Jeffrey MacDonald's Article 32 investigation hearing: 1970 - Volume 8
Major Severt H. Jacobson (MD) and Specialist Seven William F. Ivory (CID)
(Major Severt H. Jacobson was called as a witness by the government, was sworn, and testified as followed.)
Questions by CPT SOMERS:
Q State your full name, please?
A Severt Harold Jacobson.
Q Your grade?
A Major.
Q Your organization?
A Womack Army Hospital.
Q Your station?
A Fort Bragg.
Q Your armed force?
A United States Army.
Q Would you tell us, please, what your education background is?
A I completed high school; BS degree at the University of North Dakota in 1959, I believe it was, '60; an MD degree at the University of Minnesota in 1965; internship at St Luke's Hospital in Duluth, Minnesota.
Q And what experience have you had since that time?
A I was drafted immediately after my internship into the Army and I've been stationed at Fort Bragg the entire time since then except for some time in Fort Sam Houston and Fort Benning, Fort Rucker, primarily working the first three years here in Dispensary duty, either as a battalion surgeon or a flight surgeon.
Q During the past year what--
A During the past year I've been in the residency training program at Womack Army Hospital, a specialty year in neurosurgery.
CPT SOMERS: Does the defense care to examine the witness on his qualifications?
MR. EISMAN: I have no questions about the major's qualifications.
CPT SOMERS: At this time the government tenders the witness to the investigating officer as an expert in the field of medicine.
COL ROCK: So noted.
Q On or about the 17th of February did you have an occasion to see Captain MacDonald?
A Yes, I did.
Q Have you subsequently given a statement with reference to the subject?
A Yes, I have.
CPT SOMERS: Request that this document be marked as a government exhibit.
COL ROCK: This will be G-40.
MR. EISMAN: I am going to object to this statement at this time as a Government Exhibit unless the government purports that this is not the contents of the Major's testimony today. The best evidence would be his testimony today. If there is going to be a conflict, the statement would have no evidentiary value. It would be merely circumstances. I think the best evidence that could be marked here would be the doctor's records of the Captain regarding this matter, not his statement, given subsequently without the records.
CPT BEALE: Well, now Colonel Rock ruled earlier in the proceedings that if, in fact, any of these witnesses made a sworn statement that the same should be marked and given the witness so that it could refresh his memory. Now, if you care to use other records with which to refresh his memory you may do so, but at this time the prosecution or counsel for the government has the floor and this particular exhibit will be admitted.
MR. EISMAN: At this time--
COL ROCK: May I see that again, please, sir.
MR. EISMAN: At this time because we are not sure of the doctor's testimony, because of the fact that the actual records regarding what he's going to testify I imagine, more extensive than a short testimony--or statement the Colonel has, I think in all fairness to the witness, I would ask that, if the government's attorney is going to question the doctor about his care and treatment of Captain MacDonald, that he at this time introduce or provide to the doctor a copy of his medical report so that if, all during his questioning, he has to refer to it, he could; or if the government's attorney will not then I would ask him--the investigating officer's permission to have this marked as an accused exhibit, the medical records, so that the witness could have before him and could refer to these if there is a question in his mind which arises during the questioning. But I think the question solely about the--on the basis of a short statement given, without fifty--forty to fifty pages of medical records, I think the investigating officer and the witness will be put at a disadvantage.
CPT SOMERS: I object to this. This is the government's direct examination. If the defense counsel wishes to introduce something during his cross examination to use with this witness, the government will then consider it as objectionable. But at this point, this is our direct examination. I object to this procedure.
CPT BEALE: Okay, now doctor, let me ask you this. I don't presume to know what the counsel for the government is going to bring out on his direct examination. In your opinion, will you need something other than this particular witness statement to able to effectively testify and make Colonel Rock aware of all the facts that you feel are pertinent?
WITNESS: Is that pertinent with the discussion with both sides?
CPT BEALE: No, just with Captain Somers.
WITNESS: I don't believe so.
CPT BEALE: Very well. Your request to have that marked at this time is denied. However, on cross examination you may do so, if you care to. All right, proceed, counselor.
Q Major I show you Exhibit G-40 and ask you if that is a copy of the statement that you gave?
A Yes, it is.
Q You may keep it and refer to it as you need to. Where did you have an occasion on the 17th of February to see Captain MacDonald?
A In the emergency room at Womack.
Q When was that?
A That was the morning of the 17th of February.
Q At the time that you saw him did Captain MacDonald recall to you what had taken place earlier?
A Yes, he did.
Q Would you tell us, please, what the substance of this information was?
A He was brought to the hospital and I was the second, I believe, second physician to see him in the hospital, and we were evaluating his medical status and taking x-rays he was recalling, recalling the events that had preceded what had happened, apparently, back in his dwelling. These were running through his mind, he was trying to figure out why--this is the way I interpreted--why this had all happened to him. He also answered some questions, specific, that we asked him, whether he had been unconscious.
COL ROCK: Excuse me. You mentioned we.
WITNESS: Yes, Doctor Straub and myself.
Q Doctor, specifically now would you tell us what Captain MacDonald said?
A Well, when he initially came in he, as I say, running through the events that had occurred.
He said he was awakened from sleep, I believe he was in the living room sleeping on the sofa. He said that somebody had--he was awakened by somebody beating on him and his wife screaming, and said that there was a blond female, blond haired female holding a candle, saying something like “Kill the pigs.” And there were three other males, one of them being a Negro. Somebody had a--some sort of a sharp instrument, either a knife, something in this order, and someone with apparently a club of some sorts. He recalled that somebody was jabbing him with this sharp instrument, whoever it was or whatever it was; he was dancing around trying to avoid them, and that he did grab this instrument in his hand. I don't recall which hand. He recalled his wife saying something to the effect “Why are they doing this to me?” Then he said he--I did not get the exact timing interval. I didn't quite understand that at the time, but he said that he examined his children. He said that they didn't have any pulses and he said that he went on to his wife. There was the--she had a lot of blood on her. He said she looked very bad and that was his statement, “She looks very bad.” He said, “Be sure to tell the MPs and the CID I pulled a knife that was in her chest out.” He mentioned something about an individual that he'd seen named Badger, he'd seen him as a physician pertinent to drug abuse, I believe LSD, he was an acid-head. He was trying to see
--trying to see if there could be any, to himself, to see if there was a correlation between this man and the group that was apparently in his dwelling. He mentioned something about his wounds, that he's seen a little bubbling from his wound in his right chest.
Q Sir, did you ask Captain MacDonald, or did he say anything about his possible loss of consciousness?
A Yes, we asked him, trying to again get the time interval, and he was unable to tell us whether he was unconscious or not. He said, “I just, I don't know if I lost consciousness or not.”
Q Now, doctor, can you tell us how many wounds Captain MacDonald had?
A He had five areas of wounds. Some of them multiple. He had a wound on his forehead, wound in the right chest, wound of the left upper quadrant of his abdomen, wounds on his left pectoral area and wound of his upper arm.
Q With respect to the wound in the right chest area, would you tell us please, the nature and extent of that injury?
A Well, it was a linear wound, transverse in direction about one centimeter long. It had a small amount of blood coming from it. As I said previously, there was some bubbling from it. After having taken x-rays we knew that it was a penetrating wound of the chest, producing a pneumothorax.
Q Sir, do you have any idea how deep this wound was?
A Well, we didn't probe it; we can't say the exact depth. You can estimate his body build and the average thickness of the intercostal--taking Captain MacDonald's build and just estimating the thickness of the intercostal musculature, the fact that he's not an obese individual, it's probably about 5/8 of an inch in depth, at least, to go through the--go through the chest wall.
MR. EISMAN: At least, doctor?
WITNESS: Yes, at least.
Q With respect to the laceration to the left upper arm, would you tell us about that, please?
A That was a superficial laceration through the skin only, not to the subcutaneous tissue. I don't recall the exact length of it.
Q Now with respect to the wound of the abdominal area, what was its relative severity and description?
A The wound in the left upper quadrant of the abdomen was also superficial wound. It went to the abdominal musculature rectus. Again, we didn't probe it, we don't know the exact depths, but it did not cut any muscle fibers. It was a laceration type wound.
Q Was it necessary to suture this wound?
A No, it wasn't.
Q What was the extent of the injury to the head, doctor?
A The injury to the head was a--a--apparently a blunt type of injury, a little bit to the mid-line of the forehead. It--was some swelling probably of moderate degree with some ecchymosis and slight skin abrasions. There wasn't any depression that could be palpated.
Q Did you have occasion to check Captain MacDonald's entire head?
A Yes, I believe I went over his head probably rather rapidly, but there wasn't any evidence of any significant other injury at the time that I examined him in the emergency room.
Q Did you find any neurological abnormalities associated with injuries to the head?
A No, I didn't.
Q With respect to the wound in the left upper quadrant, can you tell us what it was? What it consisted of.
A The upper left quadrant of the abdomen?
Q No, I am talking about the shoulder area, or the pectoral area?
A At the wound site there were four puncture type wounds or punctuate wounds along a tract, a linear track, and I believe it was in this direction, toward the apex of the shoulder. They were paced rather evenly about two to three millimeters apart. We did not probe these for depth and a--we took their significance as minor after having seen the x-ray. We had no pneumothorax there; in fact they would probably not allow an air leak in themselves, a chest leak.
Q Now, excluding the wound in the right chest area, what was the severity of the injuries to Captain MacDonald?
A They were all superficial type of injuries.
Q What was the relevant severity of the wound in the right chest area?
A That--the wound in the right chest area was of enough significance to produce a pneumothorax.
Q How much of a pneumothorax was noted? Do you know that?
A Twenty percent pneumothorax, 15 to 20%. It's hard to be specific.
Q Was Captain MacDonald suffering from shock at the time you saw him?
A No, he was not suffering from shock at the time I saw him.
Q Do you know whether he was suffering from shock prior to that?
A I cannot say for an absolution. I had no evidence at the time that he had been in shock.
Q Did you determine whether Captain MacDonald needed blood transfusions?
A Yes, we got a hematocrit on him and I believe his hematocrit was 45%.
Q Would you tell us what that is and what it means?
A Well it means that the relative amount of red cells in a given amount of--given blood, whole blood, is 45% of the volume, and somebody with rapid blood loss, very rapid blood loss, this has no chance to compensate by replacing the fluids into the intravascular system; and somebody with a slow blood loss it's significant because this would be delusional phenomena and the hematocrit will be reduced.
Q What was the practical meaning to you of this hematocrit in the sense of blood loss?
A Well, at the time there were no overt signs of rapid bleeding, and this I felt this hematocrit had significance. It was a valid hematocrit pertinent to his status.
Q And it was based on this that you did not have blood transfusions?
A That's right.
Q At the time you saw Captain MacDonald that morning, what was his overall medical condition?
A He was excited, coherent, alert to what was occurring to him at the hospital. His vital signs were stable and I don't feel he was under any--at the time--that he was in any great danger, medically, physically.
Q Can you characterize his condition in one or two general terms?
A I would call his condition at the time I saw him good to fair.
CPT SOMERS: Your witness.
MR. EISMAN: At this time, I'd like to have marked as Accused Exhibit--
COL ROCK: This is A-28.
MR. EISMAN: This is a copy of the final hospital reports of Captain Jeffrey MacDonald as provided to the defense by Womack Army Hospital.
COL ROCK: Accused Exhibit A-28 will be accepted, as a certified true and correct copy of medical records of Captain Jeffrey R. MacDonald.
CPT SOMERS: Sir, before that's done, I think that the whole of that exhibit is not pertinent to Doctor Jacobson; if it's being used with reference to Doctor Jacobson, he didn't have connection with the whole exhibit.
CPT BEALE: Captain Somers, if in fact the complete file of Captain MacDonald's medical records have any bearing on this hearing at all, then perhaps you can state to the investigating officer that some portions of this don't have, so it doesn't make any difference whether Doctor Jacobson has peculiar knowledge about some of this, or not. Colonel Rock, if in fact, these are relevant, would have the medical records of the accused and the treatment he received. There's no sense in having them come in piecemeal. So they will be received as requested.
MR. EISMAN: I will present a copy of this, sir, so the witness can refer to this during my questioning.
CPT SOMERS: May I see that?
MR. EISMAN: I'm sorry. I thought you would have it in your file.
CPT SOMERS: I'm not certain whether I do or not.
MR. EISMAN: Perhaps the prosecuting attorney would like to have a chance to read the medical records, and instead of us waiting, we could have a short recess.
CPT SOMERS: Counsel for the government is handing the exhibit back. Thank you, counsel.
MR. EISMAN: At this time may I inquire if there is any questions as to the validity of these records, so that we might settle that question?
CPT SOMERS: None was interposed.
MR. EISMAN: At this time I would ask the investigating officer to request of the government if they have in their possession any other medical records, to furnish them to the investigating officer, with a copy to counsel for the accused, because we have reason to believe that when these records were furnished to us, there might have been other records. We are not certain of what they pertain to, but there were no records regarding the treatment of Doctor MacDonald at the hospital which we were not furnished, and we have directed this to the government's attention on an earlier date.
CPT SOMERS: It is within my personal knowledge that the hospital certified to the defense that they were given the entire records. Is the defense questioning the good faith of the hospital?
MR. EISMAN: We are not questioning the good faith of anyone. We just have reason to believe that all the records--
CPT SOMERS: Then I suggest that you put your evidence of that on the record. You have certification from the hospital that the records are complete.
MR. EISMAN: Well, these are medical records, but there might have been other records regarding the treatment of Captain MacDonald. It doesn't say that these are complete. This is a true and correct copy of the medical records, not saying whether it is complete or not.
CPT BEALE: Okay, hold on.
MR. EISMAN: Captain Douthat is now reviewing his file to determine--
CPT BEALE: Captain Somers, could you state to the best of your knowledge that these records that you've just read through are the complete medical records of the accused?
CPT SOMERS: No, I didn't. I said that to the best of my knowledge, the hospital has certified that it gave the defense the complete medical records. I can't be sure that what he is offering here contains each and every page of the records, that it has in its possession the complete medical records.
CPT BEALE: To your knowledge, are there any other medical records pertaining to Captain MacDonald that has not been furnished to the defense?
CPT SOMERS: No, that's what I am saying.
CPT BEALE: Very well, your request is denied at this time. If you can come forth with some evidence that there are other medical records that have not been furnished, you may bring it to the attention of this hearing. We'll take that up at that time.
Questions by MR. EISMAN:
Q Doctor Jacobson, when did your tour of duty begin on the morning in question?
A It began early afternoon before that, 1630 hours.
Q And what would your normal tour of duty have been at the hospital?
A Until approximately 7 to 7:30, that morning.
Q Which would be how long a shift is that?
A Let's see, it runs about 16 hours.
Q Sixteen hours? Now, as a physician and speaking as a qualified expert having served in hospitals, during that time that you are available at the hospital, do you have opportunities to rest?
A Yes, periodically.
Q Assuming that you are in an emergency situation at all times, this would be normal procedure for doctors who work lengthy shifts at the hospital?
A That's for the surgical residents only, as a matter of fact, and the medical officer of the day.
Q And if you were working an even longer shift, actually, rest would be necessitated to keep your efficiency at a good level. Wouldn't that be correct?
A I suppose.
Q Now you had been working from the time you described until Captain MacDonald came in.
I believe that you had opportunity to rest immediately prior to coming in. Is that correct?
A Yes.
Q As a matter of fact when the Captain was brought into the hospital, you were--your rest was disturbed? Or not disturbed, but at least you were informed of this and immediately you got down to the emergency room. Is that correct?
A That's right.
Q And when you got down to the emergency room, what was the scene you originally saw, if you can describe it to the investigating officer, with regard to Captain MacDonald?
A Well, he was in the room that we have in the posterior part of the emergency area; we usually reserve it for cardiac arrest and people who are in bad condition, people whose status we are--we do not know at the time.
Q Would it be fair to say at that time Captain MacDonald was in such a condition and that's why he was placed in that area?
A No, I don't think so.
Q Well, were you aware of his status or what the extent of his injuries were at the time you got there?
A Well, the fact that he was sitting, was able to sit up by himself and to talk without being short of breath or seemly quite alert, although excited, would indicate at the time that there was no real emergent problem. As I said, we checked his vital signs at that time too.
Q The person who made the determination in that area wasn't you, sir, because you weren't there?
A That's right.
Q That would have been another doctor or some of the hospital personnel?
A That's right.
