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ARTICLE 32
VOLUME 9
CPT SOMERS: Your witness.
Questions by MR. SEGAL:
Q Mr. Ivory, would you be good enough to give up the exact weight of the coffee table in the living room of the MacDonald house?
A The exact weight I cannot give you. I can give you an approximate weight of 25 to 30 pounds.
Q Is that approximate weight being based upon your having put it on a scale at sometime in the past, but your inability to recall that exact weight?
A No, it’s based upon my experience of having lifted items 25 to 30 pounds.
Q In other words, part of this experiment that you conducted with the coffee table, you never bothered to weigh that particular item. Is that right?
A That’s correct.
Q You don’t know what the weight of the coffee is, as opposed to its legs, do you?
A No, I only know that the top is heavier than the legs.
Q Well, perhaps you could tell us to the extent that you could tell us the exact dimensions of the coffee table?
A Off the top of my head I cannot give you those exact dimensions.
Q Is that because you, yourself have never measured the coffee table?
A I did not personally measure it. It has been measured, but I do not have the dimensions.
Q You have told us that the table was measured by some person other than yourself. Is that right?
A That’s correct.
Q Would you be good enough to provide us who measured that table?
A It was one of two persons, either Mr. Robert Shaw or Mr. Hagan Rossi.
Q And did they reduce those measurements to writing somewhere?
A Yes, they did.
Q Have you had occasion to look at those measurements at sometime?
A No, I did not.
Q You did not. So you do not have any idea what the exact measurements of that table are?
A I do not.
Q You just have a guesstimate, I suppose, based upon looking at them?
CPT SOMERS: I object. He’s answered that question.
MR. SEGAL: This is cross examination. I think you are entitled some latitude to develop the basis--
CPT BEALE: The objection is overruled.
Q Now would you be good enough to tell us, please, on what date you performed the first experiments referred to here this afternoon on the coffee table?
A It was subsequent to the laboratory team going back to Fort Gordon.
Q You mean sometime after February 21st?
A That’s correct.
Q Could you be a little bit more precise as to what date the first of these experiments of the coffee table were performed?
A I would say the date following, as close as I can recall.
Q And then on how many succeeding days did the coffee table experiment continue? How many days?
A Every time I went in the house, not once, but every time I went in the house, the majority of the time, I would conduct it. I would leave it, go do something else and come back and try it again.
Q Would you give an estimate of how long a period of time the experiment took place?
A I would say over a period of a few weeks.
Q A few weeks. And how often were you in the house on Castle Drive during that period of time?
A Almost constantly.
Q Well, do you mean once a day, twice a day?
A Taking into consideration the break for lunch, I’d say twice a day.
Q And that would be over a period of two or three weeks?
A That’s correct.
Q Now who else participated in the coffee table experiment besides yourself?
A Myself, there was Mr. Shaw.
Q Did Mr. Shaw knock the table over?
A Yes, he did.
Q And who else?
A There was Colonel Kane.
Q Colonel Kane participated in the coffee table experiment?
A Yes, he did.
Q Are you telling us that he, himself, knocked the table over?
A Yes, he did. Other investigators were there, Mr. Grebner, the Chief of the CID here at Fort Bragg, and at least one member of the Federal Bureau of Investigation, that I know of. I don’t know his name. I can’t--it may be Mr. Tool, I’m not sure.
Q Would you be good enough to tell us approximately when Colonel Kane participated in the coffee table experiment?
A I do not know.
Q Would that be April of 1970?
A Possibly.
Q It wasn’t shortly after the CID, or the investigating teams from Fort Gordon left?
A Oh, no, no.
Q Much more recent than that?
A Yes.
Q And may I ask what the circumstances in which Colonel Kane came to be invited to parti-cipate in the experiment?
A I was not present. I do not know.
Q Do you know who was present when that was done?
A Mr. Shaw and I believe Mr. Grebner was there, and I’m not sure if Colonel Kriwanek, the Provost Marshall was there or not. I do not know. This is just something that’s back there. I don’t know for sure.
Q Something that is in the back of your mind that you can’t be positive about?
A Yes, about Colonel Kriwanek.
Q Right. How about the other persons you have named?
A Those others I am sure of.
Q You are sure because someone has told you about that. Is that right?
A Yes.
Q Who told you about that particular incident when Colonel Kane was there?
A Mr. Shaw and Mr. Grebner.
Q And they, I suppose, also told you the results of the experiment?
A Yes.
Q They didn’t--you, yourself, didn’t observe that experiment when Colonel Kane was there. Is that right?
A No, I didn’t.
Q Now you’ve testified in some detail this afternoon about the MacDonald house and the location of various items there. Is that correct?
A That’s correct, sir.
Q And you’ve also testified to certain to certain details, where you went, and at various times, what you did. Is that correct?
A That’s correct.
Q You’ve also given us time intervals, or time fixes as to when you did certain things on the morning of February 17th?
A Correct.
Q And you’ve also given us certain other details as to the locations of blood spots, et cete-ra. Is that right?
A That’s correct.
Q Now I assume that you had occasion to look at your file or some other document before coming here, so that you could give us accurate answers in those regards. Am I correct?
A You are correct.
Q Now, may I ask what it is that you looked at in preparation for your testimony here today?
A Nothing really specifically, just in keeping myself abreast of the case, and I have periodi-cally reviewed the photographs.
Q Well, the photographs don’t indicate to you the various times that you performed certain acts.
A That’s correct.
Q The photographs don’t indicate when the doctor, say when Doctor Neal came and what Doctor Neal did. Is that correct? The photographs don’t tell you anything about what Doc-tor Neal did when he came to the house?
A No.
Q Well, do I assume correctly that you had occasion to look at your records and determine to refresh your recollection about these various points?
A Yes, well, if those are referring to records and my memory.
Q I understand that obviously you have a certain amount of memory in this regard. Is it fair to say that the records that you referred to is your reading file that you are in charge of in connection with this investigation?
A That’s correct.
Q And may I ask when was the last time you had occasion to look at the reading files for the purpose of refreshing your recollection?
CPT SOMERS: I object to this question. It is irrelevant. In fact, this whole line of testimony is irrelevant.
CPT BEALE: Would you care to make an offer of proof as to what you are driving at?
MR. SEGAL: Yes, sir, I want to determine to what extent the witness is testifying of his own independent recollection as opposed to past recollection refreshed by review of his own re-cords, and I think there is some indication already that the witness has indicated he referred to documentation for purposes of refreshing his recollection. And then we will go to the ap-propriate questions as to the matter. I think the direction of where we are going should be apparent. I would be glad to elucidate further. I think it is fairly obvious, though.
CPT BEALE: The overrule--the objection is overruled. You may continue.
Q If I may ask the question again to you, Mr. Ivory. Is it fair to say that you have recently reviewed these reading files in preparation for your coming to testify?
A Yes.
Q And to the best of your recollection how recent was that review of your files?
A Today being Tuesday--prior to the weekend.
Q Prior to the weekend that just passed?
A Yes, sir.
Q Are you indicating that you had occasion to review the files, say, on last Friday?
A I am in a continuous process of reviewing the files. It’s a continuous thing.
Q Well, did you have occasion, however, last week on both Tuesday and on Friday to review the files for the purposes of refreshing your recollection about the investigation you were in-volved in?
A Yes, I did.
Q Did you have occasion to believe that you might be called to testify last week in connec-tion with this hearing?
A Yes, I believe so.
Q So that it would be natural for you, in anticipation of being called here, to look at your records and your file to get ready to give the court the knowledge you have?
A Correct.
Q Do I assume again correctly that the reason you looked at your records was for the pur-pose of making sure that your recollection was not in conflict with anything you’d written down before, so you would be able to accurately testify here?
A Correct, to see if I had forgotten anything.
Q And is it also fair to say that in looking at the reading file, that it in fact did refresh your recollection to specific details of what you did and what other people did in the course of the investigation?
A Not to refresh my memory; I had known normally, just reaffirmed what I had already known.
Q You are not suggesting are you that every single detail that you testified to is, you know, on instant recall?
A Oh, no, of course not.
Q And that in fact it is easy to say that you looked at the file for the purpose of making sure that you could recall properly the details?
A That’s correct.
Q And I would gather that since February 17th, 1970, you had some other official duties as-signed to you besides the investigation of this case?
A Yes, that’s correct.
Q As a matter of fact, you were assigned to the investigation now of a very serious explo-sion that took place on Fort Bragg in the last few weeks. Is that right?
CPT SOMERS: I object. That’s irrelevant.
CPT BEALE: Objection sustained. The last comment will be stricken from the record.
Q How many other investigations not related to the MacDonald case have you been involved with since February 17th?
CPT SOMERS: I object. It is irrelevant.
MR. SEGAL: The basis of the question is to establish whether or not this particular witness is dealing only with recall of the specific items of a single matter, of a single case, as opposed to having to keep track of a number of different investigations. We have reason to believe on the basis of information we have, that, as any other investigator, that this person is in fact involved in a number of investigations, and that it is necessary to keep track of his file in each particular case, to keep his memory current and accurate for the purpose of testifying.
CPT BEALE: Mr. Segal, based on what you said, then the logical question to ask this witness is very simple. Are you, in fact, involved in other investigations?
MR. SEGAL: I will accept that, and place the question to you in that fashion.
Q Are you, or have you been, since February 17th, involved in other investigations, other than the MacDonald case?
A Yes, I have.
Q Could you give us just an approximate number of those investigations?
A Three.
CPT SOMERS: Object.
CPT BEALE: Mr. Segal, I think that Colonel Rock has gotten the gist of what you are trying to establish. I think perhaps you should go ahead and move to another area.
MR. SEGAL: May it please the court, at this time I would respectfully request that the gov-ernment make available for examination by the defense the file that this investigator has had occasion to review for the purpose of refreshing his memory or recollection before coming here.
CPT SOMERS: I object to that. The witness has come in here without notes. He has not referred to any notes. He’s said that he has done nothing but reaffirm and refresh his memo-ry prior to coming here. There’s no foundation laid for the production of these records, and we certainly object to their production.
MR. SEGAL: May I say that it is the very fact that the witness appears in the courtroom without notes and testifies to great details that gave me cause, and cause to counsel for the accused to ask a number of questions of this witness. It is very apparent that the enormous detail you are referring to, including such things as precise times, 0405 for certain persons, and 0445, other persons, does not seem readily apparent to me a detail or fact that would necessary be on top of a person’s mind, particularly as it has likewise been established this individual has other responsibilities, for other investigations, where obviously times and dates for people involved. However, the witness has gone beyond my surmise, or the surmise of the investigating officer, and that is he has said in anticipation of giving testimony here, he has sought his own file out for the purpose of refreshing his recollection, for the purpose of determining how accurate his own recollection was. It is clear, therefore, that the testimony the witness has given today, or a portion of it, or a substantial portion of it, is not entirely of his own recollection, and aided by the use of documentation, and that documentation there-fore becomes as much the subject of the cross-examination as his memory, because it is not entirely his memory, that he relies upon. This is a classic rule in terms of the fact that when a witness makes reference to documents for the purpose of aiding him in court testimony, the documents must be examined by the cross-examining counsel, otherwise we do not really ex-amine the witness’ own recollection in that regard.
CPT SOMERS: This witness has testified that he is testifying from his recollection. The rule which the defense counsel has made reference to does in fact exist and it refers to notes or other materials which are brought to the hearing room and used to refresh the recollection of the witness. This witness is, however, a trained investigator and it is not apparent to me, even though it may be apparent to the defense counsel, that it is necessarily unusual for him to remember specific times or dates or anything else; and for that reason I persist in my posi-tion that there is no basis whatever for the production of these records.
MR. SEGAL: There is one other matter, if I may, I think the investigating officer ought to be aware of; that part of the reason for the rule of law which says that if a witness relies upon the examination of records for the purpose of refreshing his recollection, that since examina-tion may be selective by the witness, that he may either intentionally, or inadvertently re-view certain portions of his records for the purpose of refreshing his recollection, and not re-viewing other portions which may, in fact, conflict with his memory or conflict even with his own testimony. It is even conceivable that within the same set of memoranda that he has occasion to refer to there were conflicting versions of facts, and that in selecting a special version or a single version to give, he nevertheless has rejected, accepting recollection of other facts, perhaps that are contrary and therefore cross-examining counsel has a right to say why did you select to recall a, or reply upon a version, when b version also appears in your file, which appears to be contrarily different. And it is for that reason that the under-lying documentation becomes the subject of a cross-examination, not because we seek to do anything improper, but simply because the witness, I think, has very candidly admitted with no hesitation really, that only on reflection, having--yes, last week I anticipated coming here. I looked at the file Tuesday. Having not been called last week the witness has, again on Friday, re-looked at the file for maintaining and bring up to date his recollection of the facts. It seems to me that the suggestion by government’s counsel that simply the failure to bring the records into the court--doesn’t prohibit us from examining. It is very obvious, therefore, that the witness did not want another party to examine his records, because of inconsistency. He makes his examination at another place and closes the file and comes un-armed with those records. The law doesn’t recognize that kind of approach as a valid one to preclude the examination of the records of this witness.
CPT BEALE: Mr. Segal, at this time your request for the CID reading file or files is denied.
Q Now, Mr. Ivory, did you make some notations about the experiments you performed on the coffee table?
A Yes.
Q What kind of notations did you make about it?
A The notations such as the reading file notations.
Q Well, what is it that you wrote down about those experiments? Did you indicate the date on which you performed it?
A Yes.
Q Do you recall what were the dates that you performed the experiments?
A They began as I said before, after the laboratory team departed. So it would be the 22nd of February.
Q Are you indicating to us that if you examined the file you could then tell the investigating officer on what dates you performed the coffee table experiments? Is that correct?
CPT SOMERS: I object to this question, and this line of questioning again. The defense is again attempting to get at the issue of the reading files in this case. The witness has testi-fied to the best of his recollection on this matter.
CPT BEALE: Well, now, counsel, I believe the witness just stated that his past recollection is recorded and would be refreshed were he to look at it. Is that correct, Mr. Ivory?
WITNESS: Correct. Now this would not be for each time the experiment was conducted. It would be recorded for, say the initial one, and maybe some indication, some entries later on where subsequent experiments were performed, but not all of them, because it would be just in passing by the table and I would give it a flip and then it would go over, not being a planned experiment, but just being coming to mind, I’ll try it again, and doing it right then.
CPT BEALE: Well, now, Captain Somers, you have made an issue of this particular experi-ment. Then to give the defense the full opportunity to cross-examine, it would be fair to let them have knowledge of when, if and when these experiments were conducted, and if the witness cannot recall it from his memory, but just sitting there without any notes, if in fact his memory can be refreshed then he should be given the opportunity to refer to those notes.
CPT SOMERS: Well, the government will contend that when these experiments were per-formed would be totally irrelevant regardless. How they were performed would be relevant, and the method of one of them can be inquired into by the defense counsel and answered by this witness, but whether it was done on a Tuesday or a Friday would be entirely irrelevant as to anything which could have anything to do with any issue in this case.
MR. SEGAL: It seems the issue is not clear before the investigating officer, at this time. We have not asked for anything at this junction, and I persist that I have a right to examine this witness further with regard to other details about the experiment. It may be at the conclu-sion, that we will have to renew the motion for the records, but I think at this juncture it’s irrelevant for the government to argue about the records. We haven’t asked for them now.
CPT BEALE: That’s quite correct, and I think the problem here, CPT Somers, you are trying to be selective about what is relevant and what isn’t relevant reference these experiments.
The least you can do is give the defense their opportunity to examine this witness on the ex-periment, so therefore your objection is noted, but overruled.
Q Would your notations indicate the last time you performed the experiment?
A Perhaps not.
