Q  If I may expand on what I mean by objectivity, sir.  As part of keeping one's objectivity, would it not be desirable for the psychiatrist, if possible, avoid subjective personal feelings or friendliness or hatred or anything else along that line, towards the subject being evaluated?
A  To the extent that one can accept the fact that a psychiatrist is human and does, as a matter of fact, have human reaction and feelings; most of us, in terms of our training, and in fact I would say that's probably one of the co-issues of training in psychiatry, is being able to take feelings, reactions he has to a given person in a great situation and use that data.
Now, again, I think I am defining objectivity.  Perhaps I'm not.  If I can be more clear, I'll try to be.  The fact that Doctor MacDonald is a warm, engaging, personable, young man, who establishes rather quickly a sense of warmth, is, I think, part of his life style, and it's certainly part of the picture of him as a person.
Q  Sir, I gather you have read the testimony of Doctor Sadoff?
A  Yes, sir.
Q  Can you give us an opinion from his testimony whether Doctor Sadoff maintained the necessary objectivity with respect to his evaluation?
A  I think I would be way out of bounds to--to ah--you know, the only data that I have in dealing with Doctor Sadoff is his testimony and two telephone conversations I had with him.  I don't think personally that his testimony, per se, is something that allows me to come to a conclusion as to his maintenance of objectivity.  Certainly as I read it he said that he had a rather positive reaction, warm reaction to Doctor MacDonald.  I could not hazard a guess as to whether this impaired his ability to offer an objective opinion, because I haven't had the opportunity to sit down and compare data and compare facts and go over it with him.

CPT SOMERS:  No further questions.

COL ROCK:  Counsel for the accused?

Questions by MR. SEGAL:
Q  Doctor Bailey, if I may, I would like to clear up this very last matter that you were talking about, about the objectivity of Doctor Sadoff's examination.  I would like to read to you a question that was put to Doctor Sadoff at the hearing, sir, and his answer, and then ask you whether that answer in the context of the question indicates to you some basis for belief or suggesting that Doctor Sadoff is something less than objective as a psychiatrist seeks to achieve in the relation with their client.

COL ROCK:  Excuse me, counsel.  What page is that?

MR. SEGAL:  I am referring now to page 1264 of the Article 32 proceedings.

CPT SOMERS:  Sir, I'll object to that.  The doctor has read the testimony of Doctor Sadoff.  Now as I understood the defense question, he wants this in context, I suggest he either asks the question based on Doctor Bailey's memory of that testimony, or that he read the whole contest of that question.

CPT BEALE:  The objection is overruled, Captain Somers.

Q  The question that was put to Doctor Sadoff by Captain Somers was as follows.  “Doctor, you've said several times that Captain MacDonald, as you know him, would not do a specific thing, and this leads me, if you will excuse me, Doctor, to the question of your own reaction to the man.  How do you feel about him personally?”  And Doctor Sadoff answered as follows.  “Well, it is a difficult question, because I rarely think about how I feel about a person personally when they are patients.  But if I allow myself that indulgence today, he's very gracious.  He's a very warm person whom I must admit I like.  I--for example, when I came up here today he had his hand out with a smile.  But that's characteristic of him.  It's hard to always put people's behavior in clinical terms.  It sounds kind of cold and detached.  Sometimes we have to do that, but he is likable, yes, and I found working with him a great deal more pleasurable than working with many of the people I have to.”  Now, is there anything in that answer by Doctor Sadoff that would lead you to believe that he gave indications that a relationship that Doctor Sadoff had was somehow subjective rather than objective, because apparently he found Captain MacDonald a likable person?
A  I'd like to expand a bit.  The decision as to whether--I'm offering my belief, not my guidance, as to whether a given witness or evaluator in a given instance is objective, is the responsibility of those people who have to listen to and process what that person has to say.  What you have read to me does not suggest to me that there was a loss of objectivity, an ability to do those things which I said I would do in accomplishing an evaluation, which is to process all of the data that I can get to come to some reasonable conclusion as to an opinion in regard to questions I am asked.  Again, even the decision as to whether a given witness, be he expert or otherwise, has veracity or is honest, or is objective, or is thorough, I'm afraid has to rest with Colonel Rock, rather than with me in commenting on this.  I--I did not observe Doctor Sadoff's evaluation.  I don't have a transcript of his evaluation.  I don't need it, I don't think, and I don't feel that I am capable of commenting on--did he seem to have been able to maintain objectivity in his evaluation.  I don't think that's something I can comment on.
Q  I don't mean to belabor the subject.  I'll ask one other question.  Do you have an impression based upon reading Doctor Sadoff's testimony and whatever of it that you now recall, that there was anything in his testimony, as you read it that appeared to show a loss of objectivity?
A  Well, I'll begin to answer your question, and then I will expand further, and you can stop me if you wish to.
Q  Excuse me.  I will amend the question, if I haven't made it clear, because he found Doctor MacDonald likable.
A  Oh.  I have to agree with Doctor Sadoff--it was a pleasure to work with a subject or a patient who is likable.  In terms of my own reading of what Doctor Sadoff has to say, and what I have to say may or may not be accurate, but my impression is that Doctor Sadoff offered opinion as to whether he felt that Doctor MacDonald was capable of committing a given act.  It is in that specific area, I think--and I discussed this with Doctor Sadoff--that I would tend to disagree as to the ability of an expert to testify.  The fact that I might disagree with him professionally in a conference or something is a completely separate issue.  In terms of ability to offer expert testimony I think that I could not allow myself to go as far as Doctor Sadoff went as I recall as I read his own testimony.  In offering an opinion as to the likelihood that a person was committing a given act, this is again the substance of the clarification we tried to make in our evaluation on the last page of our report.
Q  Would it be accurate to say that you and your two colleagues at least were of the opinion that psychiatrists should not try and venture into the answer of the question of probability?
A  You said would it be safe to say that we would not want to venture into that?
Q  Yes.
A  Yes, I think that's safe to say.
Q  And is that really your disagreement with Doctor Sadoff, that he tread where you would choose not to tread?
A  In that area, yes.
Q  Now may I ask why--some additional detail you've already given us--you felt there was something special that Doctor Rappapor from Baltimore was in brought in?  That is, what is the specifics that he added to your own cumulative knowledge of your section at Walter Reed Hospital?
A  Well, again, if I may put that in context.  We have a fair--because of the nature of the Walter Reed Hospital and of the nature of it being used at times as a special place for evaluation of special kinds of problems--we have at Walter Reed a fair degree of experience in issues in which we have to offer opinion as to responsibility, capacity to understand right from wrong, et cetera.  We have a fair amount of experience--I personally have a fair amount of experience in dealing with subjects, patients, who are involved in questions of committing, related to the commission of murder.  I'm not uncomfortable in terms of my experience to of-fer an opinion in that area.  As we, however, in the course of that two weeks or so, as it became clear that this issue of probability seemed to be a significant and major issue--and that's our appraisal--it may not be accurate--but it's my appraisal based on a phone conversation, as well as reading Doctor Sadoff's testimony, I felt that I could usefully benefit from a technical consultant.  And when I say technical, I did not in any way ask Doctor Rappapor to offer an opinion in the same way that I am offering an opinion.  That would be unfair because he did not have direct ability, access to Doctor MacDonald's interview or anything else.  I asked him to serve as a technical consultant, and he maintained, I think, that position.  And I asked because obviously this is a--a very important matter being decided.  It is an extremely unusual matter being decided.  It's a matter that I certainly do not have experience with at this stage of the game, it is usual to--most unusual--to be asked to accomplish this kind of evaluation in this kind of case at this stage of the proceedings, and therefore as I think any doctor would do in a given instance I asked for someone who works primarily in this field to come in and offer consultation.
Q  Now you say “works in the field.”  Again, are you saying that Doctor Rappapor is recognized as a specialist in forensic psychiatry?
A  That's correct.
Q  And what you were doing is asking for, I presume, technical suggestions in terms of had you followed all the possible procedures that you might follow to evaluate the subject and other--
A  And the issue of probability in terms of how far can we go.  What can we offer as expert witnesses?  In those two areas was the major context of that consultation.
Q  Now in regard to the answers that you gave to questions on page 5--paragraph 5 of the report--

COL ROCK:  Paragraph 4?

MR. SEGAL:  Paragraph 5 on page 3, sir.

Q  You stated that in regard to the capability of Captain MacDonald to commit the act, that it was possible.  Could you clarify for me the context or the meaning of the word “possible” as you and your colleagues would use it?  How maybe you were using it in conventional lay term or does it have a special significance to you as a psychiatrist?
A  I don't think it has a special significance to me as a psychiatrist.  Does that answer your question?
Q  All right, now may I ask when you say “possible,” what were you intending to convey in terms of that word, that is there are things which are mathematically possible?  Or are we talking about something that you say is certainly a psychiatric possibility?
A  You know, the way you phrase it, probability is in there.
Q  I know that, Doctor Bailey.  What I was thinking of, and again I have reference to the mathematical possibility.  When we talk about a remote mathematical possibility, that is a one chance in a million, if we can use that expression.
A  A person would then have to respond “yes” if you have one chance in a million that something will happen, it is possible.  But then that also places a probability factor into the question.
Q  Without attempting to put you in a position of placing a probability factor in Doctor MacDonald's case, what I am trying to ask you now is to put your use of the term “possible” in a context like that.  Are you talking about something of a large possibility, substantial possibility, or are you talking about a remote possibility, or you may choose any place, any side of the guideline?
A  Well, you know, you are still talking about a probability as far as I can hear.
Q  I suppose so.
A  But I can try to expand.  In terms of my capacity or my awareness of other psychiatrically trained people's capacity to deal with predictions with regard to human behavior, we are significantly limited.  Significantly limited in our ability to validly, that is with a significant degree of concurrence between our prediction and the event.  We are not very good at it.
    Certainly when it comes to an extremely unusual event, and when it comes to one person, to try and tie together something that makes some kind of assertion as to whether it is possible or impossible, that does, as you have just done, bring in the figures that relates to odds of probability, is--I personally think--beyond the scope of a psychiatric expert.  And when I say possible I mean possible as I think everybody in this room understands possible.

COL ROCK:  May I interject?  Then could I paraphrase your statement by saying any thing's possible?  Would you go that far?  Do you mean in that fashion?

WITNESS:  Pretty close to that, yes, sir.

Q  Can we take the converse of that question and ask you, doctor, whether you would say in the circumstances of a given patient, that it was impossible for him to commit an extreme act of violence, a triple homicide?  Do you think that given circumstances would ever be a situation that you could arrive at such conclusion that it would be impossible for such a subject to have done a given act?
A  Well, I personally have not had that experience in my training or in my subsequent work as a clinical psychiatrist, number one.  Number two, I've been surprised a number of times when I have entertained the idea of what I think person is able to do or not able to do, probably do or probably won't do, as I worked with them.  I've been surprised.  I think I've tried to answer your question.
Q  Well, you do suggest, don't you, that sometimes you have to get into the field of predication, though?
A  In my profession as a clinical psychiatrist, yes.
Q  Well, is there some significance in saying as a clinical psychiatrist, as opposed to saying you are a psychiatrist have to get into the business of predication of--oh, behavior, progress of clients, patient development or regression of development?  Aren't you talking about predication as a tool of psychiatrists?
A  Well, first of all, I was talking about the fact that as a clinician, working with someone, thinking that oh, I have assessed this person as best I can, having the experience of being surprised by a given event or occurrence in terms of behavior under a given set of circumstances; do we get into the area of predication?  Yes, a great deal of research and work is being done in the area of predication.  I--if I am digressing too far, stop me.  We are asked to make predications with regard to the ability of a young candidate to complete aviation training.  We are asked to conduct a series of examinations such as we develop a level of probability that this guy is going to succeed, because there is a lot of money riding on it, because there's a lot of investment in him as a person, and we are asked to make probability types of decisions, and we do.  We are far from 100% reliable in terms of our ability to make those predications.  We are asked to make predications in terms of security evaluations.  I do that personally quite commonly, in terms of being asked an opinion as to do I consider this person as a responsible reliable risk, which obviously contains within it a question of do I consider that there is significant likelihood that this individual will at some point in his life breach security, and I have to make a decision, yes.  So I am not unfamiliar with that.  I do want to clarify that I think that in this instance we're talking about an extremely rare, unusual event, and we are talking about one person, not a hundred people who I could then make a predication about a certain percentage of or something, and I don't believe that I have the skill to offer a predication or offer a statement about probability in this case.
Q  Are psychiatrists called upon, though, when dealing with certain emotionally disturbed cases to make a predication of their likelihood to commit suicide, which I think also would be characterized as somewhat of an unusual act?
A  Well, it's sufficiently usual that it's probably two to three times a day in my clinic.  Maybe that's an exaggeration, certainly a number of times a week.  Yes, we have to make decisions as to whether we could consider a person a suicidal risk.
Q  And in a sense, of course, in determining whether he is at risk, you develop a certain number of devices or indicators to help you make that determination, do you not?
A  Right.
Q  Did you use or apply any of those indicators that you are talking about in determining a suicidal risk--that type of tool--in making an evaluation of Captain MacDonald?
A  Well, when you say “that type” are you going with my definition of how I approach it, or do you have something else in mind?
Q  I am going with your definition.
A  Did I assess?  Number one, was there currently a significant risk in Doctor MacDonald in terms of some sort of suicidal behavior or act?  Yes.  Did I assess that he, at a given point in time, had considered suicide and was a suicidal risk?  Yes, I did.  And we discussed the issue.
Q  And did you arrive at a projective conclusion as to whether you thought he was or was not a suicidal risk?  Did you make some predication in your own mind or--
A  Sure, I did, because I--I felt that at the present time, that I did not see him as a suicidal risk.  I see him as having a depression, as I said, of significant proportion.  I see him handling this primarily through his handling of these proceedings, I think primarily.  I assessed his--I and other doctors, I'm collating all this together--assessed his sleeping patterns, his eating patterns, his concept of the future, his concept of self-worth, his concept of where he could go from here; these are the sorts of things that we assessed.  I assessed his capacity to act impulsively, and I asked him directly about experience of suicide thinking and we talked about it on two occasions.
Q  And I assume that these various other areas, the ones in addition to suicide that you and your colleagues made some predications for yourself that is you did not view him as being able to do something in the future, was or was not viewed as a person who would complete his career as a physician?  You made a number of other judgments like that, I assume, about him?  Did you, in these predications about Captain MacDonald, attempt to determine whether, if he had committed the crimes which he is charged with back in February, what the likely future course of his conduct would be?
A  What predications?
Q  Well, if you--let's put it this way--if you had concluded that Doctor MacDonald had committed the crimes in February, did you project what is likely his future behavior would be?
That is, he would or would not go on with his career; he would or would not commit suicide; he would or would not be a long-range possibility for mental illness because of it.  Or did you relate the events which he is charged with as a possible future conduct?
A  I find that still a complex question.
Q  At any time, making any of your predications of Doctor MacDonald's future probabilities of doing certain acts or behaving certain way, did you consider whether or not he had committed the crimes as a factor that would determine his future conduct?
A  Now, you keep talking about my predication of his future, or his behavior.  Have I entertained the possibility that he, in fact, committed a crime, and tried to put that into context of understanding how he was behaving in the course of our evaluation?
Q  And then projected that as to what is likely to happen to him emotionally or otherwise?
A  I thought about it, sure.
Q  You said before, earlier, that you didn't think there--it was a psychiatrist's duty to answer the question about Captain MacDonald's capability about committing this crime.  As a matter of fact, I recall Captain Somers asking you the following question and you gave the following answer.  Captain Somers asked you whether you had not said that you could not hazard a guess as to Captain MacDonald's capability to have committed these crimes.  Do you recall him asking a question with that phrase “hazard a guess” in it?  Does that seem familiar to you?  To my recollection, he did, and you further said that you agreed with that, you could not hazard a guess as to his capability.  Does that seem consistent with what you said?
A  Yes.
Q  May I ask that if a psychiatrist cannot hazard a guess as to capability, of committing extreme acts of violence, can he suggest who in our society might be an appropriate person or group to pose such a question to?
A  Come on, now!
Q  All right, I will.  Doctor Bailey, in your experience, don't judges, in sentencing persons convicted of crimes of violence, in determining the length to set a sentence, make a predication as to the likelihood of this person inflicting violence upon a society?
A  Surely, and juries make decisions as to whether a guy did it or didn't.
Q  Right, but their decision is a hindsight decision, and I'm saying that a judge is frequently called upon to make a predicted decision about such an act.
A  Right.
Q  Do you think a judge, without psychiatric training, is in as good a position, better position, or worse position than a psychiatrist to make a judgment on capability of committing acts of violence?