Q Now you've described the Captain talking or describing what went on. Was he speaking with you, or were you questioning him, or having conversations directly with him, or what was the exact manner in which you were speaking, as you can recall?
A Well, much of his conversation was spontaneous. As I said previously, he was, I believe, trying to understand what had happened, just a--immediately prior, going over the things in his mind, trying to--trying to put things together to make some rational judgments on it.
Q But you think that under the circumstances, knowing what you know about his injuries, that that would be a normal reaction in a person in the condition of Captain MacDonald would have been in?
CPT SOMERS: I object. I don't think that's a conclusion he can draw as to any individual--he had a specific conclusion.
Q Well, the specific individual of Captain MacDonald. Do you think that under the circumstances, knowing his condition, knowing the injuries were of such a nature which would not have prevented him from speaking, his vital signs would not have been affected, and knowing that he has suffered certain trauma and his family--he knew that his family had been injured seriously at least, that under the circumstances the way he was speaking was consistent with the conditions you saw him?
CPT SOMERS: I object.
CPT BEALE: Don't answer yet.
CPT SOMERS: It requires the judgments that are not medical and it is far too conjecture for the witness.
COL ROCK: Your objection is sustained.
CPT BEALE: Move to another area, please.
MR. EISMAN: At this time I believe I have an offer of proof because I believe the government offered this witness for some reason to show that Captain MacDonald was not seriously injured and there was something wrong, and I think they are later going to allege that his injuries were self inflicted, and that he knew what was going on all the time. What I am trying to get from the doctor who was called as the expert by the prosecution, was, under the circumstances, accepting all these facts, would be the manner he would be speaking in be consistent with the injuries which he sustained; or wouldn't it necessarily, if he was injured by someone else, would be speaking differently; or would this be an indication of the fact that he had injured himself, or would this just be normal under the circumstances, under the medical circumstances; and that's what I am trying to establish because the government somehow has tried to say that the man was having a normal conversation as if nothing had happened to his family. That's the basis upon which I've asked the question, and I think it's a valid cross examination of this witness who has been offered by the prosecution.
CPT BEALE: The objection is still sustained. Move to another area.
Q If you must, refer to your records to recall, because they are extensive. While Captain MacDonald was in the emergency room or in the x-ray room, was he given intravenous fluids? And if you wish, I think we can direct your attention to the appropriate page if necessary.
CPT BEALE: Mr. Eisman, if I may suggest, the witness can answer the questions without referring to these--
MR. EISMAN: Page 32 might give you an indication.
A Right, he was given--started on Ringer's lactate.
Q What is that, doctor?
A That's a balance salt solution to replace the fluid portion of your blood. We use it relatively routinely.
Q You wouldn't use it if someone came in with a cut finger, but you'd use it in this type of an emergency situation?
A Yes, we use it any situation where there is a question of the person's status.
Q Right, and as the Captain was talking to you, described some of the details regarding the incident, but from your recollection, what was the Captain's primary concern? Was it describing the assailants or what happened or trying to figure out, or was it something else which you felt was the most important thing in his mind?
CPT SOMERS: I object. I don't believe that he can decide what was the most important thing on the mind of someone else. He can testify as to what the man was saying.
CPT BEALE: Okay, his objection is sustained, and that's true, you can ask him direct.
Q What other things was Captain MacDonald concerned about, other than why this hap-pened to him? What did he say?
A Well, he said multiple times, he said he checked his wife and his children for their status. Multiple times he asked why--why his wife and children hadn't been brought in. “Why aren't they here, yet?” “How come they're so slow?” “The ambulance ought to be here by now.”
Q Did he make any efforts to do anything regarding this other than to speak, if you can recall?
A Yes, he did. We were a bit concerned that he was going to get off the litter that we had him on and attempt to do something about it. I don't know what he could have done, but to get up.
Q What was your medical treatment, or your treatment that you would normally do in a situation like this?
A Well, we just kept talking to him and just avoid the subject of his family, attend to things, to his own status, and attempt to point our questions in areas to escape and keep his mind off.
Q And that was probably one of the reasons why, instead of continuing to discuss his concerns for his family, he got into areas of speculation as to why this had happened and how it happened. Is that correct? Because you or the other people present attempted to direct his attention away from his concern for his family. Isn't that correct?
CPT SOMERS: I object. He's asking the witness to draw a conclusion as to what was going through the mind of another person.
MR. EISMAN: I'm not asking him to draw a conclusion as to what was going through his mind, but I am asking what they were doing and why the conversation resulted in the manner in which it did result.
CPT BEALE: Objection is sustained. Move to another area, or rephrase your question.
Q So that Captain MacDonald, in regards to many of the things which you've described previously, under questioning by Captain Somers, was being directed at these other areas by the people in the emergency room so that he would not get up off the litter, as you felt he might.
Is that correct?
A That's right.
Q Now at the time you first saw him, were you aware of the seriousness of the injury to his right chest?
A We were aware that he had an injury to his right chest. When I saw him initially he had a Vaseline gauze over this area and it at the time was a rather innocuous looking wound. Later, in the x-ray department, we did see some bubbling from the wound in the right chest, and I x-rayed--exploratory film showed pneumothorax.
Q Doctor, I am going to show you a picture in a book which is entitled Physical Diagnosis and ask you whether or not the diagram at the top of page 216 is what this portrays in the book.
(The diagram was shown to the IO and Captain Somers.)
CPT SOMERS: Is the defense offering this as an exhibit?
MR. EISMAN: No, just for the instructional value to the investigating officer.
CPT SOMERS: Where--well, since it has instructional value, perhaps it should be presented as an exhibit.
MR. EISMAN: If you'd like to present it after I've done my case, you may have the medical textbook and if the investigating officer would like to have it--
COL ROCK: I'll rule after the witness has completed his testimony.
Q Doctor I show you page 216, figure 127, which is a diagram of a body, which describes the figure--what does this figure describe?
A Well, it's labeled pneumothorax with a collapse of the right lung.
Q Now, in your medical experience, and knowing what you know about the case as you've diagnosed it, in this perhaps you could tell us what percentage of collapse that would be portraying, if you could?
A That's probably around--oh, 60 to 70 percent there. That's very difficult to get an absolute value, because the capacity, as the lung collapses, it can always collapse down to a certain point. In 100% collapse, you would still see some lung there. It still is completely collapsed, so I'd say this is about 60 to 70 percent.
Q All right, now during your course of treatment of Captain MacDonald, what was the maximum estimate which you gave as being the collapse of his lung?
A Twenty percent.
Q Maybe I'd better ask you--on page 5 of the medical records, there is an indication “8602.” Could you tell me who wrote that, if you can, where it says “traumatic pneumothorax, 40% right side.”
A That's probably Doctor Gemma.
Q And who is Doctor Gemma?
A Doctor Gemma is chief of the General Surgery Service.
Q And as far as the surgical care of Captain MacDonald it would have been Doctor Gemma who handled the surgical procedures. Is that correct?
A I don't understand.
Q You were working with Doctor Gemma regarding the surgical procedures regarding Doctor MacDonald that morning. Is that correct?
A Yes, later on in the morning.
Q And when you first saw Doctor MacDonald, Doctor Straub was the radiologist who made the initial reading from the x-ray of the extent of the collapse. Is that correct?
A That's right.
Q And Doctor Straub had previously testified, after reviewing his notes, that there was a 20% right pneumothorax when he viewed the films in the emergency room. Now would you disagree with that diagnosis at that time?
A No.
Q And would your diagnosis be substantially the same from what you knew of the case, after consulting with Doctor Straub and Doctor Gemma at that time?
A Well, Doctor Gemma was not there at that time.
Q Had he left already?
A He had never been there.
Q Oh, I see. So at that time you had no way of knowing what the extent of the collapse of the lung was regarding--
A No, Doctor Gemma did not come into the case until later on in the morning.
Q And when did Doctor Gemma come into the case, if you recall?
A Well, I can't recall the specific time. I would imagine around 7, 7:30.
Q And were you present?
A Yes, I was.
Q And did you have occasion to consult with Doctor Gemma regarding the condition of Captain MacDonald?
A Yes.
Q And at that time or shortly thereafter, or sometime in that area of time, did you have occasion as a result of your conversation to arrive at the conclusion that surgery was necessary in this case, some type of surgery?
A Yes.
Q All right, now what was the surgery which was decided by you and Doctor Gemma after your consultation?
A Closed tube thoracotomy on the right side.
Q Could you please in explain in laymen terms for myself what you mean by a closed tube thoracotomy?
A Well, it's simply making an incision in the skin, through the chest wall and placed a tube in the appropriate chest cavity.
Q Now a tube thoracotomy are the standard or routine type of treatment for a pneumothorax of this type. Wouldn't that be correct, doctor?
A Yes, at the later point it was, when he had gone to 40%.
Q Now we had occasion to ask Doctor Straub this question and I'd like to ask you the same question at this point. Would a person who inflicted a pneumothorax on himself know the final medical consequences of such a wound when he inflicted it?
CPT SOMERS: I object. We don't know what sort of person he's talking about. Again he is asking us to draw a conclusion, which I don't believe that we can draw or this witness can draw.
MR. EISMAN: This was the same question.
CPT BEALE: The objection is overruled. Answer the question, doctor.
MR. EISMAN: Do you want me to repeat the question?
WITNESS: Would you please?
Q Would a person--and I'll add another detail which might make--make it more palatable to the prosecution--would a doctor who inflicted a pneumothorax of this nature on himself know what the final medical consequences of that wound would be at the time he inflicted it, or could he know?
A Not this type of pneumothorax, he couldn't.
Q Now you've described a tube thoracotomy for us. Now, although this type of a surgical procedure would be probably described as routine for this type of thing, in other words, it is not a major surgical procedure, isn't it a fact that there are many complications which might result from such surgical procedures?
A Yes, there are a few.
Q I'm not asking you what they are. I'm just asking you, are there complications?
A Yes.
Q As a matter of fact, isn't laceration of the lung a fairly common complication or hazard of such a surgical procedure and one which you could not foresee or give a definite answer before doing it as to what would occur, or whether or not that laceration of the lung will occur when the tube was placed in the body?
CPT SOMERS: I object. It's irrelevant and there's been no showing of any evidence of a laceration of a lung.
MR. EISMAN: The relevancy of this question goes to the entire thrust of the prosecution's case. There couldn't be anything more relevant than the seriousness of the condition of Doctor MacDonald which has been placed in evidence by the prosecution, and I think it's incumbent upon this hearing to know all of the possible and medical complications and results and unknown factors which a person who is alleged by the government, or will be alleged by the government to have inflicted these wounds. Not in hindsight as to how his condition turned, but before it happened, and I think Doctor Straub being--Doctor Jacobson being the surgeon, I think it's quite competent to tell us, and I think he will be able to tell us the perspective view of this case, not the hindsight view that Captain MacDonald was fortunate enough to live, and that the relevancy of this line of questioning.
CPT BEALE: Well, counsel there is many areas that, medically speaking, the doctor, I am sure, could encounter and testify to.
MR. EISMAN: I mean the normal complications which could arise from this particular operation. Not the fact that he might be rolled down the hall and be hit by a bolt of lightening.
I'm saying when a person puts a chest tube in that the normal dangers are as being put in, and that's the basis upon which--that's the only area I will get into in my cross examination.
COL ROCK: Can counsel ask questions that are in more simple fashion, such as what percentage of insertions of this type result in complications?
MR. EISMAN: Well, I'm not certain whether or not the doctor would have those facts. I'm just asking from a medical standpoint the dangers which the surgeon faces and which the patient faces when this surgical procedure is performed, and I think it's probably one of the most relevant lines of questioning that we'll have of this, of the medical witness regarding Captain MacDonald which the investigating officer will have to consider in reviewing the case at a later time.
CPT SOMERS: It is easy enough to find out if the witness can answer the simpler question that the investigating officer wants simply by asking with reference to complications from a chest tube. I still contend that this is relevant.
MR. EISMAN: The line of questioning will not take too long.
CPT BEALE: Your objection is sustained. Would you rephrase your question or move to another area.
Q Well, doctor, are the normal hazards of a--do the normal hazards of a tube thoracotomy including the following--
CPT SOMERS: I object, same basis.
MR. EISMAN: This is one question, and then he can answer the question yes or no, and that will end this line of questioning.
CPT SOMERS: I object on the basis of relevancy.
CPT BEALE: Counselor, we've already told you to move to another area, so we don't deem that question to be proper.
Q To your knowledge of the case, after reading the medical records, how many of these surgical procedures were required of Doctor MacDonald?
A Two.
Q And what would be the reason for two procedures being required as opposed to one? Would that be because the first procedure did not satisfy the physicians and they felt that in order to insure the patient's welfare that another should be done? Would that be the proper interpretation of that? Or would there be another one?
CPT SOMERS: I object. The counsel is permitted to lead the witness, but when he leads the witness with a question that is so long and so involved I feel that this is objectionable.
MR. EISMAN: Well, you might not understand the question, but the doctor hasn't said that he doesn't understand the question. He's able to understand the question, and I don't think you can object to it.
CPT SOMERS: I just did.
COL ROCK: At this juncture, we will take a recess and I will make a ruling upon reopening this hearing.
(The hearing recessed at 0955 hours, 17 July 1970.)
(The hearing reopened at 1022 hours, 17 July 1970.)
COL ROCK: The hearing will come to order. Let the record reflect that the parties who were in attendance at the closing are now in the hearing room. I would like to make two announcements or rulings. The question was raised, I believe for the government, as to the necessity for introducing as an accused exhibit a certain diagram contained in a medical volume which was used by counsel for the accused. In reviewing this request I see no need for that to be introduced as evidence. However, I have cognizance of the appropriate diagram.
Secondly, at the recess a question was objected to by counsel for the government, the questioning being raised by the counsel for the accused to the witness--a rather lengthy and detailed question again coming from a medical volume. That objection by counsel for the government is sustained. Please continue, counsel, with your questioning of the witness.
MR. EISMAN: If I may ask, was the objection sustained?
COL ROCK: The objection was sustained.
MR. EISMAN: Because of the length of the question, or because of the matter that was contained? In other words, can I rephrase the question and ask in a different manner?
COL ROCK: Principally it was the length, though you had not competed all of your question. You have the prerogative of attempting to re-introduce the question by some other method if you so desire. I am interested in simplicity in order that I, as a layman, can understand the questions. Sometimes they tend to become rather--
MR. EISMAN: I will attempt to have my questions more simple.
Q Is pain one of the normal problems associated with thoracotomy?
A Yes.
Q And could you, please, doctor, explain to the investigating officer the particular problems of pain in a thoracotomy?
CPT SOMERS: I object. That's irrelevant.
COL ROCK: I would like to hear the answer to determine the relevancy.
A Would you rephrase that?
Q Certainly. Certainly pain is attended to any surgical procedure normally, wouldn't it, Doctor, if it was a cutting of the body, there normally would be some type of pain, wouldn't it?
A That's right.
Q Now with a thoracotomy, is there some particular problem regarding pain and a thoracotomy which is particularly connected up with that surgical procedure?
CPT SOMERS: I object again. It's irrelevant. It doesn't have anything to do with the physical condition of Captain MacDonald.
MR. EISMAN: I am trying to find out if this is the normal result of a thoracotomy. Is pain a normal result of a thoracotomy?
CPT BEALE: Wait a minute now. Captain Somers, now the doctor has testified he did perform such a surgical procedure on Captain MacDonald and as to whether or not this is accompanied by pain or what the medical ramifications of it are, I think it would be relevant at least to that extent.
CPT SOMERS: Of course, we respectfully disagree, and we do object.
CPT BEALE: Well, your objection is overruled.
Q Doctor, is there a particular pain or problems with pain which in particularly ascribe to a thoracotomy, the nature of which was performed in this case?
A Yes. We attempt to reduce the amount of pain in the chest wall when we introduce the tube by using a local anesthetic, such as Xylocaine or Procaine, as the dentist would use, but once you push the tube in the chest cavity it irritates the pleura, either the inside lining of the chest cavity itself, or the outside lining of the lung, and it is uncomfortable.
Q And also in the introduction of the, during the procedure of a thoracotomy, isn't it also a normal consequence or a normal complication which you much look for in that there's possibility of a subcutaneous emphysema occurring?
CPT SOMERS: Objection, it's irrelevant.
COL ROCK: This hearing will be recessed briefly.
(The hearing recessed at 1027 hours, 17 July 1970.)
(The hearing reopened at 1045 hours, 17 July 1970.)