Q Perhaps not? But would it give you a date that would enable you to calculate how long thereafter, that is how long after your last entry, did you perform your last experiment?
A No, it would not.
Q Now would the records show that you have made or notation you have made for yourself tell anything else other that the fact that on, say 27 February you performed the coffee table experiment? Does it say anything else other than that with regard to this particular experiment?
A It would probably say something like the coffee table was again tipped over and again landed on its top.
Q Would it indicate to you on how many occasions the coffee table was tipped over against, say, the rocking chair that was located in the MacDonald house?
A No, it would not.
Q No notations of that at all?
A No.
Q Can you indicate to us on how many occasions, in fact, you tipped over the coffee table against the rocking chair?
A It was never done purposefully to knock it against the coffee table--I mean against the rocking chair, but on occasion it did hit against the rocking chair.
Q Well, can you indicate to us how many times the coffee table was tipped over and fell up against the rocking chair?
A A few times that I can recall.
Q A few times?
A Two, three, four.
Q Does the record that you made of these experiments show the number of occasions that it was tipped over against the rocking chair?
A Probably not.
Q Now do your records show the location of the coffee table at the time you performed these experiments?
A No, it would not, except probably to say that it was put in a position thought approxi-mately to be its normal position by the couch, or something like that.
Q And do I gather that that was an estimate made by you?
A That is correct.
Q Because no one had ever marked on the floor the position of the coffee table as it was found at the MacDonald house?
A It was marked by other investigators.
Q No, you don’t understand. Did you ever mark up the position of the rug on which the cof-fee table was found on the morning of February 17th?
A The table was not marked. However, measurements were taken.
Q The measurements were taken. Will you indicate to us, now, please, exactly the mea-surements from which the coffee table was found relevant to the sofa and to any other fixed object in the room?
A I cannot. I did not take the measurements.
Q Have you had occasion to refer to those measurements at any time?
A No, I have not.
Q Well, how could you reconstruct the experiment of the coffee table if you didn’t know ex-actly how close the coffee table was to the sofa, say?
A As I started to say, we put it in a position we thought may be a normal position varying in degrees and distances away from the couch. We could never say we know exactly that’s how the coffee table was standing before it was initially put on its edge. We couldn’t say that because we never saw it before it was laying on its edge.
Q My question is to you if you took the measurements on the morning of February 17th or shortly thereafter while the coffee table was still in its position, did you not use those mea-surements for the purpose of running your experiment again?
A I did not.
CPT SOMERS: I object. He’s said that he did not take these measurements. He’s also said he hasn’t seen them.
MR. SEGAL: He has volunteered the information with regard to the existence of the mea-surements. I think it is appropriate now to discuss those.
CPT BEALE: Well, it is true that the witness has stated that he did not in fact take the mea-surements, so therefore the objection is sustained.
Q Did you ever read those measurements?
A No, I did not.
Q You did not. You don’t know to this date what those measurements look like. Is that right?
A That’s correct.
Q How about the location of the rocking chair in the living room? Do you have any notations as to the exact position of the rocking chair in reference to both the coffee table and the so-fa and the near wall?
A No, I do not; in reconstructing the scene, photographs were used.
Q You were aware, of course, that there are problems with perspective and distortion that arises sometime, the angle at which a photograph is taken. Is that correct?
A This is correct.
Q And would you not agree that the more accurate way of trying to reconstruct the scene, when it’s available, is to use measures taken of the actual location?
CPT SOMERS: I object. Counsel has reverted to the procedure of testifying for the witness and then asking him whether this is right or not, and in doing so, using extremely long and involved factual situations.
MR. SEGAL: I would suggest that if there is any problem in that regard, of course the wit-ness can be advised that if he does not understand the question, he has the right to ask for it to be explained. Although, I think that needless because Mr. Ivory has already indicated to us this afternoon that when a question was unclear he was in a position to ask us for a clar-ification. Secondly, so far as positing various facts, I again reiterate, it is a fundamental rule of cross-examination, it is the right of cross-examination to posit certain possibilities to a witness and to ask him whether in fact he accepts the facts that are posited to him. He has the right to refuse to accept them. He has a right to accept them, or he has a right to ac-cept them in part and reject in part. And if, in fact, we posit facts and he agrees to them, then in fact that becomes his testimony. But that, as I have learned it for many years is what cross-examination is about, and what distinguishes it from direct examination where you may not suggest the existence of any given fact.
CPT BEALE: The objection is overruled.
COL ROCK: However, I would request for the benefit of the investigating officer, once again try to make these as simple as possible so that we can get simple and clear answers. It is my impression that the basic experiment was conducted to determine whether this item would land on its edge, and the witness has indicated that in none of his experiments did it so land on its edge, but on its top, and therefore I fail to see the relevance of the measure-ments which were made indicating where it was located at the time the photographs were made. I’m a little bit confused, counselor, about your line of questioning.
MR. SEGAL: May I explain the basis for my questions then, sir, and that is that as we exam-ined the physical evidence together with the investigating officer, and as we have looked at various photographs, there appear to be other items of furniture in very close position to the coffee table, and specially I had occasion to refer to the placement of the rocking chair, which in some photographs appears to be cheek and jaw against the coffee table. It seems to me that if the experiment is to receive any weight whatsoever, let alone be even admitted into evidence, there should be some indication here as to whether the experimenter took cognizance of the fact the photograph of the crime scene placed the coffee table not in some general position unrelated to other items, but in fact it places it in a position of one close to the sofa, at least at one end of it, and then again almost up against a chair that was in the room and is still there.
COL ROCK: Fine. I understand your reasoning. I would suggest that perhaps maybe some of the photographs would expedite the procedure.
MR. SEGAL: In view of the hour, sir, I want to just very briefly shift to another matter, be-cause I think we will have to resume this particular subject tomorrow.
Q May I ask, Mr. Ivory, what experiments or investigations you have made in the MacDonald house since May the 1st of 1970, if any.
A Since May the 1st?
Q Since May the 1st, that’s right. That’s the date on which Captain MacDonald was formally charged in this case, and I picked that arbitrarily as a point of demarcation.
A Possibly to try the table again. To draw on dates exactly, I would have to go to the seal log, the register, which is posted inside the house, and then I could say, yes, I was in the house in this period and that period.
Q Can you indicate from your recollection, at least from this point, what, if anything, of ma-jor significance to you has been done inside the MacDonald house since May the 1st, 1970, in regard to the investigation of this case?
CPT SOMERS: I object, as I don’t see the relevancy.
CPT BEALE: Would you indicate it, please?
MR. SEGAL: The relevance is that we believe that we are entitled at this time to request to-night for permission for counsel for the accused to be in these premises for the purpose of making an examination so that when we renew tomorrow's cross-examination, we will have a further opportunity to view this physical location of the crime. We have never had this op-portunity to do so except on the single occasion in the presence of the investigating officer.
We think we are entitled to, in particular in this crucial time in this case, to have counsel for the accused alone without the prosecution present and to have access to these premises, and we think it is undesirable and improper that we have been denied them up to now, and I think at this point we are entitled to pursue and have the government show what, if any-thing, meaningful they have done for the last two months in regard to this building, because I put to the investigating officer that I have reason to believe that nothing of any great impor-tance has been done, that we have simply been denied the act just because the government is unwilling to let us use the physical premises for the purpose of our own investigation, and that we have now arrived at that point in this hearing that they no longer can deny us that opportunity, and I desire to now establish it, if need be, although I frankly, I think it’s so clear at this point that it may be necessary now for me to ask any additional questions in that regard.
CPT SOMERS: The house at 544 Castle Drive is secured against all personnel except inves-tigators. It is secured that way because it is, in itself, evidence. There will be--the regula-tions surrounding such evidence do not permit it to be left in the custody of anyone other than an authorized agent, or personnel responsible for the custody of that evidence, or if such personnel are there, that they must be in the presence of such investigators or other personnel responsible for the custody of that evidence. Now, the defense in this case has been in the house when we viewed the scene in a group, and they have access to Captain MacDonald who lived in the house.
COL ROCK: Mr. Ivory, is it reasonable for you to make the keys and yourself or Mr. Shaw or some other agent available this evening to allow two members of the counsel for the accused to accompany you to the address at 544 Castle Drive?
WITNESS: Sir, before I could honestly answer that, I would have to check with my com-manding officer. I would have to have his authorization.
COL ROCK: All right, how long do you think that would take you? Fifteen minutes, or so?
WITNESS: I beg your pardon, sir, I don’t know. I may have to trace him down.
COL ROCK: Well, this hearing will recess until you’ve had sufficient time to try to determine the feasibility of this course of action.
WITNESS: Yes, sir.
(The witness departed the hearing room.)
COL ROCK: What else do you have, counsel?
MR. SEGAL: What I want to request of the investigating officer is that permission be granted for the examination of the house be made by counsel for the accused, in the absence that is that we be permitted to be inside of the house without representatives of the prosecution being present. Now I would suggest to the investigating officer two matters, one, that all the persons we have permission to enter the premises are attorneys at law, and are subject to the sanctions of the supreme court of various states; that any attempt by anybody to in any fashion, interfere with the evidence in that premises would be dealt with in the most se-vere fashion. But further, sir, I would suggest to the investigating officer, that myself and whoever else is permitted to enter the premises in the absence of a member of the prosecu-tion be placed under oath at this time to state what their obligation will be and they will ac-cept the responsibility to in no way interfere with the premises or the evidence contained therein, and we will respond again under oath tomorrow as to what, if anything, we may have done, if that kind of assurance is necessary. But I do think that we have arrived at the junc-ture now, almost five months after the crime that has taken place on the premises, that counsel for the defense at long last ought to be allowed to conduct its own investigation, without having looking over its shoulder the prosecution. We have never been given that privilege to look over the prosecution’s shoulder, and it seems to me that the government has not articulated any reason at this time, they could reasonably expected anything to go wrong with us being allowed to be inside with the furniture and the boards that are left in that house. There are, among other things, inventories of the property there. There are photo-graphs of the property there. The government has other assurance that nothing can happen or go astray. It seems to me that it would be regrettable at this point that we should even be arguing of our right to have access to the building. There can’t conceivably be anything that is in the building that the government would not know instantaneously had either been removed or tampered with if someone was inclined to do so, from that standpoint of the ac-cused. But I must say, sir, frankly, Colonel Rock, that I take some umbrage at the sugges-tion that counsel for the accused is less honorable than counsel for the prosecution. I think we are entitled to same credibility before this investigation or any other bar as attorneys of the court, as attorneys representing the accused, who are certified to some extent and are members of the bar of various courts, that we would in fact accept our responsibility to use these premises only in the legitimate purpose, and, of course, in no way attempt to impede this investigation or other investigation that might be made at a later time.
CPT SOMERS: Sir, to begin with, the regulations surrounding the security of evidence of this type will not permit personnel to be present in the house without the custodian or the person charged with the custody of the house present. Now the government counsel has never been present in that house except under those circumstances, and as I understood the regulation surrounding it, neither can the defense counsel. It is not a question of whether they could reasonably be expected or not reasonably be expected to change or alter, or in some way tamper with that house. It is a question of whether or not the army Regulations will permit it, and I do not believe that they do. I personally feel that it goes too far for the defense to go in there at all, however, if they are permitted to go in there I can be fairly cer-tain, sir that it cannot be in the absence of the person charged with the custody of that house.
COL ROCK: Perhaps there may have been some misunderstanding, because it was my inten-tion that if, in fact, arrangements can be made, that some representative of the government charged with overall responsibility for the house, and its contents would be so present.
There is no question in my mind. Apparently this has been misconstrued, but there will be some governmental representative there at the time.
MR. SEGAL: That is the point of my suggestion, sir, that I think we should be entitled to be there, at least without a representative of the prosecution. If, in the interest of protecting the security of the property I would suggest--
COL ROCK: I had not intended--excuse me--that counsel for the government would be there, Mr. Segal.
MR. SEGAL: I did not assume that, sir, but I did assume the fact that one of the investiga-tors in this case, who are really agents of the prosecution would be present. But my sugges-tion to the court will be twofold; that either a person who is totally uninvolved in any aspect of the investigation, designated military officer, be present for the purpose of securing the premises; or that the legal officer of this investigation be present. We would accept his pre-sence as a neutral observer to assure the preservation of the premises.
COL ROCK: I’ll have to determine what sort of an answer I get from this inquiry by Mr. Ivory, and whatever the regulations require of me in trying to accomplish basically what has been requested, I will have to accede to the regulations.
CPT SOMERS: May I bring up another matter, since we are now without the witness, and I do wish to bring it up on the record.
COL ROCK: Make it brief, please.
CPT SOMERS: Yes, sir. The government requests as the first order of business tomorrow morning that it be permitted to put Mr. Caverly of the FBI on the stand to testify. We have managed by purely--by personal favor of Mr. Caverly to delay his trip until tomorrow for him to testify, at the cost to him of some of his leave, and we cannot longer delay him for this purpose. We request, therefore that he be permitted to testify as the first order of business tomorrow morning, because as you are aware, from that point forward he will not then be available, for another two and a half weeks.
COL ROCK: This appears to be a reasonable request.
MR. SEGAL: I am very much troubled, sir, because I fear that Mr. Caverly’s testimony will not be short, nor will its cross-examination be short, and we have a problem here of a witness who had now come to us on cross-examination. I would have been--I would have thought it more helpful if we had known earlier today that this was to be the situation, to hold this mat-ter until a few minutes before five p.m., and to announce that we are going to have a dis-junctive examination of this witness, presents a great problem. We have to abandon the preparation we are making of the cross-examination with Mr. Ivory, and to go ahead with the preparation on Mr. Caverly. I do feel that it really stretches the many courtesies this inquiry has extended to all counsel, to place this matter so out of context. I fear that we’d lose something substantial in not having the cross-examination of Mr. Ivory follow directly behind the direct examination and I think that we would be in a position of having to try and recon-struct what Mr. Ivory has said and done, and I fear that will lengthen the examination of Mr. Ivory because we are picking up pieces of today’s testimony, all of which I think could have been obviated by a more prompt appraisal to all counsel of the situation involving Mr. Caverly.
I think we could have proceeded in other fashion that would have avoided this kind of bind it places certain counsel for the accused in.
CPT SOMERS: I would like to point out first that counsel for the accused has been aware for some time that Mr. Caverly would testify in this hearing in terms of preparation for him doing so. And, second, that insofar as the government is concerned, the examination of Mr. Cav-erly should be very brief, and, as I have already stated, it has only been by virtue of Mr. Caverly’s generosity in giving up some of his leave, that we’ve been able to retain him here this long.
COL ROCK: When was counsel first advised that Mr. Caverly would be available tomorrow?
CPT SOMERS: Sir, I was advised of this about mid-afternoon today, and I wished then not to break up this proceedings until it came to a natural breaking place, and bring this issue up.
COL ROCK: The request is granted. Mr. Caverly will be the first witness of order tomorrow.
CPT SOMERS: Very good, sir.
COL ROCK: This hearing will be recessed.
(The hearing recessed at 1651 hours, 21 July 1970.)
(The hearing reopened at 0837 hours, 22 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that all parties who are present at the recess yesterday are here, minus the witness, Mr. Ivory. Counsel for the ac-cused has a statement to make.
MR. SEGAL: May it please the investigating officer, we are of the opinion that this morning the government intends to call Special Agent Caverly of the Federal Bureau of Investigation.