CPT SOMERS:  I object.  That's totally unconnected and irrelevant.

MR. SEGAL:  May I say, just, sir, the suggestion is that perhaps it was inappropriate for Doctor Sadoff to have made such a prediction and Colonel Bailey has indicated he would not do it, and I wish to show through the line of questioning now that I think there is some basis to believe that it is regularly done, and as a matter of fact, I will bring it in more closely in the field of psychiatry in a moment, but I do think this is so related to the criminal process.  We have to recognize that we are, all of us, engaged in the prediction of behavior as to violence.  That some of us have less adequate tools than others, and I think that psychiatrists may have more adequate tools, and maybe not.  Maybe Doctor Bailey would disagree with that.  But I think that's where we are going and that's relevant.

COL ROCK:  It occurs to me that the judge is placed in a position that he must make a decision, and I think it is recognized that his is not a scientific decision.  I wish you would go to another line of inquiry, please.

Q  Doctor Bailey, are you familiar with the work of Sheldon Gluck and his wife?  That's G-l-u-c-k. 
A  No, sir.
Q  Perhaps the more better known Gluck Studies, about the prediction of behavior of juveniles and juvenile delinquency patterns?
A  No, sir.
Q  Are you aware of any studies that are done by psychiatrists in terms of predicting the likelihood of delinquency from juveniles, that is taking data about the background, family, education of youngsters, and predicting a likelihood of their committing delinquent acts in the future?
A  In terms of that specific area, of a study done to predict whether future delinquency would occur, no, I don't know of any specific studies.
Q  Are you familiar that such work is being done, and such research is being done by psychiatrists in development of prediction in the area of delinquent behavior?
A  I hope it's being done.

CPT SOMERS:  I object to this line of questioning on the same basis.  We are still not getting anywhere.

CPT BEALE:  Mr. Segal, are you heading in a certain direction, here?

MR. SEGAL:  I think we are having a very useful kind of discussion about prediction and I think we are going someplace.  I want to ask Doctor Bailey whether or not he would agree or disagree with some other statements.  Now I have--I'd like to read, if I may, to you, Doctor Bailey--

COL ROCK:  Just a moment.  This hearing will be recessed temporarily.

(The hearing recessed at 1008 hours, 10 September 1970.)

(The hearing reopened at 1027 hours, 10 September 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.  I remind you again, Doctor Bailey, that you are under oath.

COL ROCK:  At the recess an objection was raised by counsel for the government on course of inquiry by counsel for the accused.  That objection is overruled.  Proceed, counsel.

Q  Doctor Bailey, I would like to read you about four relatively short paragraphs from an article and ask whether you agree or disagree with the paragraphs.  I want to identify first for the record, if I may, the article as being entitled “Dangerousness of Diagnosis and Disposition” by Doctor Melvin S. Heller, H-e-l-l-e-r, which appears in 46 Fed Rules Decisions, and it was published in 1969.  Doctor Heller further identified in the following fashion.  He is a clinical professor of psychiatry and director of the division of forensic psychiatry of Temple University Health Sciences Center.  He is a lecturer in law and co-director of the unit in law and psychiatry, Temple School of Law.  He is director of psychiatric services of the State Correctional Institution of Philadelphia.  Now, with just that preface, I want to read you first this paragraph and ask whether you would agree or disagree with Doctor Heller's statement.  It is entitled--the tile of the paragraph is--

CPT SOMERS:  Excuse me.  Before the question is put, the government would request that not only the paragraph in question be read to the doctor, but that he be able to examine the article as a whole.

MR. SEGAL:  I certainly have no objection to whatever point--if you'd rather adjourn and let him--I'd be delighted to make the whole article available.  It has been published and widely circulated.  I'll be glad--

COL ROCK:  Doctor Bailey, would you like to read or look at the whole thing, or is the procedure that's being conducted currently satisfactory to you?

WITNESS:  Will it be reasonable to first of all understand the question I'm being asked and then decide?

COL ROCK:  Yes, certainly.

WITNESS:  I might best respond.

COL ROCK:  We will hold your question in abeyance, sir.  Proceed.

Q  The statement that's contained in this paragraph is one that I'll ask you at the conclusion of which you find yourself in agreement or disagreement about with Doctor Heller's statement here.  “The determination of dangerousness then, with respect to an anticipated human behavior, emerges as a problem of prognosis or prediction of impending violence.  This prognosis, like any other forecast, depends upon the accurate diagnosis or evaluation of a situation, and its anticipated course of development with or without remedial interference.  As such, it depends upon the timely recognition of significant clues, signs or behavioral signals in a given setting.”  Now, while I would have three more paragraphs, I think of a similar nature, it is your choice, Doctor Bailey, if you'd rather look at the article for a short while.
    Might I ask in regard to that paragraph, did you find yourself in agreement or disagreement with Doctor Heller?
A  I would agree.
Q  The following paragraph appears under the heading entitled “Clinical Clues.”  Doctor Heller writes.  “Clinical histories have a quantitative and accumulative factor.  In its conclusion of a subject's emotional stability and reliability versus instability or predictability of dangerousness, the clinician is alerted to the possibility of dangerousness by an accumulation of data which tends to follow certain patterns seen in the background of known violent or dangerous persons.  Although no one of these factors by itself is pathomamatic, (phonetic) an impressive combination of them warns the clinician to look further and most carefully.”  There is a long listing of clues, et cetera, which I will not read to you, but I ask whether that portion of the paragraph is a portion that you find yourself in agreement or disagreement with Doctor Heller?
A  I would agree. 
Q  Continuing under the same title “Clinical Clues,” I want to read two short paragraphs that are consecutive to each other.  “Psychiatrists particularly look for history of episodes of unpredictable erratic or inappropriate behavior.  These might betray themselves in glibly explained job changes or gaps in the chronological history.”  Next paragraph.
    “Similarly impressive is a history of bizarreness of affect”--that's spelled a-f-f-e-c-t--“a cold fish who often given the superficial impression of a person who sticks to the same daily routine in a dull ritualistic fashion, only to suddenly and inexplicably explode.  Such behavior sometimes particular suspicious of latent schizophrenic cases or organic brain disorder.”  Would you find yourself in agreement or disagreement with Doctor Heller's descriptions there?
A  There is little to agree or disagree about.  The--he's commenting on how he would assess clinical clues, and I would accept what he says.
Q  Continuing again, under the same general chapter heading of, “Clinical Clues,” “The criminal act itself must be analyzed as an episode which is possibly symptomatic of underlying emotional pathology.  Of considerable importance is the quality and degree of premeditation and the subject's mental and emotional state in the hours or days immediately preceding the crime.  In retrospect, gestures for help are often seen as having been unheeded or unrecognized or ignored, and one sees a number of cases of episodic balance which constitute an almost transparent cry for external control or incarceration, when inner controls crumble.”  Would you agree or disagree with Doctor Heller's comments there?
A  I'll accept that.
Q  Is it fair to say from the four paragraphs that I have read here, that Doctor Heller is taking the position that a psychiatrist has a number of specific kinds of clues, be they acts of omissions, history of the patient, and similar kind of clues that he can rely upon to give him a basis for making a judgment about a man's ability to commit violence?  Is that a fair statement of what Doctor Heller said in the parts I have read to you?
A  Would you say that again, please?
Q  May I ask the stenographer to read back?

(Reporter complied.)

A  Well, again, I don't know how far you want to press this issue with Doctor Heller, and would like to reserve the opportunity to read the entire article if it seems that we are getting into an area that I don't have full understanding of.
Q  If I may clarify, I am just asking whether, in view of the facts, that you find yourself in general agreement with what appears to be general propositions stated by Doctor Heller, in order that I might go to the next question, I want to make certain in my own mind that we have in fact, in essence summarized Doctor Heller's position.
A  If I hear this, and as I would read the article, I think number one, I would--I would accept
--it would seem to me to make sense, what he has to say about the task that a psychiatrist has to do in trying to make predications.  I have a very major assumption, however, as I listen to this, and that is that Doctor Heller is in the position where he is dealing with a situation in which he is dealing with a subject who has committed an act of violence, that is in a correctional institution, or is about to be in a correctional institution, and he, as an expert, is given the task of advising the court as to how this person should be sentenced or whatever.  I think that's a very important distinction to make because I've been in that situation many times myself, in which, as he describes, one can assess accurately in diagnosis of a situation what, in fact, happened, what did the person feel?  What did he think of?  What was going on?  I don't feel I have that assessment in this situation, in this case.  It is not an accepted fact that a given act did occur.  I am not in a position in which I can tie together an accurate diagnosis of a situation with a history and, yes, I fully agree that I would look for quantitative and cumulative facts with regard to human behavior, in terms of impulsiveness, in terms of ways a person handles stresses, in terms of consistency of behavior, in terms of ways of dealing with loved ones as well as others, and I--in fact, I think--tried to collect this information as best I could.
Q  Aren't those all the kinds of signals that Doctor Heller is talking about that a psychiatrist uses to try and make a judgment, when he is in a position of Doctor Heller being forced to make a judgment?
A  Being forced to make a judgment about--I would guess, I may be inaccurate--but he is talking about making a judgment after a given step has been made, which has not been made in this instance, that is that a given person has been found guilty of a given act, and he is then asked to evaluate the individual and make predications about the future.

COL ROCK:  Counselor, I think the doctor is having to assume too much about what's in that article.  I think it would be appropriate at this time for him to be allowed to review it, if you wish to pursue this. 

MR. SEGAL:  I quite agree, although Doctor Bailey's assumption is right.  But I have no objection.

WITNESS:  Do you want me to read this now?

COL ROCK:  Yes, do you feel you have to read the entire thing, or can you just skim through it in five to ten minutes?

WITNESS:  Yes, sir.

COL ROCK:  This hearing will be temporarily recessed.

(The hearing recessed at 1041 hours, 10 September 1970.)

(The hearing reopened at 1100 hours, 10 September 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.  Doctor Bailey, have you had sufficient time to read the report that counsel for the accused presented to you?

WITNESS:  Yes, sir, I've been able to scan the article and think that I understand its contents.

COL ROCK:  Fine.  Would you proceed, counsel?

MR. SEGAL:  Yes, sir.

Q  And the assumption that you made about the circumstances of Doctor Heller dealing with predictions are in fact true?  The assumption of having to deal with persons who had been convicted?
A  (Witness nodded in the affirmative.)
Q  Now taking together the various suggestions that Doctor Heller has made about looking for clues, isn't that in fact, in part what you and your colleagues were doing in looking at Captain MacDonald?  That is you were looking for clues and signals about this person that might be of some indication about what behavior could be expected for or from him, or what behavior was possible from him in the past?
A  If I may expand a bit on Doctor Heller's article in terms of my own understanding?
Q  Certainly.
A  First of all, he's talking about the responsible position of a psychiatrist in advising the judge in a pre-sentencing sort of situation.  He spends a good deal of time talking about the fallibility of this capacity to make predications, and offers, I think, some extremely useful ideas, which I think we have incorporated as best we could as to how one goes about trying to assess this data with regard to predicting dangerousness, and now again, he is faced primarily with the problem of someone who has been convicted of committing a dangerous act, and make a prediction as to whether he will do it again, or whatever, which again, I would like to say, is an extremely different circumstance from my own in this evaluation.  I think there are a couple of parts I would like to add to your introduction.
Q  Certainly, you may feel free to add if you think it will clarify the inquiry in any way.  I'd be glad to have your suggestions in that regard.
A  Near the end, on page 597, he has a heading called “The Danger of Diagnosing Dangerousness.”  “Now that we have discussed some of the potentials and pitfalls of the prediction, of the methods used by clinicians to arrive at a prognosis based upon a dynamic, rather than a descriptive diagnosis, we might ask how much trust should a court place in a psychiatrist's report.  If you are asking about trust, the answer is none.  The judge can trust no one.  An observation worth considerably more than the U. S. ten-cent upon which it appears.  No report should be accepted in faith, but should be considered and weighed along with all the other evidence at hand.  The diagnosis is not a ruling, but an expert clinical opinion available for the court's consideration.  Psychiatric reports vary as much in quality and quantity as legal briefs and psychiatrists vary in professional competency and individual skill, background, training, and experience almost as much as lawyers do.”  The last paragraph is “The Freedom to be Formidable.”  “It is perhaps not by accident that the diagnosis of dangerousness is a difficult and complex one.  We must recognize that almost all men and women are potentially dangerous under certain circumstances.  The ability of man to hide his true feelings and intentions from others is part of his defensive foraging, hunting, breathing, business dealing, poker playing, tyrant, overthrowing ability.  The capability of man to conceal his dangerous designs by this time is part of his naturally endowed”--I'm sorry--“is part of his naturally evolved equipment, which makes it difficult for him to be permanently enslaved as a species.
Dangerousness and the secrecy of underlying hostile intentions are part of a man's heritage, a kind of biological 5th amendment with which man is endowed by nature.  The danger of a simple, infallible test for dangerousness is that it becomes the greatest tool for tyranny invented.  It should therefore be a matter of some comfort to courts and lawyers that its diagnosis is a most difficult, time consuming and responsible task.”
Q  I assume in having read that that you would find yourself in agreement with Doctor Heller?
A  Very much.
Q  That, in fact, there is no infallible psychiatric test to be applied in the subject matter we are talking about?
A  Exactly.
Q  But there isn't any suggestion in Doctor Heller's article, is there, that he feels that psychiatrists cannot aid the courts substantially because of their special training background in making predictions and evaluations subject to the caveats of their limits of medical knowledge?
A  Particularly in that circumstances that he finds himself in, of evaluating a person who has been convicted, and offering pre-trial--I'm sorry--pre-sentencing counsel or advise to the court, particularly those circumstances.
Q  Now, right.  Isn't the absence of known acts of violence one of the clues that are used in making judgments about a patient's situation?
A  That's one of the clues I look for, yes.
Q  And in this case you placed a great deal of weight on it because Doctor Heller is always dealing with at least knowledge of known acts of violence, as one of the starting points for this evaluation?
A  That's correct.
Q  In Captain MacDonald's case, did you become aware that he had committed known acts of violence towards other persons?
A  I did not become aware of any known acts of violence in Captain MacDonald's case.
Q  Now did it appear anywhere, or did you have the impression or your examination of Doctor MacDonald, that violence is a technique or method that he would use or resort to work out any kind of problem or difficult situation that he fell into?
A  I would like to know how--what the limits are of the definition of violence, as you use them.
Q  Well, I would suggest that perhaps violence meaning the use of excessive force to harm other persons.  You may read that as severe blows, administration of using a weapon against someone else, anything along that line.
A  I have no information about that, in terms of that degree.  I do have some idea about other aspects of the way he has operated, which I take into account as advised by Doctor Heller.  Doctor Heller makes a rather important point about polarity between affects, degrees of love and hate, et cetera.  Doctor MacDonald's life style has been--certainly, since he got into medical school and thereafter--has been to go to great extremes in terms of helping people.
Q  Why would he do that, or why that device or activity that he resorts to?
A  I don't know what you mean by “why.”  I'm just describing a fact, a phenomena.
Q  Does he do this because of some, doing something for him in terms of his handling life's everyday complications?
A  I could make that guess, but I don't know.  His ability to take action in a given instance to--well, to take action in handling feelings of conflict, I think, exists in terms of his--well, beginning in terms of his own activities in sports, beginning in terms of--related to terms of his volunteering for active duty, in terms of his expectation that he would be sent to Vietnam, in terms of his volunteering for Special Forces and jump training and hiding the fact that he had a lumbar disc, because I would assume, I was under the assumption that he'd be disqualified if he did not hide that.  His ability to go ahead and take action to do something that he wants to do exists.  Now, I don't know anything about how that connects with something with regard to an extreme of violence as the act that's under consideration, but in terms of a guy who is action oriented, I see him as actionary.
Q  But without any history or other clues to indicate that the action that he would take, as best you could make a judgment, would be one that would take extreme personal violence against the individuals who--
A  I think I made very clear that any discussion of that, that I could make, would be mere speculation.
Q  When Captain MacDonald had a frustration that he was confronted with in his life, how would he, based upon your observations, how would he handle such a frustration?
A  Well, my own assessment is that he would look about him to find as accurate a definition of the situation as he could find, to look for ways of dealing with the situation, and, you know, again my own picture is that he's been generally, he's been quite successful at this--doing something to handle it.
Q  And in saying doing, does that mean anything or to adopt a task for himself which would be a way that he'd resolve this problem, a task, that of being a job or an activity, which is one that would be socially, normally accepted activity?
A  I have no information or evidence that it's anything other than what you just said.
Q  What I am concerned about is whether I understand the word “task.”
A  If Doctor MacDonald--you know again, I'm speculating, and you're asking me to.
Q  Yes, sir.
A  My speculation is that if he--

CPT SOMERS:  Excuse me.  I object to speculation.