COL ROCK: The hearing is called to order. The parties in attendance at the time of recess are currently present. I'd like to remind you, doctor that you are still under oath. There was an objection that had been brought before the hearing recessed by counsel for the government. A ruling has been made. Would you proceed, Mr. Legal Advisor?
CPT BEALE: The objection by counsel for the government is again sustained on the basis that the relevancy of it is not quite apparent at this particular time.
MR. EISMAN: I'll rephrase the question.
Q Aren't part of the surgical complications in this type of surgical procedure--do they also include subcutaneous emphysema? If they do, could you explain to the investigating officer what that means?
CPT SOMERS: It's irrelevant, same question.
CPT BEALE: Counselor, I believe I agree with counsel for the government. I believe that's substantially the same question.
MR. EISMAN: Oh, I thought I asked a longer question.
CPT BEALE: Well, again the relevancy does not appear.
Q Are infections and related type of surgical complications attended to this type of operation, or can they be part of the post-operative complications?
CPT SOMERS: Objection. It is irrelevant.
CPT BEALE: I think the best thing you can do is try to move to another area, because this particular area does not, again, appear to be relevant to these proceedings.
MR. EISMAN: Well, the relevancy--let me make an offer of proof so far as the relevancy. If a medication doctor self-inflicted these type of wounds on himself, he would know, as opposed to a layman, what the medical complications of his injuries would be. It is necessary, I think, in this case, since the injured individual who is alleged by the government, or going to be alleged by the government to have done this to himself what in a particular knowledge, with which the investigating officer would not deem a layman. In other words, had you or I done this to ourselves we wouldn't have known these things, but the relevancy is to show that a man in the position of the defendant in this case, would know these things, and then it would be easier for the investigating office to arrive at a conclusion, after knowing these things would he be likely to do this or would he not be likely to do this, or more to do this; and I think since the investigating officer is not a doctor, and the witness is, and as the defendant is, then I think relevancy for that purpose, not to clutter the record with possibilities or things like that, but in, but in looking at the case from the time that it happened, not in retrospect but at the time that--according to the theory of their case, I assume the theory of their case will be that Captain MacDonald allegedly inflicted these wounds on himself. That's the relevancy. I'm not doing this just to clutter the record.
CPT BEALE: Well, the witness has responded to your question to the fact that a doctor will know, a person would not know what the--what the extent of the injuries were, if they were self-inflicted, and that, I think, itself answers the question.
MR. EISMAN: That question was what the final medical conclusion, or what the medical complications were, final medical results would be. That was what the question was. Now I am in the area of attempting to prove that if a doctor did this to himself, he would know of the possible complications which could occur along the line, and then it would be for the hearing officer to determine, knowing all these things which the hearing, at this point, doesn't know. Is it more likely that he would have done it or more likely that he wouldn't have done it? Being a layman myself, or the hearing officer, wouldn't know these things.
CPT SOMERS: Well, the question simply put of the witness is whether Captain MacDonald would know these things, and this witness cannot answer that question. It is irrelevant and objectionable now on two bases.
CPT BEALE: Counsel, the objection is sustained and we will move to another area.
Q Doctor, you've described the wound itself as being, I believe, in the 7th intercostal space. At this time I'm going to show you a copy of a book known as, I think popularly known as Gray's Anatomy. First I will show it to the investigating officer, and to the counsel for the government. Doctor, I'm first of all going to show you a copy of this book. Do you recognize this book?
A Yes.
Q And does this book have any particular meaning to you being a doctor with regards to its validity?
A Yes, this is relatively standard text used for gross anatomy in the course of medical school and there are multiple editions of it.
Q Now, doctor I am going to ask you to look at the diagram contained on page 6 and ask you to indicate the area which you have said--but before you do that, I want you to refer to your medical records which you have before you, on page 6. I see you have indicated which says one centimeter stab wound in the 6th intercostal space. Does this refresh your recollection as to what your opinion was as to the location of the stab wound?
A I believe I thought it was in the 7th intercostal space.
Q Having an opportunity to reflect on the report which you have now, do you think that that number might have stuck in your mind because that was where the chest tube was placed? Is that possible?
A No, I believe I put in my physical exam, page 8--
Q Yes, here it is here. Is that your handwriting?
A Right.
Q And that says 7th ICS, which means what?
A Intercostal space.
Q Okay, fine, now could you please indicate with the blue marking pencil the place where you believe this would be on the diagram?
CPT SOMERS: Excuse me, doctor. If we are going to mark on this as an exhibit for the edification of the investigating officer, then I definitely request that it be marked by the accused.
MR. EISMAN: I will have it marked.
COL ROCK: And introduced in evidence, or a copy thereof?
MR. EISMAN: Yes.
WITNESS: How do you wish this marked?
COL ROCK: Circle the area.
WITNESS: The space?
MR. EISMAN: Right.
Q Now could you sign your name here, doctor and the date also?
(Witness complied.)
Q Thank you very much. If I may at this time ask that this copy of Gray's Anatomy be marked as Accused Exhibit--at page 68, and ask if at this time there would be any objection from the government or the investigating officer if we could have photo copies made of this?
CPT SOMERS: None by the government.
MR. EISMAN: And although it would not show the colors, I think the same--or possibly we could wait to see what the photo copies look like.
COL ROCK: Accused Exhibit 29 is a copy of page 68 from the book entitled Gray's Anatomy, 28th edition.
MR. EISMAN: I will have copies made of this page, and if they are agreeable to counsel for the government and the investigating officer, we might be able to possibly just have them--or the single page available at that time.
Q Now doctor, you have described the wound that--as a stab wound of approximately one centimeter in length. Is that correct?
A Yes.
Q And were you able at any time to determine the depth which--in inches--which the wound finally reached?
A No.
Q Were you able to probe it or would that be a normal standard thing to do of a wound like that?
A No.
Q Now you've testified that the--I believe my recollection was--that the minimum depth which, in your opinion, would--the wound would have to have been, would be 5/8ths of an inch to penetrate the tissue and whatever as involved in a lung. Is that correct?
A Yes.
Q In addition to a lung being under, between the--I withdraw that. In addition to the lung in that area, what other vital organs are portrayed in that diagram in the 7th intercostal space?
A Well, the diaphragm is in this area. It only shows part of it. The liver is in this area.
Q Now, doctor, is it possible to know, except under clinical conditions, the exact location, not only in height but in position, between front and back of the chest as to where the liver is exactly located at any given time without being able to look at that place at the time?
A Well, you can--you mean the position of the liver?
Q Right, where it is sitting at given moment in regards to the--to the--to that section of the lung.
CPT SOMERS: Objection, that's irrelevant.
CPT BEALE: The objection is overruled. You may answer the question, doctor, if you can.
A We use percussion, utilizing difference in the sound by--as a method to indirectly evaluate the position of the liver, the size of it. It's a--it's relatively good in some people, and in other people it is almost useless.
Q Well, by using that method, would you be able to say at this time, sitting there, exactly in inches from the outside of your chest, at the 7th intercostal region, where your liver is?
CPT SOMERS: I object. It's irrelevant.
Q In reference to the depth of it?
CPT BEALE: Just a second counsel. Again, your objection is overruled. I believe I see the point he is driving at. Can you answer that question, doctor?
A I couldn't give you an exact answer in inches. I could give you a rough estimate.
Q But you could not, assuming you were inflicting this type of wound on yourself, know in advance whether or not you'd be touching the liver?
CPT SOMERS: I object. The question is irrelevant.
MR. EISMAN: I withdraw that question if there is any problem. I think the wording of it might have been--but--
Q Now, doctor, if you, as a medical, medically trained person intended to inflict a pneumothorax on yourself, would you do it in the area of the 7th intercostal space, or would you have any other area of the body which would be preferable to that?
CPT SOMERS: I object. Now what this witness would do in such a situation is not relevant here.
CPT BEALE: Well, the point is, counselor, that--of course, it is not apparent to us that this is, in fact, the prosecution's aim to show that these wounds were self-inflicted, but as an expert witness in this particular area, being a doctor, and self-inflicting wounds, I can see where it does, perhaps, have some relevancy. I don't know that that is in fact your position. If it's not, you can so state, then of course it would be irrelevant.
MR. EISMAN: As a matter of fact, if the government would state at this time that they do not intend to allege that Captain MacDonald inflicted these wounds, I will withdraw the question and release the witness.
CPT SOMERS: The government intends to make no such statement.
CPT BEALE: Okay, then, very well. Your objection is overruled, and doctor, if you can, you may answer the question.
WITNESS: Would you repeat it?
Q If you were going to inflict a pneumothorax on yourself, would you inflict it in the area of the 7th intercostal space, or would you chose some other area?
A I would choose some other area.
Q And why would you do that?
A Well, as is already indicated that there are some vital structures in this area that could make the condition much more serious.
Q Getting away from the particular injury, one of the areas of injury which you've described was puncture wounds of the left pectoral region. Could you indicate to the Colonel where this is on yourself, just by pointing to the approximate area?
A This is the muscle in this area that's relatively prominent on the chest, right in here.
Q And describe, I believe four puncture wounds which you recollect as having been in that area--that you saw--is that correct?
A That's correct.
Q Now your testimony that there were no other of that type injury, or at this time that is all you can recollect under the circumstances?
A You mean no other puncture wounds?
Q Of approximately superficial nature which you might not have noted because of the emergency nature of your treatment?
A You mean any other place on the body similar type puncture wounds?
Q Right.
A I could not say for sure that there were no other puncture wounds. They aren't very large, sir.
Q And would you say these were your primary concern and the emergency treatment which you were attempting to administer would be the most serious type of injuries?
A That right.
Q Now you've stated that there was at the time, because of the nature of the treatment which the doctors were performing on Captain MacDonald that the normal thing would be not to probe the puncture wounds. Is that correct? Unless there had been some indication of the same type of bleeding as was coming from the lung. Is that correct?
A Yes, there was no indication at the time to probe these.
Q And therefore, you couldn't estimate whether or not the depth of these wounds were anything less that what would cause a pneumothorax? Do you understand my question? In other words, assuming there were puncture wounds of the left pectoral region, which did not cause a pneumothorax or go into any other vital organs, is there any way for you to say at this time whether they were sixteenth of a inch deep, or a quarter of an inch deep or anything up to the point it would have punctured a vital organ?
A No.
Q Is it possible that one or more of these puncture wounds could have touched the lung and the lung could have healed itself if it were not a serious puncture?
A Yes.
Q And would this be a normal phenomena if the wound did not go in too deeply to cause extensive bleeding?
A Yes.
Q Doctor, getting to the next injury or injuries which you've described to the investigating officer, you've described an injury which you can recollect seeing on the head. Could you once again indicate to the investigating officer--I'm not certain whether you were asked to do it by the prosecution, but indicate where this injury was?
A This was on the forehead, mid-left of the mid-line. It was moderately swollen. There was an area of black and blue or ecchymosis and the skin was slightly raised. There was no laceration. There was no deep depression under the skin.
Q Would you say doctor--the last term, no depression, could you please explain to the investigating officer why you looked for a depression? And what a depression means?
A Well, should an individual sustain a pressed skull fracture, there's cerebral status at that time, and a significant amount of possible compromise. It's a--an emergency that most--well, there are different medical opinions, but the majority of them will indicate a pressed skull fracture should be elevated immediately. This is the concern.
Q Now, in describing a wound to the head, can you make a valid determination of its relative seriousness merely by describing what it looks like to the eye?
A No.
Q And isn't it a fact that in many cases there is--isn't it a fact that in many cases there is no medical relation to what the injury looks like on the surface as to what damage it causes to the brain?
A That's right.
Q Since you are now in a training program regarding neurosurgery, doctor, do you regard any injury to the head to be significant of this nature?
A No.
Q As a matter of fact, hasn't it been said by Hippocrates that no head injury is so slight that it should be neglected.
CPT SOMERS: What Hippocrates may have said is irrelevant here; I object.
COL ROCK: Objection sustained. I don't think we need to bring in any humorous matters into this proceedings, counselor.
Q Now, we've had prior testimony of people who were at the MacDonald household, first the MPs who arrived in the MacDonald household, who were the first people to see Captain MacDonald, and one or more of them has testified that Captain MacDonald was manifesting--I believe the term was--all the signs of shock. Would that be consistent with the injuries which you observed in the hospital later, or would it be inconsistent with the injuries? I'll rephrase it that way.
A First of all, I don't know what they--what they said when they said he manifested signs of shock. The second place is professionals and they are not even medics. At the time I saw Captain MacDonald he was--he showed no evidence of having been in shock.
Q When you say, having been in shock, are there varying degrees of shock regarding the seriousness and signs which are shown?
A Yes.
Q And assuming that Captain MacDonald was seen by nonprofessional people who described what, in their training, they saw as the signs of shock, and I think the descriptions were--manifested that he was cold, the teeth were chattering--he felt faint or felt that he might lapse into unconsciousness or in some type of semi-comatose state that at one point arrived, at which point he was given mouth-to-mouth resuscitation. Giving those facts is it possible that the body's recuperative powers are such that, that by the time he arrived at the hospital, that this was not a serious form of shock, but his recuperative powers could have brought him to the condition of this sort?
CPT SOMERS: I object to that question. First to the way it's phrased as being long and involved, and very difficult to answer. Second, as being a hypothetical into which the defense is attempting to lead the doctor to a conclusion which I do not believe he can possibly do with a hypothetical question, therefore I object to it.
COL ROCK: The objection is overruled, with that portion trying to make this a simple question for my benefit.
Q Is it possible, doctor, that by the time Captain MacDonald was brought to the hospital, which I believe from the time which has been described, would have been a minimum of a half an hour from the time the MPs saw him--is it possible that the recuperative powers would have brought him back to the condition, sort of from being on the verge of shock to some area of shock?
A Well, it's possible. It wouldn't be very serious shock.
Q But it is possible?
A It is possible.
Q When you say very serious shock, you are referring to shock which could result in death, aren't you, doctor?
A Well –
Q I don't know the medical terms, but there are varying degrees of shock from minor to extremely serious, aren't there?
A Yes.
COL ROCK: Counsel, how much longer do you think your questioning will continue?
MR. EISMAN: I honestly couldn't estimate at this point, sir. I honestly couldn't estimate. It could be an hour or two hours at this point.
COL ROCK: I would suggest then, if counsel for the government agrees, that we break at this time for lunch.
CPT SOMERS: Sir, immediately following lunch I have another witness which I wish to use then because that's the only time I can schedule him. I don't mind how we set this up with Doctor Jacobson, but I do certainly request that I be permitted to do that.
COL ROCK: I am having certain conferences prior to our meeting at 1330 today, and I would like to have the current witness available at 1330.
CPT SOMERS: I can do that, sir.
COL ROCK: I will make certain decisions by 1330 relative to our proceedings this afternoon.
Any further discussion?
MR. EISMAN: The only thing I think might be a problem--I remember the doctor telling me that he has to go on duty later in the afternoon today. We are taking his leisure time, not his work time, away from him. There--if there is another witness who might be on the stand for a long time, the doctor will have to wait and then go on duty, so--
COL ROCK: What time do you go on duty, doctor?
WITNESS: I go on surgical call at 4:30 today, 1630 hours.
COL ROCK: We will take that into consideration this afternoon.
MR. EISMAN: I'm pretty certain I could complete my cross examination by that time, but the question is, you know, he might have to come back on Monday, which might be another problem, time wise.
COL ROCK: I think we will be able to resolve that at 1330 this afternoon.
CPT SOMERS: I will say, sir that this witness can be made available Monday or at the convenience of this hearing, practically.
COL ROCK: This hearing will be recessed until 1330.
(The hearing recessed at 1118 hours, 17 July 1970.)
(The hearing reopened at 1435 hours, 17 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that all parties that were present at the recess are currently in the hearing room with the exception of the witness, and Captain Thompson, assistant counsel for the government.
I have been informed that the government desires to call as a witness Mr. Caverly to testify this afternoon. The defense counsel states he objects to this procedure. I have decided that since this witness is now available to testify and will not be available until approximately three weeks from today, that he will so testify this date. I have carefully considered the pros and cons of this procedure as presented to me by counsel for both sides. Therefore, Mr. Eisman and Captain Somers, I do not desire to hear further argument. The defense objection is noted for the record. Captain Somers, you may proceed.
MR. EISMAN: Sir, if I might impose an objection at this point. Our objections were not placed on record. Because of the seriousness of the problem that we are faced with at this point, I must respectfully request we are permitted to place these on the record so that any reviewing authority would have full benefit of what our objections are so that they might adequately pass on them. Without our objection being placed on the record, we could not have an adequate opportunity to express our opinion.
