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Jeffrey MacDonald's Article 32 investigation hearing: 1970 - Volume 5
Major William H. Straub, (MD) Specialist 6 Michael Newman,(Clinical Specialist) Colonel and Mrs. Robert Kingston, Dillard Browning (CID Lab)

(The hearing reopened at 1304 hours, 10 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties who were present at the time of the break are currently in this session.  Please proceed.

CPT SOMERS:  The government calls Major Straub.

MR. EISMAN:  Excuse me; I was under the impression before the break that Pamela Kalin was going to be called next.

CPT SOMERS:  It is necessary to change the order.

COL ROCK:  Unfortunately you weren't here when this change occurred.  I was notified about fifteen minutes ago.  Would you please explain, counsel for the government, why the change of the witnesses?

CPT SOMERS:  Well, sir, it became necessary to change the witnesses because in the testimony of Pamela Kalin, there are many things that we wish to--and some evidence that we wish to use.  In attempting to gather this together and present it out of order, which we're trying to do, we simply are incapable of doing it at this point, and we don't anticipate being able to do it now until Monday.

MR. EISMAN:  If we might have a brief recess, I might discuss the matter with counsel.  I might wish to speak with Major Straub before he testifies as I wasn't aware that he was going to testify at this time.  If I may have about ten minutes.

COL ROCK:  Certainly.  This hearing will be recessed for ten minutes.

(The hearing recessed at 1306 hours, 10 July 1970.)

(The hearing reopened at 1322 hours, 10 July 1970.)

COL ROCK:  The hearing will come to order.  Is the counsel for the government ready to proceed?

CPT SOMERS:  Yes, sir.

COL ROCK:  Please bring your next witness.

CPT SOMERS:  I call Major Straub.

(Major William H. Straub was called as a witness by the government, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q  Would you state your full name, please?
A  William Henry Straub.
Q  Your grade?
A  Major.
Q  Your organization?
A  Womack Army Hospital.
Q  Your station?
A  Fort Bragg.
Q  And your armed force?
A  Army.
Q  What degree do you hold, sir?
A  I hold a Bachelor of Arts and Doctorate of Medicine degree.
Q  Where did you receive your MD degree?
A  Georgetown University.
Q  And have you done an internship?

MR. EISMAN:  If the investigating office would permit us, I would agree to stipulate to the qualifications of Major Straub, that he is a qualified physician so that we can save time.  I have no questions about his qualifications.

CPT SOMERS:  I'd like to ask just one or two more questions.

COL ROCK:  All right, proceed.

CPT SOMERS:  You have done an internship, sir?
A  Yes, I interned at the University Hospital in Seattle, Washington.
Q  Have you done a residency, sir?
A  I did a three year residency in radiology at the University of Michigan.
Q  And have you been certified by the American Board of Radiologists?
A  I am certified by the American Board of Radiology.

CPT SOMERS:  I do offer this witness as an expert medical witness.

MR. EISMAN:  No objection and no questions.

Q  Doctor Straub, what were your duties on the night of 16th and 17th of February of this year?
A  Well, I was assigned to the Emergency Room at Womack Army Hospital as one of the physicians on duty.
Q  And during the course of your duties that evening did you have an occasion to see Captain MacDonald?
A  Yes, I did.
Q  How did that come about, sir?
A  I was--had retired.  We had cleaned the emergency room out of patients and I had laid down.  I was awakened by one of the nurses who told me to come quickly, that a doctor had been stabbed and that his family had been killed.
Q  And what did you do then?
A  I walked back to the room which they had wheeled Captain MacDonald into and quickly examined him.
Q  And what was the result of your examination?  What did you find?
A  He was conscious.  He was naked from the waist up and had some dried blood on his face; had a wound in his right chest which had been covered with a piece of gauze, Vaseline gauze.  He had a bruise on his left forehead and a stab or laceration of the upper abdominal wall which was actually a superficial laceration.  It did go into the muscle, but I didn't--on looking at it feel that it was in the peritoneal cavity.  He also had a, what looked to me like a stab wound of the left arm, approximately in this area.
Q  You are indicating midway between your elbow and your shoulder?
A  Correct.
Q  On the inner side of your bicep?
A  As I recall, it was on the outer side.
Q  Now how long was this injury of the left side you described as not puncturing the peritoneal cavity?
A  I'd estimate it was about three inches long.
Q  Would you tell us what you mean when you say it did not enter the peritoneal cavity?
A  We judge the seriousness of abdominal stab wounds by their depth.  Once you enter the peritoneal cavity you enter into an area which is--where everything is, and you have a chance of damaging critical organs and that particular wound didn't appear to have gone through, but it was into the muscle so we don't really classify it as a superficial laceration.
Q  If I may put it in another term, are you saying, sir, that this wound did not puncture the muscle wall?
A  It did puncture the muscle wall.
Q  Did it go through the muscle?
A  Well, I didn't probe down to see if it reached the level of the peritoneum, but it was through the muscle.
Q  But you don't know if it was in the peritoneum?
A  I think it would be better to query one of the surgeons who may have examined that wound more closely.
Q  Was Captain MacDonald in shock when you saw him?
A  That depends--what you mean by shock.
Q  Was he in cardiovascular shock?
A  Well, as I recall, when I reached him he was on the stretcher.  He was lying down and the blood pressure and pulse had been recorded on his sheet and I glanced at it.  I don't recall what it is; I don't know whether it is in the records or anything, but judging from what I saw I wasn't immediately concerned that he was in severe cardiovascular collapse.  Of course, people, we see people who have been in shock, whether they are standing up or when you lie them down and the blood pressure may return to normal: then you set them up, they are immediately in shock, so I think that, you know, that one examination I'm sure was taken when he was lying down.  I'm not sure of the validity of that in evaluating whether he was in cardiovascular shock.

COL ROCK:  Did you have any conversation with him?

WITNESS:  The only thing he said to me was, “Am I gonna be all right, doc, am I gonna be all right?”, and I said, “Yes, I think you are.”

COL ROCK:  Did he seem to be coherent in that question?

WITNESS:  He was excitable, but he was coherent.

Q  What treatment did he receive?
A  The most important treatment he received was the piece of Vaseline gauze which I imagine one of the corpsmen or nurses applied to the wound in the right chest.  I gave him no treatment at all and we just wheeled him very--after I continued my examination I thought that he may have a collapsed right lung because in listening to his chest there seemed to be decreased breath sounds on the right side, and so I thought we ought to get an x-ray of his chest right away.
Q  Was this done?
A  He was only in the emergency room about two or three minutes.  We quickly wheeled him to the x-ray department and took a chest x-ray there.
Q  Did you have an opportunity to see those x-rays?
A  I saw the initial film that was taken, yes.
Q  And what conclusion did you draw?
A  He had a partial collapse of the right lung.
Q  Can you give us any idea how much that lung was collapsed?
A  It was approximately--I'd just look at the--I had forgotten but I had just looked at the medical records--approximately 20% was the reading that I gave to the emergency room at that time.
Q  Did you treat him subsequent to that?
A  I never saw him after that.  I just helped Doctor Jacobson who was the Surgical Officer of the day in charge that night.  He came down to the emergency room right away.  We both wheeled him over to the x-ray department and then I left and went back to the emergency room to take care of some auto accident victims that had come in.
Q  Would you characterize his condition that morning as critical?
A  That depends on what time.  When I saw him I thought he was seriously injured.  It depends on how you define critical or serious, any of these.

COL ROCK:  Are you familiar with how this terminology is used by the hospital?

WITNESS:  No, I am not.  No, I am not, in my own examination I would say he was seriously injured, as I think anybody is with a partial collapse of the lung.

Q  How would you define critically injured?  Put it in your own terminology.  In your own terminology, was he critically injured?

MR. EISMAN:  Now, I'm going to object to this question.  I don't think the question is properly phrased.  He's been asked the general question what he thought the condition was.  Now he's being led into--the witness is being led into trying to attempt to give his medical opinion about some condition which is not before the investigating officer.

CPT SOMERS:  I simply want to know--

CPT BEALE:  Just a second, counselor.  The objection is sustained.

CPT SOMERS:  I have no further questions.

Questions by MR. EISMAN:
Q  Doctor, the second wound which you described, the wound to the stomach--you testified that that was approximately three inches long?
A  As I recall--I'd like to more or less preface these statements by the fact that I was faced with a man who was wheeled in stabbed and my primary duty there was to see that he doesn't die on me in the emergency room.
Q  And you were primarily concerned then--
A  I wanted to see how serious these wounds were.  Now when I was told that he had a stab wound in the chest which had been bubbling and which had been--already covered with gauze, I said that's the most serious wound, and I looked down and see that he had a laceration on the abdominal wall and I, of course, wanted to look how deep it was so I spread it apart as I recall and saw that it had gone through a great deal of the muscle of the abdominal wall, but from what I saw I didn't think it had entered the peritoneal cavity.  So as long as it hadn't entered the peritoneal cavity area, the fact that it wasn't bleeding a great deal, you know, its importance becomes very relative to the wound in the chest which I saw as a serious wound.
Q  And it would be normal procedure that you would be concerned with the most serious wound first and anything that was as not as serious to at least wait until the most serious wound was treated?
A  Absolutely, that's the way you have to operate in an emergency, to take care of anything that might be life threatening first, and anything else waits.
Q  You have said that the wound that you observed in the chest you considered to be serious.  Could you please explain to the investigating officer why that type of wound would be considered serious from a medical standpoint?
A  Well, with a partial collapse of a lung, although it may be like I described, 20% when I see it initially, thirty seconds later it could be completely collapsed which can be a life threatening condition.
Q  Well, what would it mean if a lung completely collapsed at that point?
A  Well, if you completely collapse your lung, first of all you are concerned with the tension, the various types of pneumothorax, one of which is the tension pneumothorax which you can get from a stab wound, which you breathe in--
Q  Just a--you have mentioned a medical term which I think that the reporter and the investigating officer would like to hear again, and I would ask you to spell it for the reporter so that she could relate the word, the medical term which you have just mentioned which was pneumothorax.
A  It is just spelled p-n-e-u-m-o-t-h-o-r-a-x.
Q  Now in layman's terms, for my own edification, what is the layman's definition of a pneumothorax?
A  For all practical purposes a pneumothorax is a collapse of the lung in which free air is--the lung normally occupies a potential space when it is expanded, now, and it's in a vacuum.
Now if you let air in from the outside, such as you have in a stab wound, you eliminate this vacuum and the lung collapses.  What was formerly occupied by this potential space, which was formerly occupied by air, the lung now collapses away from it and it is occupied by air that instead of being in the lung, it's outside the lung, and it is not useful air and the lung continues to collapse and you just don't know where it is going to stop and that's why these are followed, you know, like every four to six hours, usually by a chest x-ray, to see whether the lung is going to expand itself or whether it is going to collapse further, and that will usually determine what the course of treatment is.
Q  Now, doctor, the area which this wound, in which you saw the wound, behind the lung or in the area of the lung, are there other vital organs of the body in that area?
A  As I recall--I really don't, from recall, know exactly where that wound was right now, but thinking on it I was concerned.  Depending on the course of an instrument that--knife or whatever it could have been--that it could hit the heart, really, or the liver.  That is one thing I wanted to look at in the chest film, which we didn't have a pneumo pericardial or something, that had to do with the heart.  But just from the entrance of the wound you have no way of knowing what has gone on inside, up, down, sideways, or what.
Q  Is there any practical way for a person, in a hypothetical situation, to stab himself, to know how serious that wound would be, whether or not it would be fatal in that type of pneumothorax?
A  I'd rather not answer hypothetical questions, if possible.
Q  If you can't answer it, I withdraw the question, doctor.  I don't want to ask you a question which you don't feel you should answer, but this type of a wound has been known to be fatal.  Is that correct?
A  Pneumothorax have been known to be fatal.
Q  And prior to the receiving of the pneumothorax would there be any way for sure, as a doctor to know what the results of the--the final medical results would be of such a wound?
A  Maybe I misunderstood your question.  You mean if a person has a pneumothorax, does he, himself, going to know whether it is 10%, 20% or 70%?
Q  And what the medical result would be so far as life is concerned, would you know in advance?  Is there any way to know in advance?
A  You don't know--no, I don't see how you could know in advance what sort of collapse you are going to get from a lung.  If you puncture a lung you don't know whether you are going to get a 10% collapse or a 100% collapse.  It just depends on the dynamics going on in there; you have no way of predicting it.  For example, pneumothoraces occur spontaneously many times in which people pop blisters and perforates a lot, and just depending on the dynamics and how fast it closes, it may collapse 10% and it may collapse totally.
Q  According to your knowledge of this case, if you don't wish to answer the question you can give the appropriate answer, but was further treatment of this wound required to your knowledge, as far as other than what you did?
A  I heard that the lung had collapsed further and that it was necessary to put in a chest tube because as I say, many of these questions, I think about the treatment of the pneumothorax, the shock aspects, et cetera could best be answered by the surgeon who was on call and took care of him.  I saw him only for about three minutes in the emergency room and that was all.
Q  And did you consider this in your medical judgment to be a serious injury?
A  Absolutely.

MR. EISMAN:  No further questions.

COL ROCK:  Counsel for the government?

Questions by CPT SOMERS:
Q  Doctor, is total collapse of one lung necessarily fatal?
A  Not necessarily, no.
Q  If one lung totally collapses, is that necessarily going to collapse the other one?
A  Not necessarily, but I can assure you with one lung totally collapsed and the other one collapses, death is imminent.

CPT SOMERS:  I'm sure it is.  I have no further questions.

MR. EISMAN:  I have no further questions, doctor.  Thank you very much.

COL ROCK:  Does either counsel wish to excuse this witness subject to further recall, or are you willing to excuse him permanently?

MR. EISMAN:  On behalf of the accused, I see no further need to burden Doctor Straub.

CPT SOMERS:  Nor I, sir.  I would be willing to see Doctor Straub excused permanently.

COL ROCK:  Major Straub, you are advised that you will discuss your testimony with no person other than either counsel.  Do you have any questions on that?

WITNESS:  No, sir.

COL ROCK:  You are excused permanently.

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

COL ROCK:  Is counsel ready with the next witness?

CPT SOMERS:  Yes, sir.

COL ROCK:  Please bring him forward.

CPT SOMERS:  The government calls Specialist Newman.

(Specialist Six Michael D. Newman was called as a witness by the government, was sworn, and testified as follows.)