At this time I want to renew a motion made earlier in this proceeding and that is to exclude the testimony of Agent Caverly for several reasons. The first reason, if I may state so, sir, is that because the defense has been improperly denied access to Agent Caverly in that he has been instructed that--by the United States Attorney for the Eastern District of North Caro-lina, Mr. Warren Coolidge--not to speak with counsel for the accused. We believe that such a procedure violates the rights of the accused under the Uniform Code of Military Justice. In addition, sir, I want to call to the investigating officer’s attention, actually a matter which you have no immediate jurisdiction over, but which bears, I think, upon my motion to exclude Mr. Caverly’s testimony, and that is the position and the action of the United States Attorney for the Eastern District of North Carolina, while not within your purview, nevertheless casts a pall over the right of the government to call a particular witness, because of the actions of the United States Attorney, I feel most gravely, are in violation of the Canons of ethics for attorneys and I wish to call to the attention of the investigating officer two opinions of the Professional Ethics Committee of the American Bar Association; one being informal number 304, published page 71 of the 1957 volume of the Opinion on Professional Ethics and Griev-ances of the American Bar Association, which specifically says that in a capital case, no law-yer has the right to close the mouths of witnesses. And that further Opinion Number 131 of the same Committee of the American Bar Association, again published in 1957 volume, which again specifically holds that there’s an absolute right on the part of counsel to interview all witnesses and that it is improper and unethical for any lawyer to close the mouth of a wit-ness to counsel who wishes to interview him.
Now on the second level, sir, something which I think is clearly within the purview of the investigating officer, is the fact that we have reason to believe from our pretrial proceedings in this case and other investigations conducted by counsel for the accused that present at the time that Special Agent Caverly interviewed the accused in this case, Captain MacDon-ald, were one or more investigators from the Criminal Investigation Division, and we have rea-son to believe, sir, that one of the men present at the time of the interview by Agent Caverly was Criminal Investigation Agent Hodges; that counsel for the accused requested on 17 July the opportunity to interview several of the criminal investigators we had not been allowed to see before including specifically Mr. Hodges, and that a copy of our request was handed and delivered to Mr. Grebner, the Chief Investigator, with copies to counsel for the government and copies to the investigating officer. That since 17 July we have not received a reply, nei-ther in writing or orally, in regard to our request to interview these agents. But, particularly Mr. Hodges, because his testimony clearly relates to what we anticipate is the testimony, or one of the subjects to be covered by Mr. Caverly. It is our opinion that we are not in a posi-tion to properly cross-examine Agent Caverly, he having been precluded to us first of all by the actions of the United Stated Attorney, and secondly, we have no chance to properly cross-examine him as to what other witnesses to perhaps the same interview would have told us. We have no way of confronting him if there are any possible inconsistencies with such facts because the other persons who are privy to the same facts that Agent Caverly, have been as of this date not made available to us. It seems to me that the government, having in fact, created this situation by its intransigencies, refusal to let us see Mr. Caverly, its re-fusal to properly act on the request to interview the agents of the CID, who perhaps could clarify some of the testimony that Agent Caverly will give, so that we could, in a collateral way, learn what he’s going to talk about. It seems to me, the government taking all those positions, this investigation had only one relief that it could offer to the accused, and that is to exclude Agent Caverly at least at this time, from presenting or giving any testimony at this tribunal.
COL ROCK: Does counsel for the government wish to reply?
CPT SOMERS: Certainly. It should first be pointed out that no person may be compelled to consent to an interview against his wishes, and that Mr. Caverly has personally decided, as has been pointed out before, that he would not wish to be interviewed. Secondly, it should be pointed out that there are Federal regulations regarding the testifying and interview of investigatory agents of the United States Government. Some of these may be found in 28 CFR at Section 16.11 through 16.14. They make it very clear that the control of such infor-mation is very tight and belongs in the hands of the United States Attorney, and ultimately in the hands of the Attorney General of the United States. I would like to point out further that Mr. Hodges’ name has been available to the defense for some time, not a week or two weeks, but a month or two months, during which time they could have arranged to see Mr. Hodges.
Now, nobody has ever prevented these people from speaking to investigators. It has been requested that it be done at their mutual convenience. I respectfully submit that the con-tentions of the defense are totally without merit and that their request remedy is improper and should not be granted.
CPT BEALE: Captain Somers, let me ask you one thing. Both Colonel Rock and myself re-ceived a copy of this particular request or statement that was addressed to Mr. Grebner. Do you have within your knowledge what action, if any was ever taken on that?
CPT SOMERS: I don’t, no. The letter in question, I believe, was addressed to Mr. Grebner and I don’t know whether there’s been any follow up on that letter either from the defense or from Mr. Grebner. I know that the defense has been told on several occasions that it may speak to the investigators, and all it need do is arrange a time and place.
MR. SEGAL: If I may, there’s a couple of factual matters that must be made clear. First of all, it was not until Friday, 17 July, the defense was told that it would never be permitted to interview Mr. Caverly, and Mr. Caverly is obviously the person most important to us in deter-mining what was said in the interview, rather than going to a secondary source such as Mr. Hodges. Secondly, and to reinforce my position that we did not know until 17 July that Mr. Caverly would not be available to us, I quote to the investigating officer, if I may, the 2d Endorsement, signed by Captain Somers, counsel for the government, under date of 27 May 1970, paragraph number 9, in which he says, “Mr. John W. Hodges and Mr. Paul A. Connelly, of the Fort Bragg Criminal Investigation Division, as well as Robert H. Caverly, Special Agent, Federal Bureau of Investigation, Fayetteville, North Carolina, interviewed Captain MacDonald and they are available to the defense for interview.” And not until 17 July did we learn that the primary witness, who we were previously advised would be available, was absolutely for-bidden, not as far as we ever learned ourselves of our volition, but by order of the United States Attorney, to talk to us. I have no way of confirming or denying what Captain Somers says, that Agent Caverly has, of his own volition, decided, because first of all we know he’d been ordered, even if he wanted to, not to talk to us. But secondly, we have never been able to confront him personally because of the government’s inner position, to find out what his own position in this regard is. But it is now too late to do anything about that. As I said, since the government told us that Mr. Hodges would be available, there is no reason why there should have been delay since the 17th of July as today’s date to find out when we can have them. I want it further pointed out to the investigating officer, and we can corroborate by tape recordings made at the time, of the resistance to interview given by the criminal in-vestigation division to counsel for the accused, on the occasion where we attempted to set up interviews. We have been blocked by suggestions that they would not come until they had attorneys, that they would not come at specific times requested, but that does not seem to be important at this time. We are in the middle of a hearing; since last Friday they have known we wanted Mr. Hodges. We have a letter of 27 May saying we could have him whenever we needed him. It seems that the government has effectively blocked counsel for the accused from doing the proper job in preparing to cross-examine Mr. Caverly. For that reason, his testimony, again, sir, I respectfully renew, should be excluded from these pro-ceedings.
COL ROCK: Continue, counsel.
CPT SOMERS: Sir, there is one contention of the defense which I cannot allow to go unchal-lenged on this record. On the first day of this of this hearing, the 6th of July 1970, the issue of whether the defense would be permitted to interview Mr. Caverly was raised. On the sec-ond or third day of the hearing, I do not remember which it was, I conveyed the information to the investigating officer, as well as to the defense, that he was not going to be available to the defense for interview. At that time the defense asked that his testimony not be ac-cepted, and the investigating officer ruled that it would be. It is not correct that the de-fense has known only since the 17th that it would not be permitted to interview Mr. Caverly as is manifest from the record of this hearing.
COL ROCK: The observation by both counsel on the matter of testimony of Mr. Caverly have been noted. My original ruling, however, stands in effect, and Mr. Caverly will be permitted to testify in this hearing.
CPT SOMERS: At this time, your honor, the government renews its request that Mr. Proctor of the United States Attorney’s Office be permitted to be present in this hearing during the testimony of Mr. Caverly as a representative for Mr. Caverly, and as an associate to the gov-ernment for the witness.
COL ROCK: This request will be granted. It is noted that I made a ruling previously that he would not be permitted, however, having reviewed the authority and direction by the ap-pointing authority, and in light of the nature of the testimony of the witness, and in the fact that he is being represented by his own personal counsel and is not a member of the general public, this counsel will be permitted to sit with the witness.
MR. SEGAL: May I first of all make my objection, Col Rock, to the change in procedure, be-cause I think that it is not consistent with the policy that was laid down by the inquiry--this inquiry in terms of who has the right to be present. I understand that Agent Caverly is being called a witness in this proceeding, but the United States Attorney is not an attorney for the prosecution in this case. He is representing the witness. I do not know, for instance, whether or not the witness even is entitled under such a circumstance to have his attorney present but it would have to be at a request from him. But I understand what the govern-ment requested here in this case is not that the Assistant United States Attorney come in as counsel for the witness, rather that he come in for the purpose of assisting the prosecution, and it seems to me that it is inconsistent with the prior position taken by this court. It does not seem to me to be appropriate, and under these circumstances, to change the ruling now that we are in some two and a half weeks into this hearing, and I am very much troubled, sir, that we make such an exception. I would, of course, request therefore that we, at this time, waive the prior ruling of the investigating officer and permit members of the public, including the press, and permit it to be here. It seems to me once we have opened the door to this question of additional people coming in, people who we have no control over in terms of flow of information, that there is no longer any efficacious reason to prohibit the defendant from having his right to a public hearing. Lastly, sir, if I may inquire of the investigating officer, as to the circumstance leading to the change in ruling; I would think it important that the record in this case reflect whether any communications have been sent to the investigating officer in this regard from any higher authority, so that it should be clearly noted as part of the total proceeding of this case, how it came that, as I say, some two and a half weeks into these hearings, we have made what I think is a very unusual exception, and one which does not seem to be justified, other that the fact, that the government would like it, without it having established any overwhelming necessity for it.
COL ROCK: Your observations have been noted. However, my most recent ruling continues to stand. Your request that the general public and press to be admitted is rejected, and I have had occasion to review all of--many of the records concerning the entire proceedings during the course of the last two and a half weeks, including the directions which I have re-ceived from--originally received from the convening authority of this investigation, and I feel that my ruling is just and appropriate. Is counsel for the government ready to continue?
CPT SOMERS: Yes, sir. At this time the government calls Mr. Robert H. Caverly.
(Special Agent Robert H. Caverly was called as a witness and was sworn.)
MR. SEGAL: At this time, Colonel Rock, I request that counsel for the accused be given a copy of the statement that has previously been made by this witness to counsel for the gov-ernment. We have been assured previously, that before Mr. Caverly testified, in view of the unusual circumstances of his unavailability to us, that such a statement would be given to counsel.
CPT SOMERS: At this time, I hand the defense counsel copies of what he’s asking for.
MR. SEGAL: May the record reflect that I have been given two photostatic copies of a--three photostatic copies of a five page, single spaced typewritten statement, which purport-edly is a statement given by Agent Caverly. I ask at this time for an appropriate recess so that we may examine this before the direct testimony is taken from Mr. Caverly.
COL ROCK: This hearing will recess an appropriate amount of time. Counsel, what do you figure? Fifteen minutes, half an hour?
MR. SEGAL: May we have fifteen minutes?
COL ROCK: Certainly, this court will be recessed.
(The hearing recessed at 0858 hours, 22 July 1970.)
(The hearing reopened at 0918 hours, 22 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that those parties who were present during the recess are currently in the hearing room. Proceed.
MR. SEGAL: May I just make one correction on the record, Colonel Rock, please? I was un-der the impression we’d been given three copies of a single statement by counsel for the government. However, it appears that we were given three separate documents, and I want to reflect accurately that we were given a five page document, purporting to be a--relating to an interview of Captain MacDonald on February 17th 1970. We were given a two page statement purporting to be an interview of Captain MacDonald on February 18th, and we were similarly given a two page interview on February 19th. We have those documents, have examined them, and are ready to proceed.
Question by CPT SOMERS:
Q State your name.
A Robert H. Caverly.
Q What is your residence?
A Fayetteville, North Carolina.
Q And your occupation?
A Special Agent with the Federal Bureau of Investigation.
Q Do you know the accused in this proceeding?
A Yes, sir, I do.
Q Can you point him out and state his name?
A Captain Jeffrey R. MacDonald, sitting at the far end of the table. (Witness pointed to the accused.)
Q Mr. Caverly, did you have an occasion to speak to Captain MacDonald on the 17th of Feb-ruary of this year?
A Yes, sir, I did.
Q Where was that?
A At Womack Army Hospital.
Q Did you have an occasion to reduce the results of that interview to writing?
A Yes, sir, I did.
CPT SOMERS: At this time I request that this document be marked as a government exhibit.
COL ROCK: Government exhibit 76, five page statement by FBI Agent Caverly.
Q I show you Government Exhibit 76, Mr. Caverly, and I ask you if you can identify it?
A Yes, sir, I can.
Q What is it?
A It’s a transcribed statement of notes that I took on an interview with Captain MacDonald on February 17, 1970.
Q Is that transcribed accurately?
A Yes, sir it is.
Q Now approximately what time of the day did you interview Captain MacDonald on 17 Feb-ruary?
A 2:25 pm.
Q And did you speak to anyone regarding permission to see Captain MacDonald?
A Yes, sir, I did.
Q And can you tell us who this individual was or describe him to us?
A The--he was either a Major or a Lieutenant Colonel at Womack Army Hospital in the inten-sive care ward where Doctor MacDonald was being treated. I cannot recall his name, but he was tall, heavy set.
Q And what did you ask of him?
A If Doctor MacDonald was in a condition that he could be interviewed.
Q And the response was what?
A Yes.
MR. SEGAL: I object to that to the extent that it’s meant to be an indication that Captain--the condition. I don’t object to the extent that it only meant that he can indicate, yes, that he could go ahead and interview.
CPT SOMERS: That’s the only intention I have.
MR. SEGAL: I suggest that it be put in that fashion.
CPT SOMERS: I think the investigating officer understands.
CPT BEALE: Colonel Rock understands it, as long as the question and the answer is made on-ly in the limited fashion, that he was given permission to go in.
Q Can you describe Captain MacDonald’s condition at the time you saw him?
A Yes, sir. He was in a hospital bed. He was in pajama bottoms, had no top. He was--he told me himself--he was under sedation, however he agreed to be interviewed. He appeared to be alert and was responsive.
Q Did you have an occasion on the 18th of February 1970 to interview Captain MacDonald?
A Yes, sir, I did.
Q And did you reduce the results of that interview to writing?
A Yes, sir, I did.
CPT SOMERS: At this time I ask that this document be marked as a government exhibit.
COL ROCK: Government Exhibit 77, Mr. Caverly’s two page statement, apparently taken on 18 February.
(G-77 was shown to counsel for the accused.)
Q At this time I hand you Government Exhibit 77 and ask you if you recognize it?
A Yes, sir, I do.
Q What is it?
A It’s a transcribed statement of an interview with Captain MacDonald on February 18th, 1970.
Q Is that the statement that you took?
A Yes, sir, it is.
Q And is that exhibit--does that exhibit accurately reflect that interview?
A Yes, it does.
Q And where did that interview take place?
A At Womack Army Hospital.
Q And what was the condition of Captain MacDonald at the time?
A He was very coherent and stated to me personally that he was not under sedation.
Q Did you have occasion to interview Captain MacDonald on the 19th of February 1970?
A Yes, sir, I did.
Q And did you reduce the results of that interview to writing?
A Yes, sir, I did.
CPT SOMERS: At this time I ask that this document be marked as a government exhibit.
COL ROCK: Government Exhibit 78, Mr. Caverly’s two page statement date February 19th.
(G-78 was shown to counsel for the accused.)
Q I hand you Government Exhibit 78 and ask you if you recognize it?
A Yes, sir, I do.
Q What is it?
A It’s a transcript of an interview with Captain MacDonald on February 19th.
Q Is that the interview that you had with him?
A Yes, sir, it is.
Q Does that exhibit accurately reflect the results of that interview?
A Yes, sir, it does.
Q And what was Captain MacDonald’s condition at the time this was taken?