COL ROCK: I' sorry, counselor, but these proceedings are being conducted for my benefit and I wish to proceed. Please continue.
MR. EISMAN: At this time, I would respectfully state, based on the disciplinary rules of the American Bar Association, Disciplinary Rule 6-101 which states--a lawyer shall not, in Section 2, handle a legal matter without preparation adequate under the circumstances. So I feel on that basis I cannot adequately represent my client with this witness, and I cannot be present so that it could be said that I was here to hear this witness, and I will at this time absent myself, but I again request permission to at least state for the record the reasons for this so that the record will be perfectly clear as to what is necessary. This is a capital offense and I believe that no harm would be done by at least letting us place our reasons for this action on record, and at this time I would also state that as civilian counsel I have instructed both Captain Douthat and Lieutenant Malley, under the applicable sections of the Code, that they are not permitted to act on behalf of Captain MacDonald with this witness, and they--are not permitted to cross examine or any way question this witness because, in my opinion, they are in the same position as I am. They would be violating disciplinary rules and I cannot place them in that position, and therefore under my instructions, they will not continue or be able to cross examine this witness and have no authorization to do so from either counsel or Captain MacDonald.
COL ROCK: Your civil attorney, Mr. Eisman, has stated that you do not desire that Mr. Eisman represent you during the testimony of Mr. Caverly. Is this your desire? I am addressing my remarks to the accused.
MR. EISMAN: I have, as counsel for the accused, I have instructed him not to answer any questions in this regard. He has consulted with his counsel and I'm authorized to speak for Captain MacDonald, and I have instructed Captain MacDonald not to answer any questions in regarding this matter since I have stated the position of the defendant.
COL ROCK: Mr. Eisman, this is a military proceeding, and I am within my authorized right and procedures to conduct this in a military procedural manner, and I am addressing these remarks to Captain MacDonald. I will once again repeat the question. Captain MacDonald, your civilian attorney, Mr. Eisman, has stated that you do not desire that Mr. Eisman represent you during the testimony of Mr. Caverly. Is this your desire?
(Accused failed to answer.)
CPT BEALE: Mr. Eisman, do I understand you that you are prohibiting your client to answer the question of the Article 32 investigating officer?
MR. EISMAN: I am advising him, as his attorney, that there is no duty upon him in this matter to answer when I have been authorized by him to answer for him. I feel it would be a violation of his constitutional rights at this point to answer that question, and it would be a violation of his rights under the 5th Amendment to answer any questions regarding this because of the seriousness of the matter; and I am instructing him or ordering him not to answer that question.
CPT BEALE: Would you please state for the proceeding how a question concerning whether or not he cares to be represented by you in these proceedings infringes upon his constitutional right?
MR. EISMAN: Because at this point there is an attempt by the prosecution to put on a witness for which we believe there has been a deliberate attempt to place him in this position through denying us our right to a pretrial interview, after they have stated we have that right, after the US Department of Justice said they had no objection, and finally being told just today by the US Attorney that this--
CPT BEALE: Now, just--just a minute. You are getting into something that Colonel Rock has already ruled he does particularly care--he's already considered all the arguments. The point now is, are you prohibiting your accused from answering Colonel Rock's questions?
MR. EISMAN: May I consult with military counsel regarding this matter?
CPT BEALE: Yes, you may.
MR. EISMAN: The basis upon which I made that statement on Captain MacDonald is based upon the case of 26 VMR 692, a matter of the United States versus Grant. It says that all dealings with the accused are through his counsel, and that this is set in the Military Justice Trial Procedure, at Department of the Army Pamphlet provided for the use of the defense in this matter, and that is the basis upon which I have advised Captain MacDonald that he is not authorized to speak in this matter; but since all dealings are through his counsel, this is the defendant through his counsel, and there will be no need served by interrogating Captain MacDonald in this matter.
CPT BEALE: Mr. Eisman, he will not have an attorney for this portion of the proceedings if, in fact, what you say is true. Therefore, the Article 32 officer is completely within his power and duty to address his remarks personally to the accused, and these proceedings are being conducted for the benefit of Colonel Rock, and he must know in his own mind that Captain MacDonald personally makes this determination.
MR. EISMAN: The rule specifically says all matters must be dealt with through counsel. I am still counsel. I do not resign from the case. I have stated my position, and on my advice he will not speak.
CPT BEALE: You stated you will not be present in this hearing room if Mr. Caverly testifies, and if you are not going to be, then Captain MacDonald is going to answer the question of whether or not he desires your presence in here.
MR. EISMAN: At this time, Captain MacDonald has a statement to make for the record.
CPT BEALE: Very well.
ACCUSED: Sir, it is my position that I will continue to keep Mr. Eisman as my attorney present in the room. However, it is also my position that Mr. Segal will do the cross-examining of this witness. This was my original understanding and I have received no further indicating from my chief defense counsel on this matter. As Mr. Segal had planned to do the cross-examination I will not permit Mr. Eisman to cross examine this witness, but I will keep him in the room as my attorney. Neither will I allow either of my appointed military defense counsel to cross examine this witness on the matter.
COL ROCK: It is my understanding, then, that you have excused Mr. Eisman from the next portion of the proceedings, and if that is your desire--
ACCUSED: No, sir, that is--
COL ROCK: To the extent of the cross examination of the next witness.
ACCUSED: I prohibit him from cross examining the witness but I do not excuse him from the hearing.
COL ROCK: And that is your choice?
ACCUSED: That is right, sir.
COL ROCK: Captain MacDonald, I want you to understand that I do not have any say-so in your selection of counsel or how they represent you. That is your decision, sir. If Mr. Eisman is not present or is not used at your specific request, then you will be represented by both Captain Douthat and Lieutenant Malley. Their participation during this portion of the proceedings is a matter I leave in your discretion. Do you understand this?
ACCUSED: Yes, sir, but I instructed them not to cross-examine this witness. Furthermore it is my understanding that Mr. Segal would be allowed to cross-examine this witness.
COL ROCK: There has been no such understanding.
CPT DOUTHAT: May I say something for the record, sir?
COL ROCK: Negative, not at this time. We'll give you five minutes to consult with your counsel again, and please give me your personal answer as to whether or not you want Captain Douthat and Lieutenant Malley to represent you during this portion of the proceedings next coming, or whether you desire to have any counsel represent you for cross examination purposes of the witnesses. This hearing will be recessed for five minutes.
(The hearing recessed at 1448 hours, 17 July 1970.)
(The hearing reopened at 1502 hours, 17 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that all parties that were present at the beginning of the break are currently in the hearing room.
Captain MacDonald, I address this next question to you, sir. Do you still adhere to your statement that you do not desire any counsel to participate in cross-examination of the next witness?
ACCUSED: Sir, I respectfully submit that I desire Bernard L. Segal, my chief defense counsel to be present and I authorize no further participation of either Mr. Eisman, Captain Douthat or Lieutenant Malley in the cross-examination of Mr. Caverly of the FBI since the United States Attorney has prohibited Mr. Caverly from being interviewed by my counsel. I do so because Mr. Eisman, Captain Douthat and Lieutenant Malley have told me because of this they would be violating the canons of ethics if they participate in cross-examination. I desire them to be present in the courtroom. But due to the fact that only Mr. Segal is prepared to examine this witness, and since he will return on Monday, I only ask that this witness wait until Monday, since my life is hanging in the balance in this room.
COL ROCK: So noted on the record. Counsel for the counsel for the government, proceed.
CPT SOMERS: At this time, the government requests permission, in calling Mr. Caverly of the FBI to bring Mr. James Procter, attorney, who is licensed to practice law by the superior Court for the highest court of the State of North Carolina, and who is an Assistant United States Attorney to be present and to assist the government in the presentation of this witness' testimony only, and to take no active part in this proceeding.
MR. EISMAN: Sir, this hearing was ordered closed by the investigating officer pursuant to a letter by General Flanagan. To my knowledge the hearing was ordered closed to everyone except the mother of Captain MacDonald. Unless there is a clarification from General Flanagan, I would object to permitting anyone else in this hearing room. If we are going to let him in, I insist you let the public and press in also at this time.
COL ROCK: This objection is sustained. Proceed, counsel.
CPT SOMERS: Yes, sir. At this time, sir. I would request five minutes. I can guarantee that I'll need no longer than that.
COL ROCK: This hearing will be recessed for five minutes.
(The hearing recessed at 1505 hours, 17 July 1970.)
(The hearing reconvened at 0848 hours, 21 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that all counsel for the accused and counsel for the government are present.
At this time I would like to present to counsel for both sides copies of the third volume of the proceedings.
At the close of our last session, I believe, Doctor Jacobson was on the stand. Is counsel for the government prepared for the government to bring this gentleman on board here?
CPT SOMERS: Yes, sir.
COL ROCK: Please proceed.
MR. SEGAL: Just a moment, please, Captain Somers. I do want to apologize to the court for the fact that Mr. Eisman and I were not here at the reconvening hour yesterday at 1330 hours. I understand that the court was not informed properly as to the fact that we were unavailable. I am sorry, but neither of us was in a position to contact the investigating officer, but I think the court has been properly advised by the media as to the rough general circumstances of what happened. However, I am sorry that we were not available, because it is our desire to certainly go forward with as much speed as possible.
COL ROCK: Your comments are noted. No apologies are necessary, counsel. Proceed please.
(Major Severt H. Jacobson was recalled, was reminded of his oath, and testified as follows.)
COL ROCK: I believe at the end of our proceedings the other day, that counsel for the accused, I believe, had finished with their questioning, but I am not certain. Is that correct?
MR. EISMAN: No, sir. At this time if I may continue the cross-examination of Doctor Jacobson, and then Mr. Segal will take over since he did not examine. There is only a few more questions.
Questions by MR. EISMAN:
Q Doctor Jacobson, do you have a copy of the medical reports of Captain MacDonald, Exhibit A-28?
(The witness was handed Exhibit A-28.)
If you'll turn the page with regard to the medicinal treatment of Captain MacDonald, if you will locate that please. Now, doctor, with regard to the sedatives or sleeping pills could you tell me, please, the first time that Captain MacDonald was given any medicines for either sedatives or sleeping pills, according to the medical records?
A Yes, this is on page 32 of the order sheet. Nembutal, 200 milligrams, IV.
Q All right, first of all would you explain to the investigating officer what Nembutal is?
A It's Phenobarbital, one of the intermediate acting--intermediate duration barbiturates,
sleeping pill type.
Q Now what would be considered the normal dose of Nembutal?
A Well, it depends on what you are looking for. If you are looking for just a sedative, perhaps 50 to 100 milligrams. If you are looking for sleep or marked sedation maybe 100 to 200.
Q Would 200 milligrams be considered a large dose of Nembutal?
A It's the--probably an upper limit on what we call hypnotic dose or sleep type dose, in an attempt to put someone to sleep.
Q Now, normally speaking, I know you can't give a specific time limit on Captain MacDonald's particular physiologic functions, but when you are looking for this type of sleep with 200 dose of Nembutal, 200 milligrams dose of Nembutal, approximately how long in your medical experience would you feel the effect would last?
A Well, it's an individual thing, but the average--the average length of it is from three, four to six hours duration. Like I say, this is individual.
Q I understand. Now, doctor, when was the next medication?
COL ROCK: Excuse me. Doctor, did you indicate the time he received this medication?
WITNESS: Yes, it's on the--been written on the chart and I've initialed it myself and it was given at 5:25.
Q Now, at six am, thirty-five minutes later does the record indicate that any other medication was given to Captain MacDonald?
A Yes, he was given Vistaril.
Q How large a dose, doctor?
A 100 milligrams, and this was also given IV.
Q By the way, when you IV, what is the effect--in other words--does a dose get to the system any faster, or make it any stronger as opposed to, say taking a pill?
A Yes, it's almost immediate.
Q What is Vistoril?
A It's a mild tranquilizer.
Q And the 100 milligrams would be considered what type of dose of that?
A Well, it's relatively strong dose.
Q Now at 7:30, doctor, if you'll look further on, did Captain MacDonald receive any further medicinal treatment?
A Yes, at 7:30 he received 50 milligrams of Demerol, again IV.
Q What is Demerol for the record?
A This is a narcotic agent--primarily an analgesic agent to reduce pain.
Q Does it also have some effect on the mind? Normally, does it have some sedating effect on the mind, or does this just go to the area of pain?
A No, this has a--it has a psychological effect, produces maybe a slight euphoria. Again, it's individual, maybe some drowsiness.
Q Now at 8:23, doctor, further on the record, is it indicated that further medication was given to Doctor MacDonald?
A Yes, Demerol was again given, IV.
Q Now the medication which you have described so far, Nembutal, Vistoril and Demerol--would they each have individual effect, or in your medical opinion, would they all have some type of accumulative effect on the patient receiving it?
A Well, in this sequence, one would think that they would have an additive or juncture effect, producing perhaps a little more sedation and definitely reducing the pain.
MR. EISMAN: I have nothing further at this time.
Questions by CPT SOMERS:
Q Doctor Jacobson, do you know how many x-rays were taken in the morning of Captain MacDonald's chest?
A I cannot recall specifically how many were taken. The only ones I recall, and perhaps the only ones taken, at the time he was in the emergency room were two chest x-rays.
Q Did both of these x-rays show pneumothorax?
A No, the first one, as I recall, did not show a pneumothorax, at least we could not delineate a pneumothorax.
Q Doctor, do have an opinion as to how deep these pectoral wounds were, were they superficial or deep?
A Well--
MR. EISMAN: I'm going to object, because the doctor has answered my question, that he could not tell.
CPT SOMERS: The doctor saw the wound. If he has an opinion, he can give it.
CPT BEALE: I think he did answer that question that he did not probe it, if I recall correctly, so the objection is sustained.
Q Did you satisfy yourself, insofar as your treatment was concerned, that the injury to Captain MacDonald's head was not dangerous?
MR. EISMAN: I'm going to object to the form of the question. It sort of puts a onus on Doctor Jacobson who was the emergency room treating physician, and he stated that his primary concern was--was looking for the more serious wound, or the possible life-endangering wound, as opposed to something which might be determined later to be serious, and I think the question, as posed, is an unfair one to Doctor Jacobson, in the relative form of treatment which he was specifically given--given to Doctor MacDonald, because there was another physician who treated him, who was the actual treating physician, not Doctor Jacobson. If that question is going to be asked, I think it should be asked of the treating physician, not Doctor Jacobson, who was acting properly in an emergency situation.
CPT BEALE: The objection is sustained.
MR. EISMAN: Thank you, sir.
CPT SOMERS: May I ask the basis of sustaining it? Can I rephrase the question, or am I not to go into this area?
CPT BEALE: The questions have all been asked to the satisfaction of the investigating officer.
Q Doctor Jacobson, do you know why Captain MacDonald was placed in the particular room he was placed in the emergency room?
Q Well, the room off to the right is--is used to, by us for those particular individuals that we may have to do some intensive resuscitative measures. We don't know the status--if there's a question in our mind that this individual requires some resuscitation, some immediate intensive care, we put him in this room. It is a room that is fully equipped for everything from cardiac arrest to putting an air way in, suction, anything.
Q Doctor Jacobson, did the fact that Captain MacDonald was a doctor have anything to do with the--
MR. EISMAN: I would object. That's completely improper, to reflect on the doctor or the hospital in that regard.
CPT BEALE: Objection sustained.
Q Doctor with respect to Captain MacDonald's specifically, do you know what the effect of the drugs that the defense has discussed with you was on him?
A Well, I--I can't really answer that in any completeness as far as all the drugs that had been given him. I saw him around seven o'clock after we had given him Nembutal and Vistoril, and at the time, he was alert to question, although he was--he was much more sedated than--when he came in. We could speak to him and he would answer. He would answer rationally. As far as after the Demerol, I didn't--I didn't see him until, again, probably until about ten o'clock, so I couldn't tell you exactly the effect he got from his second dose of Demerol.
CPT SOMERS: No further questions.
COL ROCK: Doctor Jacobson, can you determine from the wounds what type a weapons may have been used? This is based on any experience factors that you may have or from your medical knowledge.
WITNESS: By type, what do you mean, blunt, sharp--
COL ROCK: Yes, more specifically, ice pick type or knife type.
WITNESS: Well –
COL ROCK: Club, baseball bat.
WITNESS: As far as the head wound, all I could say, it was blunt--and as far as the others, all I can say is sharp, and I couldn't give you any more specific.