Question by CPT SOMERS:
Q  Would you state your name, please?
A  Michael D. Newman, sir.
Q  Your grade?
A  I'm Specialist Six Class.
Q  Your organization?
A  Medical Company, Womack Army Hospital.
Q  Your station?
A  Fort Bragg, North Carolina.
Q  Your armed force?
A  United States Army, sir.
Q  What is your military training in the Army?
A  I have had approximately a year of military medical training.
Q  Have you received any sort of certificate of recognition as a result of this?
A  Right, sir, I've been awarded the MOS of a Clinical Specialist by the Army, and also I am licensed as a practical nurse.
Q  What was your duty on the 16th and 17th of February of this year?
A  I was in charge of the Emergency Room at Womack Army Hospital.
Q  Did you have occasion that evening to see Captain MacDonald?
A  Yes, I did, sir, on the morning of the 17th.
Q  How did that come about?
A  He was brought into the emergency room by one of our ambulances.
Q  And would you tell us what happened then?  Did you see him yourself?
A  Yes, sir, I did.
Q  Where was this?
A  In the Emergency Room.
Q  When he was brought in, what was done with him?
A  He was taken back to the operating room there in the Emergency and treated for his wounds.
Q  Did you see him in that room?
A  Yes, sir, I did.
Q  Would you describe those wounds for us?
A  He had three lacerations; one to the left arm, one to the left abdomen, thoracic area, and one to the right thoracic area.
Q  Would you describe the wound on his right thoracic area?
A  It was a laceration, sir.
Q  What was its length?
A  Approximately an inch long.
Q  Was there any other injuries to the head or the face?
A  Yes, sir, he had a knot on the left side of his forehead with an abrasion.
Q  What did his general condition seem to be when he was brought in?
A  Very good condition, sir.

MR. EISMAN:  Now I am going to object to the description, or the term “very good condition” coming from a--Specialist Newman.  We have the benefit of competent medical testimony from a physician describing what their medical judgment was as far as Captain MacDonald's condition.  As far as coming from Specialist Newman, any medical judgment of his would be improperly received at this time, since he has not been qualified as a physician, doctor, this would be merely the layman's view with some degree of training, but not a medical view, and he could not give a view or an opinion as to the condition to a medical certainty, and if the investing officer is following the--is trying to follow the normal dictates of procedures regarding expert opinion, I don't believe that question will be competent.  At least, this witness will not be competent to give that type of opinion.

CPT SOMERS:  If I may respond to that.

COL ROCK:  Yes.

CPT SOMERS:  I think it's clear that this witness saw Captain MacDonald before Doctor Straub saw him.  He's not attempting to give us any detailed medical knowledge.  He's not attempting to say in any great medical detail what Captain MacDonald's condition is.  He's trying to give us a simple general description of his apparent condition when he saw him.

MR. EISMAN:  I think that this witness is only competent to say what he saw and in regard to physical facts concerning the condition, not give a conclusion or a medical opinion, and the only reason this type of opinion would be offered would be in some way influence the investigating officer or to impeach the testimony of the prior medical physician, and I don't think this would be the proper time to do either.

CPT SOMERS:  I'm not attempting to impeach the testimony of the doctor.

COL ROCK:  The objection is overruled.  I am taking cognizance of the degree of specialty of the two individuals involved and it is obvious that greater weight will be given in the details of any examination to that of the physician as compared to that of the Specialist.  Proceed.

Q  Did you hear Captain MacDonald say anything while he was in the emergency room?
A  Yes, sir, I did.
Q  Would you describe to us what he said?  What did you first hear him say?
A  He was asking about his wife and children.
Q  And was he given an answer?
A  No, sir, he was not.
Q  Did he at anytime describe what had happened to them?
A  Yes, sir, he did.
Q  Would you tell us how this was done?  What did--what words did he use?  How do you describe it?
A  Well, he simply stated what had happened at the home that night, that morning.
Q  Would you tell us as best you can remember what he did say?
A  Well, he stated that four people had come into the house and that the incident had occurred, that they had carried out this incident.

COL ROCK:  Excuse me, Specialist Newman.  Try to use his words, not your summation of what he said, if at all possible.

Q  Did he describe those four people?
A  Yes, sir, he did.
Q  Would you tell us what description he gave in as closely as you can in his words?
A  He said that there were two colored males, one white male and one white female.
Q  Was there any further description given?
A  Yes, one of the males had on an Army jacket.
Q  Any further description of the female?
A  No, sir, not that I recall.
Q  Did he describe at all how his injuries and the injuries of this family were accomplished?
A  He said that he was on the couch asleep and when he woke up, someone was beating on him.
Q  Did he say what woke him up?
A  Someone beating on him woke him up.
Q  During the time you saw Captain MacDonald was he having any apparent difficulty breathing?
A  Not to my knowledge, sir.
Q  Have you had some training in recognizing the symptoms of shock?
A  Yes, sir, I have.
Q  In your opinion, as you saw him, was Captain MacDonald in shock?
A  No, sir, he wasn't.

CPT SOMERS:  I have no further questions.

Questions by MR. EISMAN:
Q  Specialist Newman, you were working in the emergency, is that correct, on the morning this took place?
A  Yes, sir.
Q  What was your connection regarding Captain MacDonald as he came into the emergency room?  What were your duties?
A  My duties was to see that he was properly taken care of.
Q  You were not the treating physician, were you, Specialist Newman?
A  I am not a physician, sir, I am a clinical specialist.
Q  Did you do anything regarding the care or treatment of Doctor MacDonald, Captain MacDonald?
A  Yes, sir, I did, I carried out the orders that I was given by the doctor.
Q  And what were they?
A  Well, we cleaned him up, the extent of his injuries.
Q  What else?
A  Well, we got the wounds cleaned up and the doctor checked him out.
Q  What doctor are you referring to?
A  There were two doctors there in the emergency room, sir.  I don't recall which one.  At first there was only one there, then they were both there.
Q  Approximately how long was--did you come in contact with Doctor MacDonald after he left the emergency room?
A  He left the emergency room, he was carried to x-ray.  I went over to x-ray and he was brought back over to the emergency room, and then he was taken up to intensive care on 2B, and I went upstairs with him.
Q  When was Captain MacDonald able to tell his story?
A  When he came in, sir.
Q  How soon after he came in?
A  He was talking when he came in.
Q  Talking to whom?  Was he talking to you?
A  Not specifically, no.
Q  Was anybody else carrying on a conversation?
A  No.
Q  He was just talking?
A  Yes, sir.
Q  Did he appear excited or upset?
A  Yes, he was excited.
Q  Did he appear upset?
A  Yes, he was upset.
Q  As a matter of fact I think you testified that he was asking about his wife and children.  Is that correct?
A  Yes, sir.
Q  Was Captain MacDonald ever standing or was he always horizontal on a stretcher or a moveable hospital bed?
A  He was on a stretcher, sir.
Q  Now as Captain MacDonald was speaking, what were you doing?  Were you there to listen to what he was saying or were you there to perform the duties to which you had been assigned?
A  I was there to perform the duties.
Q  And would it be fair to say that you were more concerned with performing your duties or listening to what Captain MacDonald was saying?
A  Performing my duties.
Q  Did you take any notes as to what Captain MacDonald said?
A  No, I did not.
Q  Immediately after this incident did you write down anything Captain MacDonald said?
A  No.
Q  Did Captain MacDonald, in your presence, receive any intravenous fluids that you recall?
A  I don't recall.
Q  Whose duty would it have been to administer such intravenous fluids if they had been received in the emergency room?
A  If the order had been given one of us would probably start the IV.
Q  And you were specifically not given those orders.  Is that correct?
A  I don't recall.
Q  But in any event you did not administer intravenous fluids to Captain MacDonald, did you?
A  No.
Q  Did Captain MacDonald appear to be having difficulty breathing?
A  No.
Q  Do you ever using the word hyperventilate?  Do you ever recall telling anybody?
A  Yes, I do.
Q  Who do you recall telling that to?  That term to?
A  I told this to the CID and the FBI and also to others who I was questioned by.
Q  According to your knowledge of medical terms, what does hyperventilate mean?
A  Hyperventilating is breathing too rapidly, too shallow.
Q  Do you recall also telling anyone that Captain MacDonald was crying a little when he came into the hospital?
A  Very little.
Q  Was Captain MacDonald crying when he came into the hospital, Specialist?
A  No.
Q  Do I understand he was not crying at all or crying a little?
A  This was after he went into the OR.
Q  Well, I'm sorry--let me ask you the question this way.  When was MacDonald crying when you saw him, or when did you see him crying?
A  In the OR.

COL ROCK:  Excuse me; what is OR?

WITNESS:  The operating room, sir.

Q  Was this before treatment was given?
A  This was while treatment was going on.
Q  Were you with Captain MacDonald at all times while he was in the emergency room, in the x-ray room and the operating room?
A  No.
Q  What was Captain MacDonald wearing, Specialist?
A  A pair of pajama pants.
Q  Who was responsible for the care of the garments which Captain MacDonald was wearing in the hospital?
A  I don't understand what you mean?
Q  Were you the orderly assigned to this case.  Is that correct, Specialist Newman?
A  I was in charge of the emergency room, yes.
Q  And of the people under you in the emergency room, who would be responsible for the handling of the clothing of the patients who come in?  Would that be yourself?  Would you be the person directly responsible?
A  Yes.
Q  What happened to the pajama bottoms that Captain MacDonald was wearing, Specialist Newman?
A  They were bloody and they were torn and they were thrown in the garbage can.

MR. EISMAN:  I have no further questions.

Questions by CPT SOMERS:
Q  Who threw them in the garbage can?
A  I don't recall.  I took the pants off of him.  They were dropped on the floor.  They were later picked up and thrown in where the garbage is taken out.
Q  Did you do that?
A  No, I don't recall whether I did it myself; there was myself and two other men that were working with me that night.  All of the men cleaned up so I don't actually recall who threw them in the garbage.
Q  Did the carrying out of your duties prevent you from hearing what Captain MacDonald said?
A  No.
Q  Now you have described four people whom you said Captain MacDonald described.  Is that the way he described them?
A  Yes, the first time he described them, that was the description given.
Q  Did he describe them again?
A  Yes, he did.
Q  Was there a difference the second time?

MR. EISMAN:  Now I am going to object to this line of questioning.  This was not the subject of my cross examination.  I think this would be improper now to permit the prosecutor to open up a new field of questioning in redirect.

CPT SOMERS:  I think the rules as to that--as to evidentiary questions are somewhat relaxed in this proceeding; however, I would persist--

CPT BEALE:  You mean you withdraw your question?

CPT SOMERS:  No, I don't withdraw the question.

CPT BEALE:  The objection will be sustained.  You may proceed to another area, if you like.

CPT SOMERS:  No further questions, sir.

MR. EISMAN:  If I may, just briefly.

Questions by MR. EISMAN:
Q  The pajama tops which both myself and--the pajama bottoms which both myself and Captain Somers questioned you about, could you tell us why they were probably thrown in the garbage can, Specialist Newman?
A  It is a standard thing, that when clothes are torn up, they are usually thrown in a garbage can and the individuals usually do not want them, so they are deposed of.
Q  Would you say that the reason these pajama bottoms were thrown in the garbage was because they were torn badly and bloody, according to your recollection?
A  Yes.
Q  Were they very bloody that you recall being torn up?
A  No, there was one large tear in them and there was a moderate amount of blood.
Q  Where was the large tear?
A  In the crotch area along the seam.
Q  And you saw the ripped seam.  Approximately how long would you estimate--if you can't recall, just say, I don't recall.
A  I don't recall.
Q  Did the pajama bottoms appear to you to be new, a new pair of pajama bottoms, or some pajama bottoms which appeared to have been worn for a long time?

CPT SOMERS:  Object.

Q  If you do know.  If you can't say, you can--

CPT SOMERS:  This is clearly beyond the scope of the redirect.

MR. EISMAN:  I believe Captain Somers, the first question you asked--in this regard--your redirect was concerning the pajama bottoms, and that is why I am asking these questions.

CPT BEALE:  The objection is overruled.

MR. EISMAN:  Answer the question if you can, Specialist.

A  They looked as though they were old, or had been washed a few times.

MR. EISMAN:  I have no further questions.

COL ROCK:  Specialist Newman, were you the first individual from the emergency treatment room to see Captain MacDonald or were there nurses that saw him, or what?

WITNESS:  There was one nurse and my other corpsmen were there also when he was brought in.

COL ROCK:  How many other corpsmen were there besides you?

WITNESS:  Two, sir.

COL ROCK:  Now I believe you stated that when Captain MacDonald came in he was talking.  Is it your impression that he was just, what I might describe, as just rambling along in this conversation, that he was not talking to anyone specifically, but just talking?  Is that generally true?

WITNESS:  I don't know, sir.  There was two ambulance drivers with him.

COL ROCK:  I see.  When you were with him, was it your impression that he was talking specifically to you or just rambling on talking?

WITNESS:  There were people in there questioning him.  We were also getting information to fill out the standard forms for his treatment.

COL ROCK:  Who asked questions of the--of him, that is officially asked questions of him during this period?

WITNESS:  The CID was there, Colonel Pernell (ph) asked questions concerning his social security number, name, rank and such.

COL ROCK:  The Colonel you mentioned--who is that?  What is his job?

WITNESS:  Colonel Pernell is one of the nurses who was there at the time.  She is the night supervisor.

COL ROCK:  Now this occurred during what period of time, or--strike that.  How many minutes, approximately, was Captain MacDonald in the emergency room, according to your recollection, the first time?  That is, when he was initially rolled in?

WITNESS:  Approximately thirty minutes, sir.

COL ROCK:  Approximately thirty minutes the first time he was rolled in?  Is that what you are saying?

WITNESS:  Yes, sir.  The little OR we have is there in the emergency room.  He was taken in there, and we had him there twenty to thirty minutes, before the time he was taken to the x-ray.  I don't recall the exact time.

COL ROCK:  Then the OR you consider to be a part of the emergency room complex?

WITNESS:  Yes, sir, it is just a separate room in the treatment room itself.

COL ROCK:  I see.  Is there an x-ray machine there?

WITNESS:  No, sir.

COL ROCK:  When Captain MacDonald was first wheeled in, how long did he remain in the emergency room complex until such time as he was moved to the x-ray room?

WITNESS:  Approximately twenty to thirty minutes, sir.

COL ROCK:  How long was he in the emergency room the first time before a doctor attended him?

WITNESS:  A very few minutes, sir.  The doctor came right back.  He came in with him as we took him into the OR.

COL ROCK:  How long do you think the doctor was in attendance with Captain MacDonald until he was then wheeled into the OR?

WITNESS:  Sir, I don't recall whether the doctor was standing there as Captain MacDonald was brought in or not.

COL ROCK:  My question is, after the doctor arrived the first time to attend to Captain MacDonald, to examine the extent of his wounds, how long did that process take before Captain MacDonald was then moved to another area, approximately?

WITNESS:  I don't recall, sir.

COL ROCK:  Would you say it was five minutes, half an hour, or could you say?