COL ROCK:  Doctor, is it a professional speculation, or is it the normal speculation that I might do when asked the same question?

WITNESS:  The risk, Colonel Rock, is that it would be interpreted as knowledge rather than guesses, in terms of tying together pieces of information.  That is the risk in terms of speculation.  We are trained to do it all the time in the sense of trying to come to what we call a formulation of how event A connects with B, C and D.  But I would like to make clear that I'm being asked to make guesses to fill in gaps, and in that sense, yes, I'm probably more trained to do this, as part of the way I work, than someone not trained to do so.  It's validity with regard to the task that you have, I think I--I can comment on, so that's why I tried to clarify that I am speculating.

COL ROCK:  The objection is overruled; however, the investigating officer knows that this is a professional type of speculation and will lend whatever weight appears to be appropriate to the answer that's given.  Would you please state the question again, counsel?

MR. SEGAL:  Might we have the recorder read back, sir?  I don't want to change the premises.

(Reporter complied.)

COL ROCK:  I wish you'd rephrase the question, I'm still confused.

Q  What I want to clarify perhaps is the word “task.”  The way you have used it this morning, would that task include setting about to murder one's wife and children?  Is that the type of activity that's accomplished within this meaning of the word that you're talking about?
A  Yes, everything--and again, I am speculating--that act would be in utter desperation, without having other available ways of handling frustration in the personal relationships available to him.  My picture of him is that his capacity to deal with feelings, conflict of feelings is a close interpersonal relationship within his own family is somewhat limited, and that he would tend to, for example, given a sense of discomfort or frustration, or whatever, in a close inter-familiar relationship, he would tend to handle that by not saying anything or not doing anything, and working it out on the basketball court or going to a hospital and taking care of a lot of patients, or something of that nature.
Q  Would that be the kind of response to frustration which would be within normal limits?
A  Yes, sir.
Q  Is it fair to say that an important part of the evaluation of Doctor MacDonald included taking from him a history of events of February 17th?  The night of the crime.
A  Did I take a history of those events?
Q  Not only that, but was that not one of the important parts of the questions about what happened on February 17th?
A  Yes.
Q  Was there any evidence then, doctor that Doctor MacDonald was attempting to hide from you facts of what happened on February 17th?
A  Well, again, I must put that in context.  Talking about the events of the 17th were extremely difficult for Doctor MacDonald.  There were times within my own interviews with him when I felt that he was controlling, processing, filtering the responses he gave to me in specific questions.  Again, I do not label this as hiding or deliberate attempts to deprive.  I do not have that feeling, but there were times when I felt that he was controlling his response.
Q  Would that again be a response within normal limits considering the set of circumstances?
A  Considering the circumstances of his present circumstance I would consider it quite normal.
Q  Including the loss of the wife and two children under the circumstances?
A  Yes.
Q  Did you have any impression at all that he related, intentionally related to you a totally different story about February 17th than what actually happened?
A  Well, the “intentionally” and “totally” put it in great extreme.  I certainly did not have that impression.
Q  To take it away from that perhaps too high standard, let's just limit it to the fact that working on an impressionistic level, did you come away with the impression that Doctor MacDonald was contriving events of February 17th?  What I am talking about is, did he largely contrive the episode as he described it to you?
A  I do not have that impression, no.
Q  If you had had that type of impression, appearing to contrive a substantial portion of his story of what happened the night of the crime, would that have been a significant clue or sign to you?
A  If I had had that impression I would have confronted him with it.
Q  And the purpose of such a confrontation would have been what?
A  To see how he handled it.
Q  Aside from how you would have used it, would you have drawn any conclusion from an impression that you were hearing a story which was largely contrived or you felt largely contrived, based upon either the appearance or manner of the patient or any evidence you might have?
A  Perhaps it isn't your intent, Mr. Segal, but I find you pushing me to making great issues out of specific pieces of air, and I have tried to make clear, and again, your reference to Doctor Heller I think beautifully makes clear that that is not the way a psychiatrist assesses a problem.
Q  Maybe I misunderstood when I read Doctor Heller's article, what I've heard generally, that of course the taking of history is an important element in any examination, and that further, that the appearance to the psychiatrist, based upon known training, knowledge and ability to perceive things that should be logical, that any perceptions he makes, you know, of substantial deception being practiced on him, would be a thing that he would integrate into his thinking and evaluating the patient.  In effect, this man appears to be a liar and I have to evaluate this with other facts I know about.
A  And if you are asking me, have I entertained that possibility, yes, I've entertained that possibility.
Q  And is it fair to say that you did not conclude that you were hearing from Captain MacDonald the kind of recitation of events of February 17th that caused you to conclude that he was, you know, largely contriving the story he told?
A  No, I have said to him, well to you, and to others, that I consider it a very real possibility that his memory of the events of February 16th and 17th are reconstructed.  I can elaborate as to how I came to that idea, but I--
Q  I would appreciate perhaps a definition or clarification of reconstruction. 
A  I'm trying to avoid the connotation of contrive or fabricated.
Q  For that--for my purpose, that makes it clear.  Why would that process take place, the reconstruction, recollection in the MacDonald situation?
A  Do you want me to speculate again?
Q  Well, could it be in the realm of speculation, or is there any more substantial basis?

COL ROCK:  Excuse me, Mr. Segal.  Doctor Bailey, if I understood you, you are stating, basically, that you think that it was not a contrived story of his recollection of the events of the 17th.  Is that correct?

WITNESS:  That's correct, yes, sir.

COL ROCK:  Now counselor, I don't see, with all these other suppositions and hypotheses of what the good doctor would have done had it been otherwise adds anything at all to this hearing, to my understanding.

MR. SEGAL:  I am in agreement, sir.

COL ROCK:  I prefer you to move to some other area.

Q  You were asked some questions before, Colonel Bailey, by Captain Somers, on the issue of Captain MacDonald's feelings about his masculinity.  In that regard, were his feelings about his own masculinity appropriate ones within normal limits?
A  Would you define normal?
Q  I'll ask you, you know, you are never quite sure how you might use it.  Let me put it this way--are they appropriate ones?
A  Are they common in our culture?
Q  Yes, I think that would be--yes.
A  Very.
Q  You answer that way because attitudes for masculinity are partially culturally developed and induced in us?
A  Yes, sir.

MR. SEGAL:  I have nothing further, sir, at this time.

COL ROCK:  Counsel for the government?

CPT SOMERS:  Yes, sir.

Questions by CPT SOMERS:
Q  As I understand your testimony, doctor, Doctor Rappapor was in agreement with you and your staff that the question of probability of the commission of an offense, particularly the probability of Captain MacDonald's commission of this offense, is one not beyond any one person's psychiatric skill, but beyond the skill of psychiatry as a science today.  Is that what you are saying?
A  I don't think either I or Doctor Rappapor pretends to be able to set that kind of standard.
I said I personally feel that it is beyond my limits as an expert.  Doctor Rappapor said that he felt in agreement that it was beyond his limits as an expert to get into that area.
Q  I see.  Must a man always be abnormal or dangerously inclined to be capable of committing a violent act toward his family or wouldn't circumstances make it possible for a man who was thus inclined to commit such an act?  That's a two-part question.

COL ROCK:  For my benefit, let's rephrase the first part and stop there.  I think for the doctor's benefit too.

CPT SOMERS:  All right, sir, I'll put it in two questions.

Q  In your opinion and as a general consideration, would you say that a man must always be abnormal or dangerously inclined to ever be capable of committing a violent act toward his family?
A  I think, again, it might be useful to refer back to paragraph 1 and read about dangerousness that Doctor Heller talked about.  The issue in terms of abnormality is very difficult to deal with.  Most usually the way we deal with it is in terms of presence or absence of psychiatric disease.  The first word of your question is “must” and I don't--I would have to say--feel qualified to answer that question about the “must” part, because in my own research of literature in terms of crimes of violence, although a majority of these cases result in some diagnosis or other, it's interesting that most of the time it's after the fact, and there is always a section of significant percentage in which a diagnosis is not made.
Q  By that you mean a diagnosis of mental disease, defect or derangement?
A  Correct.
Q  If I understand some of the language that you have read from Doctor Heller, he is saying, is he not, that we are all capable of violence under proper circumstances?
A  I think he is saying that, yes.
Q  Does Captain MacDonald's memory of the evening of the 17th seem entirely satisfactory to you?
A  I'm not sure what you mean by satisfactory.  I've said that I feel--I have the rather strong impression that his memory of the 16th and 17th is reconstructed, which I guess we then say that I consider it highly possible that details or major or minor as to specifically what happened in the context of that time might well have been different from his presently stated, or most recently stated under testimony, memory of that time.  I think I mentioned in my evaluation that this in part is what lead me to the recommendation for amytal interview.
Q  Doctor, we have gone into some areas which you have labeled, yourself, speculation, or we have gone into some areas which call for your mixed personal and professional opinion, and I think probably that when you say that it is your impression that the relation by Captain MacDonald to you of the events of the evening of the 17th was not contrived, that in saying that you are not attempting to give us the impression that this is an infallible indicator to the truth or falsity of that story.  You are not attempting to say that, I am sure, are you, doctor?
A  I am not attempting to say that.
Q  Do you think, sir, in your own opinion that it is possible for any interviewer or evaluator to be sure that he is not being lied to?
A  If you are talking about sure, again you are talking about degrees.  I don't think any psychiatrist would pretend to have that infallible capacity to know whether he is being lied to or not.  I certainly don't.  I don't get into the area as a matter of fact, very often.  What I am concerned about is how data is presented to me by a given individual about himself or his set of circumstances.
Q  Your concern, then, is not always, perhaps not even mostly, with the correlation between what he said and the objective truth of what is being said?
A  Not concern in terms of is he lying or not.
Q  In what areas did you feel that Captain MacDonald was controlling, filtering his answers with respect to his relation of the events of the 17th?
A  I'm sorry if that connection was made.  I was trying to say that in other areas of my evaluation and interview I think and thought there were areas where he was controlling and filtering his responses.
Q  You mean other than the events of the 17th?
A  That's correct, sir.
Q  Could you tell me what those were?
A  Areas of relationship to Colette.  Areas of whether or not conflict had come up between them.  A rather consistent tendency to avoid use of words like “disagreement,” “argument,” “fight,” et cetera.  Again, I'm not using control like it's a deceptive device, because I think Doctor MacDonald under that circumstance was quite aware that an awful lot of weight was being applied and he himself would apply weight as to how this was responded to.  In addition, he had the terrible consequences of the 17th to try to deal with.  It's a rather natural process for one to not be able to be objective in his discussion of relationship after such a thing.

CPT SOMERS:  No further questions.

MR. SEGAL:  I have one matter.

COL ROCK:  All right.

Questions by MR. SEGAL:
Q  Doctor Bailey, perhaps you could help us in regard to clarifying this one issue.  It is your opinion, I believe, if I am stating correctly, that you did not think the recitation by Captain MacDonald of the incidents of the 16th and 17th of February were contrived, but on the other hand, or perhaps in addition, however, you found that there were details, major or minor, in regard to that time that might be different from the way it happened.  Is that a roughly accurate summary of what you have said to us?
A  I didn't find that.  I had the impression.
Q  Could you perhaps indicate to us what the cause, what caused there to be a difference in details, even though the basic description of the events was not a contrived one, what was the process that caused that to come about?
A  Oh, the most common process is a very natural one that all of us human beings can experience when we've gone through something that is quite horrible to us.  We put it out of our minds.  We--we may tend to deny it.  We may tend to restructure it somehow to make sense to us.  I'm talking about very natural processes.  I was impressed by information that he had not tried to sit down and outline for himself the specific events in time frame of that time until after apparently his--the 6th of April.  I make nothing of that, except that it says to me--well, I also, in talking with him, as well as in reading his own testimony, recognize that he was challenged about issues such as the existence of a given towel and its placement, or a bath mat, where he was forced to make a decision as to whether it was that way or wasn't that way.  When I say reconstructed that's what I mean.  I mean it is not a spontaneous relation of things as he specifically recalls them.
Q  Having to think it through, an act of thinking process in trying--
A  And expose facto have to make decisions about--if you will note again, very frequently in his own testimony, I'm impressed that he responded, “It must have been this way because that's the way we usually did it.”  “It must have been--it might have been” that he had a drink, an after dinner drink, “because that's the way it usually happened.”  “It must have been that Colette probably had an after dinner drink before going to bed, because that's the way she usually did it.  She may or may not have taken a Benadryl, because, again it was available.”  Rather than a specific memory of events--that's what I am trying to say.

MR. SEGAL:  I believe that clarifies it very much.  I have nothing further, Colonel Rock.

CPT SOMERS:  Sir, I have one more.

Questions by CPT SOMERS:
Q  Doctor Bailey, wouldn't this process of putting these horrible details out of one's mind be natural, whether the Captain had been a victim of them or had committed them?
A  They are equally possible, I think.

CPT SOMERS:  No further questions.

MR. SEGAL:  I have nothing further, sir.

COL ROCK:  I have two questions for the doctor.

Questions by COL ROCK:
Q  Referring again to page 3 of your testimony, the last sentence in paragraph 5a, it states, “With the regard of capability of hiding facts related to the acts charged, it is our opinion that this is possible.”  Now later on in some testimony, you indicated, I believe, this statement which I have written down, and I want to again re-verify if I have put in my own words what I think you were saying.  You stated that there is no evidence that Captain MacDonald is trying to hide facts from you.  Is that basically true?
A  Yes, sir.
Q  Now my second question explores a new area.  In a visit to the MacDonald house I noticed that there are large collection of murder mysteries and so forth, and I fully recognize that many people read these, statesmen, lawyers and everybody does, for amusement, for interest, and other reasons.  Also there has been some testimony to the fact that there was a magazine which contained a reference to a rather bizarre murder in California.  On the other hand, there are many, many other volumes pertaining to college work and medical reading and so forth.  The witness--the accused himself, I believe, has perhaps indicated that he was reading one of these mysteries that evening before going to bed.  In your deliberations, was this issue ever raised?  That is, what the doctor reads for his amusement or what he may read for his further education and this type thing?
A  Yes, sir, it was.
Q  Did you derive any significant facts from your pursuit of that line of questioning?
A  In terms of the facts as he relates them to me, to my team, he describes reading mysteries as a--an outlet, a pleasure; and, do I attach any significance to this in terms of this case?  No, sir, I don't.

Col  Rock: All right, thank you.  I have no further questions.  Does either counsel?

MR. SEGAL:  No, sir, I do not.

CPT SOMERS:  None by the government, sir.

COL ROCK:  Doctor Bailey, did you by any chance bring with you any resume of your educational achievements or other matter that might be presented as evidence before this hearing?

WITNESS:  Yes, sir, I have.

COL ROCK:  And what is that, sir?

WITNESS:  This is a typed copy of my curriculum, which I also will update slightly in terms of additional licensure, which I can offer if it is useful.