A He was very alert and coherent.
Q In these interviews was Captain MacDonald given an opportunity to affirm or disaffirm the substance of any prior statements?
A Yes, sir, he was.
Q In each case in what capacity was Captain –
MR. SEGAL: I must object to that as being a statement of conclusion. I have no idea of what was said or what was done, and I think it’s improper to allow the agent to characterize affirmation or not. I would prefer--I would further state I have no idea how it was presented to Captain MacDonald, so that this investigation cannot determine what was given to him, or how the procedure was followed. Therefore I would suggest that the answer be stricken, and if the government wants to pursue it, that they do it in the proper fashion, on the ques-tion and answer on the technique that was followed by the agent.
CPT BEALE: Captain Somers, do you have anything to say about that?
CPT SOMERS: I feel the question was legitimate and the answer also.
CPT BEALE: Mr. Segal, the objection is sustained, and the last response will be stricken from the record.
Q Mr. Caverly, in each case as to these exhibits, in what capacity was Captain MacDonald being interviewed?
A He was interviewed as a victim of an assault case.
Q Did you ever, at any specific time during any one of these interviews, ask Captain Mac-Donald or present Captain MacDonald with an opportunity to view his prior statements and affirm or disaffirm them?
A Yes, sir, at the first--
Q Would you give us a specific example of this, please?
A During the first interview with Captain MacDonald I took handwritten notes. At the end of a particular sequence, in order to get a logical sequence of events, I referred back to those notes and asked Captain MacDonald if the order was correct.
Q Now you’ve made reference to handwritten notes. Have those handwritten notes been transcribed?
A There were transcribed into three statements that have been presented as evidence.
Q And do those three statements represent the totality of those notes?
A Yes, sir, they do.
CPT SOMERS: Your witness.
Questions by MR. SEGAL:
Q Mr. Caverly, where are the handwritten notes that were used to prepare these typewrit-ten statements?
A They have been destroyed in accordance with the policy of the Federal Bureau of Investi-gation after a statement has been transcribed.
Q Can you tell me what policy you are referring to?
CPT SOMERS: I object. It is irrelevant.
MR. SEGAL: May I say to the investigating officer that the government chose to elicit the fact that there were handwritten notes, and that the government purports to say that they
--these documents, which on their face are written in a narrative fashion in full sentences, in a logical order, are in fact the statement of Captain MacDonald. I would say therefore the government has raised the question of asking this witness whether he copied all of it over. We have a right to pursue whether he is correct in that regard, or whether there have been any additions or deletions, but in the absence of the notes, we have a right to pursue the question and under what circumstances were the notes destroyed, because if there is any question to be raised about this statement itself, it seems to me that the investigating officer ought to be aware or be able to consider the question of whether the availability of the origi-nal notes places in doubt any aspect of this total statement when questions are raised about it by counsel for the accuse.
CPT BEALE: Mr. Segal, the witness has testified that he destroyed the notes, and as far as I am concerned it doesn’t make any difference under what authority he did it. If he did it, they are gone, and that’s that.
MR. SEGAL: Well, I agree, but if they are gone under circumstances which perhaps would raise some question as to the procedures followed by the investigating officer, as was in fact the question, I think I raised here on cross-examination by me of Mr. Paulk about the de-struction of his original notes. I was allowed at that time to proceed on with more questions about the subject. I don’t think it will require all morning, but I think that if we were allowed to do it at that time, it seems to be at least as appropriate now.
CPT SOMERS: If counsel wishes to examine into the contents of the notes, he can ask ques-tions as to whether--what the notes contained. The policy under which the notes were de-stroyed is irrelevant, and we strongly object to that line of questioning.
CPT BEALE: Your objection is sustained.
Q Can you tell, Mr. Caverly, when the notes of the interview of February 17th were de-stroyed?
A March the third.
Q Would that be the date on which the typewritten statement was prepared by a typist of the Federal Bureau of Investigation?
A Yes, sir, and that was the date that it was returned to me.
Q Did you ever show Captain MacDonald the typewritten version of the statement of Febru-ary 17th?
A No, sir, I didn’t.
Q Did you ever show him the full statement taken on February 17th, either in its typewritten version or the handwritten version?
A No, sir.
Q When you were making handwritten notes of your interview on February 17th, were you writing down his exact words, or were you, as you appear to be here, characterizing or para-phrasing what he was saying?
A I took down the exact words Captain MacDonald told me.
Q Is there some reason why the interview was not recorded in quotation marks, but rather appears to be your version of what Captain MacDonald said?
A There are parts of that statement in quotes.
Q I would agree that in fact there are a number of sentences where you placed the words in quotes. May I ask whether that was done to indicate whether those were the exact words given to you by Captain MacDonald?
A In those particular instances they are.
Q And you made a point of noting those verbatim as he stated to you while he was in the hospital?
A Yes, sir.
Q And is it fair to say though that in other parts where you did not put the words in quotes that you are purporting to say that those are the verbatim transcription of the words spoken to you by Captain MacDonald?
A That statement is a narrative.
Q Right, and the narrative, as a matter of fact was constructed by you because Captain MacDonald was unable to give you a coherently narrative?
A He was emotionally upset, yes, sir.
Q That was not the question I ask you, sir. Isn’t it a matter of fact that Captain MacDonald on February 17th was unable to give you a coherent narrative of what happened to him early that morning?
A Yes, sir, that’s true.
Q And as a matter of fact you thought that that aspect of his condition was sufficiently im-portant to make a notation of it in the statement itself?
A Yes, sir, because he jumped out of order, trying to get a sequence of events. As it hap-pened he jumped--would skip from one part and go to another part.
Q As a matter of fact is that the only thing that seemed unusual to you about Captain Mac-Donald’s condition during the course of the interview?
A I don’t understand your question.
Q Well, you testified on direct examination by the counsel for the government, that aside from the clothing that you noted, you observed that he, or Captain MacDonald told you he was under sedation, but he would try to tell you what he could, and that he appeared alert and responsive. You did tell us that a few minutes ago?
A Yes, sir.
Q Did you make any other observations about Captain MacDonald’s condition other than the fact that he had bandages on or something to that effect?
A I didn’t notice anything. The only thing I do recall was I was sitting on the left side of the bed, up toward Captain MacDonald’s head and he requested I move to the bottom of the bed, because he did not have his glasses on.
Q Would it refresh your recollection as to what your opinion was of his condition, if I directed your attention to the next to the last line of the first paragraph of the interview of February 17th?
A Right.
Q And having observed that part of the statement, what was your impression of Captain MacDonald’s condition at the time you spoke to him?
A He told me he was under sedation and was emotionally upset over the recent events.
Q And you did not disagree with that opinion, did you, that he was emotionally upset?
A No, sir, I didn’t.
Q As a matter of fact, did you not, in the interview itself, state your own opinion that during the interview Captain MacDonald was emotionally upset and at the time was unable to follow a logical sequence of events?
A Yes, sir, I did.
Q And was the purpose of putting that in this statement to indicate--trying to help him structure the events as given to you, or structure the time sequence of events as given to you?
A Yes, sir, because he would jump from one event to another and I was trying to get a logi-cal sequence of events.
Q Did you make a tape recording of any of these interviews while it was being given?
A No, sir, I did not.
Q Am I correct in assuming that the only record made of the interview were the handwritten notes which were then destroyed at the time the typewritten version was prepared by a typist in your office?
A Right, sir. I transcribed these notes in longhand, returned to my office, and on the first interviewed--interview on February 17th they were transcribed on the Dictaphone, forwarded to my headquarters in Charlotte where it was transcribed by a stenographer, and the typed statement was returned to me.
Q Was there anyone else with you at the time of the interview of February 17th?
A Yes, sir.
Q Can you tell us who that was, please?
A Investigator John W. Hodges, Criminal Investigation Division, Fort Bragg.
Q And was anyone else present besides yourself and Mr. Hodges at the time of the interview was taken?
A At one time a physician, doctor, at the hospital came into the room that Captain MacDon-ald was being interviewed because of his emotional upset. He started crying and we re-quested a doctor to come in and look at him.
Q And what did the doctor do, if anything?
A He didn’t give him any medication. He just settled down, Doctor MacDonald settled down.
Q What are--were you aware of what medication Captain MacDonald had been given prior to your interview?
A No, sir, I was not.
Q Did Mr. Hodges participate in the questions of Captain MacDonald that ultimately resulted in his statement of February 17th?
A Yes, sir, he did.
Q And the answers that are included in this statement of February 17th are the answers giv-en to the questions put by both you and Mr. Hodges?
A Basically they are questions put by me. Mr. Hodges had participated in the investigation earlier; as I stated previously I commenced the interview at 2:25 pm on February 17th.
Q At what time did the interview end, by the way?
A Ten minutes after four.
Q Now is it fair to say that you did most of the questioning in connection with this first in-terview?
A Yes, sir, I did.
Q And that Mr. Hodges only asked some supplementary questions from time to time based upon some details that he may have known?
A Yes, sir.
Q To your knowledge, did Mr. Hodges make any notes during the interview of Captain Mac-Donald while you were there?
A I believe he did.
Q Did Mr. Hodges have a recording device, a tape recorder?
A No, sir, he did not.
Q To your knowledge, had Mr. Hodges interviewed Captain MacDonald prior to your coming to interview him on February 17th?
A Not to my knowledge.
Q As far as you know you were the first--you and Mr. Hodges were the first investigators to attempt to take a reasonable full statement of Captain MacDonald on the sequence of events taken place earlier that morning?
A Yes, sir.
Q Now the interview of the next two days, the 18th and 19th, were they considerably short-er in terms of time that it took to take them?
A Yes, sir.
Q And did that appear because Captain MacDonald seemed to be in better physical condition on the 18th and 19th?
A Yes, sir, he was.
Q How long did it take to obtain the interview of February 18th?
A Approximately one hour.
Q And was there anyone else present with you on that date?
A Yes, sir, Mr. Hodges was.
Q Was there any other investigators assigned to you and Mr. Hodges on the 18th?
A No, sir.
Q And did you again conduct the bulk of the questioning of Captain MacDonald?
A Yes, sir, I did.
Q Did Mr. Hodges ask any questions?
A Yes, sir.
Q He did?
A He did.
Q Did you both make handwritten notes on those interviews?
A Yes, sir.
Q Did either one of you have a recording device at this time?
A No, sir, we did not.
Q On the interview of the 19th, how long did it take to take that interview?
A Approximately forty-five minutes.
Q And again, were you accompanied by anyone at that time?
A Yes, sir, I was accompanied by another Federal Bureau of Investigation, Robert F. Williams, and Investigator Hodges of the CID.
Q And who conducted the questioning of Captain MacDonald on the 19th?
A I had charge of the questioning, and at this time Agent Williams also injected a few ques-tions.
Q Did Mr. Hodges, to your recollection, ask any questions of Captain MacDonald on that in-terview?
A I believe he did ask a couple.
Q Who made the written notations as far as the Federal Bureau of Investigation was con-cerned?
A I did.
Q And did Mr. Hodges make any notations to your knowledge on the 19th?
A I believe he did.
Q Did Agent Williams make any notations?
A No, sir, he did not.
Q You were the only person recording that interview on the 19th as far as the FBI was con-cerned?
A Yes, sir.
Q Did any one of the three of you on the 19th have a recording device?
A No, sir, we did not.
Q Now on either the 18th or the 19th--strike that. Did you at any time show Captain Mac-Donald the typed version of these three statements for his examination and indication of cor-rectness or incorrectness?
A No, sir.
Q Was there any particular reason why you did not show him these statements to verify the information?
A No particular reason.
Q Did you ever ask Captain MacDonald to give a formal signed statement taken verbatim from him?
A No, sir, I did not.
Q Was there again any particular reason why he was not asked for a verbatim statement signed by himself?
A No particular reason.
Q At any time did he indicate that he would not give such a statement, or unwilling to give a verbatim signed statement?
A No, sir, he didn’t indicate either way, whether he was or was not willing.
Q Did at any time, he indicate any hesitancy or reluctances to any question you put to him on the 17th, 18th or 19th?
A No, sir, he didn’t.
Q May I ask, when did your participation in this investigation end, on what date, the approx-imate date?
A On the interview with Captain MacDonald on February 19th.
Q Beyond the interviews, that is when did your participation of the investigation of the killing in the MacDonald house end?
CPT SOMERS: I object. It’s irrelevant. This witness has testified only as to these three statements.
CPT BEALE: The objection is sustained.
MR. SEGAL: Well, may I say that if the ruling is based upon the position that the govern-ment--I think what the government is saying--that the questions are beyond the scope of the direct examination, we may then be in a position to unfortunately ask Agent Caverly, so that we may call him as a defense witness. I think the procedure we propose, to ask him a few brief questions about the investigation, and then as far as we are concerned, he can probably be excused. I would not like to impose upon a man who is about to, I think, go off on a vacation, but on the other hand, in view of the seriousness of the charges, I think the government’s insistence upon waiting until the defense case begins to call this witness, may be somewhat inconvenient and perhaps unbalanced, and we want to be fair to the witness as possible.
CPT SOMERS: The defense does not have the power or the right under the Federal Regula-tion to call this man as its witness. He is here to testify as to the very specific matter. He is available for cross-examination on that matter, and the government objects to the ques-tion which has already been ruled on.
MR. SEGAL: I cannot honestly believe that the government takes the position that because the agent works for the Federal Bureau of Investigation, that once he comes to court and gives information, that the only information that this inquiry may receive is what the govern-ment chooses to let out, and that other factors pertaining to the truth or the falsity, the correctness of the investigation, the appropriateness of the findings made are to be hidden from this investigating officer. It is inconsistent and I would call the court’s attention to the decision in Commonwealth versus Smith, or Smith versus the Commonwealth of Pennsylvania, which went to the Supreme Court of the United States, at which time the FBI had taken the position that they would not make statements of interviews available. The Supreme Court says it is absurd to suggest that once you bring a witness into court including FBI agents, and you open up their participation, that one should only be allowed to hear what the chooses to release. It seems to me once we’ve introduced these matter, we have only a few brief questions to ask in regard to when the participation of the FBI end, and what particular circumstances attended to the ending of their involvement in this case. It seems to me those are reasonable questions for the investigating officer to seek the answers to, and I cannot understand the suggestion that none of us are allowed to get even that minimal infor-mation simply because the government didn’t choose to ask on direct examination.
CPT SOMERS: Colonel, the government has two or three responses to this. First, this is not a court. It is a hearing without the subpoena power. Secondly, even were it court it would be subject to the Federal Regulations, which I have cited before in 28 CFR, Section 16.11 through 16.14. The correctness of these rulings can be discovered by reading the case of the United States ex rel Touhy versus Ragen in 340 U.S. 462. Furthermore the government is under a positive burden imposed by the Supreme Court of the United States in Brady ver-sus Maryland to provide the defense with any information which may be favorable to him, which it has in its possession, which it has already done, and therefore the position of the defense is without merit.
CPT BEALE: The objection is still sustained. You can continue with the cross-examination of this witness.
Q Agent Caverly, did you have an occasion to mention the interviews with Captain MacDon-ald with Miss Carolyn Landen, a telephone operator for the telephone company covering Fay-etteville, North Carolina?
CPT SOMERS: I object. It is irrelevant.
MR. SEGAL: It pertains to these interviews, sir, and we are now going on the subject of per-sons with whom the interviews may or may not have been discussed.
CPT SOMERS: The witness has testified as to the correctness of his statement. He has tes-tified as to how they were taken. Now, whether he spoke to someone else about them is ir-relevant.
MR. SEGAL: If, in fact, the witness says this is not necessarily the circumstances, but if the witness made other representations to other persons as to what Captain MacDonald said, other than was contained in these statements, it raises some questions as to which versions may or may not be correct. We are at least entitled to find out whether he discussed Cap-tain MacDonald’s statements with certain other individuals.