WITNESS:  The examination that he was given by the doctor took approximately ten minutes for a thorough exam, to check out, to make sure that there was--to determine the extent of the injury.

COL ROCK:  But in your recollection it was a period of time from say fifteen to thirty minutes before the patient was taken to the x-ray room?

WITNESS:  Yes, sir.

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

Questions by MR. EISMAN:
Q  Do you remember Doctor Straub being one of the doctors in attendance at the time, prior to him being moved to the x-ray room?
A  I don't recall which two doctors specifically were down there on duty as the POD's.  I do remember the surgeon was called down immediately and there were three doctors there with him.
Q  If I told you that Straub has testified here that he was one of the doctors; would you disagree with his testimony?
A  I don't recall if it was Doctor Straub or Doctor Neal.  One of the doctors went out and came back in, and one of the doctors stayed there, and I don't remember which one it was.

MR. EISMAN:  I have nothing more at this time.

Questions by CPT SOMERS:
Q  How long did it take to clean up the room and so forth, the cleaning job you referred to?
A  About ten minutes.
Q  About what time did Captain MacDonald come into the emergency room?
A  Between 4:15 and 4:30, sir.
Q  Do you have any idea what time it was that he was taken to the x-ray room with the radiologist?
A  No, sir, I don't.

CPT SOMERS:  I have no further questions

MR. EISMAN:  I have no other questions.

COL ROCK:  Specialist Newman, you are advised that you will discuss your testimony with no person other than either counsel for the accused or counsel for the government.  Do you understand that?

WITNESS:  Yes, sir.

COL ROCK:  You are excused, subject to recall.

(The witness saluted the IO and departed the courtroom.)

COL ROCK:  I would suggest at this time that we take a recess in order to establish our phone contact and get the technicians in here.

(The hearing recessed at 1415 hours, 10 July 1970.  During the recess a conference call was placed to Colonel Robert Kingston at Honolulu, Hawaii.  Persons present at the beginning of the recess were present when the connection was made at 1432 hours, 10 July 1970.)

COL KINGSTON:  Hello.

LT MALLEY: This is Lieutenant Malley calling from Fort Bragg, sir.  If I may I'd like to give the phone now to Colonel Rock and let him explain to you what we are going to do, and we will then ask that Mrs. Kingston and then you give the answer to the questions which both Mr. Eisman, the defense Counsel for Captain MacDonald and Captain Somers, the trial counsel, at the post here.  Can you hear me all right, sir?

COL KINGSTON:  Yes, I can.

LT MALLEY: All right, sir, this is Colonel Rock.

COL ROCK:  Hi, Bob how are you?

COL KINGSTON:  Fine.  It is fine to hear you again.  Sorry it had to be under these circumstances.

COL ROCK:  Right.  Here in the hearing room with me are the attorneys for the accused and counsel for the government, plus myself, and this conversation is being recorded.  The purpose is at the request of the accused to obtain certain statements from you which all of us will be listening to over this conference call.  The next voice that you will hear will be that of Mr. Eisman, one of the two civilian attorneys for the accused.  Do you understand?

COL KINGSTON:  Yes, sir.

COL ROCK:  I am going to swear you before Mr. Eisman takes over.  Will you raise your right hand?

COL KINGSTON:  Yes, sir, it is.

COL ROCK:  Do you swear that the evidence you are about to give shall be the truth, the whole truth, and nothing but the truth, so help you God?

COL KINGSTON:  I do.

COL ROCK:  The next voice is Mr. Eisman.

Questions by MR. EISMAN:
Q  Colonel Kingston?
A  Yes.
Q  Can you hear me, sir?
A  Yes, I can, very well.
Q  My name is Dennis Eisman.  I am one of the counsels for Captain MacDonald.  I am going to ask you some questions regarding Captain MacDonald.  Can you hear me now?
A  Yes, I can.
Q  Col. Kingston, what is your present branch of the military service?
A  Present branch?
Q  Yes, sir.
A  I am a Colonel of Infantry.
Q  And what is your duty station?
A  I command a brigade of the 1st Cavalry Division, Vietnam.
Q  Currently, where are you?
A  Right now I am on R&R in Honolulu, Hawaii, with my family.
Q  And when are you scheduled to return to your duty station?
A  I return at 8:15 tomorrow morning back to Vietnam.
Q  Col. Kingston, in the course of your duties as an officer in the United States Army, did you have occasion to have Captain Jeffrey R. MacDonald under your command?
A  I did when I commanded the 3d Special Forces Group at Fort Bragg.
Q  And when in point of time was that?
A  I commanded, starting in August and I left in November of 1969.
Q  And do you recall Captain MacDonald serving under you?
A  Yes, I do.
Q  Could you tell the investigating officer what your impressions were of Captain MacDonald as an officer in the United States Army?
A  I'd be glad to.  As you know, Captain MacDonald, a Captain, a doctor, I believe this was his first duty assignment with the 3d Special Forces Group under me.  In my opinion he is a--one of the finest, upright, most outstanding young soldiers, not just a doctor, that it has been my pleasure to have serve with me.  I think he is a--as I recall is a very, very fine young man.
Q  Colonel, in additional to knowing Captain MacDonald--can you hear me, Colonel?
A  Yes, I can.
Q  In addition to knowing Captain MacDonald with reference his being an officer in the Army, did you have occasion to meet both Captain MacDonald and his family outside of the normal duties which he had?  In reference to social contacts.
A  Yes, I did.  I met him both at social functions with the Group and he and his family were invited to my home on several occasions.
Q  And did you have any occasion have an opportunity to observe Captain MacDonald in reference to both his wife and his children?
A  Yes, I did.
Q  Could you tell the investigating officer what your impressions were first of all, as far as Captain MacDonald and his relationship with his wife Colette?
A  As I recall, I observed a very close and very, very fine relationship between Captain MacDonald and his wife.  I'd say he was an excellent husband, very close, very devoted, both to his wife and to his children.
Q  Did you ever have occasion to see Captain MacDonald and his wife argue violently?
A  I never saw him argue even slightly, let alone violently, no I did not.
Q  In reference to Captain MacDonald and his children, did you have an opportunity to observe his conduct with them?
A  Yes, I did, on several occasions in my home.
Q  And how would you describe his conduct toward his children?
A  As I said, a very devoted father.  He talked about his children a lot and his actions when he was in my presence with his children were very, very, very devoted.  He was obviously very close to his children.
Q  Did you ever see Captain MacDonald either verbally or physically abuse his children?
A  No, I never have.

MR. EISMAN:  At this point I have no further questions.  I will now turn the microphone over to the prosecuting attorney and see if he has any questions for you, sir.

Questions by CPT SOMERS:
Q  Sir, this Captain Somers, can you hear me?
A  Fine.
Q  How are you, sir?
A  Fine.
Q  My question is now can you hear me, sir.
A  Yes, I can.
Q  Very good.  With reference to Captain MacDonald's professional duties as a soldier, how much personal contact did you have with Captain MacDonald?
A  I had--I consider quite a bit, and the reason being, as I said, he was a new doctor into the Army and after--I felt it was my duty to make sure he was oriented properly towards the Army and towards his--the people in the Army.  As a result, I spent more time talking with Captain MacDonald than I probably would a doctor that was not as new as he.
Q  Sir, I'm not sure I quite understand.  Did you have daily contact during this period from August to November with Captain MacDonald?
A  It was not daily, every other day, yes.
Q  Where did you usually have contact with him?
A  Where did I what?
Q  Where were you usually when this contact took place?
A  Usually in my office or in my headquarters building.  Once or twice down in his--his place of business.
Q  What duties did he perform for you in the group, sir?
A  He was the Group Surgeon.  He was the doctor, one of my doctors in the Group, Special Forces Group.
Q  Have many doctors did you have, sir?
A  As I recall, I think I had three, between two and three at different times.  The records can bear that out, as I recall.
Q  Now specifically, what characteristics made you feel that he was a good soldier?
A  Mostly it was his attitude, and the way he accepted military life, the way he accepted the restrictions on his time, and it's mostly attitude and the way he expressed himself and the way he took an interest in not only the medical profession, but what he was doing in Special Forces.
Q  Is it that you felt it was unusual for a doctor?
A  I have had experiences with other doctors, some were outstanding and some were not too understanding and some were oriented very favorably towards the Army and some in part were not.  I wouldn't say it was unusual.  I would say it was, in my opinion, I was glad to have a doctor of the caliber of Captain MacDonald.
Q  Did you ever have an occasion, sir, to observe Captain MacDonald in his home?
A  I don't believe so.  I don't recall.  I don't believe I visited the MacDonald home.
Q  Did you ever have an occasion, sir to observe Captain MacDonald and his family in their normal home setting, if you can differentiate that question from the last?
A  Did I ever have the opportunity to observe them in their normal home setting?  Is that the question?
Q  Yes, sir, on other than a social occasion.
A  No, I have not.
Q  How would you describe Doctor MacDonald's children in terms of discipline?
A  As I recall, and again, in my home they were very well behaved, very normal children.

CPT SOMERS:  Thank you very much, sir.  I will now turn the microphone to Mr. Eisman.

MR. EISMAN:  At this time I would ask the investigating officer whether he has any questions of Colonel Kingston.  I intend to next call Mrs. Kingston who would have knowledge of the MacDonald home.

COL ROCK:  Colonel Kingston, this is Colonel Rock again.  Bob, did Captain MacDonald ever have occasion to treat you medically?

WITNESS:  He took me up to the hospital once and I had a growth removed from the right side of my forehead.  He didn't do it; he just came up with me while another doctor did it.

COL ROCK:  Right.  One final question and this one you recognize as the normal one in the proceedings of this type.  If you had the opportunity to serve again with Captain MacDonald, would you so desire?

WITNESS:  I would welcome the opportunity to serve in any capacity with Captain MacDonald.  I think he is an outstanding young man.

COL ROCK:  Okay, now I turn this over to Mr. Eisman.  There may a little delay in the next conversation but continue to hold on.

WITNESS:  Yes, I shall.

COL ROCK:  I'm not quite clear (addressing Mr. Eisman) as to what will now take place.

MR. EISMAN:  I want to call Mrs. Kingston who is familiar with the MacDonald home.

COL ROCK:  Yes, okay.

MR. EISMAN:  Colonel, could you now ask your wife to take the phone and Colonel Rock will address her and swear her as a witness.

WITNESS:  Yes.

MRS. KINGSTON: Good morning.

COL ROCK:  Good morning, how are you?

MRS. KINGSTON: Fine, thank you.

COL ROCK:  If you would please raise your hand; I wish to swear you in.

MRS. KINGSTON: Okay, it's raised.

COL ROCK:  Do you swear that the evidence you about to give shall be the truth, the whole truth and nothing but the truth, so help you God?

MRS. KINGSTON: I do.

COL ROCK:  All right, the next question that you will hear will be that from Mr. Eisman, counsel for the defense.

MRS. KINGSTON: Thank you.

MR. EISMAN:  Mrs. Kingston, what is your full name, please?
A  My full name is Josephine Sprague Kingston.
Q  And you are the wife of Colonel Kingston who has just testified in this matter?
A  Yes, I am.
Q  Mrs. Kingston, have you ever had the occasion to know Captain Jeffrey R. MacDonald and his wife, Colette and their two children?
A  Yes, I know both of them, from September 1969 until January 25th 1970.
Q  Mrs. Kingston, could you please explain to the investigating officer how you knew the MacDonalds?
A  Well, I first met Mrs. MacDonald at my opening tea and my daughter was with me, and Colette and Leslie, my daughter, became very close friends, and when Leslie had a friend visit her from BMI we wanted to find another young couple that they could double date with, and my husband suggested that we contact Captain MacDonald and that's how our friendship was caused.
Q  And after the friendship was formed did you yourself have occasion to visit with the MacDonald in their home?
A  Yes, on many occasions we were invited to the MacDonalds with Leslie's friend who was from BMI once or twice, and then my husband left to go to Vietnam, they became our sponsors, not because they had to but because they chose to; including taking us to the plane when we left with our luggage and they also--after which they were going to put our car in storage.
Q  When you say sponsors, how do you mean?
A  Well, we were just left with sort of a lot of things to do, and for instance putting the car in and someone to take us and put us on the plane, and just general thing that, that the people help each other with, and volunteered to do that for us.
Q  And you say you've had many occasions on which you saw the entire MacDonald family in their home?
A  Yes, I did because when my husband left they were gracious and they invited us many times to their home.  We went to buffet supper on Sunday at the club and then afterwards we drove to the movies and then afterwards we'd go back for a drink before we went home.
Q  Have you had occasion to view Captain MacDonald and his wife--
A  I didn't hear you.
Q  Have you had occasion to view Captain MacDonald with his wife?
A  Yes, I have.  I thought that it was a very good relationship and I remarked to my daughter that I hoped she had a marriage that was successful like that, and in these times it was nice to feel that there were some people who still loved each other.
Q  Did you also have occasion to see Captain MacDonald with his children?
A  Yes, the children, the children were very sweet children and were very well behaved, and when we'd go over there on Sundays before leaving for the buffet, they would be lying on the floor on a blanket watching TV and they came with us when we left there to board the plane.  Captain MacDonald took them in the car with us and his wife.
Q  How would you describe Captain MacDonald's relationship with his children?
A  I think he was a very loving father.  On several occasions I ran into him unexpectedly at the PX or just driving around, and on weekends his children were always with him and when I went down after Christmas he had purchased a horse for the children.  I remember that we tried to persuade him to just put the horse outside and have them look at it Christmas Day, and he thought about doing it and then he--we'd go down with him to feed the horse and the children were with us.
Q  Did you ever see Captain MacDonald abuse in any way his children either verbally or physically?
A  No, never.  In fact, he was the opposite, if anything.

MR. EISMAN:  At this time, Mrs. Kingston, thank you very much; I will now turn you over to the prosecuting attorney who may have some questions to ask you.  Thank you very much.

CPT SOMERS:  Mrs. Kingston, this is Captain Somers.  Can you hear me?

A  Good morning.
Q  Did you consider yourself and do you consider yourself to be a good friend of Captain MacDonald?
A  I certainly do.  I consider them to--to be--considered myself to be one of the best friends that they had since they came into the Army in September.
Q  Would you describe, please, how well disciplined you feel the children were?
A  The children were just--were just loving sweet, normal children, obviously from a couple that loved them.  They--they were very well--they were well behaved and they were kept very clean, and Colette spent a lot of time just reading to them and I know they were looking--she and Captain MacDonald were looking forward to the new baby and had made a lot of plans.
Q  When one of the children needed discipline, who would normally discipline them?
A  Well, I think if they--I didn't see them really need discipline, and when they were in the living room, and they were told to go to bed, whichever parent happened to present and told them to pick up their toys and go to bed.
Q  Thank you very much, I will give the microphone back to Mr. Eisman now.