COL ROCK:  Subject to any objection by either counsel I would like to introduce that as evidence as we have done previously with expert witnesses, and that will be Investigating Officer's evidence R-2.  For the purpose of both counsel we will have this reproduced and present you a copy thereof.  What other states are you licensed in, Doctor?

WITNESS:  I am licensed in Illinois, Maryland, Virginia, and the District of Columbia.

COL ROCK:  Doctor Bailey, 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 that?

WITNESS:  Yes, sir, I do.

COL ROCK:  Sir, you are excused and I appreciate your testimony.

COL ROCK:  This hearing will reconvene at 1330 hours.

(The hearing recessed at 1152 hours, 10 September 1970.)
 
(The hearing reopened at 1335, 10 September 1970.)

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

(A conference telephone call was placed to 1LT Edwin G. Casper II, who was sworn, and testified as follows.)

Questions by COL ROCK:
Q  Would you please give me your full name, your rank, and your current military address?
A  Okay.  Edwin George Casper II; rank, First Lieutenant; military address, 4th Officer Student Company, Fort Wolters, Texas.
Q  Are you in the U.S.  Army?
A  Yes, sir.
Q  This afternoon I am going to ask you certain questions and following this counsel for the government, Captain Somers, and then counsel for the accused, Mr. Segal, may ask you questions.  Do you understand?
A  Yes, sir.
Q  Where were you stationed in February of this year?
A  Fort Bragg, North Carolina, sir.
Q  And what was your residence address?  Do you remember?
A  It's 334 North Dougherty.
Q  And is that Fort Bragg?
A  Yes, sir.
Q  Were you at home on the night of the 16-17 February 1970?
A  Yes, sir.
Q  Approximately what time did you go to bed that evening?
A  It was between ten and eleven, I think.  Probably right around ten-thirty.
Q  Did your wife retire at the same time?
A  No, sir, she stayed up and watched TV for a while.
Q  I see.  Where was your bedroom that you were sleeping in located with reference to the street?  Did it face the street?
A  No, sir.  Our bedroom is in the right front of the apartment, if you face the apartment and it faces the court, inside of the court.
Q  I see.  What were the weather conditions when you went to bed that evening?
A  If I remember correctly, it was raining sporadically off and on all night.
Q  All right.
A  I forget whether it was raining when I went to bed or not, but I know it rained sometime during the night.
Q  Did you check to see whether any windows in that bedroom were open at the time that you went to sleep that evening?
A  Yes, sir, we usually leave the window in all the rooms open because it's steam heated, and it's--it get real hot and there's only one way we can regulate it, to open the windows.
There's no central heating.
Q  And then it is your impression that you had the window open that evening?
A  Yes, sir.
Q  Approximately how far open the window--or the windows had been open?
A  Oh, probably just about all the way.  It's not a crack, it's usually half or all the way open.
Q  That would be more than one window?
A  That would be both windows, right, sir.
Q  Were you awakened at any time during the night of 16-17 February after you had gone to bed?
A  Yes, sir.
Q  Approximately when was that?
A  I would say anywhere from--if I went to bed between ten and eleven--I would say between twelve or 2400 hours and 0300 hours.
Q  Why were you awakened?
A  I heard what I thought was the next door neighbor's kids running up the path and the splashing of the feet in the water awoke me, and I just rolled over and didn't think anything and went back to sleep.  But my wife said, you know, later on when they--the CID agent--came by and asked me if we had heard anything unusual, I mentioned this, and I said of course, it was kids next door, and my wife said, no, they had already moved.  So then I didn't know who it could have been.
Q  Well, now would you repeat again what you thought you heard that evening?
A  I just heard some--some footsteps and laughing, running through the water.  That's all.  It seem like there was a group, there was more than one, probably two or more, and they were running through the water, because you could hear their footsteps splashing and they were laughing, and that's all I heard.
Q  I see.  Were there any significant characteristics about the laughing that you noted?  Did it appear to be giggling, a hearty chuckle, or could you just describe it in any fashion?
A  It seemed to me just occasional giggling, you know, ha-ha-ha-ha-something like that.
Q  I see.  Do you remember whether anyone came to your apartment any time during the daylight hours of the 17th to inquire about any unusual incidents?
A  Right, the CID agents, two of them stopped by.  Let's see, it would have been late that evening, about seven o'clock, I guess right at supper time, and they asked us if we had heard anything unusual, and at that time I did mention that we heard, you know, some young teenagers, what I thought were teenagers, running back and forth in forth of the apartment, and of course it was probably just neighborhood kids next door.  But then my wife said, no, they had already moved before this time, and I said, well, I don't know who it could have been then.  But that's what we heard.
Q  Do you remember whether you indicated to the CID agents approximately what time you thought you heard those?
A  I think I did.  I think they asked me about that.
Q  Do you recall your reply?
A  No, not really.  I don't know--I can't remember what I said.
Q  All right.  Do you think, Lieutenant Casper, that your recollection of the events that evening is fresher now in your memory, than it was on the date of the 17th of February?
A  No, sir, it's not fresher, because its been a while, and I just--you know--just try to--the only thing I can remember is that they woke me up, and I usually go to bed between ten-thirty--between ten--eleven, and that's all.  Exactly what time they came by, I think it was between 2400 and 0300 because I was able to go back to sleep.  If it had been like four or five in the morning, I'd be up, because I have to get up about five-thirty or six.  I probably went back to sleep, so that's all I can remember.
Q  Right.  When the CID agents came to your door, did they ask you the questions, or did they ask you and your wife questions, both of you separately, or just how did they ask questions?
A  Sir, I think they asked us both together.
Q  Together?  And did your wife also volunteer answers?
A  What's that, sir?
Q  Did your wife also answer some of the questions?
A  Yes, sir, she did.  I think they--they asked me some questions and my wife came in and they, you know, asked her approximately the same questions.
Q  I see.  Do you recall what answers your wife may have given to the questions, or anything that she may have volunteered during the questioning?
A  Well, I think my wife was, just from what I can remember, my wife was able to give them a little bit more, a little bit better information than I did because she, I think she said she had just gotten to sleep or wasn't asleep yet, where I was, they had woke me up, you know, and I just rolled over and went back to sleep.

COL ROCK:  I see.  Thank you, Lieutenant Casper.  I have no further questions.  I will now turn you over to counsel for the government for questions from his side.  Just a moment.

WITNESS:  All right, sir.

Questions by CPT SOMERS:
Q  Can you hear me, Lieutenant Casper?
A  Yes, sir.
Q  This is Captain Somers.  You say what you heard sounded like somebody running through water and laughing.  Is that correct?
A  Yes, sir.
Q  Could you tell from the voices if both male and female were present, or could you tell?
A  No, sir.  In all honesty I don't really say I could tell because, I mean, I read the paper and when I was at Fort Bragg I know there  was supposed to be two boys and a girl, and, and I could say yes, there was two boys and maybe a girl, but I don't really know.  I know there was laughing, and what I though--I had preconceived idea that it was the next-door neighbor's girl and two of her friends that were boys, and I had this preconceived idea that it was so and so and her new boyfriend, but to actually say that they were, you know, female or male voices, no, I can't, because in this instance this neighborhood girl had already left, so I don't have any idea at all, and I hate to say who it was and wasn't.  I just don't know.  I just didn't pay any attention to it.
Q  You say you don't have any independent memory of recognizing which sex you were listening to?
A  Right, sir.  I don't know.  It was--it was, seemed to be teenagers because you could tell by the sound of the laughing.  But whether it was all girls or all boys or one girl and two boys, two girls and one boy, I don't know sir.  I just really didn't pay that much attention to it at the time.
Q  Now you used the phrase “running back and forth.”  Could you clarify that?  What direction were these people running in, if you could tell, and did they just run by once, or what do you mean by “running back and forth”?
A  All right, sir.  Our apartment faces a portion of the court that's between North Dougherty and--when we were there--Highway 87--no, what is it that runs out in front?  Route 80 that runs between--
Q  Are you talking about Bragg Boulevard?
A  Right.  Okay, we lived between North Dougherty and Bragg Boulevard, and the first time when I heard what seemed like they were running up from North Dougherty towards Bragg Boulevard.
Q  The first time?
A  And then it seems like they ran back the other way.  They were like coming up towards the apartment and then running back down.
Q  What was the time interval between the first time by and the second time?
A  Half hour, maybe.  I don't really, you know, because I was half asleep.
Q  Okay.  Now as I understand it, you say they were running toward Bragg Boulevard when you first heard them?
A  Right, sir.
Q  And then running back down towards North Dougherty when you next heard them?
A  Right, sir.
Q  When you were interviewed by the people you described as CID agents, could you have told them that you heard this at a period of time between 7:30 and nine in the evening?
A  I don't know.  I don't know.  I--you know I'm telling, you know, remember what all the questions were, and what I remember saying.  I might have.  I thought that I heard it earlier when I was downstairs reading the paper between that time because that's when I was downstairs reading the paper.  Now, either I--I don't know, I can't remember what I really said.
Q  It's possible then that you might have said between seven-thirty and nine?
A  Right, but I don't know for sure because I was awoken that night also between approximately 2400 hours and 0300 because I remember I went to bed and I was awoken.
Q  Why did you think that this was teenagers from next door?
A  Well, they usually would sometimes they, you know, like on a weekend night, they would stay up pretty late and they would on a weekend they would, you know, go over to somebody's house, go to this girl's house that just lived down from us, and they'd sit around and talk and laugh and giggle for, you know, a couple of hours or whatever.  And they would do this, you know, and then they would go to somebody else's house, and this is why I thought it was them.
Q  Lieutenant Casper, do you have somebody else there with you?  Right now?
A  My family.
Q  Are you conferring with someone as you answer these questions?
A  Sir, my wife is trying to tell me what happened.
Q  You are not letting that affect you, are you?
A  No, sir.
Q  Were there many children in that neighborhood?
A  There wasn't too many teenagers, sir.  It was mostly, now just from what I remember, is that there was mostly younger children like my children, you know, between maybe five and, you know, a couple of months.  That's all that lived in our court except for this one family, and if they moved a family moved in there with just young children too.
Q  Do you know the name of the family with teenager children?
A  I don't remember, sir, at all.  It was--I think it was a Spanish name.  I don't really remember.

CPT SOMERS:  Excuse me just one moment, Lieutenant Casper.  Sir, I have no objection to his conferring with his wife.  Does the defense?

MR. SEGAL:  No.

Q  Do you think your wife would know?  We have no objection to your getting the information from that source.
A  O-r-t-i-z, Ortiz.
Q  And the apartment number was?
A  Gray.  All right, the name was Gray.
Q  Gray?  And the apartment number is what?
A  I think it was--it was either 332 or 330.  I think it was 332.
Q  Do you know what the man's rank was or what was his first name?
A  He was a Warrant Officer, I think, sir.
Q  Do you know his first name or his unit?
A  No, sir.  I don't have any idea.
Q  You've given me all the information that you can on Mr. Gray?
A  Well, there's only one other thing.  I--I know his oldest daughter got married, and she was married to an officer with the 82d Airborne.  (Pause)  My wife said it was a Private with the 82d.

CPT SOMERS:  I think this takes care of my questioning for now.  I'll now turn the microphone over to Mr. Segal who is counsel for the defense.

MR. SEGAL:  I have no questions, sir.

CPT SOMERS:  Mr. Segal has no questions, Mr.  Casper.  I will turn the microphone over to Colonel Rock.

WITNESS:  All right, sir.

COL ROCK:  Lieutenant Casper, this is Colonel Rock.  You are advised that you will discuss your testimony with no person other than either counsel.  Do you understand this? 
 
WITNESS:  Yes, sir.

COL ROCK:  Thank you very much.  This will terminate the conversation.

WITNESS:  All right, sir.

COL ROCK:  In a letter to Captain Clifford Somers, counsel for the government, dated 26 August, copies of which were given to both counsel, I requested certain information to be presented to me this week for presentation at the hearing.  Among the items are sworn statements of Specialist Four David Dickerson and of Mrs. Janice Pendlyshok.  Is the government now prepared to present that to me? 

CPT SOMERS:  Yes, sir, in fact I believe your legal advisor, Captain Beale, now has it.

COL ROCK:  Let the record reflect that Exhibit R-3 is 17 February sworn statement of Specialist Four Dickerson.  R-4 is 25 June sworn statement of Specialist Dickerson, and R-5 is 22 June statement of Mrs. Janice Pendlyshok.  Can you tell me, counsel, why are two witness statements from Specialist Dickerson?

CPT SOMERS:  Well, the only thing I can say was that he was interviewed twice, sir.

COL ROCK:  You don't know the reason?  It is evidence that he was interviewed twice.  I just want to know why.

CPT SOMERS:  Right offhand, no I don't.

COL ROCK:  Would counsel please call Lieutenant Paulk for me.

(2LT Joseph Loy Paulk was called, reminded of his oath, and testified as follows.)

COL ROCK:  I'd like to announce to both counsel the reason for calling Lieutenant Paulk is to have entered into evidence an item that I had requested quite some time ago.  That is whatever notes or report that he made as a result of his trip to the hospital to interview Captain MacDonald on the morning of the 17th, and I am confining my remarks strictly to that particular subject matter.

Questions by COL ROCK:
Q  Lieutenant Paulk, previously you testified that on--and I am not using your exact words, I'm just summarizing it.
A  Yes, sir.
Q  That on 17 February, at the direction of Colonel Kriwanek, then Post Provost Marshal, that you went to see Captain MacDonald at the hospital.  Is that correct?
A  Yes, sir.
Q  I believe you further stated that you were instructed to try to get a better description of the alleged assailants from Captain MacDonald.  Is that correct?
A  Yes, sir.
Q  There were other matters which you were requested to question him also, were there not?
Or was it for that one sole purpose that you went there?
A  Yes, sir, more or less, it was just to obtain as much information that may be--have some bearing on the case.
Q  Well, I will confine my remarks specifically to that portion about the assailants.
A  Yes, sir.
Q  I believe you also testified that you took some notes in your own hand and then later gave them to the CID, or thought you gave them to the CID.  Is that also true?
A  Yes, sir.
Q  Do you have a copy of those notes with you?
A  I have the copy that was typed in the CID, sir.
Q  All right.  Would you read those notes to yourself and see if those are the notes that you remember having typed at the CID on whatever date it was?
A  Sir, I have already had an opportunity to read them, and they are.
Q  And they are?
A  Yes, sir.
Q  Would you show that document to counsel for the government and also counsel for the accused?

(The document was examined by counsel for both sides.)

COL ROCK:  Mr. Segal, we will certainly provide you with a copy of it.  I'm sorry we didn't have one to present to you right at the moment.

Q  Now directing your attention to this particular document, Lieutenant Paulk, specifically I'd like to direct your attention to the notes reference the alleged assailants and I will read this.  It says “Suspects description.  (1) Two male Caucasians, young.  (2) One male Negro, field jacket with Sergeant Strips which did have a rocker.  (3) One girl, boots, large hat.”  Reviewing your notes, does this help you remember the conversation you had with Captain MacDonald at that time?
A  Yes, sir, I recall it fairly well.
Q  Does this represent everything that Captain MacDonald told you at that time about the assailants?
A  Yes, sir, it does.
Q  It does.  And had there been anything significant beyond what is listed here, you would have written it in here?
A  That's correct, sir.

COL ROCK:  At this time I will introduce into evidence Exhibit R-6, Lieutenant Paulk's interview notes, 17 February 1970, with Captain MacDonald.  I have no further questions of this witness.  Does counsel for the government desire to question him concerning this matter?

Questions by CPT SOMERS:
Q  There is some verbiage on this sheet written in pen.  Can you tell us the source of that?
A  Yes, sir I wrote that after the CID located the typed portion.
Q  Is that in fact a certification that it is a copy of your notes?
A  Yes, sir, it is.

CPT SOMERS:  No further questions.

COL ROCK:  Counsel for the accused?

MR. SEGAL:  Yes, sir.