COL ROCK: All right. Do you know from any medical records regarding Captain MacDonald whether he is left or right handed?
WITNESS: No, I do not know.
COL ROCK: Do you know whether he wears glasses?
WITNESS: No.
COL ROCK: Do you consider that he was in great pain while he was under your observation?
WITNESS: Well, he was about the time we put the chest tube in and after the chest tube was put in, the reason for the second dose of Demerol there.
COL ROCK: During the time that you were with the patient, were there any other people, not medical personnel, but individuals such as CID agents or other interviewing or questioning Captain MacDonald?
WITNESS: I don't recall any--any non-medical people in with him at the times that I was with him, because usually the times I was with him, we were doing some sort of procedure or examination. I do know that it was asked if they could see him, and I believe initially we said that they could not talk to him. I believe Doctor Bronstein said that. I am not absolutely sure of that, but I believe I recall it.
COL ROCK: But during the time that you were with him, you were working with him medically and therefore it was inappropriate to question him.
WITNESS: That's right.
COL ROCK: If a person has a partially collapsed lung, a pneumothorax, in your estimation can that individual go into shock if it is in the order of magnitude of 20 to 40%? In other words, is that one of the side effects of that type of injury?
WITNESS: Well, certainly this is an individual thing and I would think that this remains a possibility.
COL ROCK: A possibility?
WITNESS: Yes, again, it's individual.
COL ROCK: I understand that. I have no further questions. Does either counsel have any further questions of the doctor?
MR. EISMAN: I have no further questions.
COL ROCK: Does counsel for the government?
CPT SOMERS: No, sir.
COL ROCK: Doctor Jacobson, you are advised that you will discuss you testimony with no person other than counsel for the government or counsel for the accused. Do you understand that, sir?
WITNESS: Yes, sir.
COL ROCK: You are excused subject to recall.
WITNESS: Thank you.
(Witness saluted the IO and departed the hearing room.
COL ROCK: Is counsel prepared with the next witness?
CPT SOMERS: Counsel for the government now requests a thirty minute recess.
COL ROCK: For what purpose, sir?
CPT SOMERS: For the purpose, among other, of bringing the witness here. He's on his way, I believe; and number two, other preliminary matters.
COL ROCK: We'll take a recess.
MR. SEGAL: May we inquire if the counsel for the government would advise us who the next witness is so that we may also get our work together?
COL ROCK: Yes, I think that's reasonable.
CPT SOMERS: The next witness is Mr. Ivory.
(The hearing recessed at 0912 hours, 21 July 1970.)
(The hearing reopened at 0957 hours, 21 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that those parties that were in attendance at the recess are currently in the hearing room. Is the government ready to proceed?
CPT THOMPSON: The government is read to proceed, Colonel Rock. However, prior to the time that the government calls its next witness, Mr. William Ivory, we would like to settle a preliminary matter. On the 13th day of July this counsel, the first day in the hearing, a ruling was made precluding myself from verbally assisting the government in the presentation of this case. The ruling was made by Colonel Rock on that day precluding my participation on that same day. I appealed this ruling to Major General Flanagan, and it is my understanding that an endorsement has been sent down by Major General Flanagan requesting that the objec-tives set forth in my appeal be followed. He is interested in the expediting of this hearing.
The government is still of the belief my participation would, in fact, aid in expediting a final determination of this hearing of all matters set forth, and at this time we would request that Colonel Rock reconsider the matter favorably to the government, and allow myself to present evidence--argue issues, and in any other way assist the government by vocally and verbally participating in the presentation of the case. Thank you very much. The record should re-flect, your honor, that my appeal in a letter dated 13 July 1970, was provided to the defense in the case, and I believe they in fact, although I've not seem them, made comments on that particular appeal.
COL ROCK: The comments of the counsel are noted. I have in fact received an endorsement addressed to me by the appointing authority, General Flanagan, in which he states that he leaves to my discretion the final determination on whether the granting of the government's request in this case will contribute to the accomplishment of the objective. My ruling still stands. Captain Somers will proceed.
CPT SOMERS: The government calls Mr. William F. Ivory.
(Investigator William F. Ivory was called as a witness by the government, was sworn, and testified as follows.)
Questions by CPT SOMERS:
Q State your full name, please?
A William F. Ivory.
Q Your grade?
A Specialist E-7.
Q Your organization?
A 503 Military Police Battalion, attached to Fort Bragg CID.
Q Your station?
A Fort Bragg, North Carolina.
Q Your armed force?
A United States Army.
Q Mr. Ivory, what was your duty on the evening of 16 and 17 February 1970?
A Sir, on that date I was duty investigator for the Fort Bragg CID.
Q Did you have an occasion on that evening to monitor a call with reference to an incident at 544 Castle Drive?
A Yes, sir, I did.
Q About what time was this?
A It was 0350 hours.
Q And what had you been doing prior to this? Were you tired when you heard this call?
A I was in bed sleeping.
Q What did you do as the result of having heard this call, if anything?
A As a result of hearing the call, sir, I got up from the bed, went to the radio, monitored it further, and inquired to patrols broadcasting as to whether any fatal injuries had been involved in the incident they were investigating.
Q What did you discover?
A They informed me that, yes, fatal injuries had been sustained.
Q What was your course of action at that time?
A At that time I notified the duty photographer by telephone, instructing him to come to the Military Police Station, to be transported further on down to the scene of the incident. I then gathered tools, investigative tools at the office, and then proceeded to the scene of the incident.
Q What investigative tools did you gather?
A Such items as evidence containers, items to mark evidence, items to collect evidence and other investigative aids.
Q And by what method did you travel to 544 Castle Drive?
A I traveled to 544 Castle Drive in a military sedan.
Q And were you alone in this sedan?
A No, sir, I was not.
Q Who was with you?
A The Provost Marshal Investigation Section Duty Investigator, Hagan Rossi, was with me.
MR. SEGAL: I didn't get that name. Would you have him spell it?
WITNESS: Hagan, H-a-g-a-n. Rossi, R-o-s-s-i.
Q What was the weather like at the time that you started this journey?
A As I departed the office the weather was a light rain, temperature was quite cool. The ground was wet.
Q Did you have any difficulty finding your destination?
A No, sir, I did not.
Q What time did you arrive at your destination?
A I arrived at my destination at 544 Castle Drive, approximately 0400 hours.
Q You say approximately--how close is your approximation?
MR. SEGAL: That's objected to.
CPT BEALE: The objection is sustained.
Q Can you tell us any more specifically than that?
MR. SEGAL: That's objected to.
CPT BEALE: Sustained. Just let the witness answer approximately what time he arrived there.
Q Where did you park when you arrived?
A I parked the military sedan in a parking space in front of 540 Castle Drive.
Q Did you see any other military police vehicles?
A Yes, sir, I saw about four that I remember that were military police vehicles.
Q Did you see any medical vehicles?
A Yes, sir, I did. I saw one ambulance, a closed ambulance.
Q Where was that?
A That was parked, as I recall, on the grass in front of the house.
Q Now when you arrived, were there any military police outside the address at 544 Castle Drive?
A Yes, sir, there were.
Q How many?
A There was about five.
Q What were they doing?
A They were providing security for the quarters.
Q What did you do when you arrived?
A Upon arriving I went through the front door of 544 Castle Drive into the living room of the quarters.
Q Was there a guard at the entrance to that door?
MR. SEGAL: That's objected to as a leading question.
CPT BEALE: The objection is sustained to the extent that you can ask the witness whether or not there was an MP standing at the door. His specific functions will have to come from him personally.
Q Was there anyone at the door?
A There were two military policemen.
Q Did you have any difficulty getting by them?
A No, sir, I did not.
Q Did you know either one of them or had you ever seen either one of them?
A I could not call them by name. I had seen them before, and they recognized me.
Q And when you entered the door, what did you see inside?
A Inside the living room I observed Lieutenant Paulk, the Military Police Duty Officer, standing in the living room.
Q Were there any other personnel in the living room?
A Yes, sir, there was about four other military policemen there.
Q Where were they standing?
A They were standing by the living door in front of a desk that sits against the west wall of the living room.
Q What did you do when you entered the door?
A I went directly to the Military Police Duty Officer.
Q Did you speak to him?
A Yes, sir, I requested a briefing on what he had found.
Q And did you receive this briefing?
A Yes, sir, I did.
Q Did you take any steps at that time to reduce the number of personnel in the house?
MR. SEGAL: Again, that's objected to as leading. That suggests to him that he did take such a step. The only appropriate question is what did you do next.
CPT SOMERS: I think I can draw the witness's attention to any given matter.
MR. SEGAL: Suggesting a specific action is improper.
CPT BEALE: The objection is overruled.
Q Did you take any steps at that time to reduce the number of personnel in the house?
A Yes, sir, I did.
Q What did you do?
A I talked to Lieutenant Paulk and asked him at that time to reduce unnecessary personnel in the house; that you will eliminate unnecessary personnel in the house.
Q What happened as a result of that?
A He instructed the military police NCO who was nearby to reduce the number of personnel.
Q And what were the effects of these instructions?
A The effects were that two military policemen, that I know of, left the house at that time.
Q What happened--where did you go from this position you were standing with Lieutenant Paulk?
A From that position where I got my initial briefing of what had occurred or what he had found, after observing my surroundings, I went with Lieutenant and he escorted me through the house to the master bedroom of the house, which is on the east end of the building.
Q I draw your attention to Government Exhibit Number 1, and ask that you approach it, familiarize yourself with it.
(Witness approached the diagram.)
Q Is it familiar to you?
A Yes, sir, it is.
Q Do you know what it is?
A It reflects the floor plan of 544 Castle Drive.
Q Now could you show us, please, with reference to Government Exhibit Number 1, where the military policemen you referred to were standing?
A Approximately this point here, sir.
Q You are pointing to a position in front of the front door, inside the front door, and a few feet from the west wall of the living room. Is that correct?
A Yes, sir, that's correct.
Q And would you indicate for us now the path you just told us you took through the house?
A I went from that point with Lieutenant Paulk through this hallway to the master bedroom of the house. From that point I went to the front bedroom and then to the rear bedroom of the house.
Q When you entered the master bedroom what did you do, if anything?
A Upon initial entry and observing the body of a woman lying on the floor in the master bedroom, I went to the body, looked for signs of life, and finding none, went with Lieutenant Paulk to the other bedrooms in the house.
Q Now what signs of life were you looking for?
A Such as respirations, any movements; observed the wounds to see if they--there were any active bleeding, such as arteries being punctured, or the like.
Q Mr. Ivory, had you ever seen, at that time, dead bodies before?
A Yes, sir, I have.
Q Can you give us any approximate number of how many?
MR. SEGAL: That's objected to as irrelevant. The only question before the hearing is whether or not he observed any signs of life.
CPT SOMERS: I think his experience is relevant.
MR. SEGAL: There isn't any question that he found dead bodies. What he has seen before cannot be considered relevant now.
CPT BEALE: The objection is overruled.
Q Can you tell us approximately how many?
A I would say approximately twenty.
Q Very good. Now when you left the master bedroom, where did you say you went?
A I went from the master bedroom to the front bedroom of the quarters.
Q What did you do there, if anything?
A The room was not lit. I illuminated the room by means of a light switch on the wall.
Q How did you do that? By what method?
A By means of a pen, a fountain pen or a ball point pen, and flipping up the light switch.
Q And what did you do once you'd done that?
A I observed in that room a bed, the head of which was against the west wall of the room. In the bed was the body of a child. I approached the bed, again looking for any signs of life. And finding none I departed the room.
Q And what signs were you looking for in that room?
A Again, signs of respiration, movement. I inspected the wounds, or the visible wounds for signs of active bleeding, or an artery being punctured, and finding none, I left.
Q And once you had done that, what was your next movement?
A I went to the front bedroom of that house across the hallway to the rear bedroom.
Q What, if anything, did you do in the rear bedroom?
A The rear bedroom was also dark. I illuminated it in the same manner as the front bedroom, and observed a bed, the side of which was against the west wall of that bedroom, and lying in that bed was the body of a small child.
Q What did you do in this room, if anything?
A Again, as in all rooms, I made the initial observation of the surroundings and went to the body, looking again for signs of life, as I did in the other bodies.
Q What did you discover?
A I discovered that the child was dead.
CPT SOMERS: Would you have a seat, please.
(Witness complied.)
Q Now in the process of determining in your own mind whether these people were dead, did you touch them?
A No, I did not.
Q When you had finished in the rear bedroom, what did you do then?
A I went from the rear bedroom, again accompanied by Lieutenant Paulk, to the living room, dining room area, and into the kitchen.
Q What did you do in each of these areas, if anything?
A I observed the rooms and the surroundings, the furnishing, et cetera.
Q Once you had finished this observation, what was your next action?
A My next action after determining or assessing the situation at that point, I went to the next door quarters of 542 Castle Drive, the resident of CW3 Donald Kalin, and using his telephone I requested investigative assistance.
Q When you had finished with this telephone call, what did you do next?
A As I was in the quarters of the occupants, Mr. Kalin, Mrs. Kalin, and two of their children, I asked had they heard any noise, commotion, arguments, fights, anything in the next door quarters. I also at that time--
MR. SEGAL: That's objected to. There's no question before the witness at this time.
CPT BEALE: I presume he's giving his testimony in kind of a combination of narrative form and in response to questions.
MR. SEGAL: Well, I appreciate that. I think he has responded to the question. There has been no question as to what he did do at the Kalin residence. It seems to be better to question him, rather than him be allowed to narrate.
CPT BEALE: Well, your objection is overruled.
Q Mr. Ivory, what response did you get to those questions?
MR. SEGAL: That's objected to. It's hearsay.
COL ROCK: This hearing will be recessed, temporarily.
(The hearing recessed at 1019 hours, 21 July 1970.)
(The Hearing reopened at 1037 hours, 21 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that those parties who were present at the recess are currently in the hearing room, to include the witness. I remind you, Mr. Ivory, that you are under oath.
At the time of the break, counsel for the accused had entertained an objection to a question by the counsel for the government. I would like at this time for the question to be stated by the recorder.
(Recorder read back the last question.)
COL ROCK: At that time counsel for the accused objected.
CPT BEALE: Your objection is sustained on that particular point.
Q When you had finished speaking to the Kalins, Mr. Ivory, what did you do then, sir?
A I then inquired of Mr. Kalin if he would accompany me to the next apartment to see if he could make identifications of the bodies in the house.
Q And what was his response to that?
A He agreed, and accompanied me, and we went to the next door apartment.
Q And did he, in fact, identify the bodies?
A Yes, sir, he did.
Q Would you describe how this was done?
A We walked through the living room, through the hallway to the rear bedroom. He observed the body of the small child on the bed, identified it as the body of Kristen MacDonald. We went to the next side bedroom or the front bedroom, observed the body in that bed, identified it as the body of Kimberly MacDonald; and then into the master bedroom and made identification of the body on the floor as that of Mrs. Colette MacDonald.
Q When he concludes this, what did Mr. Kalin do, do you know?
A Mr. Kalin then was escorted from the house.
Q During this period of time, what was the flow of personnel in the house like?
A At that time traffic had been reduced, although traffic was none through the house.
Q Now, you have described the three bodies in this house. Did you see Captain MacDonald at any time that morning?
A Yes, sir, I did. On my initial entrance into the living room, and as I was talking to Lieutenant Paulk, he was wheeled in a litter from the hallway through the living room, and out of the house.
Q When Mr. Kalin left the house, what were your actions then?
A I then retraced my initial steps through the house making additional observations, now being in possession of the knowledge that Lieutenant Paulk had, and continued my observations until the arrival of the photographer.
Q Mr. Ivory, do you know a man named Squires?
A Yes, sir, I do.
Q Who is he?
A He is the Chief of the Photo Section of the Post Photo Laboratory.
Q Did you see him on that morning?
A Yes, sir, I did.
Q In what capacity did you see him?
A He arrived at the house in the capacity of a photographer as I had summoned.
Q Did he perform some function in the house?
A He, under my direction, photographed the entire house.
Q At this time I show you Accused Exhibit A-9 and ask if you can identify that exhibit?
A Yes, sir, I can.
Q What is it?
A It is a photo taken by Mr. Squires and it depicts the living room of 544 Castle Drive as I saw it when I entered the apartment on the morning of 17 February.
Q I draw your attention to the right lower corner of this exhibit to a white object. Do you see that white object?
A Yes, sir, I do.
Q Do you know what it is?