MR. EISMAN:  Thank you Mrs. Kingston.  At this time I will turn the microphone over to Colonel Rock, the investigating officer, who might have questions for you.

COL ROCK:  I have no questions at this time.  I must however advise them not to discuss this testimony.

MR. EISMAN:  Mrs. Kingston, Colonel Rock has no questions of you at this time.

MRS. KINGSTON: I see.

MR. EISMAN:  However, he would like to advise you as to certain responsibilities you have regarding this matter.

MRS. KINGSTON: I see.  Can you speak a little louder, because this is not clear?

COL ROCK:  This is the investigating officer again.  Are both of you present where you can hear?  I would like both of you there by the phone so you can hear what I have to say, so that both of you can independently answer to the statement that I will read to you.

MRS. KINGSTON: Yes, I will and then I'll hand the phone to my husband.  Is that what you want?

COL ROCK:  Yes, I'll do it independently.  You are advised that you will discuss your testimony with no person other than either counsel for the accused, and that's Mr. Eisman, or counsel for the government, that's Captain Somers.  Do you understand that?

MRS. KINGSTON: Yes.

COL ROCK:  Very well, now may I speak to Bob.

MRS. KINGSTON: Thank you.

COL KINGSTON:  Hello.

COL ROCK:  You are advised, Colonel Kingston, that you will discuss your testimony with no person other than counsel for the accused, Mr. Eisman, or counsel for the government, Captain Somers, Captain Somers.  Do you understand that?

COL KINGSTON:  I understand.

COL ROCK:  Fine.

(The conference call ended at 1454 hours, 10 July 1970.)

MR. EISMAN:  At this time I would respectfully request on a matter of personal nature, of health, that the hearing be recessed until Monday morning.

COL ROCK:  Does counsel for the government concur?

CPT SOMERS:  Counsel for the government has no objection to that request.

COL ROCK:  This hearing will be closed until 0830 hours, Monday, 13 July.

(The hearing adjourned at 1456 hours, 10 July 1970.)

(The hearing reconvened at 0954 hours, 13 July 1970.)

COL ROCK:  The hearing will come to order.  Let the record reflect that those parties who were present at the closing of last Friday are currently here in the hearing room.  At this time I would like to present counsel for the both the government and the accused with the completed testimony of Government Witnesses Carolyn Landen and First Lieutenant Joseph Loy Paulk.  I hand a copy to each of the counsel.  At this time does counsel for the government have information to present to the investigating officer?

CPT SOMERS:  Yes, it does, sir.  We present to the investigating officer as Government Exhibit 5, a copy of the appeal to Third Army of the availability of Captain Thompson for the defense, and the endorsement from Third Army denying that appeal.  We also present a copy of a letter to Captain Thompson signed by General Flanagan appointing him to represent the government at the Article 32 proceedings.

COL ROCK:  This will be Exhibit 6.

CPT SOMERS:  Further, we would like to at this time present the originals of this appeal paperwork to counsel for the defense.  The record should reflect that Captain Thompson is present in the hearing room.

COL ROCK:  Did counsel for the accused have some statement?

MR. EISMAN:  This is the first notice we have received that our request has been denied through regular Army channels of this.  Because of the serious nature of this offense, because of the fact that it is our indicating that Captain Thompson had information which referred to the defense in this case prior to his being appointed as prosecution counsel, we feel it necessary to appeal this decision to the Court of Military Appeals, since it has now exhausted military channels.  We would ask that Captain Thompson not be permitted to participate in these proceedings until our appeals are finally exhausted within the military and at this point, they are not exhausted.  This is merely the Third Army administrative decision which we have an absolute right to appeal to the Court of Military Appeals.  Until that appeal is exhausted, because of the serious nature of this and because of the fact we requested Captain Thompson and certain information was supplied to Captain Thompson before he was made available to the prosecution, we would therefore ask time to appeal this to the court of Military Appeals.

CPT BEALE:  Mr. Eisman, strictly speaking from a legal standpoint the Manual does provide that you have a right to appeal an adverse decision at this level to the next higher level which happens, in this case, to be the Commanding General of Third Army, and his decision apparently was adverse to your position.  Now certainly you are not precluded from appealing this decision to any court you might care to, but in the meantime, the law does provide that Colonel Rock may proceed with the Article 32 investigation and that this is exactly what he will do.  So you may certainly have leave of this Article 32 investigation to file any papers you care to, but in the meantime we will proceed with the investigation and Captain Thompson will be permitted to sit in here.

COL ROCK:  Captain Thompson, are you certified in accordance with Article 27(b) of the Uniform Code of Military Justice?

CPT THOMPSON:  I am, Colonel Rock.

MR. EISMAN:  The only thing that might arise is that if we receive a favorable opinion from the Court of Military Appeals I think this entire proceeding might be vitiated by that action by the position that Captain Thompson did work on behalf of the defense, prior to, or did have information from the defense prior to his acting as prosecution counsel, that these entire proceedings might be vitiated and instead of expediting the proceedings, they would have to be held from the beginning and therefore causing much greater delay.

CPT BEALE:  Of course these hearings would be bound by any decision by the Court of Military Appeals, but until such time such a decision is rendered, the hearing will proceed.

COL ROCK:  Is counsel for the government prepared with the next witness?

CPT THOMPSON:  May it please the investigating officer, at this time we would like to have the following three documents marked as appropriate government exhibits and entered into record.

(Reporter marked Government Exhibits 7, 8 and 9.)

COL ROCK:  Captain Somers, you recall my original instruction when the investigation first opened, that I wanted one individual from counsel for the accused and counsel for the government to act in order to simplify the proceedings.  Is Captain Thompson now to act and speak for the government?

CPT SOMERS:  Sir, in any given witness, it will be just one counsel.

COL ROCK:  That was not my instructions.  I want to have one individual to--to be carrying the case for either the government or the other side, except wherein someone is physically not available.

CPT SOMERS:  Sir, I think it is clear that the defense has not proceeded that way.

COL ROCK:  I beg to differ with you.  The defense has proceeded that way.  Mr. Segal was presenting the case for the accused until his departure for England at which time Mr. Eisman has taken over in his absence.

CPT SOMERS:  Sir, in view of the number of witnesses and the complexity of the prosecution's case we beg the leave of the investigating officer to proceed with either counsel so long as that counsel, and only that counsel, addresses himself to any given issue.

COL ROCK:  I wish to adhere to my original ruling, counsel, and if you will please determine who will present the case for the government.  In the absence of the other one, I would prefer to have one counsel presenting the case, the evidence.

CPT SOMERS:  Sir, at this point I would request a ten minute recess.

COL ROCK:  Request granted.

(The hearing recessed at 1003 hours, 13 July 1970.)

(The hearing reopened at 1016 hours, 13 July 1970.)

COL ROCK:  The hearing will come to order.  Let the record reflect that those persons who were present at the recess are now present in the hearing room.  Proceed, counsel.

CPT SOMERS:  Sir, at this time I'd like to refer to page two of the record as it now stands.
Your ruling at that time was “I would like to request that one counsel for the accused speak on behalf of the accused in any questioning of witnesses or presenting evidence for the accused.”  Now obviously I have misinterpreted this ruling because I interpret it to mean that only one could speak at any given time on any issue.  The next sentence reads “If a deviation from this procedure is required, please address your request to me.”  First, sir, before I go further I would like to request of the investigating officer a clarification as to what is meant by the absence of the--or the presence of counsel; whether you meant that the man is not present at Fort Bragg or in the hearing room or just exactly what do you mean by that?

COL ROCK:  If counsel is not physically present at Fort Bragg because he is called away because of other duties, then I think it is logical to have a second counsel speak in order that we can continue with the proceedings; but object of having one counsel to represent, or to present the information from both sides is in order that I can imply look to one individual for the facts so that we can progress in what I consider to be a more orderly and logical fashion.

CPT SOMERS:  Sir, if I may then, the appointing authority of this Article 32, General Flanagan has appointed Captain Thompson as another counsel to represent the Government.  I may, I would hazard that this was done because of the complexity of this case and the number of witnesses involved.  It is difficult in the extreme to coordinate the number of witness, and the testimony of a number of witnesses, to present a logical order.  For this reason it is very desirable insofar as the government is concerned that either of the two appointed counsel for the government be permitted to speak on any given subject or issue.  Now, I understand that there is no excuse nor need for two counsels to be on their feet at any given time or even to address themselves to any given issue.  For that reason we specifically request a deviation from the procedure whereby the counsel for government or for defense may represent either party here to speak for him on any given issue or any given witness.  It works an extreme hardship on the government not to be able to do this, and we earnestly request that you consider this request for a deviation and grant it.

MR. EISMAN:  If I may speak on this subject.  We have been appealing the appointment of Captain Thompson throughout the proceedings.  I find it quite shocking to learn that the prosecutors had decided in advance that our appeal would be denied.  This smacks of something that they possibly knew something that we didn't know about our appeal, but if this appeal was handled in good faith through Third Army, a final decision could not have been made until July the 8th when this order was finally made, and therefore had Captain Thompson been acting for the prosecution in the meantime, he was acting at his hazard, at the hazard of the prosecution.  He should not have been preparing the case until July the 8th.  There was a question whether or not he would be permitted to participate in it.  Having so acted as its hazard, I feel that the prosecution should not be granted the extra added advantage of having someone who, up until Friday, should not have had; and secondly, the imbalance, since Mr. Segal requested that the matter be continued so that he could continue as the defense, and that when the investigating officer would not continue the matter for that reason, it fell upon my shoulders to represent Captain MacDonald and go forward.  And so on the other hand there is no hardship on the government to proceed in the same manner in which they are proceeding.  Had Mr. Segal not been absent he would have conducted the hearing throughout and we would have preferred it, but at this point, I don't think that we can make a fish of one and a fowl of the other.  If we are going to now permit the government to deviate from this norm then I would ask for a recess until Mr. Segal returns so that he can conduct and act in the hearing.

COL ROCK:  Reference the request of the government, your arguments have been noted.  My original ruling stands in that effect.  However, this does mean that Captain Thompson is a full member of your team and the remarks reference the counsel for the accused about his request asking that the hearing be delayed until such time as Mr. Segal returns, let the record reflect that with the consent of the accused and Mr. Segal, Mr. Segal was excused and I see no new factors that would preclude holding the hearing up at the present time.
    Which individual will counsel for the government have continue to present the case?

CPT SOMERS:  Sir, if I may, the government would ask for a recess to appeal your ruling to General Flanagan.

COL ROCK:  Captain Thompson, of course, as a member of counsel for the government does have the authority to present the evidence and is a full member in standing as counsel for the government.  So there is no question about his ability to be able to present the evidence, if it is desired that he be the individual in the absence, of course, of Captain Somers.  Your request for a recess--how long do you think this will take?

CPT SOMERS:  One hour, sir.

MR. EISMAN:  I'm going to object to--at this point--to any appeal to General Flanagan.  If this hearing is being conducting under the guise of a free and open, or at least a fair hearing to the accused, an adversary position where the investigating officer is the person who makes a decision as to the conducting of this hearing, then it would be a sham to permit someone else to make the decision so far as the conducting of this hearing, and I would strenuously object to any outside being brought to bear in the conduct of this hearing at this point.  The--if the prosecution continues to do this, I would ask for an indefinite recess so that we may start action in appropriate courts to--to terminate the entire proceedings.  But at this point, to have someone dictating to this--to this authority as to the conduct of the actual hearing itself, I think would be a great disservice to what we are hoping to be some form of military justice.

COL ROCK:  Counsel, the evidence will continue to be heard at this time.  At the break, or you may use your assistant to make whatever appeals you feel would be appropriate, but the case will continue to be heard at this time.

CPT SOMERS:  At this time, then, sir, I then shall present the case myself.

COL ROCK:  All right.

CPT SOMERS:  While I am at it, the witnesses Major Straub and Specialist Newman who testified Friday did make written statements.  Now this slipped my mind, but I do have the written statement and I am willing to offer them to the Article 32 officer if he would like.

COL ROCK:  Yes, I would like--Major Straub's will be Number 10, and the next one is who?  Specialist Newman?

CPT SOMERS:  Yes, sir.

COL ROCK:  This will be 11.

(Exhibits 7, 8, 9, 10, and 11 for the government were shown to counsel for the accused and handed to the investigating officer.)

MR. EISMAN:  At this time we have no objection to the exhibits, subject to the condition that they prove as far as the chain of custody at the appropriate time, by the prosecution.

CPT BEALE:  I presume Captain Somers, that you are going to use this as a basis for your expert witness before the court, is that correct?

CPT SOMERS:  I am, yes; however, that a full chain of custody is not intended to be presented by the government because it is not necessary in an Article 32 proceedings.  We do intend to give a general idea of how the exhibits were collected and by whom and who examined these exhibits and who did the work on them.

CPT BEALE:  Well, Captain Somers, I think that probably initially you will be permitted to use these documents; certainly, as you noted, at an Article 32 investigation the rules of evidence are not that stringently applied.  So therefore, they will come in.  However, if Colonel Rock deems in his own opinion that these particular documents do need some edification from other witnesses at a later time then he will so require it.  But at this present stage they will be received and considered by the Article 32 officer.  Does that answer your question, Mr. Eisman?

MR. EISMAN:  Yes.

CPT SOMERS:  The record, I think, should reflect, Mr. Investigating Officer, that a copy of each of these exhibits was presented to the defense on the 26th of June so they do have copies of these exhibits.
    At this time the government calls Mr. Dillard Browning.

(Mr. Dillard O. Browning was called as a witness by the prosecution, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q  Would you state your full name, please?
A  My name is Dillard O. Browning.
Q  Your occupation?
A  I am a forensic chemist.
Q  Your address?
A  3320 Oakridge Drive, Augusta, Georgia.
Q  Where do you practice your profession in forensic chemistry?
A  At the Army's Criminal Investigation Laboratory, Fort Gordon, Georgia.
Q  Would you tell us, please, how much formal education you've received and what that amounted to?
A  I have a Bachelor of Science degree in Chemistry from George Peabody College, received in 1951.  Following graduation, I was called in the service for two years.  Following my service duty I was employed by the Dupont Company as a chemist.  I served in this capacity for approximately two years and then went into research work with Dupont. I worked in this capacity for approximately another four years, and was then promoted to a shift supervisor and remained with Dupont for another four years as a shift supervisor of the production end.  Upon leaving Dupont with the (not understandable) Company of Augusta, Georgia.  During this time I heard about the opening at the Forensic laboratory at Fort Gordon.  I applied for the job and was told that I would need biochemistry for the position.  I then went to Augusta College and obtained the requirement in biochemistry, and in February 1965 I was employed at the Criminal Investigation Laboratory at Fort Gordon.  The first year I served was service in POI, an approved program of training in forensic chemistry.  Upon completing that in February of 1966 I worked cases until November of 1966.  At that time I was offered the position of Chief Chemist at the Criminal Investigation Laboratory in Frankfurt, Germany.  I accepted and served a three year term there.  I completed this term in November 1969 and returned to Fort Gordon as a forensic chemist.  I have been there since.