Questions by MR. SEGAL:
Q  Lieutenant Paulk, when you--can you indicate to us about what time it was you took this interview?
A  I think, Mr. Segal, it was between six and seven, somewhere in that area.  That's a.m.  I'm not sure exactly.  It was early in the morning.
Q  On the 17th of February?
A  That's correct.
Q  Did that interview take place in the emergency room at Womack Army Hospital?
A  No, sir, it took place on one of the upper floors.  I don't recall what floor it was at this time.
Q  Did you observe at that time whether there had been inserted in Captain MacDonald's chest a chest tube, a long medical tube?

CPT SOMERS:  I object.  That's outside his scope.

MR. SEGAL:  Sir, the time, place and circumstances of any interview are always relevant to determining factual situation--

COL ROCK:  Objection overruled.  Let's try to make it brief, please.

MR. SEGAL:  Yes, sir, we will.

Q  Did you notice whether the chest tube had been inserted at that time?
A  No, sir, I didn't.
Q  What--was Captain MacDonald crying part of the time that you were talking to him?
A  I'm not sure, Mr. Segal.  It seems to me that he wasn't crying.  Maybe teary-eyed would be a better characterization.
Q  How would you characterize his emotional state at the time you talked to him on the morning of the 17th?
A  He was--at this particular time he was aware of the fact that--that his wife was not alive and that the--he did not know the state of his children, and he was--he was being treated, or had been treated, and did not look to be in a normal state that he was to the point where he could talk to me about the--and he--I'd say--I don't know whether he's been given any pain killer or anything of this nature, but I didn't spend a long amount of time with him.
Q  How long did you spend with him?
A  I'd say from five to ten minutes, not very long.
Q  Were there medical personnel in attendance with the Captain at the time you were there?
A  Yes, sir, there was one nurse, whose name I don't recall at this time, I believe I noticed the name tag on the doctor as being Doctor Jacobson.

MR. SEGAL:  Thank you very much, Lieutenant Paulk.  I have nothing further, sir.

COL ROCK:  Lieutenant Paulk, you advised that you will discuss your testimony with no person other than either counsel.  Do you understand, sir?

WITNESS:  Yes, sir.

COL ROCK:  You're permanently excused.  Thank you.

(The witness saluted the 10 and departed the hearing room.)

COL ROCK:  We will take a temporary recess.

(The hearing recessed at 1417 hours, 10 September 1970.)

(The hearing reopened at 1421 hours, 10 September 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that all parties present when we recesses are currently in the hearing room.  At this time I call as my next witness, Sergeant Boulware.

(Staff Sergeant William A. Boulware was called as a witness, was sworn, and testified as follows.)

Questions by COL ROCK:
Q  Would you state your full name and your rank?
A  William A. Boulware, Staff Sergeant E-6.
Q  And what is your branch of service and current military address?
A  Army, 118th MP Company.
Q  Were you on duty the night of 16-17 February at Fort Bragg, North Carolina?
A  Yes, sir.
Q  What was your duty assignment that evening?
A  I was Desk Sergeant at that time.
Q  Did anything unusual occur during the early morning hours of 17 February that you remember?
A  The only unusual thing was when I received a phone call from the Chief Operator downtown Fayetteville.
Q  And do you remember what time that was?
A  Approximately 0342.
Q  Do you remember the name of the Chief Operator, or did she identify herself?
A  She identified herself, I think, if I am correct, as Mrs. Lander.
Q  And what did she say, if you recall?
A  She informed me that she had a party on the line that she believed lived on Fort Bragg, and he kept uttering “stabbing, 544 Castle Drive, hurry, 544 Castle Drive, help”, and she said she was going to transfer the call to my line, she did, and I heard words similar to the same thing I just said.
Q  And would you please repeat those words then as you heard them?
A  The first time I heard them was very faint and weak.  It said, “544 Castle Drive, help.”  The next time he says, “544 Castle Drive, stabbing” and then he said, “hurry.”
Q  He said hurry?
A  Hurry.  This time either he dropped the phone or something happened.  I heard a clinging noise like the phone hitting against the wall or floor or something.
Q  All right, how long was it approximately before you heard any other sounds?
A  Maybe half a minute.  Maybe a minute.  Then he came back on with the same thing.
Q  Could it possibly have been more than one minute?
A  I doubt seriously.
Q  And what was said the second time?
A  In a weak whisper, “544 Castle Drive, stabbing, help.”  He said it one more time and then it faded out and I didn't hear anything.
Q  Did you say anything to the party on the line at any time?
A  I tried to.  First of all, I took it to be a domestic disturbance.  I tried to inquire if it was between, an argument between him and his wife.
Q  Do you remember your words?
A  To be exact, no, I don't, sir.
Q  But you attempted to determine if it was a domestic disturbance?
A  Right, sir.
Q  Have you ever had occasion to inquire from anyone in any other situation as to whether it was a domestic disturbance?
A  Right, sir.
Q  What type conversation do you use, what type words do you normally use when you are inquiring about a domestic disturbance?
A  When they call up, usually they are hysterical or they just had a beating or being beaten, one or two things.  If it is going on now, all I have to do is punch a line and tell the radio operator to send a patrol over there, and I am sitting here talking to them.  But if it's over with, then there's no need for immediate expediency to get to the area, so we just dispatch the closest patrol in the area.
Q  But you don't remember in this instance what questions you placed to the party on the line?
A  I asked was anybody there now?  I said, “Did your wife do it, or who did it?”  And all he said was “544 Castle Drive, stabbing, hurry.”  That's when I reached back and--the first time he said it, I--when the operator first told me, I sent a--told the radio operator to send a patrol over there, and kept talking to him.  She didn't hang up; she kept us together all the time.
Q  Where is the radio operator in relation to your seat as the Desk Sergeant?
A  About, maybe two to three feet behind me.
Q  How long did you remain on the phone?
A  I remained on the phone until a patrol got there and they called me back, picked up the phone and said, “We're here now.”  I could hear them on the radio at the same time.
Q  Do you know who told you over that phone that they were there, meaning the MPs?  Did they identify themselves?
A  All he said was--I think he said Patrol 36.
Q  He said Patrol 36 and what else?
A  He said, “Get us an ambulance over here, get a couple.”
Q  Get a couple of ambulances over here?
A  Two.
Q  And was it a male voice?
A  Right, it was one of the patrols.
Q  Between the last time that you heard someone say weakly, “544 Castle Drive, help” and the time that you heard someone say, “Patrol 36,” approximately how much time elapsed?
A  Maybe roughly ten minutes, I'd say.
Q  Roughly, okay.
A  When the patrol first arrived there, the front door was locked.  I heard them call back and say they couldn't get in the front door.
Q  You heard that through what source?
A  The radio was right behind me, it's a big opening, I can lean back like this and hear everything that's going on on the radio.
Q  All right, but I want to keep our testimony currently solely on the telephone part at this stage.
A  Right.
Q  Now after the individual said, “Patrol 36 is here” and “Get a couple of ambulances,” how much longer did you remain on that telephone?
A  At this time I hung up immediately.
Q  Now referring back to the conversations that you heard over the radio, after you dispatched a jeep to the--or dispatched a patrol to the scene, what radio conversations did you hear from that patrol?
A  When it first got to the quarters, the front door is locked and seemed all secured, and they inquired if I wanted then to break it down.  I told them to check the rear.  At this time they checked the rear and one of them came back on the radio and said there were two bloody bodies there, get Womack fast.  And I assume his partner was inside the house and picked up the phone.
Q  Now addressing your--ourselves to the actions of Lieutenant Paulk, when the phone call came in, did you take any action with reference to notifying any superiors of what you had heard over the telephone?
A  By this being an officer's quarters; usually the duty officer is contacted.  The duty officer was in the building at that time, I believe, and I think the clerk went back and got him.  He went over there along with the traffic patrol.
Q  Did you receive any radio messages from the duty--first, do you know who the duty officer was?
A  Lieutenant Paulk.
Q  Did you receive any radio messages from him?
A  My first message from him was when he called--I think he used the next door neighbor's phone.
Q  And what was the substance of your conversation with him?
A  Well, do you want it like he said it?
Q  Yes, if you can, I'd prefer it that way.
A  Well, said words to this effect.  He said, “we've got three bodies,” he said, I believe they're goners,” and he said he thinks the old boy is still alive.  What's holding Womack up?  Or words to that effect.
Q  And what's holding up Womack?
A  Right.
Q  What did you do as a result of Lieutenant Paulk's statement?
A  At this time I was still talking on the phone, I heard I think it was Womack 4 come in and they said they were lost.
Q  Womack is what?
A  That's the ambulance from Womack.
Q  And it has a radio on it?
A  Right, it's on our Bragg frequency, and they were at, I think it was at Lucas and Honeycutt.  Anyway I told a patrol to turn on a light so that the ambulance could see them.  I also sent another patrol to meet them.
Q  To your knowledge was there only one ambulance en route to 544 Castle Drive?
A  At that time, only one.
Q  Did you receive any description of the assailants from anyone there at 544 Castle Drive?
A  The only description I received for all the assailants was from a traffic patrol which was Specialist Williams.  He identified them as two male Negroes, one Caucasian and one female wearing a floppy hat.
Q  And that came by radio?
A  Right.
Q  What did you do when you received that message over the radio?
A  Well, when he called it over the radio, all the other patrols monitored that transmission.  Therefore we told them to stop any suspicious people in the area, fill out an interrogation reports, and if they find any suspects, 10 1 7.
Q  I'm sorry.  If they what?
A  If they find any suspects, bring them in.
Q  Now, you said “we,” who is “we told them”?
A  Well, I told the radio operator and the operator relayed the message to the patrols.
Q  How do you know if all other patrols had monitored that particular transmission?  Do you have a callback procedure or what?
A  At night most of the vehicles are sedans, therefore they all have to be on the Bragg frequency.  Now it was related to the Buckneer (phonetic) patrols that were sent to different intersections in the area to stop people. 
Q  But all patrol radios are capable of picking up the signal regardless of whether they are in a hole, downhill, or in a place that is low on Fort Bragg?
A  Every area has a dead spot.  Unless they are in a dead spot they pick it up.  That night they all picked it up because they all responded.

COL ROCK:  They all respond.

Q  And would you repeat once more what you told, it is you told the radio operator to put out on the air concerning looking for the assailants?
A  Well, it was Williams who put it out.  It was two male Negroes, one male Caucasian, and one--
Q  I'm sorry.  I'm talking about the description of them.  What action you caused to be taken in the search for the assailants?
A  Any suspicious people you see in the area that time of night, stop and fill out full interrogation cards on them, and bring them in.
Q  Approximately how many patrols were out that evening?   Excuse me, let me strike that.
How many patrols would act on that information?
A  All of them would act on it.
Q  How many?
A  Including the Duty Officer, I'd say roughly nine, ten.
Q  Ten patrols?
A  To include the Duty Officer.
Q  Did you--did any of your superiors instruct you to establish road blocks for purposes of apprehending the alleged assailants?
A  Just to set up road blocks, negative.  However, traffic was--patrols were set up at certain, like at Corregidor Courts, there's only about four ways you can get out of Corregidor Courts, and patrols were sent and they were stopping any vehicles that had passengers in them leaving Corregidor Courts.
Q  Was a patrol located at each of those four entrances?
A  Well, they were patrolling up and down the streets.  They weren't stationary.
Q  Then are you saying that there were four patrols in Corregidor Courts immediately?
A  There were eight patrols in Corregidor Courts.  They were all there.
Q  I see, okay.  At what time did these patrols become operative in an attempt to apprehend the alleged assailants?
A  Immediately upon getting the description.  The time to be exact, I don't know.
Q  Approximately then, as best you can?  Take your time to reconstruct the events, and give me your best estimate.
A  I'd say maybe, I'd say four or five minutes after they had talked to Captain MacDonald, and when he came back Williams put the description on the air, and that's when the patrols started looking for them.
Q  Sergeant Boulware, I'm trying to get a clock time.  Can you reconstruct the events as you understand them so you could give me your estimate of a clock time?
A  In the vicinity of four o'clock, I'd say.

COL ROCK:  I have no further questions.  Do counsel for the government?

Questions by CPT SOMERS:
Q  You had nine patrols, you say?
A  There are eight regular post patrols, one traffic patrol, and then there was the Duty Officer.
Q  One of the eight was a traffic patrol?
A  Right, Williams, the one that called in the description, Specialist Williams.  He was traffic patrol.
Q  Do you know how many entrances and exists there are to Fort Bragg?
A  To Fort Bragg, not right offhand, but in any specified area that you were in, I could block you off certain areas.
Q  Well, can you give us an estimate?  Are there 3, or 30 or 300?
A  Roughly nine or ten.
Q  Are there some roads off of Chicken Road?
A  Right.
Q  Were you counting those?
A  If you block Chicken off, you can't get to them.  It depends on where you are going.
Q  Now you count nine or ten major access roads.  Is that right?
A  Right.
Q  But in the vicinity of four o'clock you had patrols looking through the area of Corregidor Courts.  Is that correct?
A  Right.  We have one patrol that patrols that area.
Q  But your instructions to pick up people applied to all the patrols, did it not?
A  Right.
Q  How many people were brought in as a result of this?  Do you know?
A  I remember about three, a couple of Sergeants that were getting ready to go to work; some guy that was in a phone booth at Mallonee Village, and that's all I remember.  A couple of cars were stopped with--
Q  Who brought the man from Mallonee Village in?  Do you remember?
A  His name is on the interrogation card.
Q  Could it have been Sergeant Duffy?
A  It could have been.  I'm not sure, who was on patrol that night.  It's been a long time.
Q  The description you got from Williams was two male Negroes, one male Caucasian and one female with a floppy hat?
A  Right.
Q  How distinct, how clear, how loud was the voice that you heard on the phone from 544 Castle Drive?
A  Almost--it was--it was too weak to be a whisper.  It was more so of a--it was a faint fading voice, sounded flaky.
Q  Can you identify that?
A  “544 Castle Drive, stabbing.”

CPT SOMERS:  Let the record reflect the witness has said the words, “544 Castle Drive, stabbing” in what I would consider as a faint whisper.  No further questions.

COL ROCK:  Counsel for the accused?

MR. SEGAL:  Yes, sir, would you indulge me for a moment, sir.  I'm looking for something else with regard to this matter.