A Yes, sir, I do.
Q What is it?
A It is a plastic type material; it is a flower or plant pot.
Q Is that an accurate depiction of its location as you saw it?
A Yes, sir, that is as I saw it when I came into the house.
Q Did you at any time see its position changed before it was photographed?
A No, sir, I did not.
MR. SEGAL: I would respectfully object. I think the question and answer is misleading on the record, in the sense that we have already established for the record that a prior witness knew that this object had been moved from the position when the initial investigators had found it, so therefore, it does not seem to me to clarify the record, but rather confuse it, to have this witness suggest that this is in fact the actual crime scene as it was at the time the first investigator arrived.
CPT SOMERS: I think it's clear that this witness is testifying to what he saw and has told us when he saw it.
MR. SEGAL: Then I object as it is irrelevant and immaterial as to what he saw. What is only relevant to this investigation of the physical fact in time when the investigators arrived, and where things are possibly moved or rearranged, it could not conceivably be relevant to this investigation.
CPT SOMERS: I think when they were moved and rearranged is relevant. I think even the defense would concede that.
CPT BEALE: Your objection is overruled.
Q At this time I show you Accused Exhibit A-8 and ask you if you recognize it?
A Yes, sir, I do.
Q What is it?
A It is an additional photo taken by Mr. Squires, depicting the living room of 544 Castle Drive, as it was and as I saw it upon entry into the house.
Q I show you Accused Exhibit A-7 and ask you if you recognize it?
A Yes, sir, I do.
Q What is it?
A It is another photograph taken by Mr. Squires, depicting the east end of the living room at 544 Castle Drive, the hallway, and a partial view of the master bedroom at 544 Castle Drive, as it was when I saw it on the morning of 17 February.
Q Now in the lower left corner of that picture, do you see a red object on what appear to be some stairs?
A Yes, sir, I do.
Q Did you see those on that morning?
A Yes, sir, I did.
Q Does that depict them accurately as you saw them?
A Yes, sir, it does.
Q I show you Accused Exhibit A-15 and ask you if you recognize it?
A Yes, sir, I do.
Q What is it?
A It is another photo taken by Mr. Squires depicting the hallway from west to east and that is from the living room looking into the master bedroom at 544 Castle Drive, as I saw it that morning of 17 February when I initially came into the house.
Q I show you Accused Exhibit A-17--
CPT BEALE: Counsel, just a second. I think that probably it would be conceded by the defense that all these photographs that present the scene as Mr. Ivory saw it. Now if there are exceptions to this, I think we can cut this whole thing short. You can show him a series of photographs, and let him look at all of them and say do they all represent as you saw it on the morning that you came in. I think it will shorten considerably if you are going through a number of photographs, it would probably shorten the proceedings considerably.
Q Along with A-17, I show you Exhibits A-10, A-5, A-6, A-18, and ask you if these are accurate representations of the master bedroom at 544 Castle Drive as you saw?
A Yes, sir, they are accurate.
Q I show you Accused Exhibit 24 and ask you if you recognize that?
A Yes, sir, I do. It is a photograph of the master bedroom taken shortly after the body of Colette MacDonald had been removed by medical personnel.
Q I show you Accused Exhibit 23 and ask you if that's an accurate representation of the front bedroom as you saw it?
A Yes, sir, it is.
Q I show you Accused Exhibit A-11 and ask you if that's an accurate representation of the rear bedroom scene as you saw it?
A Yes, sir, it is.
Q And I show you Accused Exhibit A-12, and it is different from A-11, I think you'll find--
MR. SEGAL: I object to that. It is improper.
CPT SOMERS: I'm merely trying to expedite this.
CPT BEALE: Well, let him--what is the basis for your objection, Mr. Segal?
MR. SEGAL: He suggested to the witness that the photograph is different. If the witness notices a difference, it his function to tell us. I don't understand how we expedite things by telling him what is the same and what is different.
CPT BEALE: Counsel, the objection is sustained. As far as identification goes, let the witness state if they're just alike, but if in fact there is something different then you know the proper way to elicit the question from the witness.
Q Mr. Ivory, I've show you Accused Exhibits A-11 and A-12. Are they in approximately the same area?
A Yes, sir, they are the same area.
Q Now is there a difference between the two?
A Yes, sir, there is a difference.
Q What is the difference?
A Exhibit A-11 was exposed prior to Exhibit A-12 in that A-11 was taken prior to medical personnel or a medical doctor making a thorough examination of the body and A-12 depicts the body of Kristen MacDonald after it had been viewed by the physician and the position of the body had been moved.
Q How was it moved? How is it moved, rather?
A The arm as depicted in A-11, the right arm is extended across the mattress and exposed. In Exhibit A-12 this arm and part of the waist area has been covered with a blanket.
Q I ask that the eight photographs which I now hand the investigating officer be marked as Government Exhibits.
COL ROCK: Government Exhibit 41 is photo of a portion of bed headboard with word PIG written on headboard. G-42, photo of six drawer bureau with white telephone among other objects visible on the top of the bureau. G-43, view of Colette MacDonald's body from the left side.
CPT SOMERS: So long as we are marking, we might just as well proceed to mark the rest of the photographs that I have.
COL ROCK: Okay. G-44, view of headboard and bed with the word PIG on headboard, partial view of Colette's body. G-45, view of Colette's body from hallway entrance to master bedroom. A partial of Colette's body showing part of small night stand and easy chair. Close up view of upper portion of Colette's body.
MR. SEGAL: Is that G-47, sir?
COL ROCK: Correct. G-48, view of rug and small knife under the bureau.
(G-41 through G-48 were handed to defense counsel.)
COL ROCK: G-49, view of bathroom sink depicting pink tissue in sink. G-50, view of child's body on bed. G-51, closer view of child's body on bed. G-52, another view of child's body on bed, apparently similar to G-50. G-53, view of footprint, reddish color, with black spot at rear portion of photo.
(G-49 through G-52 were handed to the defense.)
COL ROCK: G-54, view of footprint with green rug. G-55, view of footprint with tape measure. G-56, view of bed and shelves with children's toys. G-57, view of kitchen phone handset dangling on floor. G-58, view of kitchen phone receiver and cord. G-59, view of small spots on kitchen floor.
(G-53 through G-59 were handed to counsel for the accused.)
COL ROCK: G-60, view of kitchen with blender. G-61, view of kitchen with dish rack. G-62, view of spectacles on floor. G-63, close view of living room sofa and coffee table. G-64, view of stereo set. G-65, view of underside of coffee table. G-66, view of TV set. G-67, view of bed with blood spot and outline of child's form--body.
(G-60 through G-67 were handed to counsel for the accused.)
COL ROCK: G-68, view of left portion of child's bed and bookstand. G-69, view of portion of child's body on bed exposing only hair, ear and hand. G-70, right side view of upper portion of child's body on bed. G-71, view of bedroom from hallway showing purple rug.
(G-69 through G-71 handed to counsel for the accused.)
COL ROCK: Mr. Ivory, you are advised that you will discuss your testimony with no person other than counsel for the government or counsel for the accused. Do you understand?
WITNESS: Yes, sir.
COL ROCK: You are excused until the end of recess which will be 1330 today. Gentlemen, this hearing is recessed.
(The hearing recessed at 1121 hours, 21 July 1970.)
(The hearing reopened at 1331, 21 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that all parties that were present prior to the recess are currently in the hearing room, with the exception of Mr. Eisman, assistant counsel for the accused.
At the recess, the witness was identifying certain photographs and additional photographs were entered as government exhibits, copies of which were also shown to counsel for the accused. Is counsel for the government prepared to continue with the witness?
CPT SOMERS: Yes, sir.
COL ROCK: I remind the witness that you are again under oath.
CPT SOMERS: Sir, I have one more photograph that I wish to have numbered.
COL ROCK: Government Exhibit 72, a photograph from the main bedroom doorway showing the entrance to the utility room.
(G-72 was shown to counsel for the accused.)
Questions by CPT SOMERS:
Q Mr. Ivory, I show you Government Exhibits 41 through 48, and ask you what room do they portray?
A Sir, these photos depict the master bedroom of the resident at 544 Castle Drive, as I saw them when I entered the apartment on the morning of 17 February.
Q Are they accurate in every detail or not?
A Sir, I find nothing that is inaccurate.
Q What time, approximately, did you first see that room?
A Shortly after 0400 and 0405 hours on 17 February.
Q I show you Government Exhibits 62 through 66, and ask you what do they portray?
A Sir, these photos portray the living room of the residence at 544 Castle Drive as I saw them upon entering the house about 0400 hours on the 17th of February.
Q Are they accurate?
A Yes, sir, they are accurate.
Q I show you Government Exhibits 50 through 56 and ask you what they portray?
A Sir, these photographs portray the rear bedroom of the residence of 544 Castle Drive to include the furnishings and the floor of that room, as I saw it on the morning of the 17th of February.
Q Approximately what time did you see that room?
A Shortly after 0405.
Q Are those photographs accurate?
A Yes, sir, they are.
Q I show you Government Exhibits 68 through 71 and ask you what they portray?
A Sir, these photographs portray the front bedroom in the residence at 544 Castle Drive as I saw them on the morning of 17 February.
Q What time did you first see that room?
A Sir, all rooms involved were viewed between 0400 and 0415 hours.
Q I show you Government 67 and ask you what it portrays?
A It portrays the bed in the front bedroom after the body of Kimberly MacDonald had been moved by medical personnel, and it depicts the outline of the body position on that bed.
Q Do you know who marked that outline?
A Yes, sir, it was marked by Mr. Shaw, from the CID office.
Q Is that an accurate depiction of that scene?
A Yes, sir, it is.
Q I show you Government Exhibit 49 and ask you what it portrays?
A This photo portrays the bathroom off the main hallway in the residence at 544 Castle Drive, and more particularly it depicts the sink in that bathroom.
Q Is it accurate?
A Yes, sir, it is.
Q I show you Government Exhibit 57 through 61 and ask you what they portray?
A These photos depict the kitchen and the kitchen floor of the residence of 544 Castle Drive, as I saw it on 17 February.
Q Are they accurate?
A Yes, sir, they are.
Q I draw your attention to Government Exhibit 59, which is what?
A It's a photo of the kitchen floor at 544 Castle Drive showing blood stains on the floor.
Q Can you orient that picture so that we know from what direction we're looking?
A If the picture were another half inch longer, it would include the bottom portion of the sink cabinets.
Q You are indicating toward the top of the picture?
A Yes, sir, the top of the picture being toward the west side of the kitchen.
Q And you are describing the top of the picture as being the edge closest to the large circle drawn on that picture?
A That is correct.
Q Mr. Ivory, I draw your attention to the large circle in this picture. Do you see something within it?
A Yes, sir, I do.
Q What?
MR. SEGAL: I would respectfully object. These pictures all speak for themselves, sir, and the best evidence. We are repeating, first of all, the identification of the photos which the investigating officer has already done for the record. I think we are under obligation to move forward with this witness' testimony rather than repeat what is all perfectly clear and which is visible to the investigating officer without this witness being asked to repeat what the pictures show.
CPT SOMERS: This witness supervised the taking of the pictures. What I wish to ask him with respect to this picture is certainly not self-evident.
CPT BEALE: The objection is overruled, but however, it is a valid suggestion from counsel for the accused to the effect that we should move on to the areas that you are going to use these pictures for rather than just merely identify, et cetera; as he has stated, Colonel Rock has identified them, so if possible, when you show him a picture, make the point that you want to make as opposed to all other.
CPT SOMERS: I believe if I can ask the answer to this question and one more I will make my point.
CPT BEALE: Okay.
Q What is within that circle?
A There are five drops of Type B blood.
MR. SEGAL: That's objected to.
Q Do you know that?
MR. SEGAL: Wait a minute. I've got an objection and I get a ruling on it.
CPT BEALE: The objection is sustained.
Q Finally, I show you Government Exhibit 72, which has been described for the record; would you just briefly tell us what it is?
A This is a photo depicting or showing a scene from the master bedroom through a utility or storage room to the rear entrance of 544 Castle Drive.
Q Is that an accurate depiction, as you saw it.
A No, my initial observation, the door was open.
Q I see. Now, Mr. Ivory, when you first entered this house, what were you thinking about?
MR. SEGAL: That's objected to, irrelevant and immaterial.
CPT BEALE: Sustained.
Q What are the duties of an investigator who enters the scene like this?
MR. SEGAL: That's objected to. All the court's concerned with is what he did when he got there.
CPT BEALE: The objection is overruled until we can find whether it has any relevancy. You may answer the question, Mr. Ivory.
A Yes, sir. Would you repeat it, please?
Q What are the duties of an investigator who enters a scene like this?
A The primary being to obtain as much information as possible, as quick as possible, and to make all efforts to protect and preserve the scene as it is found; identify the location of any apparent evidence, protect that evidence.
Q Were you aware of those duties on the morning of the 17th?
A Yes, sir, I was.
Q Now when you first entered the living room, would you describe for us in detail that scene?
A Would you repeat the last part of that question, please?
Q Would you describe in detail the scene as you first entered the living room?
A Yes, sir, as I entered through the door which is on the south side of the building, as I described before, I saw the military policemen, Lieutenant Paulk was standing by a desk, which is against the west wall of the living room. I observed next to that desk a TV set. Next to that we go to a corner--in observing this entire room, as all rooms, in a clockwise direction--there was a stereo, record player with speakers. Next to that we have an arm chair, wooden back arm chair; and at that point the living room branches off into the dining area of the house. The dining area being furnished with a small folding type table, a dining room table which was surrounded by four chairs. As I recall, there were two candles sitting on the table. Also, a china or crystal ware cabinet. There was a floor lamp and another wooden back arm chair, a little stool with plants on it; and next the wall breaks into the hallway leading to the master bedroom. Just to the right of that hallway, as I looked at it from my position at the desk, was a wooden couch, of wooden frame with a dark colored cushion. On this couch or divan, whatever you'd like to term it, there was some small, what I term, throw pillows and also an afghan. I could back up, or should back up to say that on the stairway leading into, or from the living room to the hallway, there were articles which would appear to be a small child's clothing, night clothing or what have you. To the right of the couch, from my vantage point, there was a table, small octagonal, as I remember, with a lamp. A small board, similar to a checkerboard, much too small in my estimation to be a checker board was on top of that. There were some different colored candles laying next to that, of course, with some paperback books. In front of the couch there was a tipped over table. Tipped over--that is tipped on its edge, rather than being completely tipped over. Underneath the edge of the table there were numerous magazines, and there was a red and white box on top of the magazines all under the edge of the table. I could see the--at that time, a plant pot just to the edge of the table, a white plant pot, and to the right of that table, there was a rocking chair which had two pillows on it, as I recall, and next to that a black leatherette type lounge chair with a footstool; and also hanging between the rocking chair and that leather type chair there was a light fixture, globe type light fixture hanging quite low in the room. As we go right from that lounge chair we are back at the front door of the building.
Q Now when you entered the master bedroom, would you describe for us, please in detail, what you saw there?
A Again, observing a clockwise direction--I think I should make a point--if I may. I first went to the body of Mrs. MacDonald and then backed off and made a more detailed observation of the room. At this time on the doorway leading from the hallway to the master bedroom was a terry cloth robe hanging on the top of the corner of the door. Behind that door was a closet which later was found to contain women's wearing apparel. Next to the right of that closet in the corner of that room is a doorway leading out to the utility room. Next to the right of that door was a dresser, by the dresser I mean a--it was a double dresser, if I can explain that, two piece wooden piece of furniture with a large mirror affixed to the rear of it. On top of the counter of the dresser, as I recall was a flower pot with a red-colored flower, I believe, and there were various items of property obviously belonging to a female such as perfumes, jewelry boxes. They were two jewelry boxes there, one being a small almost a green colored jewelry box, about five to six inches high, and on the right of that was another jewelry box, which was a multi-colored thing with a fabric coloring. A fabric colored jewelry box. Next to that was a white telephone, the receiver of which was not on the hook, but hanging from its cord down the side of the dresser, that is the east side of the dresser. Directly in front of the dresser and just left of center of the dresser I observed a small paring knife, wooden handle and short metal blade. To the right of the dresser is the corner of the room, the window. In front of that window, a green leatherette type chair, arm chair. On this arm chair was items of female apparel and just in front and to the right front corner of the arm chair lay the body of a woman later identified to me as that of Colette MacDonald.