CPT SOMERS:  Would the defense care to examine?

MR. EISMAN:  Yes, I would.

Questions by MR. EISMAN:
Q  Mr. Browning, reference to your formal education at those institutions you've alluded to, how much of your education was in research in the analysis of hair--comparison of hair?  In reference to your BS degree and your subsequent course in biochemistry.
A  I actually had a double major in chemistry and biology.  Much of the work in the biology part was with microscopes.  As far as the examination of hair was concerned in college, very little, if any, was done there.
Q  And where, then, did you receive your training in comparison of hair?
A  During this year's program of instruction at Fort Gordon.
Q  How much of that one year's instruction related to the analysis of hair?
A  Actually, I would say approximately two months was spent on hairs and related items.
Q  In reference to analysis and comparison of paint, how much of your former education referred to courses in analysis of paint?
A  Once again, the--of course much of the program was spent in the operation of the instruments and things of this nature used to compare paint, but actually in college, very little time, if any, was spent in the microscopic or chemical comparison of paint.
Q  When did you receive any training in the comparison of paint, sir?
A  During the same one year POI at Fort Gordon.
Q  How long was that portion of your course dealing with paint?
A  The paint portion was approximately six weeks.
Q  Reference to the analysis of fibers and threads, how much of your education, formal education, related to the analysis of fibers and threads?
A  The same situation would apply; very little actual time was spent in college dealing with threads or fibers as such.  I received this training during the POI at Fort Gordon.
Q  And how much of that time was spent on hairs, fibers and threads?
A  Approximately two months.
Q  Reference to other chemical analysis such as wax or paraffin, did you receive any formal training in that at or subsequent course which you took after your BS degree?
A  Well, like the other substances, I received the formal education in chemical analysis in college.  As far as determining wax and things of this nature, very little if any was spent in college on this.
Q  Where was your formal training in that area?
A  In the same POI program at Fort Gordon.
Q  How long did you spend on that type of analysis?
A  This analysis was covered in a miscellaneous type program on which we spent approximately six weeks.
Q  So that in reference to all the items which you are called upon to testify here, generally you would say reference to your formal education you had little, if any, training regarding these things, but you received your formal training in this one year course of POI at Fort Gordon.  Is that correct?
A  Well, the analysis of any item involves chemistry.  I received my formal training in Chemistry at the University; dealing with individual substances like soils or hairs or fibers, I received most of my instruction at Fort Gordon.

MR. EISMAN:  I have no further questions at this time as far as the qualification of this witness is concerned.

Questions by CPT SOMERS:
Q  You have been asked several questions as to specific items, the comparison of specific items, either chemically or microscopically.  Is the comparison of these items, in particularly chemically or microscopically, grossly different from the training you've had in comparison of other items chemically or microscopically?
A  No, not all.  It is all chemical analysis, all performed on the same type of instruments, and using the same procedures and methods.
Q  Now during the period of time that you worked either at Fort Gordon or in Germany, were you getting experience in the same type of thing?
A  Yes, since completing my training, I would say I've worked at least 200 cases dealing with fibers, hairs, waxes or a combination of these.

CPT SOMERS:  At this time the government offers this witness as an expert in forensic chemistry.

MR. EISMAN:  At this time reference to the qualifications of this witness, reference the things that he's been called for, I would just state that I don't believe he has sufficient educational qualifications regarding these items which he has particularly been called for.  Naturally, if the investigating officer will accept his testimony, I can only ask that it be accepted with knowledge of where his specific training was.

COL ROCK:  This has been so noted.  Proceed.

Q  Mr. Browning, I show you Government Exhibit 7, 8, and 9, and ask if you will examine these please.  Do you recognize Government Exhibits 7, 8, and 9?
A  Yes, I recognize Exhibits 7 and 8 as being a report of the findings examination I did in the laboratory.  Exhibit 9, there, I had no work on that exhibit.
Q  All right, now you say you worked on Exhibit 7 and 8?
A  Yes.
Q  Can you tell us, please, which types of analysis did you do?
A  I did analytical work on fibers, hairs, paints, waxes and wood chips.
Q  Would you tell us, please, what procedures you used to compare different specimens of wood?
A  Yes, the procedure for comparison of wood is first a microscopic one.  You observe the known samples and then map them along with unknown samples, taking samples with microtome.  This is a thin shaving of the material involved.  These are observed under the microscope for physical similarities.  Once it is determined that the material in all physical aspects, it is then treated with a solution of sodium hydroxide in order--what we call digest or reduce to a pulp.  This pulp is then mounted on slides and stained with a substance and in this the cellular structure can be observed.  It is primarily with the cellular structure that we make identification of this nature.
Q  Can you tell us what characteristics you are looking for specifically?
A  Well, in this case, of course, the overall physical characteristics include the graining, the annual growth grains, the type of the pulp, whether or not it is heartwood or near the bark, whether the cellular structures of course are even.  We look at such things as ducts, resin ducts or pits for sap in the various pieces of wood; anything of a physical nature is compared first.  And then, of course, the final comparison is the cellular examination.  All different woods are different in cellular structure and can be determined.
Q  Now several exhibits that you analyzed contained wood splinters.  Is this correct?
A  Yes, this is correct.
Q  Would you tell us, please, what your conclusions were with respect to those wood splinters?
A  The splinters, all the splinters I examined in the various exhibits were grossly similar to the wood of Exhibit A.
Q  And what is Exhibit A?
A  Exhibit A is the weapon or club found in the MacDonald home.

COL ROCK:  Excuse me.  When you use the word “grossly similar,” that means--can you put it in a percentage basis?  Would you say 50%, 75%, 90%, 100% certain?

WITNESS:  Well, we can say it is the same type of wood and has all the same physical characteristics.  But we cannot say that this particular wood originated definitely from this Exhibit A, because all wood is similar from the same location of a tree, from the same aged tree, and the same type tree, and you would get similar results in your analysis.  So for this reason, rather than saying Exhibit so and so came from Exhibit A, we say Exhibit so and so is grossly similar to all physical characteristics to the weapon, Exhibit A.

COL ROCK:  Could I then paraphrase that to say that without a reasonable doubt it is similar?

WITNESS:  Yes, sir, without a reasonable doubt it is similar to the material of Exhibit A.

COL ROCK:  Thank you.  Go ahead, counselor.

MR. EISMAN:  I'm going to interpose an object here to the witnesses' characterization of beyond a reason doubt.  Where we are dealing with wood of a 2 x 2 variety, we are going to have a hundred manufacturers of runs of similar wood.  Every run that they do of a 2 x 2 of a same type of wood would be similar.  And at this point unless we can say that this was from either the manufacturer, from exactly the same type of sawing mill or was from the same sawing mill, we have the possibility of extending this into a infinite variety of similar wood; and for the hearing officer to be misled into thinking that this is beyond a reasonable doubt that is from the same wood from the same manufacturer, I think would be an unfair inference to be drawn.

CPT BEALE:  Mr. Eisman, I think that certainly through the art of cross examination when you have at this particular witness that you will clarify for the hearing officer the weight which is to be given this particular witness' testimony, and that, of course, is what Colonel Rock expects of the defense.  Again, he has put in layman's terms because he is a layman and is trying to characterize what grossly similar means.  Until he's had the benefit of the witness' testimony both on direct and cross it is very difficult for him to really say one way or the other, but he is trying to put it in laymen's terms right now.  So your objection is noted; however, we'll give leave of the counsel for the government to go ahead and proceed, and then you may, through cross examination, establish whatever you care to.

COL ROCK:  Please continue, counselor.

Q  Now, Mr. Browning, would you get identical results from two pieces of wood from different areas of the tree?  That is to say one from the heart of the tree and one from the bark of the tree?
A  No, the cellular structure would be different.  Most of the physical characteristics will be different.  The resin ducts, things of this nature will be different in the outer or coarser part of the tree than that of the heartwood.
Q  And these splinters which were analyzed, were they from the same general part of the tree as Exhibit A?
A  Yes, the cellular structure matched very well with the cellular structure from portions of Exhibit A.
Q  Can you tell us, sir, which exhibits you found those splinters in?
A  Yes.  Wood splinters were found in Exhibits B-5, E-19a, D-23, E-63NB, E-116, D-118, E-119, A-1, A-2, E-301 and E-303.
Q  If I may, Mr. Browning, refer you to page 14 of Government Exhibit 7, paragraph 34, there is a reference there to wood splinters in an Exhibit E-118.  Now you have given us the number D-118.  Can you tell us which is correct?
A  Yes, D-118 is correct.  A correction was issued by the laboratory to the CID unit.
Q  So that should be Delta 118?
A  Delta 118, yes that is correct.
Q  Now these wood splinters are similar to what, sir?
A  To the wood of Exhibit A.
Q  Now you have examined exhibits which contained fibers.  Would you tell us, sir, what sort of procedures you used to compare fibers one against another?
A  Fibers are first examined under the microscope once again to determine the physical characteristics.  The various fibers, whether they are synthetic or appear in nature, have physical characteristics that are pronounced and identifiable.  So this is the first step.  Once the grouping of fibers has been narrowed down in this method, then we use a series of solvent tests to determine on mainly fibers, which fibers are dissolved and which are solvents.  This identifies the material, the synthetic material as to its origin.  Several things are also studied microscopically such as dyes, and the dye stuff used.  If there are sufficient fiber present this dye stuff is examined and determined that it is the same material.  If there isn't sufficient fiber present we cannot do this.  In this case the exhibit, one exhibit examined contained two different types of fibers.  One was cotton and one was polyester cotton blend.
Q  Which exhibit was this you are referring to, sir?
A  I am referring to Exhibit 210, D-210.
Q  Do you know what that exhibit is?
A  Yes, sir, that was the pajama jacket of Captain MacDonald.
Q  What did you find with reference to the fibers which you examined?  Would you refer to paragraph 26 of Government Exhibit 7?
A  In this I refer to two types of fibers.  The pajama jacket was torn, both in the body of the fiber and the seam of the fiber that was sewn.  The threads used to sew the seam was purple cotton thread, standard type.  The fabric that made up the bulk of the jacket was the polyester cotton blend; this is your common wash and wear type fabric.  Either one or both of these fibers were found in several of the exhibits.
Q  Now can you tell us what specifically, what characteristics you compared by name?
A  I'm not quite sure I understand.
Q  Okay, I see reference to where it says words such as denier, twist--
A  Oh yes, this is mainly the physical characteristics listed here.  The denier, the twist, the overall texture of the material, whether or not it is a single strand or multi-strand and thread bundles.  Each of these characteristics has to be identical for it to be listed as a similar thread.  We also ID color under a microscope of a fairly high power to determine the differences in color in which a contrast could be shown, if any.
Q  And did you find fibers identical, at least in characteristics from Exhibit D-210?
A  Yes, I found numerous fibers, either the purple cotton thread or the polyester cotton blend or both in several exhibits.  I have them listed here if you would like those.
Q  Would you tell us, please, in which exhibits you found those fibers?
A D-23, D-123, D-221, D-229, D-237, E-3, E-6, E-16, E-19a, E-20a, E-24, E-32, E-52NB, E-116, D-118,, E-119, E-205, E-300, E-301, E-302 and E-303.
Q  And would you tell us one time again, please, sir, what those exhibits would be compared against?
A  These were compared against the exhibit, the pajama top of Captain MacDonald, Exhibit D-210.
Q  Would you tell us, please, sir, what procedures you used in analyzing the--and comparing the different specimens of paint?
A  Yes, the paint was first removed from the object that it is on.  Then it is examined under the microscope for color texture.  It is then examined in a series of chemical solvents, once again to determine which of the solvents a particular paint will dissolve in, and finally, it is examined on the gas chromatograph.  The gas chromatograph is the primary thing we base our--get our results on.
Q  Can you give us any idea, sir, what a gas chromatograph does?

COL ROCK:  Would you spell that, please?

WITNESS:  C-h-r-o-m-a-t-o-g-r-a-p-h.

COL ROCK:  Preceded by the word gas?

WITNESS:  Yes.

Q  Is it possible, sir, to give us some idea of what this device does?
A  Yes, gas chromatography is fairly new in the clinical field.  It has been adopted by forensic laboratories, including FBI and Scotland Yard.  It is one of their chief analytical weapons.  It is a system whereby a sample, in this case like paint, is paralyzed, that is heated to the time it is volatile and converted to a gas.  This gas is then converted and placed on a column.
The column is then heated in controlled rate, a slow rate and at various temperatures the various organic constituents are driven off by the heat.  These constituents are analyzed and form a peak on the chart.  If two samples are the same then you would get identical charts showing peaks at the same temperatures and the same times.  This is particularly important because you are able to analyze the trace elements.  We aren't really concerned with the main constituents of paint because most all oil based paint will be essentially the same.  But every batch of paint will have a--the different organic dyes.  It will have different contaminates picked up from the raw materials.  It would have different things picked up from that particular batch, so that before we say they are grossly similar, then, all constituents, all peaks, have to agree with each other.  In this case, the four exhibits did agree in every aspect.
Q  What four exhibits was paint taken from and compared?
A  Paint was removed from Exhibit A, and used as a known.  It was compared against paint present on Exhibit A-4, Exhibit E-203 and Exhibit 305.
Q  And your results of that comparison, sir?
A  All four of these paints were similar and could have had a common source of origin.
Q  Would paint of the same color of a different batch give you similar readings, identical readings?
A  No, paint of even a--

MR. EISMAN:  Now I am going to object to the phrase “identical readings” unless we have these reports so the investigating officer can see them and be shown these so that we can see them and have them to cross examine the witness, but this is now only his characterization of being identical and not the actual evidence, and not the best evidence which would prevail, but we must have them here so we can see them and make our own calculations.

CPT SOMERS:  Sir this is an expert witness.  He's been offered and accepted as an expert witness and he's permitted to draw conclusions of this nature.

CPT BEALE:  Your objection is overruled.

Q The question, as I recall, was would paint of the same color from a different batch give the identical readings on the gas chromatograph?
A  Even if they were the same paint from the same manufacturer, the same color and everything of this nature from a different batch, it would give us some different peaks showing slight different irregularities picked up from different raw materials, different contaminates and things of this nature.
Q  Was the paint in the exhibit you talked about then from the same batch or from a different batch?
A  Yes, they gave perfect results indicating that they were from the same batch of paint.
Q  I see.
A  By batch I refer to a molten liquid mixture, a run, not a particular can.
Q  Sir, I refer you back to fibers one more time.  As I understand, did you compare Exhibit D-210 and the fibers in the exhibit that you discussed?
A  Did I compare the exhibits I discussed with Exhibit D-210?
Q  Yes.
A  Yes, I did, using D-210 as the known.
Q  And what was the results of these comparisons again?
A  They all were identical in every respect to the Exhibit D-210.