Questions by MR. SEGAL:
Q  Sergeant Boulware, I'm not entirely clear as to the procedure that you followed as between a report of a domestic quarrel which was over and domestic quarrel which is in progress.  Would you tell me again what you do?
A  We have codes like Code 1 or Code 2, that means blue light and siren, or let's hurry over there.  Maybe you can prevent someone from doing bodily harm to the other.  But if in the event the argument is over, there's no need to go flashing over with blue light and siren.
You're taking a chance when you do that.  To start off, you might cause an accident.  But if it's already over and not much need to hurry, because you know the two people are there, they apparently had their differences.  Now the repercussion has got to be faced.
Q  Well, is Code 1 the blue light and siren, and Code 2 is just a direction to go to the scene?
A  Right.
Q  In view of a complaint.  Now at what point after you received the first call from the operator did you give some direction for a vehicle to go to 544 Castle Drive?
A  When the operator--she talked to me first and she explained to me what she had.  Then she asked me where was this address, and I looked and I said it was in the Corregidor Courts, its officers.  And she said, “Well, I have a party on the line” and then she plugged me in, and I listened and I just leaned back to the radio operator and I said, “Get a patrol to 544 Castle Drive” and I was still talking to her while the patrol was en-route.
Q  Was that a Code 1 or Code 2 dispatch?
A  All I said was “ASAP,” meaning in a hurry, fast.
Q  Do you know what the instruction was that the radio operator put out in regard to that?
A  To be specific, no, I don't.
Q  Did you continue then to listen on the phone after you leaned back and told the--
A  Right.  We've got a prop, you can sit the phone on your shoulder and listen and talk to two people at the same time.
Q  Now do you remember anything at all that you specifically said to the voice on the phone or any specific question you put to the voice over the phone?
A  Not specific questions, no, I don't remember any specific questions.  I believe I inquired were the parties there or not, and the only answer he gave was, “544 Castle Drive, stabbing, hurry.  544 Castle Drive, stabbing, help.”  He didn't answer anything I asked him.  That's why I sent the Duty Officer.  That's all he would say, “544 Castle Drive, stabbing.”
Q  You do believe though, you asked whether the parties were still there to the voice you were speaking to on the phone?
A  Right, I asked when did it happen, how long ago, are you one of the people?  And all he would say was “help” and dropped the phone the last time and he didn't come back no more.
Q  When you asked that the Duty Officer be notified, did you do that through telling someone else?
A  Right, the clerk sits over there on my left.  I said, “Go get the Duty Officer.”
Q  Well, did Lieutenant Paulk come back to you, or did he leave without seeing you?
A  He just wanted to know what was going on, and I told him I didn't know at the time.  I said it's a DD at 544 Castle Drive.  Him and his driver went over and by that time the traffic patrol was there and another patrol was there, and he arrived.
Q  As far as you recall, that's all you told Lieutenant Paulk, that you thought it might be a DD?
A  I told him the man said there was a stabbing.
Q  You told him also there might have been a stabbing?
A  I said all I heard was the faint voice, “544 Castle Drive, stabbing.”  That's all the man had said.
Q  And DD I assume is your abbreviation for domestic disturbance?
A  Right.
Q  Now you described there being nine patrols, plus the Duty Officer's vehicle in the area as a result of the message you sent out?
A  Right.
Q  Are you including in that number the vehicles that responded to and that were actually at 544 Castle Drive?
A  Right.
Q  So that at least four or five of the vehicles were apparently tied up--
A  No, no, the patrols--you see, immediately upon finding the bodies, the CID was the next called.  The CID got over there, and he issued instructions on the spot, I assume, to secure the house.  Nobody enter, leave or come around the area.
Q  Excuse me.  Who was he giving that instruction to?
A  The patrol supervisor.  I assume that's what he did, because the rest of the patrol called back in.  They were on the road.
Q  How many called back in that had returned to patrolling?
A  I think one of them escorted the ambulance over at Womack--I don't know.  I don't know.
Q  Well, is it fair to assume, Sergeant Boulware, that not nine patrols went back to patrolling this area, but that some were involved at 544 Castle Drive and some went back to patrolling because they couldn't perform any additional function at 544?
A  The only patrols that I know that stayed there was the patrols the Duty Officer directed to stay there.  All others was supposed to have been returned to the road.
Q  When you say they were supposed to, you mean that's the normal procedure?
A  Right.
Q  Now the message that you put out with the description and a direction to check suspicious people.  I believe you said check suspicious people in the area.  Am I correct in that regard?
A  Right, and later on it was put out all over the post.  When Lieutenant Paulk called back from--I think he gave this one from Womack, I believe it was from Womack, I'm not sure--but he called back and he changed the description as to one male Negro wearing an Army field jacket with NCO chevrons on the sleeves, two Caucasians, one female.  She had on a floppy hat and she was wearing boots.
Q  And when you received that information from Lieutenant Paulk, you said a message was sent out post-wide?
A  Right.
Q  As far as the first message, however, to check out these people in what you described as the area, what area did you mean?  Would that mean Corregidor Courts?
A  Corregidor Courts, Mallonee Village, right around that area, part of Anzio.
Q  Part of Anzio Acres would have taken into Corregidor Courts patrol?
A  Right, right around in that area.

MR. SEGAL:  I have nothing further, sir.

COL ROCK:  Does counsel for the government?

Questions by CPT SOMERS:
Q  Sergeant Boulware, when this first description from Williams was put out, did, in fact, patrols start reporting in from patrol duty?
A  Right.  Called in and said they stopped several cars, people--that's when they started bringing people in.  All the patrols were back pulling their duty, I assume.  I'm not saying they were.
Q  Were you getting calls to give you reason to believe that is true?
A  Right, this is why I said I assume.

CPT SOMERS:  No further questions.

COL ROCK:  Sergeant Boulware, 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:  Right, sir.

COL ROCK:  You are permanently excused, thank you.

WITNESS:  Right, sir.

(Witness saluted the investigating officer and departed the hearing room.)

COL ROCK:  We will recess.

(The hearing recessed at 1455 hours, 10 September 1970.)

(The hearing reopened at 1505 hours, 10 September 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.  Please call Mr. Grebner to the witness stand.

(CWO Franz J. Grebner was called as a witness, was reminded of his prior oath, and testified as follows.)

Questions by COL ROCK:
Q  Mr. Grebner, I hand you herewith Government Exhibit 107.  Can you identify this document, after you have had a chance to read it over?
A  Yes, sir, it is carbon copy of a lab report from the CID lab at Fort Gordon relative to comparison of hair samples.
Q  Now after the hair samples were taken from Captain MacDonald, was it your desire as the Detachment Commander of the Fort Bragg branch of the CID to expedite the lab work and get this report back as soon as possible?
A  Right, it was.
Q  Did you personally attempt to expedite this work in any way?
A  No, sir, I did not.
Q  Who did you have, or in what fashion was--were efforts made to expedite the lab's work or to call their attention or to call their attention to the fact that you did want to have it expedited?
A  I instructed that it be packaged and sent immediately in the next mail, which was the following morning, to Fort Gordon, and instructed--I believe it was Mr. Shaw or Mr. Ivory, whichever--to call and tell them that this was of utmost interest as the other evidence has been in this instance.
Q  Were you aware that I wanted this information expeditiously?
A  Yes, sir.
Q  How did you go about, or let's say, when you were aware of our interest in expediting it, did you make further attempts to call the lab to apprise them of the fact?
A  No, sir, because I assumed that you would be interested.  I did not hear directly that you were interested, as I recall now, but I assumed that everyone was interested, and I had the one call made.
Q  But no one personally told you that I was trying to get these hair sample--
A  No.
Q  Reports?
A  No, sir.
Q  Do you have knowledge of the date the material was sent to the lab?
A  It would have been the next day, sir.  This was my instructions.
Q  And do you know by looking at a calendar or other device what date that was?
A  What date was it that--I don't recall the exact date that we went--that we took the hair exemplars.
Q  Would providing you a calendar help refresh your memory, or can--
A  Yes, sir, I recall now.
Q  What date was it?
A  It was on the same date.  It was packaged and hand-carried to the laboratory.  Hand-carried and arrived the same evening.
Q  But do you know what date that was?
A  That would have been the 20th of August--of July.
Q  Packaged and forwarded the same day by messenger?
A  Yes, sir.  It was driven down.
Q  Now what date did you receive the lab report of that hair sample?
A  It was mailed from Fort Gordon on the 29th of July.  It was probably--could have been received in my office by the registered mail clerk either on--well, possibly the evening of the 30th or the 31st.  Again, it may not have arrived until--it would have been Monday, which would be the 3rd.
Q  Correct.
A  Now what happens then is that he retains that in the safe until he is able to contact the evidence custodian.
Q  He who?
A  The mail clerk.  This may be two or three days even before they might get together.  It could be that long.  Then he--the evidence custodian would have signed for it and it would have been placed in the evidence room, and in this particular investigation, it would have been retained there until the evidence custodian could get with me to turn it over personally.
And this again could have taken anywhere from one to three days. 
Q  Would you give the early date--strike that.  Do you know what specific date this report came to your attention that is you were able to read it?
A  I could only say that it probably, the earliest would be that Thursday, the 6th or the 7th, or may have been as late as the 10th.
Q  Did you receive the original copy of the report?
A  Yes, sir, I did.
Q  What date did you notify a representative of counsel for the government in this MacDonald hearing?
A  I notified Captain Somers sometime after he returned from Washington.  He departed on the 17th, I believe.  They were there for five days.  It could have been the 29th; the 30th was on a Monday.
Q  Would you like to refresh your memory with a calendar?

(A calendar was handed to the witness.)

A  Probably, sir, on or about the 24th of August.  At this time, sir.  I might add that I advised him that I had the report but I wasn't able to release it to him per instructions of the Third Army.
Q  Why is that, Mr. Grebner?
A  Apparently there was some question as to the, some of the wording, that the work or wording of the technician was not clear and they couldn't get clarification from her because she was either on leave or off testifying somewhere and they had to wait until she returned.
Q  Now when you say you could not release it to Captain Somers, when was this Third Army hold on releasing this report to Captain Somers lifted?
A  I received that in a call from Colonel Ingram on either the 12th or 13th of August.

MR. SEGAL:  I did not hear the name, sir.

WITNESS:  Colonel Ingram.

Q  What is his position?
A  He's the Deputy Commander of the 3d Criminal Investigation Group.
Q  Is that Lieutenant Colonel?
A  That is Lieutenant Colonel, and I believe he had been instructed by the Third Army Provost Marshal.
Q  Now at the time the report was released, was it released in the form of Exhibit 107 to Captain Somers?
A  They sent the addendum to it.
Q  Was Exhibit 107 released to Captain Somers in any fashion prior to 25 August?
A  No, sir, I--you mean in a burnt copy or anything?
Q  A burned copy or by telephonic conversation?
A  Verbally on the 24th I may have told him what this statement was, or if it was on the 24th.  It could have been earlier.
Q  Now I believe you testified just now that Lieutenant Colonel Ingram, Deputy CO of the 3d CID group said you could release this information on the 12 or 13 August?
A  No, that I could not.
Q  Oh, you could not release it.
A  That I would retain it until the clarification was received from Mrs. Glisson.
Q  Did you release this report in any fashion, that is verbally or in any written or burned copy to captain Somers between the dates that Colonel Ingram called you?
A  No, sir, I didn't.
Q  What date was the information released to Captain Somers, that is both reports?  Do you recall?  If you would like to, I will--
A  I think that one is dated the 3d, sir.
Q  Let me pass to you Government Exhibit 108, which is the addendum thereto, dated 2 September.
A  Probably last Friday, sir, the 4th.
Q  I hand you herewith Government Exhibit G-109.  Would you please compare the statement in that letter as compared to the statement on the second page of Government Exhibit 107 and tell me if they are similar?
A  Yes, sir, they are similar.
Q  Do you know how Captain Somers received that information, if it was not released by Third Army directive?
A  As I said I may have released it to him verbally but not the report.  I was told to retain the report.
Q  To retain the report?
A  Yes, sir.
Q  But to you, that didn't mean you couldn't release the information?
A  At first it did, sir, and then I felt that--he wanted to know what it did say, and so I believe I did tell him on the telephone, sir, on the 24th.
Q  Now when Colonel Ingram indicated to you that the Government Exhibit 107 should be held up for clarification, did Colonel Ingram indicate what kind of clarification he was trying to obtain?
A  I don't know that he was trying, sir, him personally.  When I read the report I had been told verbally, not by the laboratory, but by one of the investigators, which would have been Mr. Shaw or Mr. Ivory, different than appears in the exhibit dated the 29th.  That there was some similarities and some dissimilarities, so there was a question in my mind at that point, and Mr. Shaw, of course, and Mr. Ivory both saw the report.  Mr. Shaw may have called the laboratory himself and asked about it, but he never did tell me if he did or not, but there was an inquiry made apparently to Colonel Ingram as to some problem in understanding this as compared to what the verbal report that had been received.
Q  Well, do you think then, is it fair to say that basically the reason Third Army agreed to hold up the first report was as a result of some inquiry here from Fort Bragg?
A  I don't know.  I didn't make the inquiry, sir, to the laboratory, because, as I say, Mr. Shaw may have called there.  I don't know.
Q  Would this not seem to be a rather important matter and one Mr. Shaw would have had to report to you on any decision that he apparently was making in your name on this matter?
A  I don't see any decision made.  He was constantly in contact with the laboratory throughout this investigation, and talked about other lab reports that had been received, and often there are administrative errors in something as voluminous as this.
Q  Then this was considered, in light of your experience, to be an administrative-type error?
A  It could have been.  This, we couldn't determine because Mrs. Glisson wasn't available, as I understood when I talked to Colonel Ingram.

COL ROCK:  I have no further questions.  Does Captain Somers?

Questions by CPT SOMERS:
Q  Mr. Grebner, as I understand it, you don't know what inquiry caused this hold up.  Is that right?
A  No, I do not.
Q  And you do not know that the inquiry was anything that came from Fort Bragg?
A  No, I do not.
Q  The chain of command involving the laboratory hooks up directly with the Continental Army Command, does it not?
A  That's right.
Q  Your chain of command, however, goes directly to Third Army, does it not?
A  That's true.

CPT SOMERS:  No further questions.

COL ROCK:  Counselor for the accused?