CPT SOMERS: At this time, your honor, the government withdraws its objection.
A I did not discuss this with a telephone operator.
Q When you say--do you know Mr. Davis of the Southern Bell Telephone Company, the man-ager of the local office here in Fayetteville?
A No, sir, I don’t.
Q Did you ever discuss--do you know Miss Landen?
A No, I don’t.
Q You never interviewed Miss Landen either?
A No, I did not.
Q Do you know whether Agent Crawford F. Williams, who participated in the interview of February 19th, interviewed either Mr. Davis or Miss Landen of the telephone company?
A No, sir, I don’t.
Q You don’t know whether he interviewed them?
A I don’t know whether he interviewed them.
Q Just in an attempt to clarify this, do you know whether any other agent assigned to this investigation who may have included in their work the interview of those two people?
CPT SOMERS: I object to that. It is irrelevant.
CPT BEALE: The objection is sustained.
Q Did you have occasion to interview other people to try and seek verification of the information given to you by Captain MacDonald in these written statements?
CPT SOMERS: I object. It’s irrelevant.
CPT BEALE: The objection is overruled.
Q Mr. Caverly, did you have in fact occasion to interview other people to verify the correct-ness given--the information given to you by Captain MacDonald in these statements?
A I did not. My participation in this investigation was limited to the interviews with Captain MacDonald.
Q You were the agent then, I gather, in charge of the FBI participation in the investigation of the killing at the MacDonald case?
A No, sir, I am a resident agent in Fayetteville, North Carolina.
Q May I ask who the agent was in charge of this particular investigation?
CPT SOMERS: Object. It’s irrelevant.
MR. SEGAL: I cannot conceive of what is more important than to find who knows the facts of this case. What can the government possibly be afraid of to let us know who the agent was in charge of the investigation? If that causes the government’s case to tremble then they have less of a case then they think they do.
CPT BEALE: Captain Somers, your objection is overruled.
Q Now, may I have the name of the investigating agent, the agent in charge of the investi-gation?
A This investigation was supervised under the direction of Robert M. Murphy, Special Agent in charge of the Charlotte Division of the Federal Bureau of Investigation.
Q Based upon your interview with Captain MacDonald, were you able to determine whether Captain MacDonald had any motive to kill his own wife and two children?
CPT SOMERS: I object to that. That’s pure conclusion which is certainly not admissible be-fore this forum.
MR. SEGAL: All we asked him, sir, is whether he knows, based upon his interview, to estab-lish a motive for Captain MacDonald having murdered his wife and children.
CPT SOMERS: He’s asking this agent to decide what a motive might be and that is certainly inadmissible.
CPT BEALE: Your objection is sustained, Captain Somers.
MR. SEGAL: I have nothing further of this witness.
CPT BEALE: Redirect?
Questions by CPT SOMERS:
Q What was the apparent emotional condition of Captain MacDonald on the 18th when you interviewed him?
A He was not--he told me himself that he was not under sedation--under sedation, and would try to be more coherent. He was very alert and did appear to be in better physical health on the 18th than he did on the 17th.
Q And what was his apparent condition on the 19th?
A He was much better--much more alert and responsive.
CPT SOMERS: No further questions.
Questions by MR. SEGAL:
Q Do I gather from your answer, Agent Caverly that you thought on the 19th he was more alert than he was on the 18th?
A Yes, sir, and more alert than he was on the 17th.
Q That was my question. Then I gather on the 18th you thought he was more alert than he was on the 17th?
A Yes, sir.
Q On the 17th you concluded that he was in rather poor emotional condition. Is that right? On the 17th you found him in a very poor emotional condition?
A Yes, sir, because he became upset during the interview.
Q But that was not the only observation you made about his condition at that, was it?
A I said he was emotionally upset.
Q And he was not coherent?
A And not coherent.
Q And he was better on the 18th than on the 17th?
A Yes, sir.
Q But he did not appear to you to--to be a totally well person both emotionally and physi-cally on the 18th?
A Sir, I’m not a doctor. I couldn’t ask that question.
Q Well, you are not suggesting, based upon your observations that he was a totally well man emotionally and physically on the 18th?
A He was much more alert--on the 18th.
Q And much more coherent on the 18th. If I may ask you, is it not fair to say that you saw his condition getting better between the 17th and the 18th and between the 18th and the 19th?
A As far as his emotions, right.
Q Yes, and if that is the sequence of his appearance to you, it is obvious that on the 18th he was not as emotionally as well as he was on the 19th?
A Yes, sir, I guess your--he was much better on the 19th than he was on the 18th.
Q And much better on the 19th than he was on the 17th?
A Much more coherent.
MR. SEGAL: Thank you, that’s all.
CPT SOMERS: I do have one more question.
Questions by CPT SOMERS:
Q With respect to coherent, what are you referring to? Are you referring to ability to the order of his testimony or--
MR. SEGAL: Well, that’s--
Q --Responding intelligently or what?
MR. SEGAL: I object to the leading nature of the question suggesting whether the elements of the consideration the agent to have had when arriving at his opinion. We are having it put in his mouth. It seems to be direct rather than cross.
CPT BEALE: Counsel, do ask the question in the fashion that the agent may respond to it.
Q On the 18th, with respect to coherent, how do you define the term coherent?
MR. SEGAL: That’s objected to. His definition is not important. It is what his observations were I think.
CPT BEALE: I think that’s about what we are to get had you not interposed an objection, so we will try it again. You may answer it, Mr. Caverly.
A The question was?
Q How do you define the coherent? What do you mean as to coherent? In your observa-tions on the 18th.
MR. SEGAL: May I say that I assume the question is amended to ask Captain MacDonald’s condition rather than a dictionary definition of the word. That’s what I am trying to have the question prefaced upon rather than having some generalized definition. I assume you are talking to the agent--or have it made clear to him that we are talking about how does he de-fine coherent in describing Captain MacDonald’s condition.
CPT BEALE: That’s correct, Mr. Caverly. It can be done in those terms.
A I used the term coherent, because on the interview of the 17th, Captain MacDonald jumped. He skipped around from one event to the other. On the interview of the 18th, and the interview of the 19th, he comes out in more logical sense and sequence of events.
CPT SOMERS: No further questions.
MR. SEGAL: I have nothing further.
COL ROCK: Mr. Caverly, you are requested not to discuss your testimony with any person other than either counsel, or Mr. Proctor, I request that you will observe the same condi-tions. You gentlemen are excused. Thank you.
(The witness and Mr. Proctor departed the hearing room.)
CPT SOMERS: If I may, sir, since I failed to do it, I should state for the record that during the testimony of Mr. Caverly, Mr. James Proctor from the US Attorney’s Officer has been present in the hearing room. At this time, sir, I suggest a ten-minute recess.
COL ROCK: Will the next witness be available then?
CPT SOMERS: Yes, sir.
COL ROCK: During the recess, attempt to determine the status of the query to Third Army and CONARC relative to the counsel for the accused’s request.
CPT SOMERS: That is one of my reasons.
COL ROCK: We will recess.
(The hearing recessed at 1003 hours, 22 July 1970.)
(The hearing reopened at 1022 hours, 22 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that those parties that were present at the recess are currently in the hearing room. Does counsel for the govern-ment have any announcements to make at this time?
CPT SOMERS: Yes, sir, with respect to the defense request to be given access to 544 Cas-tle Drive, this request has been checked with the Provost Marshal at Fort Bragg, the Chief of the Criminal Investigation Detachment at Fort Bragg, and with the Third Army Chief of the Criminal Investigation Detachment. They have reached the conclusion jointly that the resi-dence may be inspected by the defense at a time which is convenient to all parties in the presence of a Criminal Investigation Division agent, who is responsible for the custody there-of, and a government attorney; or as an alternative the Article 32 can be reconvened at that location for any specific points which the defense may care to bring up.
MR. SEGAL: Sir, we are not asking for this Article 32 hearing to be held at the house. We are asking that the defense be given an opportunity to continue its preparation of the hand-ling of the case for the accused, and we think we have reached the juncture in this case where we cannot delay being able to examine these premises in a legitimate fashion but without the surveillance of the government. We were not permitted, nor invited, not advised at any time since Captain MacDonald has been charged where the government was going to use these premises. If these buildings have been in any way altered or changed, the govern-ment would know about it, because they have had the opportunity to do so. It seems to me that there is still--no legitimate reason has been expressed here as to why we may not be inside these premises with the CID agent standing outside the door, and if he thinks it is nec-essary, he may search me and my colleague before and after we go in there. He may exam-ine the premises while we are still there to inquire whether anything is done. But I cannot understand why we must conduct the defense investigation under the surveillance of the government while the government investigation goes on in secrecy and without access to the events. Now, I would suggest that an alternative in this matter, which is the legal advisor, to the investigating officer, be present as an impartial party to observe that nothing unto-ward is done to the scene. We would not consider this to be an intrusion by the prosecution, and since the investigating officer would not be present, we feel that we would be acting in-dependently and free of surveillance. But there cannot be effective assistance of counsel in this case if counsel cannot look at the evidentiary scene without having someone looking over everything we do, to even comment about it, perhaps come into court to testify to what we did or did not do. This is not a proper defense preparation and that is not effective assistance of counsel, and I would not accept the suggestion that we go through there with a CID agent present in the room at the time the--we view these various rooms.
CPT SOMERS: I can suggest to the defense counsel one very cogent reason why these pro-cedures should be conducted this way. This is the United States Army. In the United States Army we follow our own regulations and the directions of our superiors. This is the way that this procedure has been suggested. It is the only way, as I understand the information and advice from the Third Army, that it can be conducted in view of the opinion of the people charged with the custody of that property, as to their regulations and it is the best I can of-fer.
COL ROCK: Mr. Segal, in matters of this nature, my hands are tied. The government has of-fered the conditions under which your request can be granted, and I would not see any use for further discussion on this point. Do you desire to accept these conditions or not?
MR. SEGAL: May I have a moment to confer here in place with co-counsel?
COL ROCK: Surely.
MR. SEGAL: Col Rock, we appreciate the position that the investigating officer considers himself to be in in this matter. However, at this time we would request the government to cite to us the regulations that they purport to say binds both the hands of the government and of the investigating officer. And, secondly, I am of the opinion, although I have not seen the regulation, that probably this regulation is one which is subject to amendment or waiver by the Provost Marshal General of the Army. If I am correct in that regard we would have--seek to have the Provost Marshal General of the Army review this decision before going fur-ther. But we would request at this time to be advised of what regulations the government purports to take its position on, and which they have argued binds the investigating officer in this matter.
COL ROCK: Can counsel for the government provide that? I don’t wish to interrupt the pro-ceedings at this moment, but can you provide that?
CPT SOMERS: Sir, the basic regulation in this area is AR 190-22. There may be other sources, directives, policies, statements involved. I do not know whether there are or are not.
COL ROCK: I realize that you don’t currently.
CPT SOMERS: Further, these directives must be interpreted by the people to whom they are aimed, and that in this case is the Military Police Corps, and particularly the Criminal Investi-gation Section of the Military Police Corps, which in this case is under the control of Colonel Troupe at Third Army. The rulings, as I understand them, or the conditions as they are set out, were arrived at by a combination of the regulations and the directives and interpretative decision of the Third Army as well as the Provost Marshal at Fort Bragg. Now this is my un-derstanding of it because I was not present.
COL ROCK: Yes, I understand.
CPT SOMERS: I would suggest to the defense that any Army Regulation is an order of the Department of Army, and certainly the Department of Army or anything superior to it could be appealed to for exceptions. This is obvious on its face, however, as I can handle the situa-tion and deal with it at my level, I have stated it.
MR. SEGAL: I am just requesting again, sir, that say perhaps in the early afternoon, after lunch, the government make available to us a copy of whatever regulation they believe is governing and so we may follow the procedure, the regulations and exhaust whatever admini-strative remedies are available to us within the Army before seeking or considering any other action. It may not be necessary, but I think we are entitled to have that presented to us, so that we may take appropriate action as provided within the framework of those regulations or any other documents which the government believes controls this matter. If it can be provided in the early afternoon, we can then proceed with the rest of this morning’s testimo-ny in the meantime.
CPT SOMERS: Sir, I would like to say that the Army Regulation has been cited, the only one I am aware of, and the Army Regulations are directly accessible to military counsel on the de-fense team.
CPT BEALE: Mr. Segal, now, Colonel Rock has done what he believes to be everything possi-ble within his power, and apparently has succeeded in at least through the counsel for the government in allowing you to and/or members of your team to go into the house under cer-tain conditions. Col. Rock, beyond that point, his hands are tied, and any further discussions reference this matter will have to be between yourself and counsel for the government, or someone that is a higher position than counsel for the government. Colonel Rock can no longer do anything reference this particular matter. He has, at least, succeeding partially in getting you permission to enter the house. So therefore, any other negotiation between yourself and whomever you might care to deal with will be solely without the intervening by Colonel Rock.
COL ROCK: Is counsel for the government ready to proceed?
CPT SOMERS: Yes, sir.
(Investigator William F. Ivory was called and reminded of his oath.)
COL ROCK: I believe at the last time you departed from this hearing you were being inter-viewed by counsel for the accused. Please proceed, Mr. Segal.
Questions by MR. SEGAL:
Q Mr. Ivory, you testified yesterday that you received the initial call in this case at 0350 hours. Would you indicate to us whether you made a record or notation of the exact time you received the call?
A I made no notation at the time.
Q How did you fix the time to such specificity as being 0350 hours?
A The radio in the CID office is located directly under a wall clock and I observed the time as I was approaching the radio and subsequent to that I learned that it was 0350 hours.
Q But you never made a notation of that?
A No, I did not.
Q Was there anything significant about the time you received the call that would cause it to stick in your memory with such certainty?
A I have had to refer this time from time to time again, and it has stuck in my mind.
Q Well, what was the message you received at 0350?
A I did not receive a message per se. I monitored a radio transmission between Military Po-lice patrol and the Military Police base station. I then –
Q Excuse me. I thought you--I understood you to say yesterday that you were in bed sleeping.
A That’s correct.
Q And something on the radio caused you to--attracted your attention. What is it that you heard at that time that attracted your attention and roused you from your sleep?
A At first I couldn’t--I didn’t hear exactly what was being said but there was--the transmis-sion was louder than usual and it was a sense of urgency in the voices of the people trans-mitting, and it brought me out of my light sleep.
Q All right now once you were awakened from your light sleep, what did you hear that you now recall?
A I heard military policemen saying something to the effect that persons had been stabbed and they were requesting medical assistance.
Q Now what about that information caused you to note the time?
A Upon hearing this, a stabbing, be it fatal or not would come under my investigative pur-view, being an aggravated assault if it did not entail a fatal injury. I then got out of bed and approaching the radio, I observed the time, which is directly over the radio.
Q When is the first time thereafter that you had occasion to write down the time that you were awakened by these calls?
A It was later that morning.
Q Now when you went into 544 Castle Drive you say that--you described making observa-tions yesterday. Is that right?
A Correct.
Q And that you were looking at the room, I believed you testified, from a left to right fash-ion?
A Yes, sir, clockwise.
Q And is that part of your technique that you follow, always to look at a room in a certain fashion? Is that right?
A That’s correct.
Q Then you described in great detail your movements within the house. Am I correct in my recollection?
A Yes, correct.
Q And is it fair to say that you were making notations at that time of the various things that you were doing?
A At that time I was making mental notes.
Q Mental notes? You mean that when you went into the MacDonald house and did the vari-ous things that you described in detail yesterday, you were not writing things down?
A That’s correct.
Q When is the first time that you made any written notations of what your observations were on February 17th?