COL ROCK:  Counselor, what is the relevancy of the testimony that has been given so far?  I have no evidence of any of these items mentioned being presented to the hearing.  I am trying to find what point you are driving at?

CPT SOMERS:  Well, sir, the relevance is that the exhibits which were analyzed and which have been referred to have some evidentiary bearing on the government's case.  The government, will elect to present that physical evidence, but in some cases may simply elect to present testimony regarding that physical evidence as to what it was and how it compared.

COL ROCK:  This will be done then at a future time?

CPT SOMERS: Well, sir, we intend to explain how these exhibits, for instance, were collected at a future time.  Some of them we will actually enter into evidence at a future time.  Some of the ones that have been referred to which will not be introduced into evidence specifically will be referred to in the future by the government in explanation of its case.

COL ROCK:  Okay, I was just trying to find out how this all fits in and when it will fit in.

CPT SOMERS:  Well, I will say this.  The experts we are presenting now are not precisely in the order that we would have presented them, if we could have presented them in perfect order, because of the difficulty of scheduling these people's presence.

COL ROCK:  Thank you.

CPT SOMERS:  Sir, tell us if you will, what procedures are used to compare hairs?

A  Hairs are examined first under the microscope to determine whether or not they are human or animal, whether or not they are from the head region of the body, or the region of the body, and then they are--after determining this and noting any microscopic abnormalities, these are compared with the hairs we use as knowns.  Then they are compared in every respect with the known hairs.  Hairs are examined for such things as the medulla of the central canal.
These vary considerably from individual to individual and they, some are solid, some are broken, some are dumbbell shaped, some are missing entirely, and these tend generally to range pretty much the same on an individual.  There are some variations.  Then the cortex is examined.  This is the main body of the hair; the way the pigment is distributed throughout the hair shaft is noted.  This varies considerably from individual to individual.  Some have what we call salt and pepper, or spotty type distribution.  Others are solid with no marking.  Then the cuticle, the size of the scales on the hair.  All human hair, in fact all hair has scales, and these scales vary in size and the way they are arranged on the hair shaft.  This is examined, and once all this is examined with a known sample to see if these compare favorably with the known.
Q  Are these the procedures you used in the examination of hairs in this case?
A  Yes, that is correct.  These hairs were also placed on a microtome and shaved so the closest edges could be examined.  This is the common practice in examination of hairs.
Q  In your examination of hairs in exhibits in this case, you reached some conclusions, did you not?
A  Yes, I did.
Q  Would you tell us, please, which exhibits you reached conclusions on and what those conclusions were?
A  Well, I have several from each of the victims.  I found hairs of Exhibits D-209, D-227, D- 229, E-3, E-5, E-7, E-19a, E-20a, E-50, E-63NB, E-210 and E-302 to be grossly similar to the hair of Colette MacDonald.

MR. EISMAN:  I am going to object to that conclusion unless he states for the record he had a known hair sample from Colette MacDonald and where that was obtained.

WITNESS:  The known hair samples that I had from Colette MacDonald were collected from pieces of clothing sent from the apartment by the CID, and in each of these cases, with the exception of Kristen which the hair was sent from the autopsy room, several items of clothing were sent in and numerous removed and compared.  When it was established that they were identical and different from the other known, then they were used as controls on the individuals concerned.

MR. EISMAN:  I am going to renew my objection on the basis that no certain known hairs were taken.  Taken from a sweat shirt, according to the prosecution exhibits here, were known hairs of Captain MacDonald and they turned out to be horse hairs.  I think it would be improper at this time to accept evidence or conclusions that these were Colette MacDonald's unless in fact they were taken from Colette MacDonald.  We now have to base it on the assumption because they were found on clothes and I don't think that would be a scientific basis in order to do this.

CPT BEALE:  Can you clarify this by asking him questions about what he specifically--

CPT SOMERS:  I hope to.

CPT BEALE:  Are you going to do that right now?

CPT SOMERS:  That's what I propose to do.

CPT BEALE:  Go ahead.

Q  To begin with, is there any possibility that the hairs which you collected as known hairs from Colette MacDonald and Kimberly MacDonald could have been horse hairs or the hairs of a small animal?
A  No, no possibility of this.
Q  Now in each case, with both Colette and Kimberly, I understand that the hairs were collected from items of each one's clothing.  Is that correct?
A  That is correct.
Q  And this clothing was identified to you as belonging to the individual in question?
A  Yes, it was.
Q  And these hairs were taken from more than one, were they, or were they from one only?
A  Yes, they were taken from more than one and they were removed by me from the garment.
Q  Now what did you do with the hairs taken from these numerous garments?
A  Well, in both of these cases, I removed approximately thirty or more hairs, placed them in a vial and then compared these thirty against each other.  In each case these hairs were all grossly similar and I would say came from the same individual.

MR. EISMAN:  I am going to renew my objection on the basis that there was a hair brush found on the scene which contained hairs grossly different from any of the hairs found on the premises, and the hair brush, the government is alleging, belonged to Colette MacDonald, the hairs would be completely opposite of the hairs found on the clothing.  If they are not alleging that it belonged to Colette MacDonald, this would be completely an alien hair brush which cannot be attributed to anyone in the MacDonald household, and I think at this time if they are alleging that this is scientific evidence we have to have a true scientific basis for saying whose hairs are whose.

COL ROCK:  Does the witness know why the samples was not taken from the body of the individual that is from the original hair?

CPT SOMERS:  Sir, he does not.  The witness was not here at the time.

COL ROCK:  Do you know why this was not done, in fact?

CPT SOMERS:  Do I know?

COL ROCK:  Right.

CPT SOMERS:  No, I do not.

COL ROCK:  It would seem logical that the hair samples would come from the individual's head, rather than the circuitous route, is the reason I am curious as to the rationale behind this.

CPT SOMERS:  I don't know, sir.

COL ROCK:  I'd like to ask the witness, is it customary to get the basic sample in this fashion?

WITNESS:  No, sir, it is not.

CPT SOMERS:  If I may, I have something to say on this subject.

COL ROCK:  Go ahead.
CPT SOMERS:  The objection which is being posed by the defense is one, in the view of the government, which goes to the weight of the identification rather than to the admissibility of the testimony concerning the identification.  We would be able to provide testimony from the people who collected the clothing as to how it was identified and so forth.

MR. EISMAN:  May it please the investigating officer, this objection does not go to the weight, but it goes to the very admissibility.  This man is being offered as a, from what I understand, as a scientist or giving scientific evidence.  If we don't have the hair samples coming from a scientific source, but having them come from a route which we could not scientifically say they do come from the head of the people that they are alleged to come from, then the whole basis upon which this testimony is formulated would be false.  There is evidence that a hair brush with hairs which the witness could not identify was found in the bedroom near the body, and at this point the question is whether or not the gathering of the evidence was in a scientific manner from which he can give a scientific conclusion.  I think it is perfectly clear that the gathering of hair from clothing is not a scientific matter, is not a scientific method, and the best method would be scientifically to have taken it from the head and therefore this does not go to the weight of the evidence.  It goes to the very conclusion that this man has formulated. The main reason I put this in was because there was supposedly known samples taken from the defendant's hair, and those known samples turned out to be horse hair, and if the government was wrong in one out of four of the, or one of the three alleged samples, and there's an additional hair brush which they cannot identify with anybody in the household.  We have about 50% inaccuracy level at this point in their determination of hair samples.  We have a 50% discrepancy in their gathering of hair samples, and at this point I don't think that is sufficient basis upon which an expert can give forth his opinion.
That was in Exhibit E-304 on page 3 the supplemental reports, a sweat shirt bearing “known hairs” of Captain MacDonald from the south closet of the east bedroom, was said to contain animal hairs, and there was an Exhibit D-15, a white plastic brush bearing red brown stains which had on them unknown hairs, hairs which this witness has not been able identify with anyone in the household.  So we have at least 50% inaccuracy in the gathering of the hair samples.  And now for this witness to come to certain conclusions with regard to the other two exhibits gathered in this method, I think we have clearly a discrepancy in any scientific testimony.

CPT BEALE:  I think that what this witness is doing, he is merely giving his expert opinion as to the facts that certain hair samples that were found in and about the residence of Captain MacDonald were grossly similar to some hair samples that were on a shirt.  Now whether or not those particular hair samples belonged to a certain person, this witness cannot testify and naturally that goes to the weight to be given this thing, to this testimony, if any at all, and that's something that's within the sound discretion of the investigating officer.  So at that point your objection is overruled, and of course the Article 32 officer will give whatever weight he thinks is deemed appropriate to this particular witness' testimony.  You may proceed, counselor.

COL ROCK:  I'd like for counsel for the government also to indicate again as you did previously what specific paragraphs you are referring to as far as the conclusions of this witness.  It will aid me in following this.  The witness referred to A-209, A-227, A-229, et cetera.  To what paragraph does that pertain?

Q  You are referring, I believe, are you not, Mr. Browning, in Government Exhibit Number 7, to paragraph 28?
A  Yes, this is correct.

COL ROCK:  Thank you.

MR. EISMAN:  If I might, just to suggest that paragraph 28, where it says “physical characteristics to the head hair of Colette MacDonald.”  That at this point it should be noted this is not head hair taken from Colette MacDonald but it is taken from items of clothing suspected to be that.  In other words the conclusion would not be correctly stated.

CPT BEALE:  I think this is a correct observation and I think that the Article 32 officer noted that as true.  Is it not, Mr. Browning?  That the original hair samples that you used as the norm or what ever you call it, was taken from clothing as opposed to the victim's head?

WITNESS:  From the clothing of the individual victim, yes, sir.

Q  Can you tell us, Mr. Browning, what pieces of clothing these were?
A  From memory, no.  I believe there was two or three winter coats and I think one dress was involved in one of the children.  It was mainly, not underwear of course, but exterior type clothing.  Winter dresses, winter coats and things like this.
Q  Now as I recall, sir, you were listing for us a number of exhibits.  If you would start at the beginning again and read us those numbers.
A  From the Colette MacDonald comparison?
Q  Yes, sir.
A  D-209, D-227, D-229, E-3, E-5, E-7, E-19a, E-20a, E-50, E63NB, E-210, E-302.
Q  And if I may, sir, with reference to E-302, may be found in Government Exhibit Number 8, paragraph 21.  Is that correct?
A  Yes, this correct.
Q  Were there other comparisons made and other conclusions drawn?
A  Yes.
Q  Would you tell us about those?
A  The following exhibits yields hairs grossly similar to the hairs from the clothing of Kimberly MacDonald.  D-221--

COL ROCK:  Excuse me.  What paragraph is that?

Q  You are referring now to paragraph 30, page 14 of Government Exhibit 7?
A  Yes, this is correct.

MR. EISMAN:  I am again going to renew my same objection.  There was not any samples taken from the head of Kimberly MacDonald and to say that these were grossly similar to that of Kimberly MacDonald is merely an unfounded conclusion based on the fact that there were some samples taken from clothing, not from the head.

CPT SOMERS:  I believe the witness in stating this just now said that they were grossly similar in all characteristics to hair taken from Kimberly MacDonald's clothing.

MR. EISMAN:  Yes, but the laboratory report which has been offered into evidence does not say that.

CPT BEALE:  Well, again your objection is overruled, and it is noted for the record that the same caveat applies.  Proceed.

A  The exhibits were D-221, D-227, E-229, E-10, E-11, E-13, E-50, E-116, E-120.
Q  Were other comparisons made, sir?
A  Yes.
Q  Would you tell us about those?
A  Comparisons were made from hair from the body of Kristen MacDonald.
Q  Now, if I may, sir, have these been summarized in paragraph 32, page 14 of Government Exhibit 7?
A  Yes, this is correct.
Q  Proceed, sir.
A  The exhibit numbers were D-48NB, D-123, E-8, E-9, E-12, E-56NB, E-57NB, and E-61NB.

COL ROCK:  I believe paragraph 32 refers to just D-48 without the NB.

CPT SOMERS:  I was about to cover that, sir.

Q  Paragraph 32 makes reference to D-48, sir.  You have testified that the number was D-48NB.  Can you clarify this for us?
A  The NB stands for north bedroom.  This is the designation applied to it.  I don't know actually from my notes what exhibit D-48 and D-48NB is.  They are differentiated by the NB.
Q  Well, correct number then?
A  D-48NB is the correct number.
Q  Would you tell us, sir, where the known hairs came from with reference to Kristen MacDonald?
A  The known head hairs were supplied from the autopsy from the body.
Q  And your conclusion with respect to the unknown hairs matched against those known was what?
A  They were grossly similar to that of Kristen MacDonald's hair, head hair.

CPT SOMERS:  Your witness.  Sir, if I may suggest--it is 1130 now.  Do you wish to take a break at this point?

MR. EISMAN:  If the prosecutor will state for the record there are no further questions of this witness and will not attempt to direct more questions after lunch, I will prepare to.  But if this is going to be used as a form of a recess to--I'd rather start my cross examination now.

COL ROCK:  I believe counsel for the government said he was finished with the examination.
I assume that's what you meant, wasn't it, counselor?

CPT SOMERS:  Yes, sir, I am offering the witness to the defense.

COL ROCK:  I don't think there is any question in mind.

MR. EISMAN:  I have no objections.

COL ROCK:  All right, this hearing will recess until 1330 this afternoon.  I wish to instruct the witness that you are advised that you will discuss your testimony with no person other than either counsel.  Do you understand, sir?

WITNESS:  Yes, I understand.

(The hearing recessed at 1133 hours, 13 July 1970.)

(The hearing reopened at 1330 hours, 13 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that the parties who were present at the break are currently here in the hearing room with the exception of Captain Thompson.  The witness is at the witness table.  I remind you, sir, again that you are under oath. And I believe the counsel for the accused wishes to interrogate you.

MR. EISMAN:  Before I begin my interrogation, may I inquire whether Captain Thompson is going to participate in this case, or whether or not he presently engaged in ex parte discussions with any authorities regarding his participation in the case, so that if he is engaged in ex parte conversations, so we may send our representative to give the defense viewpoint?

CPT SOMERS:  Captain Thompson will most assuredly participate.  He is at present engaging in no ex parte discussions with anyone.

MR. EISMAN:  Fine, thank you.

COL ROCK:  Please proceed, counselor.