Questions by MR. SEGAL:
Q  Mr. Grebner, who else at Fort Bragg would have known what the laboratory findings were prior to the receipt of the report here?
A  Mr. Shaw, Mr. Ivory very possibly could have.
Q  Would anybody else besides those two persons?
A  No, I saw no reason to release it to anyone, other than myself, Mr. Shaw and Mr. Ivory.
Q  Is it your testimony here today that from the day the hair was sent down to the laboratory on the 20th of July until the custodian of this document finally showed it to you on August 10th or 12th--
A  Well, I say the latest would have been probably the 10th.
Q  You had no knowledge whatsoever of anyone from Fort Bragg calling the laboratory to find out what the results of this test were?
A  I'm sure that either Mr. Shaw or Mr. Ivory did, because they came in the office and probably mentioned it, I think at one time, that it was--there were similar characteristics and dissimilar in the exemplars that we had submitted, so I am sure they did call the lab.
Q  Did either one of those gentlemen tell you that they were going to try and have the laboratory state their responses on some specific fashion, or put it in certain language?
A  No.
Q  Did they tell you anything else about the laboratory reports, other than what you are saying, that they were similar and dissimilar characteristics?
A  About this particular lab report?
Q  Yes, just the hair, please.
A  They didn't tell me anything, sir.
Q  And you didn't learn in any way or become aware through any source that Mr. Shaw or Mr. Ivory were having discussions about how the lab report would be couched, that is what language that would be used?
A  No.
Q  Have you ever had the experience before of Third Army calling you to tell you to hold up the release of a laboratory report to the prosecution in a court-martial proceeding or an Article 32 investigation?
A  Prosecution?
Q  Government counsel in an Article 32 proceeding or in a court-martial proceeding.
A  I can't think of a specific instance right now, during my tenure.  Oh, I do, in one instance where there was a--a handwriting analysis, and we at one time received information that they said that--could have done it, they were certain, close enough to enough points that they could get the technician to testify and point out, although not enough to say he probably did it or he did it in handwriting analysis, and at that time I was not in charge; at that time I was working on the case and it was my case, and I was instructed by Colonel Sands-bark (phonetic) who was then group commander to retain the lab report until we got a clarification on what it really did mean by could have written.
Q  Does the Third Army Detachment commanders--are they on the regular distribution for the reports that are sent out from Fort Gordon Crime Lab?
A  Would they get copies?
Q  Do they routinely, as part of the distribution of any report requested from any source, also send automatically a copy to Third Army?
A  No, they do not get it until we send it to them.
Q  Do you have any idea in this case how Colonel Ingram, whoever it might be, the superior, would come to have some knowledge about the way the lab was writing up the report on the hair of this case?
A  Only if there had been a question, and Mrs. Glisson wasn't there to answer it and they had to talk to another technician, and then by way of conversation between the 3d Group Commander and the Chief of the laboratory.
Q  Well the question that would be given to the 3d Group commander or to the deputy commander would come from whom?  Someone here at Fort Bragg?
A  No, it could very possibly have gone from Bragg but that would have been myself.  Normally, I talk to the Group Commander.  But it may have been a conversation between the Chief of the lab and the Group Commander or the deputy commander.  I don't know.  I have no idea.
Q  Do I gather from that that the possible method for which this matter came to the attention of the Third Army, that someone here at Fort Gordon raised a question to the laboratory about the way Mrs. Glisson wrote her report, and the laboratory in turn discussed the matter with the group commander?
A  It could have happened, they are in communication with one another, and the group commander or the deputy commander could have asked the Captain that was then in charge what they had discovered down in the examination of the hairs during another conversation with him, and he may have said, well we are having a problem with the way the report was written and Mrs. Glisson is not here.  We must wait until she comes back.  At this time they called me and had taken it to the Third Army Provost Marshal, and he said hang onto the report until we get the clarification.
Q  Did you tell--
A  This is only supposition.  I have no idea.
Q  Did you tell Colonel Ingram at the very time that you had this report in your hand that the Article 32 proceedings were actually being had on a day-to-day basis in that week in August, and there was some great urgency to have this here?
A  I think I told him that and that you also were going into a week recess, the following week.
Q  Now is there not someway that you can more precisely tell us when the lab report on the hair was actually receive here at Fort Bragg, other than--
A  The hair is still at the lab.
Q  The hair report.
A  No, I would--there are so many pieces of paper that come across my desk in one day that I couldn't recall exactly when this report came.  I can only give you an approximate date within two or three days.
Q  Well, let me ask you this.  If you don't have any procedure for date stamping the receipt of reports?
A  Oh, yes, I can tell you the date it got here to Fort Bragg.  It came to Fort Bragg on the 30th of July.
Q  And you know that from what source?
A  From the date stamped on the envelope.  That's the date it arrived at Fort Bragg, and it was probably picked up the next morning, if it was morning or afternoon mail on the previous day.  So that would have been the 31st, it would have been picked up by the mail clerk in either the morning or afternoon pickup.
Q  And when the mail clerk put the report away for the custodian of evidence, didn't he make a record on his safe, or didn't the evidence custodian--doesn't he have some records to show exactly when he came in possession?
A  The evidence custodian would not.
Q  Well, who would have?
A  We have a registry and receipt--
Q  This report came by registered mail.  Is that right?
A  Right.
Q  And there is a registry receipt showing what?  That the mail clerk picked it up?
A  Right.  He signs for it at the post office.
Q  He then puts it in a safe of some sort, or a locked file?
A  In the mail room, he puts it in a safe, yes.
Q  And who is the evidence custodian that it would have been turned over to?
A  Mr. Blalock.
Q  And do you know when Mr. Blalock received it?
A  No, and he doesn't recall.  I don't imagine--he receives hundreds of pieces of evidence, and hundreds of reports come in.
Q  Well, you do have a chain of custody that you have to maintain of all evidence in an investigation?
A  Evidence, yes, but we don't maintain a chain of custody of lab reports.
Q  Now can you give us any clarification as to what was happening to the report between the 31st of July, when the latest report that you have on this report at your headquarters, and the date in August when you say you received the call from Colonel Ingram, which was the 15th of August?
A  As I say, I don't know how soon the mail clerk was able to turn it over to the evidence custodian.  He's next to me, probably the most busy man in the office, so he may not have gotten together with him to turn it over to him.  So it could have been two days.  It could have been three days.  It has been that long that I know of personally.  At the time he gave it to Mr. Blalock he would sign for it, and then it would remain in the evidence room until he gave it to me personally, and that would be when he could catch me.
Q  You did advise Mr. Blalock, did you not, that the report on the hair examination was a matter of some obviously great concern to the people involved in this article 32 investigation?
A  Did I advise him?  He knows that all reports are of concern, and he expedites them as soon as possible.
Q  So it would have priority over ordinary matters.  Would it not?
A  He, as I say, he would get it to me just as fast as he could.
Q  And under that assumption that he would get it to you as fast as he could, what is your best estimation of when you received the report then?
A  I would say anywhere from the middle of the week probably to the 10th.
Q  It could have been any one of those dates.  Exactly what I was doing--I may not have been in the office most of the time.
Q  When you say the middle of the week, you are talking about from anytime between the 31st of July--
A  No, no, the 31st of July, as I recall was a Friday.  Yes, was a Friday.  If it came in the afternoon mail, then if Mr. Blalock were testifying in court, he would probably--the mail clerk wouldn't have an opportunity until Monday, and if he went to court again on Monday morning--
Q  Would you have a way of checking if Mr. Blalock was in court on Monday morning?
A  I imagine you could check with the courts-martial they were having then.  I don't know if he was there.  He may not have been in the office.  The mail clerk may have looked for him once in the morning and not looked for him again until the afternoon or until the following day.
Q  Mr. Grebner, to be perfectly candid, couldn't you count on the fingers of one hand the number of times Mr. Blalock has been in court in the past year, twelve months, sir?

CPT SOMERS:  I object.  I think Mr. Grebner has answered these questions as best he can as to the time intervals, and I think we now serve no purpose by keeping at this.

MR. SEGAL:  Sir, I do think that it is inadequate to give us un-precise answers, when, in fact, I think the simplest of inquiries could have been made available to us the specific answers we do need.  There is the signed receipt.  There is a dated envelope which we could have had in the beginning.    There is Mr. Blalock who could very simply tell us where he was, or tell Mr. Grebner, and so I think it is really hardly inappropriate, and if we take time of this inquiry to go into the subject, and then allow it to somehow be glossed in the sense that we are dealing with generalities.  I'm very much troubled by our inability to pin down why an approximately twelve to fourteen days span elapsed between the date that a mail clerk picked up the document and before the--one of the only three or four responsible officials for it became aware of its existence.  I do not think that meets the standards that this investigation has set and the standards that must apply.  Obviously a document like this has to have some high priority.  I do not believe that our investigation or any investigation accepts that as an appropriate way of proceeding, and perhaps we are misjudging what happened because we are not being given the precise information and we could more fairly pass on and evaluate what's happened if we can pin down with a little more specificity these things.  As I say, I am very much interested in, for instance, his explanation about Mr. Blalock's activities.  We have some awareness of what his work is, and I could be very surprised if there's any slightest likelihood a single proceeding was going on at that time at this base that required Mr. Blalock's attendance, as he is very seldom involved in those proceedings, and therefore I'd ask Mr. Grebner to search his mind again, or perhaps to inquire of Mr. Blalock what he was doing, or why he was hard to find, if he was at all.  Mr. Grebner can look at his own calendar and tell us what--was he really that unavailable, or perhaps did he get the records a little bit earlier than he thinks he did.

CPT SOMERS:  Sir, I think the general timing on what happened to this report is before this hearing now.  It is not relevant to anything that is in issue here, how long this report was in, who got it when, and I recognize that we've gone into it because it is a matter of some concern to the investigating officer what the timing has been.  But I think that's clear now.  I also think it's clear that the report is here and all parties have the report, and therefore once we have established a time span and the general reasons as best we can from this witness, then there is no point in pursuing it.  And in passing, I would like to state that I have personally seen Mr. Blalock up to testify for courts-martial in excess of three times in the last two weeks, and know for a fact that the evidence custodian is required to testify in a good third to half of the contested court cases on this post.  So that the representations of the defense on that score are not true.

COL ROCK:  Mr. Grebner, we will recess this hearing until 0830 in the morning.  I would like for you to try to determine what records and/or other means you can determine as accurately as possible, the date of the receipt by your evidence room of the particular document, and from Mr. Blalock and your own recollection, by checking your calendar activities, pad or otherwise, when it was more probable that you had this document delivered to you.  The things that have been discussed so far as to reasons for the delay all lean towards the side of the maximum delay.  If we examine it from the standpoint of you got it as soon as possible, then it would appear to be certainly no later than, I would say, three--it would be as early as per-haps 3 or 4 August, so there is a considerable span of time here and this is something I am quite interested in.  So I would like for you to contact Mr. Blalock and any other records and so forth that you have available to you, to try to determine specifically as best as you can the date that you did receive the report.

MR. SEGAL:  Colonel Rock, would it be appropriate to have Mr. Grebner perhaps also talk with Mr. Shaw and Mr. Ivory as to whether either one of them contacted  the laboratory about the operative language, if they could indicate they contacted the laboratory in this regard?

COL ROCK:  Well, certainly any additional information that you have on the particular matter at hand because this is something I am trying to resolve based on the fact that I have been inquiring for a period of time about this report, and it did not come into the hands of the investigating officer until quite recently.  I hope there are good and sufficient reasons, but I want to try to tie this down as accurately as I can.  In the time available between now and 0830 in the morning, do you think you can reasonably do this?

WITNESS:  I will get you what information I can, sir.

COL ROCK:  Fine, and I will hold then in abeyance this evidence until this other matter has been resolved.  This hearing will be recessed until 0830 in the morning.

(The hearing recessed at 1545 hours, 10 September 1970.)


(The hearing reopened at 0858 hours, 11 September.)

COL ROCK:  This hearing will come to order.  Let the record reflect that all parties that were present at the recess are currently in the hearing room.  Mr. Grebner, I again remind you that you are under oath.  Have you, sir, since yesterday been able to ascertain any more clearly the dates that were in question yesterday?

WITNESS:  Yes, sir, I recall some things.

COL ROCK:  Please explain.

WITNESS:  The report was received on the 30th of July in our office.  On an unknown date--

COL ROCK:  Excuse me.  30 July by whom?

WITNESS:  By the evidence custodian, it was given to him.

COL ROCK:  Proceed.

WITNESS:  And on an unknown date, probably not more than three days later, it was given to me, on probably say, Monday, and I think was the 3rd.

COL ROCK:  Do you have any additional facts you wish to--

WITNESS:  From that standpoint on I must accept full responsibility for the report not being given to anyone.  I was not aware of its contents because I did not read it.  I caused it to be filed, because I was pressed on other matters.

COL ROCK:  Proceed.

WITNESS:  On about 17 July I was asked if I had the report and I said that I couldn't recall seeing it.

MR. SEGAL:  17 July?

WITNESS:  I mean August.

COL ROCK:  Do you know by whom you were asked?

WITNESS:  Yes, by Lieutenant Ossman.  But I did then check the files of the lab reports.  In the interim I believe that Lieutenant Ossman called the lab and they said that they had sent it to me, and about this time I did find it, and he called me to remind me that I had received it, and at this time I believe I probably told him verbally what the conclusions were in that lab report.  At that time this hearing was in recess.  I did not release the report to him because
--because it was in recess.  On the 25th of August is when Colonel Ingram called me, not in the middle of August.  He has a memo for record on this.  I had a contact with him.  And at this time he instructed me to keep the report in my possession until we got a clarification on it.

COL ROCK:  All right.  Any further information?

WITNESS:  No, sir.  I have none.

COL ROCK:  Mr. Segal?

Questions by MR. SEGAL:
Q  Mr. Grebner, may I ask why you did not release the report after you finally realized you had it your file?
A  Release it to whom, sir?
Q  To the government's attorney?
A  They were in Washington, D. C.  at that time.
Q  Do you know of any way or can you perhaps enlighten us in any way as to how Lieutenant Michael Malley, until recently assistant defense counsel, and Major Pedar Wold of the Staff Judge Advocate's Office, knew about the laboratory conclusions on August the 5th of 1970?
A  They may have contacted someone at Fort Gordon.
Q  Now Mr. Grebner, isn't it fair to say that Fort Gordon is not in the position of releasing to persons other than those who make a request for a laboratory report, the information from that report?
A  I can't answer your question, I'm sorry.

CPT SOMERS:  I object to proceeding along this line any further.  He's asking the man how somebody else knows something which is not a question which he can legitimately answer.

CPT BEALE:  Sustained.

Q  Have you ever in your experience, prior to this case, been aware of the laboratory releasing the results to any persons other than the CID or detachment requesting the lab report?
A  I think you have a tape recording of an interview of a fingerprint expert down there.
Q  You are aware that that was done with special arrangements with the investigating officer that that came about?
A  I am not aware of how he got it, sir.
Q  Is that the only example you can think of?
A  Offhand, yes.
Q  Do I gather that as far as you can surmise, Lieutenant Malley on one hand and Major Wold on the other probably had to make a call to the laboratory?
A  I don't know, sir.

CPT SOMERS:  I object to that.

CPT BEALE:  Again, it is sustained.  Move to another area.

Q  Now I believe there was some question yesterday we left with you as to whether Mr. Ivory or Mr. Shaw was in contact with the laboratory about the different understanding that they had as to what the laboratory conclusion would be, or how it would be phrased as opposed to the way it appeared in the report of July the 29th.
A  Again, we were talking yesterday as what possibly could have happened.  I don't know that.  I talked to Mr. Ivory, he did not know that I had the report until he came back from Washington, so it wasn't Mr. Ivory.  Mr. Shaw I was not able to contact, but he was leaving about that time for transfer, and I doubt that he would have known at all, sir.
Q  You doubt what, sir?
A  I doubt that he would have known that I had the report.  I am the one that caused it to be filed.
Q  I'm sorry, but I've not made myself clear, as I should, to you Mr. Grebner.  As I indicated, there was testimony yesterday from you that you, Mr. Ivory, or Mr. Shaw or all of you were of the belief that the lab said that there was some points of dissimilarity and some points of similarity.
A  I had heard this, yes, sir.

CPT SOMERS:  I think that I must object again.  Mr. Grebner has said that he does not know what Mr. Shaw may have known, and that's what we are getting into.

MR. SEGAL:  I'm not asking what Mr. Shaw may have known.  I thought I was rather clear at the conclusion of yesterday's proceedings that one of the--I made a specific statement to the investigating officer, a suggestion that it may appropriate, to which the response of the investigating officer in Mr. Grebner's presence was that he was to seek all possible information about this particular situation.  Now I certainly understood that general direction to find out the answers to the questions which was treated vaguely by Mr. Grebner, which he didn't have personal knowledge when he first came to us.  I just want to find out whether he did not apprehend that to have been the request that we put to him, so that we could clarify this issue.  I think it is important to understand why the letter of August 25th went out, why the--did in fact the CID have verbal information which it passed on to other people, and we ought to know whether they were using this information, albeit that someone may have misfiled the written report, since this is the area of inquiry that we are concerned about this morning.

CPT SOMERS:  Mr. Grebner has testified what he has done with checking with Mr. Ivory and what he attempted to do in checking with Mr. Shaw.  Now, you will not get from Mr. Grebner the answer with respect to the latter; the letter is signed by myself, not by Mr. Grebner or by any member of the CID, and I object to attempting to find out from Mr. Grebner what he has already said he does not know.

COL ROCK:  Mr. Grebner, we will excuse you temporarily while we have a little session here.

(The witness departed the hearing room.)

COL ROCK:  The matter that you brought up initially that caused me to allow this particular subject to the pursued, Mr. Segal, was your implied contention that apparently the government was not satisfied with the original lab report, and was therefore trying to acquire additional information.  It is apparent that the government was not satisfied with the word “dissimilar and there does seem to be some evidence that in other instances, aside from this particular report, different descriptions have been given on hairs, so it is conceivable that the government's attorneys would be concerned about the use of one word for the description.
Mr. Grebner has already admitted that he was in error in the cavalier way that he approached this particular document.  It appears that the government attorneys did have one of their assistants inquire and logically so as to where the report was, and that apparently through the efforts of Lieutenant Ossman this information did come to the attention of Captain Somers, and I would assume that Captain Somers, then, being concerned about the information, once it came to his formal attention on return from Washington, then, in fact, did write the letter which he has so stated and that letter is in government evidence.  I think we have answered here principally, at least in my own mind, as to the sequence of events that have occurred and there has been a gross error in that none of us received this information when we should have.  What further line of inquiry are you attempting to pursue, sir?