A Later that morning.
Q At about what time and where were you when you made those written notes?
A It was at the--it was subsequent to the bodies being removed and before the lab team ar-rived, so it was between 8 a.m. and 11 a.m.
Q Sometime between 8 a.m. and 11 a.m.?
A Yes.
Q Can you give us any more precise time as to when you made those notations?
A It would probably be closer to 8 a.m.
Q And do you recall what you noted at that time that was significant to you or appeared significant to you about the MacDonald house?
A Would you repeat that? I’m not quite sure I understand it.
Q Can you tell us what you wrote down at that time about your significant observations inside the MacDonald house?
A Basically what I have testified to here.
Q Are you telling us you made notations at approximately 8 or 9 a.m. on the 17th of the placement of all the pieces of furniture, of the location of the blood spots and all those mat-ters you testified to yesterday?
A Well, I won’t say all notes were made at that time. There were subsequent notes. I am still making notes, not of that morning, but of things that have come to pass.
Q Well, all I am interested in at this particular point is can you tell us now what it is you thought was sufficiently noteworthy on the morning of February 17th to have written them down in your own memoranda that you prepared that morning?
A Such as my arrival, my initial observations--
Q Excuse. That’s a little bit too general. What are the observations that you wrote down that struck you when you got to the house after you talked to persons there, that you thought you should make a notation of because they might be important at a later time?
CPT SOMERS: I object. This is irrelevant. If he wishes to examine into what the witness did in fact observe, I think it’s relevant, but when he’s going into what the witness wrote down about something, I think it’s irrelevant.
MR. SEGAL: Sir, the witness has testified yesterday to a number of alleged observations. It is impossible for this inquiry to tell on what he is basing the observations. Were they things he observed contemporaneously with his entry? What were the things that struck him as im-portant at that time, or are these hindsight observations made after subsequent review of the property? It’s quite relevant, the specific things being found, where they were found and when they were noted. We’ve had a long discussion with all the MP’s here about various things they observed. We are now trying to determine not what the investigator tells us from hindsight from the cumulative effect of having interviewed many people and looked at these photographs hundreds of times, but what is it he was seeing at the time that made a sufficient impact that he may have written it down, and it seems to me nothing can be more crucial than to try to separate what he noticed at the time that was important from what he knows now, the totality of five and a half months investigation.
CPT SOMERS: The witness has testified that he is testifying from his memory that has been reaffirmed by looking at his notes but it is from his memory. What he wrote down is irrele-vant.
CPT BEALE: Mr. Ivory, let me ask you one question. Have you to date made an investigator statement concerning this case and reduced that to a typewritten form?
MR. IVORY: Yes, sir, I have.
CPT BEALE: Is that one of the documents that you have used to refresh your memory prior to testifying?
MR. IVORY: Sir, while writing it, it would necessarily refresh my memory, but not specifically for this response.
CPT BEALE: Then, Captain Somers, this witness, I believe, is no different from any of the other witnesses concerning sworn statements, and if you recall Colonel Rock’s direction that we would appreciate that each time, prior to the witness testifying, that you let him identify it, put it before him and have it there.
CPT SOMERS: Well, now there are two or three things that should be said about this. One of them is I don’t know in my own mind, but I suspect that what is being referred to is an in-vestigator’s statement. It is merely a narrative statement including conclusions and many other things which would be irrelevant here, and it is also not a sworn statement.
MR. IVORY: It is not a sworn statement, no, sir.
CPT SOMERS: And furthermore I was unaware of its existence anyway, which is why it hasn’t been mentioned heretofore.
So you are dealing with a statement that is unsworn and contains conclusions and many other matters which are irrelevant. However, if you wish the conclusions of the investigator and similar material to be brought before this hearing I will attempt to get this statement.
CPT BEALE: Specifically directing your attention to--was a statement from this particular witness reference what he observed and what he did on the morning of the statement--or on the morning of the 17th?
CPT SOMERS: Well, Mr. Ivory, have you made a sworn statement of that nature?
MR. IVORY: I have not made a sworn statement, no, sir. I have--in fact the statement to which I have referred has not even been final typed. It is in a draft form, and it is to be used not--it had not been intended for use here, but for our case files. Therefore it is not in a fi-nal typing form.
CPT BEALE: Based on your answers then, your objection is overruled and Mr. Segal may pro-ceed to question this witness concerning the matters that are presenting being discussed.
Q Can you tell us, Mr. Ivory, what it is that you noted on the morning of February 17th in writing that you considered to be unusual observations in the MacDonald house?
A I noted the time of my arrival. I noted my--
CPT SOMERS: I object to this. If this counsel wishes to ask specific questions about speci-fic matters, that’s fine. He’s asking the witness now to draw conclusions as to what’s unusu-al which he, himself objects to.
MR. SEGAL: I’ll amend the question. That’s all right, Captain Somers.
Q Be good enough, Mr. Ivory, to tell us what it is you wrote down on February 17th, pertain-ing to your investigating; and if you would, please, sir, it would be helpful if you would tell us what it is you wrote rather than describing to us the subject matter that you were writing down?
A I reduced to writing--all right, say, I was--I monitored the transmission at 0350 hours, the procedures I went through there at the office, notifying the photographer, gathering investi-gative tools to take to the scene; arriving at the scene approximately 0400; entering the quarters; being briefed by Lieutenant Paulk; making the observations in the living room.
Q Excuse me, if I may interrupt you. When you say making observations in the living, are you saying that in your memoranda you wrote down something after 0400, made observations of the living room, or are you saying that you wrote down saw chair, saw table turned over? I think you have to understand exactly what it is when you refer to--
A I was just about to get into that.
Q All right, go ahead.
A I made the observations in the living room as to the location and placement of furniture, things that were obviously out of place such as the coffee table being tipped over, the mag-azines being under it, a plant being on the floor, a flower pot being on the floor. I further described going through the hallway to the master bedroom, what I observed there, that is the body, and as to the surroundings in the bedroom as to the placement of furniture, things that seemed out of place such as the telephone being off the hook, blood being on the walls and other items of furniture, the writing on the headboard of the bed, placement of other furniture, furnishings and items within that room, the finding of that bundle of bed sheet and bedspread at the foot of the bed; and then my going to the side bedrooms, observing of how I went in the room. It was not illuminated; I lighted the room by means of a wall switch. My initial observations of the room as to placement of furniture, observing the body of a child in the bed, approaching the bed, observing the body of the child, leaving the room, going across the hall to the other room, observing the child in the bed there, also illuminating the room by means of a light switch, on the wall, my observations of the body, observation of placement of furniture within the room, going then from that room, accompanied I should add at all times by Lieutenant Paulk.
Q You noted that in your report?
A Yes, at the time he was describing to me what he found.
Q What I am asking you whether you noted in your report that Lieutenant Paulk was with you?
A Yes, that’s what I am saying. I then went back to the living room, dining room, noting the placement of furniture, anything being out of place in the dining room area.
Q What did you say in your notes about what was out of place?
A The dining room appeared to be in good order, no apparent disturbance of furnishings, the table being set with four chairs, three of the chairs being placed directly to the table, one chair being placed at an angle to the table.
Q This is what you wrote down in your memoranda you made sometime between 0800 and 1100 hours on February 17th?
A Yes, and then going into the kitchen and my observation there of the blood on the floor, and my going to the next door apartment.
Q All right, let me interrupt you at this point. What kind of note book, or what kind of paper did you make these notations on?
A On a legal pad such as you have there.
Q And how many pages of these observations did it cover?
CPT SOMERS: I object. Now that’s irrelevant.
CPT BEALE: Sustained.
MR. SEGAL: I just want to say this, sir, that one of the questions is always credibility. I am not suggesting the witness is not credible, but one of the questions is credibility. The wit-ness purports to say these are the things he noted. One way of verifying that is to now ask the witness how long actually were his notes, because it’s been my observation that the de-scription appears to be more detail than in fact the writing was, and since we do not have the writing it seems to me that one way of verifying it is to be allowed to have the answer to that question.
CPT SOMERS: I only have one response to this, and that is that the ruling of the investigat-ing officer has been made. The defense counsel has heard the ruling.
CPT BEALE: Mr. Segal, the objection is still sustained.
Q Now when you went to the master bedroom that was the first room where you found a body. Is that correct?
A Correct.
Q Did you tell us yesterday that you made some check of vital life signs?
A That’s correct.
Q Would you tell us exactly what you did and how you did it?
A I approached the body, went down on one knee by the body, looked at the chest area, observing the wounds, looking for any sign of movement of the chest or indicated respiration, looked for any signs in the face that would indicate signs of respiration or life or breathing, the general appearance of the wounds, the wounds on top of the head. There appeared to be no active bleeding such as where there were--which should have been, or in my opinion--where it should have been actively bleeding, such as the wound in the neck area and the chest. I saw no signs of active bleeding which would indicate to me absence of life.
Q Is that all you did with regard to the female body you found in the master bedroom, to check the life signs?
A That’s correct.
Q Well, do I gather what you said is that you got down on one knee and just looked at the body?
A That’s correct.
Q You never took the pulse?
A No, I did not.
Q You never put your ear against the chest to hear a heart beat if one existed?
A No, I did not.
Q Did you do anything whatsoever with regard to checking the vital life signs of the body of the female in the master bedroom other than look at it when you were down on one knee?
CPT SOMERS: I object. He’s answered this question.
CPT BEALE: Sustained.
Q Now after you make this observation of the body from down on one knee what did you do about checking any of the other bodies in the house?
A The same.
Q Well, where did you go after that?
A I went to the room of Kimberly MacDonald.
Q And tell us exactly what you did when you went into Kimberly’s bedroom.
A I went into the room, approached the bed on the side near the window.
Q How far did you get from the bed?
A Right to the bed.
Q And you were actually up against, within a foot of the side of the mattress?
A No, I was right to the mattress.
Q And of what portion of the body were you standing along side when you were making these visual observations?
A The head and shoulder region.
Q What did you do at that time?
A I looked again for signs of respiration of the chest.
Q Well, let me cut it short. Did you just look at the body at that point?
A I did not touch any of the bodies.
Q Now let me ask you, in what direction was the body of this child facing, the head of this child facing?
A Generally, away from me.
Q And what could you see of the face of this child other than the head and the left side?
A As I looked over the bed I could see that left side and quite a bit of her face.
Q And did you lean over the child?
A That’s right.
Q You didn’t touch any part of the bed. Is that right?
A Oh, yes, I did.
Q What part of the bed did you touch?
A That part of the mattress behind the body.
Q Well, what part of your body came in contact with the mattress?
A The fingertips.
Q You put your fingertips on the mattress when you leaned over. Is that right?
A Correct.
Q And you leaned over and you looked at what portion of the child besides the head?
A The head and the upper chest.
Q And the rest of the child, what about that?
A It was covered with a blanket.
Q Did you make an effort to lift the blanket with a pen or some other device?
A No, I did not.
Q And you just looked at the child and you didn’t see anything so you went away. Is that right?
A That’s correct.
Q You didn’t check for heart beat?
CPT SOMERS: I object. He’s answered that question.
MR. SEGAL: We are entitled to the answers on the critical question of what he did in con-nection with checking for life signs. It’s insufficient to say I checked the life signs and then give no details to show what he did. In my observations, sir, just to look at a body, no per-son in his right mind would make a conclusion of life or death when there is some possibility there might be life.
CPT SOMERS: I object to this.
CPT BEALE: Just a second, counsel. The defense is certainly entitled to ask specific ques-tions. Now the witness has given generalization, that’s true, or he has stated that he ob-served the bodies and did not touch. Now on cross-examination it is proper to ask whether or not certain vital signed were specifically checked.
CPT SOMERS: The defense counsel himself just asked if all the witness did was view the body visually and make his determination that way. That question was answered. Now he’s asking whether he checked the pulse, whether he lifted the blanket. Those specific ques-tions are answered by the question the defense counsel himself asked, and I would like to further state an objection that defense counsel, in responding to the government objection, has attempted now to either argue his final argument or testify as to what somebody in his right mind would do, and I interpose an objection to that as well, and ask that it be stricken from the record of these proceedings.
CPT BEALE: Mr. Segal, in reference to both you and Captain Somers’ objection and the ob-jection to the objection, Colonel Rock is satisfied that, and he believes that the import of this line of questioning he realizes, and is satisfied with the answers the witness has given, and so therefore in the interest of expeditious handling now we could go to another area, or an-other line of questioning. Now Colonel Rock does have one thing he wants to say.
COL ROCK: I have one observation to make gentlemen. I’d like for this hearing to continue to be conducted in a gentlemanly fashion, and I do not condone raising voices at this hear-ing. Proceed, please.
Q Now did you then go to the third bedroom after you made these visual observations?
A I did.
Q And how close did you come to that bed?
A I walked up close to the bed, if not right up to it. I did not physically touch that bed.
Q And what portion of the bed were you standing at?
A By the upper regions of the body.
Q Were you aware that there was blood on the floor along side the bed there?
A Yes, I was.
Q And did you come in contact with that blood?
A No, I did not.
Q And what did you do in regard to checking the vital signs in that bedroom?
A I again looked for signs of respiration in the chest, active bleeding.
Q You didn’t touch the body, did you check the pulse?
A No, I was armed with the knowledge that prior to my arrival there had been medical per-sonnel in the house, so I am sure if they had found life sign signs, the bodies of the children would have been removed from the house.
Q Were you under the impression then that someone else had already checked for vital life signs?
A Yes, I am.
Q And how did you get that impression?
A Because medical personnel had been in the house.
Q Did anybody specifically tell you there had been a check made for vital life signs?
A It was just something I assumed.
Q Well, what medical personnel had been in the house before you got there?
A The medical personnel from the Womack Army Hospital.
Q Well, do you know who they were or how many there were?
A By name and number I do not know, but they are the personnel who, I believe, removed the Captain from the house.
Q Well, you saw Captain MacDonald’s body being removed, did you not?
A Yes, I did.
Q As a matter of fact they carried his body right past you in the living room?
A That’s correct.
Q And how many persons were there with that stretcher?
A Three as I recall.
Q Did you see any other people in the house beside those three medical persons at that time?
A No.
Q So that you had no reason to believe there were anybody else other than the three men who were carrying out Captain MacDonald, who was from the Army Hospital?
A I really don’t understand. Please state it again.
Q Did you have any reason to believe, or have any other medical personnel there other than three men carrying out Captain MacDonald?
A No.
Q And you hadn’t seen any other medical personnel there before you arrived?
A Not at that time.
Q Had you seen those three men do anything other than bring Captain MacDonald’s body down the hallway and carry him out the living room?
A No I did not.
Q Were you aware that none of the military policemen had checked for vital life signs?
A No I was not. In fact, I was under the impression they had.
Q Now how did you get that impression?
A Because of Lieutenant Paulk telling me that when he checked the rooms he saw the bodies in the rooms. I know at least one MP that went in each room, if the not the same MP.
Q Did Lieutenant Paulk tell you that the vital life signs had been checked by either himself or other MP’s?
A Not by himself. He said some MP’s had entered the rooms.
Q Which you concluded from that statement that they had been checked for vital life signs?
A That’s correct.
Q Now when did you first become aware that Doctor Neal was in or about the MacDonald?
A Just prior to my taking him through the house.
Q Well, were you in the living room when he came to the door?
A No, I was not.
Q Where were you when Doctor Neal came to the house?
A In the master bedroom of the house, and I was told there is a doctor here from the hospi-tal.
Q And when you received that information, what did you do?
A I went and met him.
Q And you immediately went back to the front door?
A That’s correct.
Q And you brought him promptly to examine the bodies?
A That’s correct.
Q Do you know who it was who told you that there was a doctor there?