To the right of the body and above the head of the body was a night stand, on top of which was numerous pieces of colored yarn such as used to tie pigtails or pony tails on girls or women's hair. There was green shaded lamp on top of that night stand. The shade was tilted, the bottom tilted to the right as I looked from the door of the master bedroom. Next to the night stand was a bed, the headboard being against the east wall of the room, and on the headboard written sideways in large letters were the letters P-I-G. Up on the headboard and on the wall there were spatters of dried blood. To the right of the bed were numerous pil-lows, small pillows and a pillow that might be used to sit up in bed and read or convalescent type pillow that had arms on it, and by that was another end table or night table with another lamp. The shade of that lamp was not in any disarray. Going again clockwise along that wall, which is the south wall of that bedroom, there were some items of clothing on the floor, a set of army fatigues and a man's tee shirt. Next to these items there was a six-drawer dresser or chest of drawers. The top of this was--on top of this dresser there were numerous items of property belonging to a man, such as, oh I've seen them coming from Avon companies, these cars that contain after-shave and the like. And to the right of that is a corner, and then goes to the west wall of the room. Most of the wall--90% of that section of the wall is covered with sliding closet doors. On the closet doors were also blood spatters. Between the doorway to the hallway and to these closet doors is a light switch, a belt and some kind of a neckerchief hanging from a hook there. I should say also that right at the foot of the bed and near the door, as I looked from the door of the master bedroom, to the left side of the footboard was a bundle of bedding, the bedding consisting of a light blue sheet, which matched the sheet which was on the bed, and also a multi-colored bed spread. These items were stained with blood.
CPT SOMERS: Would you describe for us, please, the appearance of the body on the floor?
A The body on the floor of the master bedroom was that of a Caucasian female who was quite bloody. Across the stomach and abdomen region of the body there was a white heavy material, a bath towel, with the word “Hilton” right in the fabric itself. The body was dressed in what appeared to be pink pajama pants. Also across the lower chest and breast area of the body there was blue type shirt later found to be a top of a pajama shirt. The upper portion of the body was dressed also in a--what appeared to be a pink pajama shirt. This was quite bloodstained.
Q Describe for me, please, Mr. Ivory, the appearance of the hallway as you first saw it.
A The hallway, if I can describe it from the living to the master bedroom, there is a stair or it takes two steps to reach the level of the hallway. Right there at the beginning of the hallway by the living room were these articles of children's apparel that I've described before. There was also a little beret laying there in with the clothing. Walking further along the hallway there were signs of nothing out of the ordinary, until I reached the doorway to the rear bedroom. At about that point, I discovered the first series of blood stains that I found on the floor. There were stains by the rear bedroom in the hallway and also, peering into the room, I could see a bloody footprint that appeared to have been made by a bare foot. And on further from there, there were numerous locations in the hallway on back to the master bedroom which were blood stains.
Q Do you know a Doctor Neal?
A Yes, sir, I do.
Q Did you have occasion to see him on that morning?
A Yes, sir, I did.
Q And how did that come about?
A A doctor was summoned from Womack Army Hospital to view the remains--the bodies in the house and make official pronouncement of death. When he arrived he was escorted through these rooms and through the house to the bodies by myself.
Q About what time did he arrive, do you know?
A I am not sure of the exact time of his arrival; however, I first came in contact with him at 0458 hours.
Q Which of the bedrooms did you enter first?
A We entered the rear bedroom.
Q What did the doctor do there?
A The room was lit at that time. Prior to him going into the bedroom photos had been taken and I cautioned him or requested that he move the bodies as least as possible without actually impairing his function, and he said that he would. He went to the body of Kristen MacDonald. He did move that body in examining the wounds which were apparent on both chest and the back of the child. He felt for pulse, checked movement, or he just moved the body to check the wounds on the body, and then placed the hand of the child under the covers and pulled the covers up to about her waistline.
Q Did the doctor pronounce that body dead?
A Yes, sir, he did.
Q At the time he moved the body was anything said?
A I beg your pardon?
Q At the time he moved this body was anything said?
A Not then, but immediately after.
Q What was that?
A I asked him again and requested that he move the bodies the least that he had to to perform his duties, and he said yes, he'd do that.
Q And from there, where did you go?
A We went from there to the master bedroom.
Q What did the doctor do there?
A In the master bedroom he viewed the body of Colette MacDonald. He went to the body, checked the outstretched left arm of Colette MacDonald, for pulse without moving the arm. He then looked into the eyes of the body, one eye being open, he opened the left eye and closed it again, and then he walked around and stood in the position almost directly over and behind her head, and reached down and touched under her jaws, and he, at that time, said, she's also dead, and then he left that room.
Q Where did he go from there?
A He went from that room to the front bedroom, and viewed the body of Kimberly MacDonald. He walked to the--as I viewed it--from the doorway to the left side of the bed, the side closer to the window and the south wall. He walked directly opposite the body. I was right next to him and he peered over and down onto the head of the child, placed his hand on the child's check area, and then he looked--it was obvious that he was looking down into the wounds in her throat, and then reached his hand over and took her--Kimberly's extended left hand or wrist.
Q Did he do anything else to that body?
A No he did not.
Q And did he pronounce that body dead?
A Yes, sir, he did.
Q How long did this process take?
A It took approximately ten, fifteen minutes at the very most.
Q Now you say that you sent for investigative help. Did such help arrive?
A Yes, sir. Assistance began arriving shortly after 4:30, and from that point on it was continuous as investigators were notified, they came to the scene.
Q Were you present when the bodies were removed from the house?
A Yes, sir, I was.
Q Did you see them removed?
A Yes, sir, I did.
Q Would you describe, please, the removal of the body of Colette MacDonald?
A There were two medics from Womack Army Hospital and they had an ambulance litter in the master bedroom. One of the medics was in a position straddling the lower extremities of the body. The other medic being directly over and behind the head region of the body. The medic at the foot of the body or the lower part of the body gripped one hand on each leg and the medic at the head region lifted from under or around the armpits of the body, lift the body directly upwards, straight up and straight over to the nearby ambulance litter.
Q Were you present during this entire process?
A Yes, I was.
Q Did you subsequently collect any evidence from that room?
A Yes, sir, I did.
Q How soon after--thereafter was this done?
A Immediately after the body was lifted from its original position and placed on the litter, and was being rolled out.
Q And what did you do?
A As the body was being lifted, I looked under the body and right under where the head had been there was what appeared to be a clot of blood, and sticking from that clot of blood was object which I went immediately to see what it was and saw that it was a thread.
Q Did you do anything with that thread?
A I did. I collected it and put it in a plastic pill vial.
Q Did you collect anything else from that area?
A Yes, sir, after finding that particular thread, I did a complete scanning of the body outline. Prior to the removal of the body, the body had been outlined in a felt tip magic marker, and I scanned the entire region where the body had been and collected numerous threads from the floor and in the mat of the rug.
Q Did you find anything else of this nature in the bedroom?
A Like threads, you mean, sir?
Q Or fibers, yes.
A Yes, sir, I--after the body was removed, the room was thoroughly scanned for additional threads, and all like threads, all blue threads that were found, as I have described, within the body outline. They were found behind the headboard of the bed. They were found at the foot of the bed, and one thread that I know of what was found between the green chair and the telephone.
MR. SEGAL: That's objected to unless it is of his own personal knowledge.
CPT BEALE: Sustained.
MR. SEGAL: May the answer be stricken then. The answer referring to the last item.
CPT BEALE: It will be stricken.
Q Prior to the time that Colette's body was removed, was anything removed from her body?
A Yes, sir, the bath towel and the blue pajama shirt I have previously described were removed from the body.
Q By whom and how?
A By myself and Mr. Shaw.
Q By what method?
A By lifting it from the body and placing it in a plastic bag.
CPT SOMERS: I ask now that these items be marked as government exhibits, sir.
COL ROCK: G-73, white bath towel marked “Hilton.”
(G-73 was showed to counsel for the accused.)
COL ROCK: G-74, blue stained pajama top which is torn.
(G-74 was shown to counsel for the accused.)
CPT SOMERS: If the defense would like to take a few minutes recess--
MR. SEGAL: No that's all right. We just want to examine it in place. We'll give it right back to you.
CPT SOMERS: Sir, I request that at the close of this witness' testimony he be permitted to take these items with him and keep them in his custody and that we substitute for them in the record photographs thereof.
MR. SEGAL: I would object to that. At this time I would say that at the close of these proceedings, they may be returned if necessary, but we would want an opportunity to examine those items. I have no objection to them being kept in plastic bags in the care of the recorder in this case, but I think they must be available to us, at least during these proceedings. I don't consider them available in the hands of the investigators.
COL ROCK: I do not have any safe place for evidence of this type. The request will be granted, should the counsel for the accused wish to see them again, can they be made available?
CPT SOMERS: Yes, sir.
COL ROCK: The request is granted.
Q Mr. Ivory, I show you Government Exhibit 73 and ask you if you can identify it?
A Yes, sir, this is the towel, the heavy towel that was removed from the lower region of Colette MacDonald's body.
Q Is there any way possible that you can identify that?
A Yes, sir, by the general appearance, the blood stains, the name “Hilton”, and the fabric, and by my initial and the date that it was obtained, 17-2-70.
Q There appears to be a hole in the exhibit, Mr. Ivory. Do you have any idea how that hole got there?
A Yes, sir, that was done at the CID Laboratory.
MR. SEGAL: That's objected to unless it was in the presence of this witness. It is obviously hearsay, in my judgment.
CPT BEALE: Sustained.
CPT SOMERS: If I may, before we proceed, speak to that objection. Or may I not?
CPT BEALE: Well, was this witness there when the hole was cut?
CPT SOMERS: No, sir, but he does know how that hole got there, and I submit that this is the type of hearsay which can cause little or no damage in this hearing, and this investigating officer is permitted to accept hearsay evidence.
CPT BEALE: What is the purpose or the actual relevance? What difference does it make how the hole got there?
CPT SOMERS: Well, the investigating officer is going to be able to see this exhibit. He may wonder why there is a hole in it, that's all.
COL ROCK: I waive that right.
Q Now Mr. Ivory, I show you Government Exhibit 74 and ask you if you can identify it?
A Yes, sir, this is the blue pajama top which was removed from the upper portion or the upper regions of Colette MacDonald's body.
CPT SOMERS: At this time I hand these exhibits to the investigating officer for his scrutiny.
(The exhibits were examined by the IO.)
COL ROCK: The investigating officer has completed his viewing of Exhibits G-73 and G-74 and returns them herewith to counsel for the government.
Q Now at the time Mrs. MacDonald's body was removed, what position was it in?
A It was on its back.
Q And what was its position relative to the position it was in the first time you saw you saw it?
A I really don't believe I understand your question, sir.
Q Was it in the same position that it was in the first time you saw it?
A Yes, sir, it had not been moved.
Q Did you collect any other evidence from the master bedroom?
A Yes, sir, I did.
Q And what was that?
A Just at the foot of the body of Colette MacDonald, there was found the pocket to that blue pajama shirt, which I have just seen.
CPT SOMERS: I ask that this be marked as a government exhibit.
COL ROCK: G-75, cloth material purported to be pocket to Government Exhibit G-74.
(G-75 was examined by counsel for the accused.)
Q I show you Government Exhibit 75 and ask you if you can identify it?
A Yes, sir, this is the pocket which was found by the foot of Colette MacDonald on the morning of 17 February.
CPT SOMERS: Does the investigating officer wish to examine it further?
COL ROCK: Negative.
Q Did you ever receive assistance from the Fort Gordon Criminal Investigation Laboratory on the 17th?
A Yes, sir, I did.
Q In what form did that assistance come?
A At the time I don't recall offhand. A call was placed to the Fort Gordon Laboratory Duty Officer requesting that a team of their technicians be sent to Fort Bragg to assist us in processing the house for evidence. They arrived at approximately 1100 hours.
Q What did this team consist of?
A The team consisted of two representatives of the fingerprint section, one from the photo section, one from the chemistry section.
Q Do you know what that team did there?
A Yes, sir, I do.
Q And what did it do?
A The fingerprint team began processing the house for fingerprints in the living room, hallway, bedrooms, utility room and doors of the house. The chemistry section representative began collecting samples of blood, additional samples of fabric and other items which would be used or tested or analyzed or further examined at the chemistry section.
Q How long was that lab team there? Do you know?
A They were there from 1100 hours, 17 February, until the evening or afternoon of 21 February.
Q Were you present in the house while this team was working?
A Yes, sir, I was.
Q And what function did you perform?
A I, at first, supervised the search of the living room area, which includes a search of the floor for foreign debris, foreign items; escorted the fingerprint technician throughout the house and collected items of evidence from within the master bedroom and the other bedrooms throughout the house.
Q Now you've spoken of thread or fibers. Do you know whether any fibers were found in the living room?
A No, sir, there were no fibers found in the living room.
Q Do you know if any fibers were found in the hall?
A There was one fiber which was similar to the others found in the hallway.
Q Do you know where most of the fibers were found?
A The greatest concentration--
MR. SEGAL: I would object. That calls for a conclusion as to whether it was the most or not. I would ask that he be limited to describing what quantity and what particular location.
CPT BEALE: Sustained.
Q How many fibers were found in the master bedroom?
A In the master bedroom, while I did not count them, they were just numerous, there was a great number.
MR. SEGAL: Objective. Move to strike as a conclusion.
CPT BEALE: Well, now Mr. Segal, the witness can testify to the best of his knowledge how many were found, and I think he can be helpful if he can specify at least a rough estimate of how many.
MR. SEGAL: I would be satisfied if he wants to say in excess of a hundred, or in excess of ten, which would be more appropriate to make a conclusion than numerous. I have frankly no idea of what that really encompasses.
CPT SOMERS: I do intend to try to pinpoint this down. That was the next question.
CPT BEALE: All right. Proceed then.
Q What does numerous mean to you? Would you say more than ten?
A Oh, yes.
Q More than twenty?
A Yes.
COL ROCK: Just tell us approximately what number.
WITNESS: I would say approximately twenty, twenty-five.
COL ROCK: We realize it's an approximation.
Q You said, as I understood--how many did you say were found in the hall?
A One, sir.
Q Were any found in the front bedroom?
A Yes, sir, in the front bedroom there were fibers found on and behind the pillow on the north side of the bed, the north pillow of the bed, and also under the bed clothing.
Q How many total?
A In total, the maximum three.
Q Were any found in the rear bedroom?
A Yes, sir, there were like fibers found in the rear bedroom.
Q How many?
A Two that I can accurately recall, one being on the bedspread and one fiber which, while not being found in the rear bedroom, was found in the fingernail of Kristen MacDonald.
Q Were any found in the dining room?
A None, sir.
Q Were any found in the kitchen?
A No, sir, not in the kitchen.
Q Were any found in the living room?
A No, sir, not in the living room.
Q Where the fibers in the master bedroom located?
A In the master bedroom?
Q Yes.
A They were located under the body or in the body outline, where the body of Colette MacDonald had been laying; by the headboard of the bed; by the footboard of the bed; one, I know, was found between the green chair and the telephone; others were scattered along the rug, outside of the body outline between the body and the bed.
Q I show you Government Exhibit 65. Do you see a red object in the right center of the picture?
A Yes, sir, I see a box, a red, white and black box.
Q What is immediately under that box?
A Under that box is the magazine, Esquire magazine.
Q Was there anything unique about that magazine?
MR. SEGAL: That's objected to. It calls for an opinion by the witness.
CPT BEALE: The objection is sustained. I think perhaps you could rephrase your question.
Q I will. Would you describe the general appearance of that magazine?
A The magazine is an Esquire magazine, the edition of which I don't remember at this time.
When the articles were removed from their position, the original position there, and were examined, it was found that underneath the box and hidden from view from this position, that there was at the top edges of the page, there was a blood stain in the configuration of a finger.
Q Now where was that located?
A In the photo of the cover, it can be seen in the first two letters of the book--ES. The blood stain was found directly over the QU.
CPT SOMERS: I hand this exhibit to the investigating officer.
(G-65 was examined by the IO and returned to CPT Somers.)
CPT SOMERS: Sir, the government has at least another half hour of direct examination of this witness. Perhaps we can take a ten minutes recess?
COL ROCK: I have one question prior to that recess, although your idea is accepted. When you refer to threads, in your own words, what is the difference between your description of fiber as opposed to a thread?
WITNESS: Perhaps we should draw a line on those. What I refer as threads are threads from the seam of the garment. When I say fibers such as the fibers, or fiber found on the hand of Kristen MacDonald, I would term that as a fiber. I am not sure what terminology I used upon the item found in the hallway, however it was a thread.