Questions by MR. EISMAN:
Q  Now you testified that you had approximately how much training with regard to the analysis of wood during your on the job training at Fort Gordon?

CPT SOMERS:  I object.  This witness has testified as to his qualifications and the defense has had its opportunity to cross examine him on those qualifications.

MR. EISMAN:  I'm not questioning him at this point as to his qualifications.  The investigating officer has already ruled on that.  This merely goes to the weight of the evidence, which is the proper subject for cross examination.

COL ROCK:  Is there any other rationale or approach that you are making that is different from what we've already heard, Mr. Eisman?

MR. EISMAN:  Yes, sir.  This goes to the weight of the evidence to be given by the investigating officer.  The other cross examination went merely whether or not this man would be accepted by you as a qualified expert in reference to the determination or the comparison of wood.  He has been accepted as an expert as far as being a forensic chemist but not in the--if he has been accepted as an expert of wood, at least I think it is at this point incumbent upon the investigating officer to know the depth of his knowledge or training in that particular aspect.

COL ROCK:  Objection overruled.  I think I am familiar enough with what has been stated so far reference his qualifications.  Any witness that appears before me, of course, I take into account the degree to which I give weight to the testimony I am hearing.  Please proceed.

MR. EISMAN:  Thank you, sir.

Q  The question was, I believe, and I will restate it at this point, in reference to the particular examination of wood and wood splinters, how long did you train with regard to that at Fort Gordon?
A  The training period for each of these items would range from six week to two months.
Q  Were you working on duties at the time you were training?  In other words, were you investigating cases while you were doing this training?
A  No, I was not.  The training consist only of unknowns and material related directly to the subject being studied.
Q  Now you have testified as to certain wood splinters being grossly similar to that found in Exhibit A which is the piece of wood which had been found outside the door of the MacDonald house.  Is that correct?
A  Yes, that is correct.
Q  When you say “grossly similar,” would you please tell us the exact type of wood this was?
A  As I told you earlier, the laboratory does not determine the botanical origin of the plant.
This wasn't requested and is seldom of any use.  Our primary purpose is to determine the comparability of the various exhibits.  In this case they were grossly similar.
Q  Now in reference to the comparability, do you know whether or not other types of wood would have similar or grossly similar characteristics as the type of wood that you examined?
A  Not cellular structure, things of this nature.  Many woods are fairly similar from physical standpoints, and of course any single wood would be similar from the similar section of the tree and the same type of wood.
Q  But you are not saying that the pieces of wood which were found in other areas in and about the MacDonald house came from the exact same tree, are you?
A  No, I am not.
Q  You are not saying that they came from the exact same manufacturer, are you?
A  No.
Q  Could you say that to a scientific certainty?
A  No, I could not.
Q  You are merely saying that--by the way, are they the same size of the piece of wood which was found outside, in deference to width, not length, but width?
A  Exhibits A-1 and A-2 were the same as Exhibit A.
Q  And would that be a standard manufactured size which could be referred to probably as a 2 x 2?
A  Yes, sir, roughly, 2 x 2.
Q  And do you know how many manufacturers there are who manufacture that type wood?  Or size?
A  I imagine any sawmill could saw that size.
Q  And is it possible that any other sawmill would use the same type of tree, or same type of wood for a 2 x 2?
A  Certainly.
Q  And wouldn't that same type of wood have a grossly similar cell structure as you've described here today?
A  Yes, providing it was essentially the same age and condition, the same portion of the tree.
Q  And you are not saying today that the piece of wood found outside the MacDonald household was sawed from the same length of wood, are you?
A  No, I am not.
Q  As a matter of fact you would say to a scientific certainty, after your examination, that this was not sawed from the same board, these did not come from the same board.  Isn't that correct?
A  The annual growth grain showed that they were not from the same board.
Q  Now in reference to the next area in which you examined, the fibers, you testified that the--let's start with the threads.  For the investigating officer's edification, once again the threads, I believe, are what you are referring to as what sews the seams of the pajama top?
A  Yes.
Q  As opposed to the fibers which make up the actual body of the pajamas?
A  This is correct.
Q  Do you know how many different types of different spools of threads are used in the manufacture of that particular pajama top?
A  No, I do not.
Q  Who was the manufacturer of that particular pajama top?
A  I do not know this.
Q  Do you know how many different operations are used, in other words, how many operators are needed in order to create that particular single pajama top?
A  No, I do not.
Q  Is it your knowledge of the textile industry that each operator creates a particular part and sews it together would be using a different machine than having one operator doing the entire operation?
A  I do not know.
Q  If, in fact, there were other operators operating and they were using other spools of thread, would this in fact be different, different threads, than the thread which you have described, as being all the same?
A  Well, that would be speculation.  There could be or could not be.
Q  And would you say to a scientific certainty whether or not the fabric or the threads which you found came from the pajama top or the bottoms?
A  No, I could not.
Q  Is there anything that distinguished this thread, which I believe you described a as purple thread?
A  Yes.
Q  Was this purple thread in manufacture different from any other standard purple cotton thread, any chemical qualities that it had?
A  No, they were not.
Q  Could you say who manufactured this cotton thread?
A  No, I could not.
Q  Could you say whether or not there were fifty other manufacturers who manufacture similar cotton thread?
A  No, I could not.
Q  Do you know how many threads it takes to make one seam on a standard commercially manufactured garment?
A  Well, this would vary considerably by the type of seam or stitch.  In this case it was a zigzag seam binding type stitch.  If it is a straight stitch then it would take less thread.
Q  Well, isn't it a fact that there were both used in this type of manufacture a bobbin thread which would be the bottom thread and a whipper thread used as the top thread in order to sew these stitches together?  Wouldn't that be the standard operation in the manufacture of textiles, to have a bottom operation and a top operation on each seam?

CPT SOMERS:  I object.  It is irrelevant.

CPT BEALE:  Well, would you like to point out to Colonel Rock just what it is you are driving at here?  This man certainly doesn't work in a textile mill.

MR. EISMAN:  Well, the point is we have had testimony that the thread was similar to threads found on a pajama top.  We have to show here that the pajama top would be manufactured in several sections, probably up to twenty different sections in a pajama top of this nature.  The threads which would be used in each section would be used by a different operator, in other words, comes from a different spool, and if the thread was similar to other manufacturers' threads, we couldn't even say that this particular thread, which was found around the house, came from this garment.  It could have come from any other garment also; and therefore, that in addition to the fact there would be two types of stitches used on this garment on both the pajama top and the pajama bottoms, we would have then an infinite variety of places where thread could come from, not just the pajama top.  And that is the relevancy for which we are offering this cross examination.

CPT BEALE:  This witness is not an expert in the manufacture of pajama tops, and if you've got an expert that you'd like to bring in on that particular matter, it certainly would be, if you can show additional relevancy, it certainly would be apropos, but this man is a forensic chemist.

MR. EISMAN:  But he is giving a chemical analysis saying that the thread was grossly similar to that found in the pajama top.  This line of questioning merely goes to the fact that this could have been grossly similar to thread found on any other piece of clothing manufactured anywhere else.  Since this witness does not know the name of the manufacturer, does not know whether or not there could have been other garments in the house that night, who had this thread, he cannot say to a scientific certainty that this particular thread came from this particular garment.

CPT BEALE:  I think he answered that question in just the way you are suggesting, the fact that his analysis is based upon the material that was presented to him, and the thread along with the pajama top.  And that's all he's testifying to, and that's the only extent to which his expertise lends itself.  So therefore--

MR. EISMAN:  I will pursue a different line of questioning.

CPT BEALE:  Your objection is sustained to that extent.

Q  Do you know whether or not the thread on the pajama bottoms was similar to the thread on the pajama top?
A  No, I didn't see the pajama bottoms.
Q  Do you know what happened to the pajama bottoms?  Were they ever presented to you at the laboratory?
A  The top?
Q  The bottoms?
A  Bottoms, no, I do not.
Q  Could you say whether or not the thread which you found came from the top or bottom?
A  I can only say that all threads involved were grossly similar.
Q  Now could you say when these particular threads came to the resting place where they were found by the investigators?
A  If you are referring to a time, no, I cannot.
Q  If this were a pajama top which was not new, which was old and worn around the house, could these threads and fibers have gotten there prior to February 17th?

CPT SOMERS:  I object. This is completely outside the scope of this witness's testimony and his expertise.

MR. EISMAN:  I believe that the fibers or the exhibits which have been offered in evidence are supposed to relate to this night of the incident.  I assume that's what will eventually be sought to be proven by the prosecution, and the fact that these items might have gotten there before that I think is completely relevant unless the prosecution is going to say they are not going to say these fibers got there on that night.  If they are going to state for the record that they don't believe they got there on the night of February 17th, I will withdraw my question, but if they are going to later assert that they believe they fell into the position they were found on February 17th, I think this would be a proper line of cross examination.

CPT BEALE:  Well, what you say is true, but however it is not for this particular witness.  He is a forensic chemist, not a criminal investigation man who was on the scene in--on the night of February 17th.  Therefore I think you properly should address those types of questions to the--

Q  Chemically speaking, can you determine whether or not these fibers, the threads that were found which you examined were--when they arrived at the position they were picked up from?
A  Not chemically speaking, no.
Q  Can you say when they were torn or when they were ripped from this garment?
A  Well, this seam was sewn with a zigzag stitch, not a straight stitch, like many fabrics that's sewn; and when the seams are ripped the cotton threads obviously were in poor condition, possibly from bleaching and washings and things of this nature.  When the seams were ripped the purple cotton threads was ripped into literally hundreds of little small zigzag pieces of this threads, and these small zigzag pieces of thread were found in all the exhibits listed; in most of the exhibits, at least twenty or thirty pieces, not just one or two.
Q  Right, but can you say when they arrived in that position, in other things when these things were broken?
A  Time-wise, no.
Q  Do you know of your own knowledge whether or not they--there might have been seams ripped in that garment before February 17th?
A  No, I do not.
Q  Because of the age or the nature of the garment, is it possible that certain seams might have been ripped--I think you said this was an older garment--to your knowledge?
A  Yes, it appears to be an older garment.  The seams, as such, showed not as fading as the garment itself.  They appeared to be fresh, fresh ripped seams.  Now, many particles of the cotton was still adhering up and down the seam to the cotton jacket itself.
Q  How about the bottoms?  You have no way of knowing whether or not--
A  No, I wasn't able to examine the bottoms.
Q  How would you determine that certain seams were fresh ripped?  By what chemical test would you use on that?
A  No chemical test; merely by appearance, observation.
Q  Well, how would you know whether they ripped on February 17th, 16th, or 15th?
A  No.
Q  Would these hundreds of small fibers be easily transportable, of such light nature that they could be transported easily around the house?
A  Well, this is speculation.  They were just the normal pieces of threads, ranging in length from a quarter to an inch long, I would say.
Q  Right.
A  So it would depend on how much breeze, I guess, how much--
Q  Well, could they be transported by somebody walking around the house?
A  I guess.
Q  Rubbing up against something?
A  This is a possibility.
Q  Now in reference to your examination of the hair, you have testified that first of all there were no known hair samples taken from the head or body of Colette MacDonald.  Is that correct?
A  Yes, sir.
Q  And you have also testified that there was no head or hair samples taken from the body of Kimberly MacDonald.  Is that correct?
A  Not to my knowledge, no.
Q  And that the only person from whom hair samples were taken was from Kristen MacDonald.
Is that correct?
A  Yes, it is.
Q  Now wasn't something submitted to your laboratory which was supposed to contain the known hairs of Captain MacDonald?
A  Yes, a piece of Captain MacDonald's clothing was submitted.
Q  And that was, I believe a sweat shirt?
A  Yes.
Q  Is that correct?
A  Yes, that is correct.

COL ROCK:  Which exhibit is that, counselor?

MR. EISMAN:  E-304, sir.

COL ROCK:  In Exhibit 7?

MR. EISMAN:  Page 3 of the supplemental report.  Do you have it, sir?

COL ROCK:  Affirmative.

Q  Now Exhibit E-304 which was submitted to you is a sweat shirt bearing “known hairs from Captain MacDonald from south closet of the east bedroom” contained what after your analysis?
A  I found three or four hairs present but they were not human hairs.  They were animal hairs.
Q  Do you know of what animal?
A  Well, all indications were horse.

CPT SOMERS:  Then the question would be whether it was within his knowledge.

MR. EISMAN:  Can I rephrase the question?

CPT BEALE:  Certainly.

Q  For what reason was Exhibit E-304 submitted to you?
A  I was told, or my instructions in the request were to examine and determine if the hairs were Captain MacDonald's or--let me see, let me think for a moment.  I have to rely on my memory with this.
Q  Let me lead up to this.  Maybe we can simplify the matter.  When you were given the clothing or the hair samples which allegedly were taken from the clothing of Colette MacDonald what were your instructions regarding those?  To your knowledge, regarding those, what were you supposed to do with those?
A  I was supposed to remove the hairs from the clothing and determine if they were the same and different from the other individuals, and were in fact--belonged to the person whose clothing was represented.
Q  How did you in fact determine that those hairs taken from the clothing of Colette MacDonald belonged to Colette MacDonald, if you didn't have a sample of her hair?
A  Simply by elimination.  I removed at least thirty, I don't remember the exact number, but at least thirty hairs from the articles and examined those to be sure that they did compare and were the same, and with that many hairs I assumed that the hairs were from the owner of the garment.
Q  What color of hair did Colette MacDonald have?
A  She has blond.
Q  What type of hair did Kimberly MacDonald have?
A  All three of the victims were blond, in varying degrees.
Q  Which one had the most blond hair?
A  Colette's hair under the scope was the most blond.  It appeared to have had a rinse, not a dye, but a rinse type substance had been used on it.
Q  Do you know whether or not when the hairs you found on the clothing were placed there?
A  No, I do not.
Q  In other words, If Colette MacDonald had a different color of hair at the time these hairs fell on the clothing, as opposed to February 17th, 1970, wouldn't they in fact show up to be a different color?
A  Yes it would be different.
Q  Do you know when these hairs were placed on the articles of clothing?
A  No, I do not.
Q  Now in reference to the cloths of Colette MacDonald, were any of the children's hair found on these clothes?
A  On the outside garments of Colette, to the best of my knowledge they were not.
Q  How about on the other garments?
A  If I remember correctly--I think I do--I found one or two foreign hairs on the garments that was one of the children.  By foreign hairs I mean hairs that I established as being one of the majority.
Q  And whose hairs would they have been?
A  I think this was on Kimberly's coat.
Q  Do you know whose hairs they were?
A  Yes, they appeared to be Mrs. MacDonald's.
Q  How about on the clothing of--how about in comparison with the hair of Kristen MacDonald?  Did you find hairs of Mrs. MacDonald which was similar to that?
A  No, I did not.
Q  Now there is certain hair on the hair brush found on Exhibit Number--on D-35.  First of all I want to show you a picture.