A It was just a military policeman in uniform. I don’t remember who told me.
Q As far as you know, was there any, any delay in bring Doctor Neal to do the examination of the bodies?
A There was no delay.
Q There was no delay? How do you conclude there was no delay?
A When I learned he was there, I went directly to the living room and asked him to accom-pany me to the rooms.
Q What was happening in regard to the investigation in the master bedroom when you were told that the doctor was here?
A We were making observations of the room.
Q Was anything else happening besides the fact you were looking over the scene there in the bedroom?
A Not to my personal knowledge.
Q Well, if I were to tell you that Doctor Neal testified that he was kept waiting ten minutes because photographs were being taken in the various rooms, would you agree or disagree with Doctor Neal’s observations?
A I would disagree.
Q And what would cause you to disagree?
A To my own personal knowledge I would disagree.
Q I beg your pardon?
A To my own personal knowledge I did not keep him waiting ten minutes.
Q And to your personal knowledge there was no photographing going on at that time?
A There was photographs taken immediately prior to him approaching the bodies, yes, but it was not in a manner to delay him.
Q Well, I’m not sure I understand your answer. Are you telling us that at the time some mili-tary policeman told you that a doctor was in the building from the hospital, that you were not at that point watching the photographer take the pictures of the crime scene?
A That’s correct. I’m going to have to go back and correct myself. We were making obser-vations and also making photographs of the house.
Q But as soon as you were told that Doctor Neal was there, you went and got him and brought him to the master bedroom?
A That is correct.
Q Were you present, did you say, when Doctor Neal made the examination of Mrs. MacDon-ald’s body?
A Yes.
Q Do you recall who he examined first?
A Yes, he examined first the younger child, Kris.
Q Which was in which bedroom?
A The rear bedroom.
Q You testified yesterday that Doctor Neal pulled the covers up to her waist. Is that cor-rect?
A Correct.
Q From that can we conclude that she was not covered from her waist to say about her toes prior to Doctor Neal pulling those sheets up?
A Yes, she was.
Q She was or she was not?
A She was covered. He pulled the covers up just a bit higher.
Q Is that what you mean by your testimony yesterday when you said that he moved Kristen MacDonald’s body and then he pulled the covers to her waist?
A Correct.
Q You were giving us this information that he pulled the covers about an inch or so perhaps?
A Yes, he did remove the covers and placed the arm underneath and replace the covers, and they were in the final position just a bit higher.
Q Now, at that time that Doctor Neal was examining the body of the child you had not al-ready made a body outline of that particular child had you?
A No, I had not.
Q So that any movements of the body that he had caused to be made as part of his exami-nation would have resulted--could have resulted in a change in position to some extent of the child’s body?
A To the extent of the arm, yes.
Q To the extent of the arm? You mean you are telling the investigating officer that the only portion of Kristen MacDonald’s body that you saw moved by Doctor Neal was her arm?
A No, I’m not saying that. But the body was returned to approximately the same position with the exception of the arm he placed under the blanket.
Q Now you are saying approximately the same position?
A Correct.
Q No one could say that the body was placed in the same position that it had been before Doctor Neal commenced his examination?
A That’s correct.
Q As a matter of fact, did you see what instruments Doctor Neal used?
A No.
Q He used no instruments at all?
A No.
Q And what did you see him do with the body of Kristen MacDonald?
A Kristen MacDonald? He looked at the body. He tried for a--searched for a pulse. He ex-amined the wounds. He examined both the chest and the back of the child.
Q Now if I were to tell you that Doctor Neal has testified that he applied a stethoscope and listened for a heart, would you agree of disagree with Doctor Neal’s testimony?
A I’d have to disagree.
Q If I were to tell you that Doctor Neal said he raised up the body and looked at the back, would you agree or disagree with Doctor Neal’s testimony?
A I would disagree to a point.
Q What extent do you agree, first of all, with Doctor Neal?
A He did roll the body on its side.
Q He did roll the child over on its side?
A The child was laying on her side.
Q He rolled it over further?
A He moved it to inspect the wounds on its back, and then putting it back.
Q Where was Doctor Neal standing at the time he was making the examination of the body of the first child?
A Right near the upper portion of the body.
Q And did you have any particular occasion to note whether Doctor Neal by any chance stepped on the blood that was on the rug there?
A The blood on the rug or on the floor?
Q On the floor.
A No, he did not.
Q How do you know?
A Because I was looking to see if he was going--
Q You were looking to see whether he stepped in the blood?
A Yes.
Q At the same time you were looking at what he was doing with the body?
A Correct.
Q When you were making both of these observations, can you tell us what made you so cer-tain that he put the body back in the approximate position it had been in prior to the exami-nation?
A I saw the body in the position it was in when I arrived.
Q It just kind of looked like the same position. Is that right?
A Correct.
Q You could hardly call that a very specific replacement of the body though, would you?
A Correct.
CPT SOMERS: I object. He’s asking the witness to characterize and draw conclusions.
MR. SEGAL: We are unfortunately in a position where we have to ask that because he’s making the observation it is approximately in the same position. I want to determine wheth-er--the degree to which he would think that the body was in the same position. It is quite relevant to this inquiry.
CPT BEALE: The objection is sustained.
Q Did you, at any time after Doctor Neal make the examination, make any adjustment of the body of the first child so that it would be more in the approximate position which you had first seen it?
A No, I did not.
Q You did not touch the body at all? It’s fair to conclude, isn’t it then, Mr. Ivory, that the body outline that is shown in the various photographs here of the first child is not the body position as first seen by you when you came into the MacDonald house and made the exami-nation of the child?
CPT SOMERS: I object to that. If he wishes to ask questions with respect to pictures, let him show the specific picture he wishes to ask questions about.
MR. SEGAL: I think it has been made amply clear this witness has seen all the pictures re-peatedly in this case. Unless he says he needs the photographs, I see no reason for me to offer him the photographs. The government can do that if wants to.
CPT BEALE: Colonel Rock would like to know which photograph it is that you are referring to. Show it to the witness and--
Q Let me ask you this, Mr. Ivory, was photographs taken of the bed on which Kristen Mac-Donald had been lying after she was removed showing that there was a body outline there?
A That is correct.
Q Have you seen the photograph of that?
A Yes, I have.
Q Do you have a copy with you, or readily available to you?
A I do not.
Q All right, now were you present when Doctor Neal examined the second child?
A Yes, that’s correct.
Q Which child was that?
A Kimberly.
Q The older or the younger child?
A The older child.
Q And did you observe the procedure that Doctor Neal went through at that time?
A That’s correct
Q And what did you see Doctor Neal do?
A He went to the approximate position that I had gone earlier in the morning, leaned over the body, looked down on the body, placed his hands on the cheek area of her body. It ap-peared to me his gaze was then into the wounds in the throat of the body. He then reached across the bed and put his hands to the wrist region to search for the pulse.
Q Did he lift the wrist?
A No, he did not.
Q Did you see Doctor Neal use any instrument on the body for examination purposes?
A No, he had no instruments with him.
Q Whether he had any when he came in or not, did you ever see him apply a stethoscope?
A No, he did not.
Q Did you see the doctor turn the body for the purpose of examining the back for injuries or wounds?
A He did not.
Q You say he did not turn the body of Kimberly MacDonald for the purpose of examining the back?
A That’s correct.
Q Did he open the eyes of Kimberly MacDonald for examination purposes?
A No he didn’t.
Q Did he move the body of Kimberly MacDonald at all during the examination?
A He did not.
Q The only thing you saw him do as far as touching the body was to lift the wrist for pulse, and touch in or about the throat area in his examination.
A He touched the wrist. He did not lift the wrist, to search for a pulse, and he touched the cheek area.
Q And that’s the only physical contact you saw him have with Kimberly MacDonald?
A That is correct.
Q Were you present when he examined the body of Mrs. MacDonald?
A Yes, I was.
Q Now would you describe to me, please, the procedures followed by Doctor Neal as you ob-served them in the examination of her body?
A He crossed over the body, observing the wounds in her chest--
Q I’m sorry. You said he did what?
A He observed--
Q Prior to that--he crossed over the body?
A Crouched over the body, crouched by the body. He looked in--it appeared to me the gaze was going into the right eye of Mrs. MacDonald, which was open. He then lifted the eyelid of the left eye, and replaced it. Then he put his hand in the wrist region of her left arm, which was extended, but he did not lift the wrist. He placed his fingers in the wrist area in the search for pulse. He then went around and stood behind and over the head region and reached down and felt under the jaws of the body of Mrs. MacDonald.
Q And you did not see him apply a stethoscope to her body in any fashion?
A He did not.
Q Did you see him examine her back for back wounds?
A He did not.
Q If I was to tell you that Doctor Neal testified that he lifted up the body of Colette Mac-Donald for the purpose of examining the back for wounds, would you agree or disagree with Doctor Neal’s testimony?
A I’d say he was mistaken.
Q When was the body outline made of Mrs. MacDonald’s body in reference to the time that Doctor Neal was examining her? Was it before he examined her, or after he examined her?
A It was after.
Q After he examined her?
A As I recall, yes.
Q So at the time that Doctor Neal was examining Mrs. MacDonald’s body on the floor there was no marking, marker pen, or any other kind of instrument showing where her body was lo-cated?
A Not to the best of my knowledge.
Q Now, did he examine Mrs. MacDonald’s chest area at all?
A He did.
Q And of course at that time there was the blue pajama top lying across the chest, was it not?
A Correct.
Q And how much of it did he have to move for examination?
A None.
Q You mean to tell us that Doctor Neal did not in any way disturb or move the pajama top in the course of the examination?
A He did not.
Q Do you know how he determined whether there was any injuries underneath that pajama top?
CPT SOMERS: I object. He testified as to what the doctor did. He cannot testify as to what the doctor was concluding in his own mind.
CPT BEALE: Sustained.
Q Do you know whether the doctor conducted any other examinations for wounds in the body of Mrs. MacDonald?
A He did not.
Q Did Doctor Neal actually kneel down on the floor to examine Mrs. MacDonald?
A Kneel, no, he was in a crouch.
Q Do you know whether Doctor Neal got any blood on his clothing or on a portion of his body during the course of the examination of Mrs. MacDonald’s body?
A I did not see any blood on his uniform.
Q Did you make any particular observation in that regard?
A No I did not.
Q Mr. Ivory, you were and still are, I assume, the principal investigator in the MacDonald case? You are the criminal investigator assigned to investigation of the MacDonald case, are you not?
A I would not say that.
Q What is your particular assignment with regard to the MacDonald investigation?
A To investigate the facts of the case along with other investigators.
Q It is not correct that Mr. Shaw’s responsibility was the preservation of the crime scene and physical evidence found there?
A Both of us together and primarily he’d be the higher ranking investigator.
Q Now what was your specific assignment--because you happened to be the Duty Investi-gator?
A Of course, I would respond to a call if I was the Duty Investigator.
Q Who is the person who has devoted the major portion of time among the CID agents here at Fort Bragg in the investigation in this case?
CPT SOMERS: I object.
MR. SEGAL: If he knows of his own personal knowledge--
CPT SOMERS: Unless he is told what counsel means by his terms. And I also object because it is irrelevant.
CPT BEALE: Just a second, Mr. Segal. Again I think that Colonel Rock has pointed out--one other reason, of course, the recorder cannot possibly take both of you talking at one time. But do extend to one another the courtesy of allowing the other what he is saying; and also if there is an objection interposed, please break until such time as there is a ruling on it. Now, I believe that the counsel did state that he would rephrase his question, so let’s let him rephrase it and then if you have another objection, Captain Somers, you can again interpose it.
Q As part of your assignment as an investigator to the MacDonald case, have you had occa-sion to review all of the known records to you regarding the investigation made by yourself and the other CID investigators?
A I have reviewed most of them, yes.
Q Do you have any facts to show that Captain MacDonald in any way abused his wife and children?
CPT SOMERS: I object to that. The witness is being asked to draw a conclusion from facts which are not specified.
MR. SEGAL: We will ask him the underlying facts if he has an opinion.
CPT BEALE: The objection as interposed is sustained. Colonel Rock does have something to ask.
COL ROCK: Counselor, how much longer do you think this questioning will continue? I think we are approaching a break at this time.
MR. SEGAL: Sir, I am of the opinion that we’d be a little bit longer--that we could not con-clude it before the break.
COL ROCK: Then we will be recessed until 1330.
(The hearing recessed at 1125 hours, 22 July 1970.)
(The hearing reopened at 1333 hours, 22 July 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that those parties who were present at the break are currently in the hearing room. I would like to, at this time, hand to opposing counsel the transcript of the hearing, V1, and I would like at this time to mention to both counsel that these--this testimony is being presented to you as an aid as it is produced, and of course, this--request that this be used only for your work and not to be released outside this hearing.
Is counsel for the accused ready to proceed?
MR. SEGAL: Ready, sir.
COL ROCK: Please proceed.
Q Mr. Ivory, how did you determine that nothing had been moved in the crime scene prior to your arrival at the Castle Drive household of the MacDonald house?
CPT SOMERS: I object. The witness did not testify that that was the case.
CPT BEALE: Very well. I don’t remember whether he did or not. Ask him first of all whether or not--
Q Did you ever make any effort to determine whether the crime scene had any way been altered or changed prior to your arrival there?
A Yes, I did.
Q How did you do that?
A I asked Lieutenant Paulk--I said to him, make sure nobody touches anything, and has any-thing been altered. That’s not a quote, but words to that effect.
Q In other words, you are saying you asked Lieutenant Paulk if anything had been altered prior to your arrival. Is that correct?
A Correct.
Q And did you ask anyone else besides Lieutenant Paulk had anything been altered?
A No, I did not.
Q Did you ever question any of the MP’s who were in the house before you got there as to what they may have done to the crime scene, if anything?
A No, I did not.
Q Did you ask any of the MP’s who were there before you arrived at the crime scene as to whether they saw any other persons touch anything or alter the crime scene?
A No, I did not.
Q Did you ever learn at all in the course of your investigation that an unidentified person wearing a fatigue jacket and dungarees was in the living room prior to your arrival at the crime scene?
A I have since heard that an ambulance driver was there dressed in that manner.
Q Where did you hear that?
A I have heard that within my office. I did not hear it that day. I did not know it that day.
I heard it subsequent to that.
Q What investigation if any, did you make to determine whether that person touched any part of the crime scene?
A I did not, personally.
Q Did you learn that Specialist Four Mica, a Military Policeman, observed an individual dressed as I have described touch certain items in the living room prior to your arrival?
A I have heard that or read accounts of it in the newspaper.
Q Having learned that information in the fashion you’ve described, what if anything did you do to check that out further?
A I personally did nothing.
Q Did anybody to your knowledge attached to the CID check that information out further?
A Yes, I believe Mr. Grebner did.
Q Do you know what, if anything, he did?
CPT SOMERS: Now, I object to that.
MR. SEGAL: He doesn’t know?
CPT BEALE: Very well.
Q Mr. Ivory, did you at any time learn that the unidentified person that I have described to you touched the white plastic flower pot on the floor in the living room?
A No.
Q Did you ever ascertain or learn that the unidentified person I have described to you sat on the couch in the MacDonald living room next to the coffee table that was overturned?
A I have heard since the testimony has been given here, but I did not learn that in fact at the scene.
Q So aside from whatever Lieutenant Paulk may have told you, you have no idea as to what alterations, or changes, if any had taken place in the scene--crime scene, between the time the first Military Policeman arrived there and when you arrived there?
A That’s correct.
Q Did you ever learn that there was a wallet seen in the living room of the MacDonald house by military policemen?
A Yes.
Q Did you see the wallet in the living room of the MacDonald house when you arrived?
A Yes, I did.
Q You did see it there? Where was the wallet located?