COL ROCK: And are they readily identifiable by the naked eye as such? Or, excuse me; were they readily identifiable by you with the naked eye?
WITNESS: Yes, sir, the fibers being of a lighter blue, and the seam threads being of a darker blue.
COL ROCK: This hearing will recess for ten minutes.
(The hearing recessed at 1445 hours, 21 July 1970.)
(The hearing reopened at 1501 hours, 21 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that all parties who were present at the recess are currently in the hearing room. Proceed counsel.
Questions by CPT SOMERS:
Q Mr. Ivory, I draw your attention to the coffee table in the living room at 544 Castle Drive. Have you ever had occasion to tip that coffee table over?
MR. SEGAL: I object.
A Yes, I have.
MR. SEGAL: I object. That's objected to. It's irrelevant and immaterial as to whether this witness has ever tipped over any piece of furniture.
CPT SOMERS: I think I can establish the relevancy of this particular line of questioning.
CPT BEALE: Why don't you give an offer of proof?
MR. SEGAL: May it be given out of the hearing of the witness?
CPT BEALE: Very well.
COL ROCK: The witness is excused, temporarily.
(Witness saluted the IO and departed the hearing room.)
CPT SOMERS: If the witness were permitted to proceed, he could testify that he has tipped this coffee over in excess of thirty times with force varying from a strong kick to balancing on its legs and letting it go, under the circumstances ranging from having the table free to fall, to having it blocked by a rocking chair which is near it, and that no matter what circumstances this table was tipped over by him under, it never landed on its side. It always landed on its top; and that furthermore, when this is done with the magazine and other materials on top of the coffee table, they do not land underneath the edge of the table, but land in front of the table on each and every occasion that he has conducted this particular experiment, if you will. I think this is relevant to the scene that is found in the house.
MR. SEGAL: May I respectfully suggest, sir, that what counsel for the government has just described is an interest premise for a scientific experiment by a physicist; the suggestion that a Specialist Seven of the United States Army in the Criminal Investigation Division should be allowed to testify about matters he cannot even give us the measurements for, that is for instance, he could not even tell us what force was applied. He would say I kicked it soft or hard, and similarly unscientific, unmeasurable, unattackable and questionable kinds of standards, it is conceivable that a test might be arranged by persons of appropriate scientific background and experience who could, in examination here in the courtroom, explain to the court in scientific terms the measures that were applied, and its relevance, for instance, to the strength of a human foot as between one person's strength and that of another. But to suggest that this kind of ad hoc experiment, you know, done by a criminal investigator, which I think is so totally unscientific and unreliable, should be admitted into evidence is to suggest a matter which I feel, while not greatly relevant to this case, is certainly prejudicial, possibly under those circumstances ought not to be admitted from this particular witness.
CPT SOMERS: Certainly, we do not contend that Mr. Ivory is a physicist. He can describe in some detail the way in which this experiment was conducted by him. He can tell us the number of times; he can tell us the results. Now precisely what these results mean to the investigating officer, that's up to the investigating officer. How reliable he considers these results depends on his judgment. The factors which the defense counsel suggests go to the weight of this testimony or the credibility of it and not to the admissibility of it. This is something that has been done repeatedly, under varied conditions and I submit that the results would be of interest to this investigating officer who is to be investigating any and all relevant circumstances surrounding the offense in question, and I would therefore submit that the answer to the question asked in this line, and the questioning in general are admissible and should be considered.
MR. SEGAL: May I make one further observation?
COL ROCK: Please go ahead, counselor.
MR. SEGAL: I want to make this further observation, that aside from the total lack of scientific basis, it is also requested that this matter strikes me as totally irrelevant and immaterial since there's no evidence in this case of the circumstance under which this particular table came to be resting on its side in the MacDonald household. If in fact the very limited amount of facts that this inquiry has before it that has come through the prior witness such as Captain MacDonald's statement of a struggle involving four persons. If the alleged experimenter suggested here conducted the experiment with certain people in or about, it was done pursuant to a struggle, I don't know, these are all possibilities; but there's no relevance to this case in just trying to tip a table over because there's been no evidence in this case to suggest the government's theory of the prosecution, relates to someone, you know, tipping the table over. All that we know of in this particular case is the fact that Captain MacDonald stated on February 17th that there was a struggle which involved several other people, and it seems to me from that standpoint, there's even graver area here to admit this alleged experiment on the basis of the facts which the witness set it up. It also strikes me that an additional factor that should be considered about the so-called experiment, it seems to me that the government has failed to show that its particular witness is going to be able, is qualified in any way to have made the experiment, other than being identified as an investigator. We know that evidence of experiments is really basically opinion testimony of the witness. He's going to be allowed, if we permit this, to give an opinion. We also know that opinion testimony is viewed in the law as the lowest form of testimony. The law of values--of direct knowledge--the law of value eye witness testimony--the law of values of that kind of personal information. But the opinion, albeit of a qualified expert, is treated as a low quality of evidence and received with great caution. If you have a case here where you have a person whose qualifications are totally absent--as a matter of fact, we probably can assume that his qualifications do not exist of all, based upon the government counsel's concession that he is certainly not scientifically trained, and again we have a matter that even under the best of circumstances, I do not think it can come into any court.
CPT SOMERS: May I respond to that?
COL ROCK: Yes.
CPT SOMERS: First, we have here in this case a table which was found by all witnesses lying as it's shown in the picture on its side. Now, how it came to be on its side is relevant, since it's part of the scene of the house as it was found. The evidence which I wish to present will help to decide by what method, help the investigating officer to decide, because I don't intend that this witness shall tell us anything with regard to his opinion, help us decide whether this table got to this position by being tipped over. And again I say this witness is not going to attempt to testify whether it could have, or could not have. Neither will this witness testify as to his opinion about anything. He would simply describe what he has done, and what the effects was.
COL ROCK: This hearing will recess for ten minutes.
(The hearing recessed at 1511 hours, 21 July 1970.)
(The hearing reopened at 1530 hours, 21 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that those parties who were present at the recess are currently in the hearing room. Proceed, counselor.
MR. SEGAL: May I ask leave of the investigating officer--one of my law clerks, Mr. Hayes, was required to return to Philadelphia several days ago, and we have been without his assistance, and another clerk in our office has come down. May we have permission to have her replace Mr. Hayes? There will still be the same number of people available and the same rules as the investigating officer has set forth as to conduct will remain throughout her role in these matters.
COL ROCK: Your request is granted.
MR. SEGAL: Thank you, sir.
COL ROCK: At the time of the recess the question was raised before the hearing, and there was an objection by counsel for the accused. My ruling is as follows:
The objection is overruled; however the relative weight that I will give to this testimony is solely dependent upon the strength of Mr. Ivory's testimony on both direct and cross-examination.
Would you please bring the witness back in.
(Investigator Ivory returned to the hearing room.)
COL ROCK: Mr. Ivory, you are again reminded you are under oath.
WITNESS: Yes, sir.
COL ROCK: Proceed, counselor.
Questions by CPT SOMERS:
Q Mr. Ivory, I back up a question so it will be clear in your mind what we were getting at.
Have you ever had an occasion to tip that coffee table over?
A Yes, sir, I have.
Q And how many times was this done?
A I'd say thirty times at a minimum.
Q And with what degree of force was it done?
A The degree of force was anything from being violently over thrown, kicked in varying degrees on down to balancing the table on its legs and let it fall.
Q Would you describe for us what the effect of these experiments was?
A The effect was that each time the table was kicked or whatever, instead of landing on its edge, as it was found by myself that morning, it would--it was a very top-heavy table--in other words, it would just keep right on rolling until it landed on its top with four legs straight in the air. Now, as I say, this was done with varying forces and so many times that I know of--thirty times that I have done it--other people have done it and observed the same end results. It would just roll over by itself or there is a rocking chair that was sitting by the over turned or the upturned coffee table, and if the table were to hit that chair, rather than stop it is so top-heavy that it would keep right on going, and slip right on the chair. When it was tipped, of course the magazines were placed on top of the table. The plant pot with the plant and root ball inserted in the plant pot were put on the table, and again, each time it was overthrown, overturned, however you want to term it, the magazines, instead of just falling under that table would just slide right across the rug, and the plant with its pot, if a lot of force was exerted upon the table to turn it over, it would fly--root ball and pot would stay together each time, and it stayed together regardless--
MR. SEGAL: Excuse me. I really must interrupt this interesting dialogue because I didn't know we were having experiments with the plant pot also and unless the investigating officer's ruling encompasses that experiment too, I would respectfully object and move to strike all reference to the plant experiment too.
CPT SOMERS: I withdraw the reference to the plant experiment.
CPT BEALE: That will be struck from the record.
Q Did you conduct any other experiments in the living room area?
A Yes, sir.
Q And what was that?
A There were two other experiments conducted in the living room area, one being a mock struggle which took place between myself and another investigator, trying to stimulate actions in that confined space, and during this time was also when the coffee table was knocked over during that experiment. This was only conducted once.
Q What is that?
MR. SEGAL: It is objected to as irrelevant and immaterial why they did it once.
CPT SOMERS: I think I can establish the relevancy.
MR. SEGAL: The objection is renewed.
CPT BEALE: Counselor, the relevancy of a staged fight between this particular witness and another person is beyond my scope. We are going to strike all the testimony with reference any staged fight, between Mr. Ivory and another investigator.
Q Did you have an opportunity to observe the china cabinet in the dining room?
A Yes, sir.
Q Do you know what's in the top of that cabinet?
A In the portion that is covered with glass, there are numerous articles of crystal, glassware. There is a large ornamental--not ornamental, but what you might call a fancy carving set, that is a large carving knife with the meat fork.
Q Are these items visible without opening the china closet?
A Yes, it is right behind the glass.
Q Do you know how stable that china closet is?
A Yes, sir.
Q How stable is it?
MR. SEGAL: Objection.
CPT BEALE: What is your objection, Mr. Segal?
MR. SEGAL: The question how this witness--this witness being asked his opinion as to how he knows how stable that item is. Again, it calls for opinion testimony from this witness, and the basis for his giving an opinion I don't think has been established, nor for that matter the relevancy.
CPT BEALE: Would you care to say something?
CPT SOMERS: Well, this witness has had an opportunity to do some things physically, which would give an indication. I am willing to have him describe those things and let the conclusion be drawn by the investigating officer.
CPT BEALE: Captain Somers, the experiment that you conducted on the table apparently, although this man is not a physicist, at least it was conducted a number of times. Now all these other various things, the staged fight and the relevant stableness or unstableness, stability of the china cabinet, do you have an offer of proof that you ran this particular experiment on twenty or thirty times also?
CPT SOMERS: No, I don't, but I can offer to show that this particular experiment with reference to the stability of the china cabinet was run only once because it is so unstable that it was not safe to proceed.
CPT BEALE: I think Mr. Segal's objection is well taken. I think the best thing is to move on to another area.
Q Mr. Ivory, did you have an occasion to examine the contents of the kitchen cabinet?
A Yes, sir, I did.
Q What did you find in that cabinet?
A In the kitchen cabinets, above the sink, there were numerous items of normal everyday eating wares, dishes, food stuff. In the cabinet underneath the sink, I examined those contents and found a large supply of cleaning equipment, rags, some vegetables such as potatoes and the like, and over in the far left corner, as I faced the cabinet I found a--I found eight packages of--I think the brand name was Perry latex surgical gloves.
Q Do you know what security measures have been taken with the house at 544 Castle Drive to prevent the ingress of unauthorized personnel since the 17th?
A From the 17th until the 21st when the--finished with the laboratory technicians, the house was locked at night and placed under armed guard. There were two and sometimes three armed guards on the building. When the armed guards were removed, we began a system using railroad seals, plus placing our own locks on the doors and initiating padlocking.
Q What are railroad seals? Can you tell us that?
A They are a thin strip of metal, numbered metal, numbered in succession, and they are used primarily in sealing doors on freight cars, I'd say at one end of the shipment, and when it is received at its destination, the inspector, or whoever is unloading, determines if the railroad cars have been entered between the two stations. The seals cannot be removed from the door itself and render them useless.
Q Were you ever given a description of the four people who are alleged to be the assailants of Captain MacDonald?
A Yes, sir, I was.
Q Do you know whether--let me rephrase that. Do you now how many people, or whether any people were interviewed in this vicinity in an attempt to find those people?
A Yes, sir, there were in excess of a hundred persons interviewed in the area.
Q Do you know whether any personnel who met the description given were located?
MR. SEGAL: That's objected to, became obviously it calls for a conclusion of what other people saw and did?
CPT BEALE: You can restrict your questions to what this witness did and what his--the results of his investigation were, Captain Somers.
CPT SOMERS: Well, now with respect to some information which may be available from any number of sources, this witness has information, some of which may be derived from hearsay source, some of which may not, and I suggest to the investigating officer that this may be the easiest way to present it, and perhaps the only possible way in some respects in view of the limitations of the ability of this Article 32 proceeding to bring distant witnesses here. And so that I suggest that this may be in the area in which, to the extent to which this witness' knowledge may be hearsay which should be accepted by this investigating officer.
COL ROCK: Aren't there some official records to which some individual can attest to as bearing out the facts of whatever items you wish to bring before the investigating officer?
CPT SOMERS: Well, sir, I do have records which I can produce, but they are equally hearsay in nature.
MR. SEGAL: May I suggest, sir, that it seems to me that when you are talking about the CID reading file and this type, that if the government is going to make that available so that we may know the extent of what these persons were and who they were, and certain of their arrest, it may be possible that we would consider withdrawing our objection. But absent such an offer by the government, I could not agree that this witness be allowed to tell about what other people at distant places did, the conclusions that they arrived at, as to the resemblance or non-resemblance, and other such remote collateral and indirect matters, because it seems to me that the government is really not taking the position today that there are four people who fit the description or who do not fit the description. The government takes the position today that Captain MacDonald committed these crimes, and therefore it's irrelevant as to any groups who fit the description because the government does not believe that.
CPT SOMERS: I would like to respond to at least one section of the defense counsel's remarks. I am attempting now to address myself to an issue which was raised by the defense counsel in his cross examination of the first witness in this case, over the objection of the prosecution, that is the extent to which the CID and other authorities investigated the individuals who were supposed to have been the assailants of Captain MacDonald. It has become an issue here, whether the criminal investigation division and other investigative agencies did, in fact, carry out their duties in this respect, and I respectfully suggest that since this has become an issue, it is entirely fitting and proper that the government be permitted to show that this is not the case, that in fact the investigative agencies involved carried out their duties at great length.
CPT BEALE: The question has been considered and Mr. Segal's objection is sustained, to the extent that this witness will be permitted to testify reference what he personally did concerning interviews of potential suspects, if any. He will not be permitted to testify as to what the many other investigators did with reference to questioning other suspects. Now if you care to bring that information before the 32 officer, there are other ways to do it, I'm sure. I'm sure you are talented enough to realize that.
CPT SOMERS: Your honor, at this time, the government would beg an indulgence of the investigating officer. I know we've had two recent recesses, but we would like to request one more recess for approximately five minutes before proceeding.
COL ROCK: This hearing is recessed for five minutes.
(The hearing recessed at 1550 hours, 21 July 1970.)
(The hearing reopened at 1559 hours, 21 July 1970.)
COL ROCK: The hearing will come to order. Let the record reflect that those persons who were in the hearing room at the beginning of the recess are currently in the hearing room. I remind the witness once more that he is under oath. Proceed, counselor.
Questions by CPT SOMERS:
Q Mr. Ivory, what other evidence did you collect in the master bedroom?
A In addition to the threads I previously described, I collected some--from the floor of the--or the rug of the bedroom, near the body--some wood splinters that were bloodstained. I found portions of a rubber substance, like from a rubber glove, clear rubber glove. Also in the bedding which was found on the floor near the foot of the bed in the master bedroom. On examining this I found in the sheet bloody sections--a finger, entire finger portion, of a rubber glove such as a surgeon's rubber glove.
Q Now these threads that you've described, how long were they?
A On the average to an inch to two and a half inches.
Q From the time that you arrived at the house until the bodies were removed from the house, did you see anything moved or removed or tampered with in the house?
A The only thing that I observed were the body of Kristen MacDonald being moved by Doctor Neal. He of course touched the other two bodies, but did not move them, and the--just prior to the body of Colette MacDonald being removed from the house, the pajama shirt and towel, which had been on top of her body, were removed.
CPT SOMERS: No further questions at this time.
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