MR. EISMAN:  Let the record indicate I am showing the investigating officer a picture marked Accused Exhibit Number 24.

(A-24 was then shown to counsel for the government.)

Q  I show it to the witness.  Would you please tell me what you see in this picture regarding any hair brush?
A  Yes, I see a hair brush with a white, what appears to be plastic handle with black bristles.
Q  Now where in reference to the body outline of Colette MacDonald is that located?
A  I had to refer here to the exhibit.
Q  Can you refer to the exhibit and if you see a blue line in that picture?  How close is it to the blue line?
A  Yes, it appears, if the blue line is an outline of the body, it appears right near the body, practically touching the body
Q  Practically touching the body.  Now in reference to this hair brush would that be the hair brush which is referred to as Exhibit D-35, a white plastic hair brush bearing red brown stains near the body outline in the east bedroom?
A  Yes.
Q  What type of hair did you find in that hair brush?
A  I found a dark hair that was apparently dyed.  It appeared to be female hair judging the length, it was fairly long and wavy and it had a gray or very pale blond root section.  This root section had grown out approximately a quarter of an inch indicating the hair hadn't been dyed possibly in two to three weeks.
Q Now in reference to that hair, is that similar to any hair which you found in the MacDonald household?
A  No, it is not.
Q  And you say in your conclusion that that would probably be the hair of a woman.  Would you tell us the basis for that conclusion?
A  Once again the extremely long length, or much longer that even make styles today, and the fact that it was very curly and the fact that it was dyed.
Q  And according to your knowledge that came from no one who is known to have lived in the MacDonald household at that time?
A  That is correct.
Q  Were all of the hairs found on the clothing that you used as samples, exactly alike in reference to color?
A  No two hairs are exactly alike, especially in color.  The color of an individual's hair varies considerably from the portion to portion of his head.  This seldom used as a real comparison unless it can be determined they are from the same area of the head.
Q  Were you aware that Kim MacDonald had two distinct hair colors in her head?
A  No, I didn't.
Q  Did you find any evidence of that in your examination of the comparison samples which was provided to you?
A  No, I did not.
Q  Now you have also testified with regard to a certain procedure you used with reference to determining similarity of paint, and you've mentioned a term, gas chromatography.  Is that correct?
A  Yes.
Q  And do you know what gas chromatography measures?
A  Do I know what it measures?
Q  Yes.
A  It measures the organic substances, retention time on the column and residents.
Q  Would that be with reference to the solvents used in the paint?
A  Yes.  Yes, it--like I stated earlier--the main constituents of the paint, the inorganic substances such as titanium or lead or whatever it happens to be, it makes very little difference.  We are mainly concerned with the organic constituents of the paint and these vary.
Q  How did you take the sample and place it in a chromatography machine?
A  The sample was first removed under a microscope using a scalpel.  Care has to be exercised to get a pure sample because obviously contaminates can render the analysis useless.
So the normal procedure is to gently remove the cap of the stain and get a slice or thin layer of the paint underneath.  This is then placed in a paralyzer.  The paralyzer is the instrument that heats the paint chip and converts it to a gas.
Q  Did you use any solvents in any way to dissolve the paint?
A  No, I did not.
Q  In other words, this was dried paint which was placed in the gas machine?
A  Yes.
Q  Were you aware the solvents which all paints contain evaporate after they are used?
A  There are usually trace elements of all solvents even though evaporation is extended to the point of dryness.  It would take years for the solvents to be actually dissipated so there are no traces left.
Q  But if an expert in the field of paint technology were to testify that the only valid way to determine whether or not two paints which have already been applied and dried are similar would be through a spectrophotometer as opposed to a gas chromatography, would you say that expert would be incorrect?
A  Well, I would say he wouldn't be exactly correct, however we have no argument, because I also ran all four of these samples on the spectrograph which determined that all of the inorganic qualities were similar also.
Q  And when you refer to the inorganic substances, what are you referring to?
A  I am referring to the base constituents of the paint.
Q  And what would that be?
A  In this case, as I stated earlier, we only used the comparison type analysis.  I didn't attempt to determine the origin or the type of paint.
Q  Well, are you aware that all paints provided to the United States Government must adhere to certain standards regarding their contents?
A  Well, depending on the brand and the type paint.  This type of thing?  The Army has quality control requirements on all of its purchases.
Q  And would they all contain the same pigments which you've described thus far?
A  Yes, a certain type of paint ordered by the government would be--well, say a titanium base paint--it will contain a certain titanium, but it would also contain varying amounts of by-products, trace elements, and things which were introduced into the paint during the manufacturing process.
Q  Well, isn't it a fact that in order to adhere to government specifications, at least the elements of the paint would have to be the same?
A  Yes, this is true.
Q  And were these the same?
A  Yes, they were all the same.
Q  And what chemical substance did you find in these particular paints which made them different from the normal standard paint that the government would be supplied with?
A  Well, I didn't compare these against any other paint that the government had supplied.  All I was interested in doing was establishing that the four samples were from the same batch or had the same trace elements present.
Q  Would you know how many thousands of gallons or hundred thousands of gallons would be contained in a single batch with regard to each separate manufacturer?
A  I would imagine this would vary according to the manufacturer and the need at the time.
I have no idea.
Q  If this was a large manufacturer supplying a large amount of paint, isn't it quite conceivable the same batch would contain a hundred thousand gallons of paint?
A  This would seem plausible.
Q  And if this same paint were recorded and the specifications were made the same as before, isn't it possible that they would contain the same elements you found?
A  If the reordered paint came from the same liquid batch or the same run, they would.  However, if it was from a later run, they would have other by-products.
Q  Isn't it possible that both the paint could be supplied commercially and to the government would be from the same run?

CPT SOMERS:  I object.  This is way outside the field of the witness' expertise again.

CPT BEALE:  Objection sustained.  Let's move to another area counselor.

Q  Let me get one more question regarding this.  If, in fact, there was a certain amount of paint, say ten thousands gallons ordered for Fort Bragg, and this was all made in the same batch from the same batch from the same manufacturer, wouldn't it be possible that this paint came from the same manufacturer and could have been from two different sources when it was applied, if there were ten thousand buckets of paint here at Fort Bragg?
A  I'm not quite sure I follow you.
Q  Well, let's assume that the Supply Officer at Fort Bragg ordered ten thousand gallons of whit paint.  Let's assume that at one place or another this was--

CPT BEALE:  Counselor, as was stated, I just believe this is outside the providence of this particular witness to be able to answer this question.  So why don't we move to another area.

Q  All right, now you also were detailed to examine one other substance in the house.  Isn't that correct?
A  Yes, I was.
Q  Now what was that other substance?
A  It was wax or wax-like substance.
Q  And where was that found?
A  Exhibit D-123, I believe, was found on the bedspread.
Q  In which room?
A  I think this was the south bedroom.  Yes, south bedroom.

MR. EISMAN:  CPT Somers, could you turn over the diagram?

(CPT Somers displayed Government Exhibit 1.)

Q  With this direction being north, upward, the south bedroom would be contained in this area.  Would that be correct?
A  Yes.
Q  Would you agree that that would be the south bedroom for purposes here?
A  I am sure that's correct.
Q  Now you found evidence of wax coming from the bedspread which was said to have been in this bedroom.  Is that correct?
A  Yes.
Q  Now where else was wax found?
A  Wax was found on a plastic covered chair, G-131--my list of exhibits here isn't complete.

MR. EISMAN:  Captain Douthat, G-131, which is that?

CPT SOMERS:  Chair from the south bedroom.

A  Yes, and wax was found on this chair.
Q  There were two drippings of wax--would you describe them as found in this bedroom?
A  The dripping of wax in this bedroom appeared to have come from a multi-colored candle.  Looking at the wax, it was a rather large stain, fairly long and several drops.  And it appeared to be different colored wax, coming from a multi-colored candle.
Q  And where else in the south bedroom was wax found, according to your--
A  My--exhibit G-201, which was a coffee table, according to my notes here, possibly from the living room.  Is that right?
Q  A coffee table which was found in the living room?
A  Yes.
Q  Now according to your chemical analysis, was this similar to any candles which was supplied to you as being found inside the house?
A  No, I was sent six candles from the house by the CID.  I compared these three samples with the six, from the six, and they were not from any of these six candles.
Q  And according to your knowledge of the case thus far, those spots were introduced from some foreign element or some foreign candle.  Is that correct?  A candle which has not yet been analyzed by you?
A  Well, all I can I can say is that it was not one of the six candles I analyzed.
Q  Now were there photographs taken of the samples in place before they were brought to Fort Gordon?
A  Like I said, I wasn't here.  You'll probably have to check with the investigator.  I have seen many photographs, but I am not sure of this exact exhibit.  I couldn't testify from memory.
Q  What did the photographs that you saw depict?
A  Various scenes throughout the house, things of this nature.

COL ROCK:  Did these photographs have any relevance to your work, specifically?

WITNESS:  In studying fibers I came across many various colored fibers and I used the colored photographs to determine where I would likely find a known to compare with the color fiber I had.  For instance, a colored rug and this type of thing.

Q  Do you know who took these photographs?
A  No, I do not.
Q  Do you have those photographs with you today?
A  No, they are not in my possession.
Q  According to your knowledge of the case, was one of the purposes of the photographs to fix as to the place where each one of these exhibits came from?  Were they photographed in place?

CPT SOMERS:  I object.  He's already stated that he cannot answer that question.

CPT BEALE:  Sustained.

MR. EISMAN:  I have no further questions of this witness, sir, at this time.  As I stated before this hearing began, I would ask leave of the investigating officer to have permission to recall this witness once we now have an opportunity to present his testimony to our experts in the various fields in which he has come before the investigating officer as an expert, and I would ask that this witness not be excused permanently from these proceedings on that basis.

CPT BEALE:  Well, let's allow the government to redirect, and then we'll take up that matter.

Questions by CPT SOMERS:
Q  In comparing fibers, as you've done in this case, does the question of fading in the fiber help you to compare and identify it?
A  Yes, obviously it would.
Q  And how did the fading compare in the fibers you have compared?
A  Color-wise, and this was part of the fading process, they were very good--grossly similar.
Q  Now you've talked about other items such as denier and twist and bundles, did you say?
A  Yes, fiber bundles.
Q  Would you tell us again how these things are defined, what they are and how they compared in this case?
A  Well, the fiber bundle, of course, is a number of single small threads required to make one thread.  This, in turn, is twisted with others to make the final thread used in weaving.  The denier is the overall size of the--of the thread after the twist.  The method of twist varies from different manufacturers.  Some are very tightly twisted or loosely depending on the quality and the amount of material to a given measure of thread.  This also affects the cost, of course, of threads.  This appeared to be a standard cotton type sewing thread.  I saw nothing really unusual about it.
Q  Did the threads you were comparing match?
A  Yes, this is the only real comparison I made, the matching comparison with each other and knowns from Exhibit D-210.
Q  We've spoke about the time in which the jacket might have been torn or in which threads might have been spewed about.  Were there any foreign substances on any of these threads?
A  Yes, many of them contained blood stains.
Q  I see.  We've also talked about whether it is unusual for--or usual to take hair knowns from clothing, and you've testified that it is unusual.  Is it ever done?
A  Yes, I've had other cases where it was done, particularly in the case of missing individuals.
Q  I see.  Now in the two cases you did it here, you had how many hairs did you say that you compared against one another?
A  From the exhibits submitted, I would estimate thirty to forty.
Q  Does this number give you a pretty good comparison basis?
A  Yes, the--we require a large number before we give any opinion.  This is necessary to be sure that the thing would be pretty accurate.
Q  Now with respect to the paint, did you say that you did use spectrographic analysis on the paint?
A  Yes, I did.
Q  And the results in terms of comparison was what?
A  It was a very good indication that all four originated from the common source.
Q  We've also talked about wax, and you've compared the wax in these exhibits against six candles, you say?
A  Yes, I did.
Q  Do you know whether there are other candles yet to be compared against?
A  Yes, last Thursday I received six more candles from the apartment for comparison.  I have not done analytical work on these as yet.
Q  Are any of those candles multi-colored?
A  Yes, one is multi-colored.

CPT SOMERS:  I have nothing further.

Questions by MR. EISMAN:
Q  So the point of your testimony today, your testimony is that the wax found is not similar to any wax found on the candles you have been supplied thus far by the criminal investigation.  Is that correct?
A  Yes, that's correct.
Q  And the reason why--isn't it preferable to have the hair samples from the head of the person you are trying to compare it with?
A  Yes, I would prefer this.
Q  And in this case they were not provided because someone did not take hair samples.  Is that correct?

CPT SOMERS:  I object.  This witness cannot answer that question.

CPT BEALE:  I'm sorry.  What was the question, Mr. Eisman?

MR. EISMAN:  The reason why there were no hair samples taken from the--why the examiner did not have samples from the heads of the particular persons was because somebody failed to take hair samples.

CPT BEALE:  Well, of course, again, this witness has already testified he was not present at the scene on the 17th, or thereafter.  He works at Fort Gordon, so it is not within his knowledge as to how these things came about.  The objection is sustained.  You may move to another area.

Q  Did you personally make the analysis of each of these items you have testified to, and each of the chemical tests and each of the machine tests which you've testified to?
A  Yes, I did.
Q  Do you know what objects Joseph John Barbato, Chemist from Fort Gordon, what his job was reference to this case?
A  If I remember correctly, I think he did blood work.
Q  Janice Glisson?
A  She also did blood work.
Q  Larry Flinn?
A  I think again blood work.  I believe that I am the only individual that worked on the other substances, other than blood and body fluids.
Q  To your knowledge, you are the only person?
A  Yes.

MR. EISMAN:  I have no further questions.

COL ROCK:  Captain Somers, will this witness be in town tomorrow as currently planned?

CPT SOMERS:  I expect this witness will be in town through tomorrow.  He will be leaving sometime the following day.

COL ROCK:  The reason I ask is because I have a series of questions to ask with reference to certain apparently administrative, possibly administrative errors that we note in the report.  I have not had time to completely analyze it, which I want to get straightened out for the record, and if the witness can be present for additional questions then we can go ahead in order to save time with the next witness.

CPT SOMERS:  Sir, he will be present tomorrow.

COL ROCK:  Okay.  Mr. Browning, you are advised that you will discuss your testimony with no person other than either counsel.  Do you understand this?

WITNESS:  Yes.

COL ROCK:  You are temporarily excused, subject to recall tomorrow.

CPT SOMERS:  At this time I will ask to have a forty-five minute recess.  We are moving much faster than I anticipated.

COL ROCK:  The court will be recessed.

(The hearing recessed at 1422 hours, 13 July 1970.)


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