MR. SEGAL:  Colonel Rock, I am of the opinion that we have not full word given to us on the change of language in the report; the report why I think that's so is that one merely needs to compare the report in which the hairs of Mr. Shaw and two other investigators were compared and look at the language of Mr. Browning is quite similar to the language of 7-29, and that no one thought they need to clarify that.  But what really troubles me are the following unanswered facts, and I think they relate to the question of whether there was an attempt to manipulate or to cause a certain report to come out which the laboratory declined to do.
For instance, I represent to you that we have personal knowledge that Major Wold and Lieutenant Malley on August the 5th were told what the laboratory reports said, and I was told subsequently the same day or the next day by telephone as to what the lab reports were.  So that somebody here at Fort Bragg in fact knew that the report existed was not any longer in the laboratory formulation state, but had been completed.  But secondly, sir that we were making inquiries on every single day from August the 10th through the 16th, when this hearing was in progress, about the existence of that hair lab report, and we were told through those days the response by the government that it still wasn't here.  Now that is not, sir--we are being misled as to when an inquiry was made and whether the person who answered the inquiry has now related to us correctly when he made the check of his own files, and according to Mr. Grebner this morning, on August the 27th, after this inquiry had ended; and we are no longer here to ask about the report, that's the first time that Lieutenant Ossman contacted him, and shortly thereafter he located the report.  What happened from the 10th to the 16th when we were here on a daily basis, requesting the existence of the report, being told it was being checked for, it was being looked for, all the time knowing that on the 5th of August, Major Wold and Lieutenant Malley had been told the results of that report.  It seems to me again that Captain Somers was telling Captain Douthat on August the 22nd in Washington the results of the report and that's prior to his receiving on the telephone the quotation statement which he then used in his letter of August the 25th.  So again, the information on the report was being circulated.  It does not satisfy me that we have had the full answer as to why this report was here.  I do not accept the representation by the witness in my own mind as being complete when he says that he just caused it to be filed.  I would surmise, sir, and suggest that what I really would to find out is whether or not Mr. Shaw was not in the process of quarreling with the laboratory about their language and saying well, if you find points of similarity and dissimilarity, why don't you say that instead of saying it is dissimilar.
This defies logic.  If you are asked to say whether this fingerprint belongs to this person, they have ten points of comparison.  If it doesn't have it, it has two or three that are the same and seven that are not, you say it's not that fingerprint.  You don't say it has points of similarity and dissimilarity, because the only way you can say it has similarity is to say there is ten points or more in comparison.  The same with the hair.  Now this is just a clear attempt to obscure the words by the laboratory and I think we ought to know who is responsible for an attempt to make less clear what the laboratory--

COL ROCK:  It occurs to me then, Mr. Segal, that we are going to have to hold these proceedings in abeyance, because I would not be satisfied unless I had all the principals here to answer those questions.  This then means getting Mr. Shaw, Major Wold--probably it is not expedient now to get your former associate attorney here, though we might be able to get him telephonically--but it would be necessary then to hold these proceedings in abeyance until we can gather these witnesses to testify, because certainly Mr. Grebner, apparently, doesn't know any more than what he has stated this morning, between the dates of the 3rd and 17th of August, I believe it is.  It is conceivable that other people could have released this information without his knowledge and it would seem incumbent upon me to call these other witnesses to answer your questions if we pursue this in that line.

CPT SOMERS:  May I respond, sir?

COL ROCK:  Yes, please.

CPT SOMERS:  I can shed some light on some of the things he raised.  I would point out that I don't think it is the object of this hearing necessarily to satisfy Mr. Segal one way or the other.  However, if on 5 August Lieutenant Malley had some kind of information with respect to this report.  Lieutenant Malley and the defense are uniquely in a position to tell us the source of this information.  I can say that Major Wold contacted me subsequent to my return from Washington wanting to know the results of that report.  I would conclude from that that he did not know, up to that point, the results of that report.  Secondly, I did, during the week of the hearing talk to Mr. Ivory, who did not know that the report was in.

COL ROCK:  What period of time was that?

CPT SOMERS:  I do not remember, sir.  It was during the hearing.  But my principal source of information during the hearing was the laboratory and at that time, Miss Glisson, who has done the work, was not there, and I spoke to Mr. Browning who led me to believe that the work was still in progress because of this apparent unsureness.  And he is the one who explained to me that there was some work being done on it, which at that point left me with no conclusion one way or another as to what they were going to finally reach.  Now Lieutenant Ossman was called by Lieutenant Malley, he tells me, while Captain Thompson and I were in Washington, and apparently at that time from his call Lieutenant Malley did not now what the contents of the report were.  I told Captain Douthat what I understood to be the contents of the report on the 22nd from the information which I had received from the lab, and I told him this because it seemed that he ought to know where it stood, even though I didn't know what the final results were going to be.  Now, on my return and on discovering what the report did say, I personally initiated a request to the lab to show what this word meant, and I sent the letter which is in evidence, and I got the response which is also in evidence, and that, insofar as I can tell, is the source of the question to the lab and that is the response, and there was no more pressure on the lab than the question and response.  I think we've got all the information that the investigating officer needs to answer any question relevant to this hearing, and I suggest to you, sir that further postponement of this hearing, to go into issues that are decidedly collateral and which have really no bearing on this hearing one way or another is unwarranted.  This hearing has lasted long enough, and should proceed to its natural and normal close without pursuing further an issue which I submit cannot add materially to the necessary conclusions of the investigating officer one way or the other, and I object, sir, to proceeding further and request that we close today.

COL ROCK:  This hearing will be recesses temporarily.

(The hearing recessed at 0921 hours, 11 September 1970.)

(The hearing reopened at 0938 hours, 11 September 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties who were in attendance at the recess are currently in the hearing room, and the witness, Mr. Grebner, is again seated.   Sir, I remind you that you are under oath.   Proceed, counselor.

Questions by MR. SEGAL:
Q  Mr. Grebner, you became aware, did you not, that these proceedings were being held the week of August the 10th and 15th, 1970?
A  Yes, sir.
Q  And may I ask how you knew that these proceedings were going on at that time?
A  I was told.
Q  You were told.  Now to your recollection, did not any person connected with government counsel contact you, or any other person contact you and ask you, during that week of the proceeding session, where was the lab report on the hair?
A  Not that I recall.
Q  Did you see Mr. Shaw at all during that period of time?
A  Yes, sir, I did.
Q  Did at any time you make any inquiries of Mr. Shaw as to the status of the hair report?
A  Not that I recall.
Q  Mr. Shaw was the person who seemed to be most frequently in contact with the laboratory about the various reports, was he not?
A  More than I was, yes.
Q  And more than Mr. Ivory too, I would think it would be fair to say?
A  I didn't count the times that they called the laboratory.
Q  Was there any reason why Mr. Shaw was not asked whether all the reports for the MacDonald case were made available for government's counsel so that they could finish their case?
A  No.
Q  Was there any reason why he wasn't asked to establish the status of the lab reports?
A  No.
Q  Did Mr. Shaw or Mr. Ivory indicate to you that they were having during that week, requests made to them by the prosecution or government counsel for the lab reports on the hair?
A  Would you repeat?
Q  Did either Mr. Shaw or Mr. Ivory tell you that the government was asking them to get the lab reports on the hair during the week of August 10th through the 15th?
A  I was very busy during that time.  I do not recall.
Q  Do you know, Mr. Grebner, whether the report on the candles and wax in the MacDonald house is in your file now?

CPT SOMERS:  I object to that.  That's completely outside the scope of questioning.

MR. SEGAL:  I have nothing further.

Questions by COL ROCK:
Q  Mr. Grebner, for my own information, do you know whether the report on the candle wax, that is the second batch that I understood was sent to Fort Gordon lab, whether a report on that is in your office?
A  Sir, I would have to check.  I do not know.

COL ROCK:  I would appreciate it, if upon completion of the testimony this morning, when you return to your office, would you make a good search to determine if it available, and if so, give it to the government.

WITNESS:  I will do so, sir.

COL ROCK:  Because the time is long since past when evidence should be here before this hearing.
    Does the government have any further questions in this connection?

CPT SOMERS:  No, sir.

COL ROCK:  Now, in my letter to the government on 26 August requesting certain evidence, I requested that the government again produce the accused's pajama top and pocket.  I believe you are now ready to do that while Mr. Grebner is here.

CPT SOMERS:  Let the record reflect that I handed these items to the investigating officer.

(The investigating officer examined G-74 and G-75.)

COL ROCK:  I have finished my examination of the two items in question.  Does counsel for the accused desire to examine them any further?

MR. SEGAL:  I have no need.

COL ROCK:  At this time I would like to see the pajama top and bottom of Colette MacDonald.

CPT SOMERS:  Let the record reflect that I present the investigating officer with the items he's requested.

COL ROCK:  Mr. Segal, do you have any objection to these being accepted into evidence, that is, the pajama top and bottom, respectively, of Colette MacDonald?

MR. SEGAL:  No, sir.

COL ROCK:  Which she wore on the night of 17 February.

MR. SEGAL:  I have no objection.

COL ROCK:  Exhibit R-7 is the pajama top of Colette MacDonald found on her body on the morning of 17 February.  R-8 is pajama bottom of Colette MacDonald found on her body on the morning of 17 February.

(The investigating officer examined R-7 and R-8.)

COL ROCK:  Does counsel for the accused desire to inspect either garment?

MR. SEGAL:  No, sir.

COL ROCK:  And finally I would like to see the top sheet and the multi-colored bedspread from the master bedroom of the MacDonald residence.

CPT SOMERS:  Let the record reflect that I am handing those items to the investigating officer.

(The investigating officer examined both items.)

COL ROCK:  Exhibit R-9, blue top sheet from master bedroom bed.  R-10, multi-colored bedspread from master bedroom.  These items will be returned to the laboratory and a description thereof substituted for the actual items for purposes of the record.  Mr. Grebner, you are advised that you will discuss your testimony with no person other than counsel for the government or counsel for the accused.  You are permanently excused, sir.

(The witness saluted the 10 and departed the hearing room.)

COL ROCK:  At this time the investigating officer would like to recall to the stand Captain MacDonald, the accused.

(Captain MacDonald sat in the witness chair and was reminded of his prior oath.)

COL ROCK:  I would like for the legal counselor to advise you of your rights.

CPT BEALE:  Well, again, Captain MacDonald, as you know, Colonel Rock wants to ask you some questions.  As previously advised, you are suspected of the offense of homicide or murder of three--three charges of murder against you.  I want you to understand that you do not have to make any statement whatsoever and that if you do desire to make a statement, any statement that you may make could be used in evidence against you in a trial by court-martial.  Naturally you have Mr. Segal, your attorney here, also Captain Douthat, your appointed military counsel.  Do you desire any other counsel here at this time?

ACCUSED:  No, sir.

CPT BEALE:  Do you understand that you do not have to make a statement?

ACCUSED:  Yes, sir.

CPT BEALE:  And do you further understand that if you do make a statement, that such could be used in a trial against you?

ACCUSED:  Yes, sir.

CPT BEALE:  Now, as you know, you have made a previous statement to this hearing, and it was oral and was under oath, and at that time you were informed of your rights, and assuming that procedure that I advised you of your rights under was effective, I do not think that you now have to make a statement just because you've already made one before.  Do you understand that?

ACCUSED:  Yes, sir.

CPT BEALE:  Do you desire to make a statement?

ACCUSED:  If I'm asked any questions, yes.

CPT BEALE:  All right, fine.

COL ROCK:  The purposes of my questioning, gentlemen, will be limited to one specific area.

Questions by COL ROCK:
Q  Captain MacDonald, you have heard testimony relative to surgeon's rubber gloves and you have also testified concerning this particular subject, and I wish to limit myself specifically to one area of that inquiry, and specifically with reference to statements that you have made to determine if I am clear in my mind as to your recollection of the events of 16th and 17th.  I hand you herewith page M-83 of the accused's testimony, and it will begin roughly with the middle of the page, and I am specifically interested in this statement here, so take your time to read that please.
A  Yes, sir.

(The referenced transcript was handed to counsel for the government.)

COL ROCK:  Do you have that, Mr. Segal?

MR. SEGAL:  Yes, sir, I do.

COL ROCK:  Captain MacDonald, would you please read from the middle of the page any statement regarding washing dishes and any points relative to gloves?

WITNESS:  Yes, sir.

“Q Did you wear gloves when you were washing dishes?
“A  I think I did.
“Q  What kind?
“A  I don't remember.  She had several kinds around.  It was at least two pairs on the kitchen sink.  There was a heavy yellow kitchen type of a glove and some of the surgeon's gloves that I had brought her home.
“Q  How many surgeon gloves had you brought her home?  Do you know?
“A  I don't remember.  I had a box, the initial box they came in.
“Q  Where did you keep them?
“A  Either under the kitchen sink or in the hallway.  The main closet in the hallway.”

COL ROCK:  Fine, thank you.  Now I address your attention specifically, Captain MacDonald, to the number of pairs and types of gloves on the kitchen sink.  Your statement, again, is to the question, “Did you wear gloves when you washed the dishes?  I think I did.  What kind?  I don't remember.  She had several kinds around.”  Now the key--“It was at least two pairs on the kitchen sink.  There was a heavy yellow type of glove and some of the surgeon's gloves that I had brought her home.”  Is that your clearest recollection of the gloves that were on the kitchen sink?

WITNESS:  Yes, sir.  There were, when I did the kitchen, there were two pairs of gloves, a yellow pair of kitchen gloves and a pair of surgeon's gloves.

COL ROCK:  And a pair of surgeon's gloves.  Do you know what happened to that pair of surgeon's gloves that were on the kitchen sink?

WITNESS:  No, sir.

COL ROCK:  Did you have any occasion to wear them that evening?

WITNESS:  Unless I wore them when I was doing the dishes, no.

COL ROCK:  I have no further questions.  Does either counsel?

Questions by CPT SOMERS:
Q  What kind of gloves are they?  The throw-away kind or the permanent kind?
A  It depends on the hospital usually.  A lot of the throw away gloves are reused in some hospitals.  I think these are throw-aways.
Q  Are the throw-away type powered or lined inside with something?
A  Some of them have powder, depending on the manufacturer.  Some have a packet of powder.  Some don't have anything.  I don't know what these had.
Q  Presuming that they were used multiple times, how difficult were they to take on and off without powder?
A  Well, if your hand fit in them--if your hand was smaller than the glove, it wasn't too bad, you know, it would squeak when you pull them on, but you could get them on and off.

CPT SOMERS:  No further questions.

COL ROCK:  Mr. Segal?

Questions by MR. SEGAL:
Q  Were there other of these surgeons gloves in other parts of the house?
A  Yes, sir.
Q  Where else were they kept, Captain MacDonald?
A  My wife used them for multiple purposes, and there was at least another pair on the dryer in the utility room where she normally kept a pair to do the laundry with.  She also used them for painting.  And I have been told that there was another pair in the utility shed, separate from the house.
Q  In the shed?  You are not talking about the utility room?
A  No.
Q  And the washer and dryer you referred to were located in what room?
A  Well, the washer is in the kitchen.  The dryer is in the utility room, and that's where the laundry, you know, equipment was kept, dirty laundry.
Q  In the utility room which joined the master bedroom?
A  Yes, sir.
Q  Do you know whether there were any of those gloves in that utility room on the particular night of February 17th?
A  Yes, sir, she usually kept a pair on top of the dryer in that room.
Q  Now what about this utility unit that's not--that's not the utility room that you referred to?  You mean the outside storage shed?
A  The outside storage shed.
Q  And you said there were gloves kept there?
A  Well, I wasn't aware of it, but the CID told me that they found a pair of surgeon's gloves in that storage shed.  I just wasn't aware of that.
Q  You had never observed that pair there before?
A  No, not specifically.

MR. SEGAL:  I have nothing further.

Questions by CPT SOMERS:
Q  Now you say that there were usually gloves on the dryer that your wife kept them there.
Is that correct?
A  Yes, sir.
Q  Now on the evening of the 16th and 17th, were there gloves on the dryer?
A  Well, I didn't specifically look at the dryer and check if there were gloves there before I went to bed.  They usually were there, and that's my recollection.  I didn't specifically remember seeing them there that evening.
Q  You are saying they are usually there, but you don't know whether they were there or not that night?
A  That's correct.
Q  What did your wife use rubber gloves with the dryer for as opposed perhaps to the washer?
A  No, I just explained that.  She kept her laundry materials in the utility room.  She kept dirty laundry there usually in big boxes, so then when she went into get clothes, or soap she would pick them up from the top of the dryer.

CPT Somers:  No further questions.

MR. SEGAL:  Nothing further.

COL ROCK:  Captain MacDonald, you are advised that you will discuss your testimony with no person other than either counsel.  You are excused.

(Captain MacDonald resumed his seat at counsel table.)

COL ROCK:  Gentlemen, this concludes the evidence which the investigating officer desires to present before this hearing.  This hearing will be closed for a thirty-minute period for counsel to prepare to present their final arguments.  It will be done in sequence by counsel for the government, counsel for the accused, and if the government so desires, rebuttal by the government.  The hearing is recessed.

(The hearing recessed at 1020 hours 11 September 1970.)


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