A I saw a wallet on the desk, at the front door.
Q A wallet on the desk at the front door. Did you describe that for us yesterday when you were giving a description of the crime scene?
A No, I don’t believe I did.
Q Any reason why you omitted that from your description of the crime scene?
A No particular reason, no.
Q Was it the fact that you didn’t consider that to be a matter of any importance in the in-vestigation?
CPT SOMERS: I object. He’s said there was no particular reason for it.
CPT BEALE: The objection is overruled.
Q What was your answer?
A Would you ask the question again, please?
Q Yes. Was there any particular reason that you did not consider it important to mention the existence of that wallet on the desk in the living room?
A No particular reason.
Q Were you ever made aware that certain military policemen who had been on the crime scene prior to your arrival observed the wallet on the living room floor?
A No, this is the first I’ve heard of it.
Q The first you’ve heard of that. Did you ever interview Specialist Four Mica of the Military Police?
A No, I did not.
Q Did you ever read his interview taken by other CID investigators?
A Yes, I believe I did.
Q Did anyone ever ask whether you had observed the wallet on the floor in the living room? Or whether he had observed the wallet?
A Not that I recall.
Q Did you subsequently see the wallet that you say you observed on the desk in the living room at some other place?
A No, I did not.
Q Where was the wallet the last time you observed it at 544 Castle Drive?
A On the desk by the front door.
Q Now when photographs were taken of the living room, does the wallet appear in any pho-tograph to your knowledge?
A Not to my knowledge.
Q Are there photographs that show that portion of the room where you saw the wallet?
A There is a photograph, I believe, taken from the front door, takes in generally the desk and the TV set and the--part of the stereo.
Q Did you do anything to determine on the morning of February 17th 1970 as to whether or not anything had been stolen from the MacDonald household?
A No, I did not.
Q Why not?
A It did not appear that the house had been searched or ransacked, and I had no idea of the medical condition of Captain MacDonald, and I know people were interviewing him and there was no way to get an inventory of the property in the house at the time.
Q Did you observe a drawer, one or more drawers in the six-drawer chest in the master bed-room that was pulled open?
A No, I did not.
Q Did you ever take an inventory of the property of the MacDonald house to determine if anything had been stolen from it?
A I personally have not.
Q Well, to your knowledge, has anyone connected with the investigation of the CID inven-toried the property in the MacDonald house?
A We have an inventory of the furnishings in the house, I believe. Other than that, of my personal knowledge, I cannot say.
Q Do you know who made that inventory?
A It was a joint effort, by different investigators.
Q Did you participate in that inventory?
A Yes, I did.
Q And when was that made?
A Well, its been made from the time that we went into the house until--until now.
Q Well, can you indicate to us, though, when you first started making the written list of the items that were found in the MacDonald house for the purpose of compiling it in a formal in-ventory of the contents of that premises?
A No, I cannot.
Q About how long after February 17th would you estimate you began to make--your partici-pation in that inventory?
A There is no formal listing or inventory, as such, of the contents of the house.
Q Well, what inventory were you referring to a moment ago, if you weren’t referring to a formal inventory?
A I’m referring again to items that were seen in the house that various investigators have listed in their reading files.
Q But you wouldn’t say that was an inventory of the contents of the house for the purpose of determining whether anything had been stolen from that property?
A That’s correct.
Q Now have you learned at any time since February 17th, 1970, that two valuable rings were missing from the MacDonald household?
A No, I did not.
Q Were you ever requested by anyone to search the jewelry found in that house for one or more rings?
A Yes, I have.
Q When did that happen?
A The date I cannot recall at the present, but I was requested by Captain MacDonald that a diamond ring be furnished him, an expensive item. The jewelry box was searched and that ring and another ring that appeared to be valuable was found and was released to Captain MacDonald.
Q How many rings were released to Captain MacDonald?
A Two.
Q Do you know who released those to Captain MacDonald?
A Yes, Criminal Investigator John Hodges.
Q You, yourself didn’t turn them over to Captain MacDonald?
A No, I didn’t.
Q Did you, yourself, see the rings that were being requested?
A Yes, I did.
Q Were you aware of a ring--an investigation made to locate a ring belonging to Helen Madi-son?
A Helen Madison. No, I’ve never heard that name before.
Q Were you aware of an investigation being made to find a star sapphire ring in the MacDon-ald house which has never been turned over to Captain MacDonald or any other person?
A No.
Q Were you aware of a diamond dinner ring that was sought from the MacDonald household but has never been located by CID investigators?
A No.
Q Did you subsequently see that wallet that was referred to a few minutes ago later at the CID headquarters?
A No, I did not.
Q Is it fair to say that you’ve never seen the wallet again since the time you noticed it on the desk in the living room?
A That’s correct.
Q Now you testified, yesterday, Mr. Ivory, as to certain fibers that were found in the bed-room, the master bedroom of the MacDonald house. Did you ever attempt to determine if the fibers that you saw on the floor had been there prior to the time of the killing at the MacDon-ald house, or were placed there or came to be on the floor at the time or after the time of the killings?
A I’m not sure I understand what you are getting at, sir.
Q Well, did you ever find out whether the fibers were there before Mrs. MacDonald was killed on the floor or died on the floor in the master bedroom, or if they got there after she was killed?
A I can only offer you my opinion.
Q I ask, sir, whether you have any facts to indicate when the fibers came to be on the floor of the MacDonald master bedroom?
A The threads found on the floor of the master bedroom, underneath her body, in my opin-ion--
Q Now, I didn’t ask your opinion. Do you have any facts to determine when those fibers got to be there? Not your opinion.
A Prior to her laying on her back on the floor.
Q How did you determine that to be a fact?
A Her body, to my knowledge, had never been moved.
Q All right, now do you know how long the fibers had been on the floor before Mrs. MacDon-ald’s body came to be on the floor?
A No, I do not.
Q For all you know they could have been there one day or one week or one month?
A I doubt that they could have been there a week or a month.
Q I ask you again, for all that you know as fact, they could have been there one week or one month?
A No, I don’t know this as a fact.
Q Well, I don’t understand what you know.
A Well, I don’t understand your question, sir.
Q Do you have any idea how long they had been on the floor prior to 0400 February 17, 1970?
A I have no idea.
Q You did ascertain, did you not, that Captain MacDonald was wearing some type of paja-mas on the morning of February 17, 1970?
A That is correct.
Q And what kind of pajamas did you determine he was wearing?
A Light blue pajamas.
Q And how did you find that out?
A From medical personnel being interviewed by military policemen who arrived initially at the scene, and by talking to Captain MacDonald himself.
Q In other words, the medical personnel said they saw some kind of blue pajamas. Is that right?
A Right.
Q Did you ever determine what condition the blue pajamas that were referred to, or de-scribed to you, were in before this incident of February 17, 1970, in which Captain MacDonald was injured?
A No.
Q You do not know whether these pajamas were tattered or torn in any fashion prior to Feb-ruary 17th, 1970?
A No, I do not. They could have been in that condition. (Pointing to G-75.)
Q There has been marked into evidence what appears to be a rather battered and torn paja-ma top of blue fabric. Do you know what happened to the--or if there are bottoms to those pajamas?
A There are or were bottoms to those pajamas.
Q Was Captain MacDonald observed by any medical personnel as you know, wearing blue pa-jama bottoms that seemed to resemble the top that id here in this courtroom?
CPT SOMERS: I object to that. He can’t say what the conclusion of the medics are or per-sonnel who might have seen these things, as to whether they did or did not resemble the top of--or this particular top which is marked as an exhibit.
CPT BEALE: The objection is sustained.
Q Did you observe the type of pajamas Captain MacDonald was wearing when he was taken out of the house?
A No, I did not.
Q Is that because he or his body was covered by a blanket by the medical personnel?
A By a sheet.
Q Did you, yourself, see Captain MacDonald at the Womack Army Hospital that morning?
A No, I did not.
Q The various fibers that you recovered from the floor of the MacDonald bedroom and other places that you say are similar fibers, did you ever ascertain as to whether those fibers came from the pajama top that belonged to Captain MacDonald that is here in evidence, or the pa-jama bottom?
CPT SOMERS: This witness is not the witness who prepared the lab reports, and who gave those conclusions.
MR. SEGAL: We are not asking for the lab report. We are asking whether he has any facts of his own knowledge to indicate where they came from. He may have some admission by some authority; he may have some other personal knowledge and we may ask him what he knows.
CPT BEALE: The objection is overruled.
Q Do you know, Mr. Ivory, whether the fibers that were found came from the pajama bottom or the pajama top of Captain MacDonald?
A I can relate only what was told to me, sir.
Q And that was told to you by whom? Without saying what they told you.
A The examiner from the laboratory.
Q And which examiner was that?
A Mr. Dillard Browning.
Q Did you ever ask to have the fibers that were found on the floor in or about Mrs. MacDon-ald’s body compared to the fibers in the blue rug, blue throw rug that appears at the foot of Mrs. MacDonald as shown in G-45?
(G-45 was shown to the IO and handed to Mr. Ivory.)
A Are you talking about the fibers of this rug?
Q Did you ever cause a comparison to be made between the fibers you found in and about Mrs. MacDonald’s body and the fibers that might have been taken for sample purposes from this blue and green throw rug at Mrs. MacDonald’s foot?
A Yes.
Q You did cause such a comparison to be made?
A That’s correct.
Q Do you know where the report of that comparison is?
A I will say I requested it.
Q Let me ask you, did you ever receive a response to that request that you know of?
A As best I can recollect, yes.
Q Is that contained in a written memorandum of some sort?
A I do not know if it was written or if it was a verbal report I received on one of my trips to Fort Gordon.
Q Now did you ever cause for the fibers to be--of the blue pajamas seen here by Mrs. Mac-Donald, and the fibers found on the floor in and about her to be compared with the blue fab-ric of the garment shown on the arm chair here in G-45?
A No, I did not.
Q Why not?
A I inspected that garment and it did not appear to be in any state of disrepair or--
Q You don’t hold yourself out to be, however, an expert in regard to textiles, do you?
A I do not.
Q And are you telling the investigating officer that you made such a careful examination of that garment, that you could say it is positive that the fibers couldn’t have conceivably come from that garment?
A I made an examination--
CPT SOMERS: I object to this question and to this line of questioning. The examinations in comparison of fibers have been explained at length by Mr. Browning who was present, and he explained what the examination consisted of, and what conclusions can legitimately be drawn from it.
MR. SEGAL: What we are concerned about here is any possible omission in the comparison and as to whether at least the initial investigator on the scene who was there at the time that the crime laboratory team came from Fort Gordon, as to whether he made a request to have certain other items of at least similar color found in the immediate vicinity to be exam-ined, and if not, we are entitled to know at least the reason why not.
CPT BEALE: The objection is overruled, Captain Somers.
Q Mr. Ivory, what is your answer please?
A I’m sorry; there has been a long dissertation here.
Q Fair enough. Can you say with certainty, based upon the examination you made of this blue garment lying on the arm chair, that there is no conceivable possibility that any of the fibers found on the floor could have come from that garment?
A In my mind, that is correct.
Q What kind of examination did you make of that garment?
A A visual, close visual inspection.
Q That means of course, you picked it up off the arm chair, you opened it up?
A That’s correct.
Q And then you turned it inside out and looked at it?
A That’s correct.
Q What kind of garment is it?
A As I recall it is a jersey type pull over.
Q Pull over of what type?
A I can’t tell you the material.
Q I don’t mean the material. Is it a sweater or a--
A There was a pair of slacks, as I recall, and also, I believe a pullover type sweater, if I re-call correctly.
Q Is that the item that appears underneath the white cloth, that is here on the arm chair?
A I’m sorry I can’t see it from that distance.
(A photo was shown to Mr. Ivory.)
COL ROCK: May I see that, Lieutenant Malley, please?
(The same photo was shown to the IO.)
Q Do you know what that white item is there on top of the blue pullover?
A Yes, it is an item of women’s underwear, a brassiere.
Q Under that is a darker item. Is that the item you described as jersey pullover?
A Yes.
Q Well, now what kind of an examination did you make of that item?
A I held it in my hands, went over it, looked at it, looked at the body of it, looked at the seams of it, not particularly looking for rips or tears or anything, looking for anything that might be on it, and I found it not to be ripped in great length.
Q Was it ripped al all?
A Not that I found.
Q Well, would you want to say with positiveness that there are no rips at all in that item?
A I would say I found no rips.
Q Are you willing to say that your examination of it was of sufficient care that you could say with reasonable certainty that there was no rips in it?
CPT SOMERS: I object. He’s answered that question.
MR. SEGAL: He has not answered the specific question put to him. I think we are entitled to, in a matter of such detail, to know exactly what the witness is answering to.
CPT BEALE: The objection is overruled. Answer the question, if you can, Mr. Ivory.
A I beg your pardon, sir.
CPT BEALE: Answer the question, if you can.
A I said my examination showed, and I did not see any rips in it.
Q Did you turn the garment inside out?
A As I recall, I did.
Q Did it have any holes which has been stitched up?
A I do not recall at this time.
Q How were the edges of the garment bound?
A I do not remember.
Q Were they bound at all with any--
A I do not remember.
Q Would you indulge me for a moment, sir? We want to make reference to the transcript which was given to me at 1330 hours. Now in regard to the blue pajama top that was lying across the chest of Mrs. MacDonald, if I were to tell you that Captain Neal testified that that item had to moved in order to check the vital life signs of Mrs. MacDonald’s heart, would you say that Captain was correct or incorrect in that regard?
A I would say he was mistaken.
Q Now if I were to tell you that Captain Neal said it was necessary to move the white towel that was placed across the mid-section of Mrs. MacDonald in order to make the examination of her, would you say he is correct or incorrect in that regard?
A I would say he was mistaken.
Q May I ask whether he was closer to the body of Mrs. MacDonald than you were at the time he examined her.
A He was.
Q Is it fair to say that he was within touching distance of both the white bath cloth on the stomach and the blue pajama on the chest?
A That is correct.
Q Would it fair to say that you, yourself, were not at that time within touching distance?
A That is correct.
Q Would it also be correct to say that he was in a better position than you were to deter-mine whether he was forced or required to move any of those objects?
A That is not correct.
Q He was not in a better position to see?
A He was in a better position to have moved the items; however he did not move the items.
Q If I were to tell you that Captain Neal testified that as a result of his contacts with the body of Mrs. MacDonald, that it is quite possible that he caused fibers to be moved from where they were originally resting. Would you agree or disagree with his statement?
A If there were threads or fibers where he physically touched, he may have knocked them off. I did not see any.
Q Did you examine the personal clothing of Captain Neal to see whether any fibers attached or came in contact with him that had previously either been on the floor or on Mr. MacDon-ald?
A Did I examine Captain who?
Q Neal.
A No, I did not.
Q So you are not disagreeing with his statement that he believes that it is possible to cause fibers to be moved because of his contact with Mrs. MacDonald and the area around her?
A It would have been possible, but he did not.
Q Do you agree with or disagree with Captain Neal’s testimony that he had to lift her, Mrs. MacDonald, off the floor in order to make an examination of her back for injuries or wounds there?
A He did not make an examination of her back.
Q Now I believe you testified earlier that you found eight pairs of sealed rubber gloves that you described as, I believe, surgical type gloves in the cabinet in the kitchen of the MacDon-ald household?
A That is correct.
Q Did you find--strike that. Those eight pairs were in sealed envelopes of some sort?
A Yes, they were.
Q Did you find any odd or single surgical gloves or rubber in the MacDonald house? On Feb-ruary 17th.
A Only those sections.
Q You found, I believe you testified, two pieces of a rubber glove in the master bedroom?
A There were, in fact, three pieces found.
Q You found three pieces of a rubber glove in the master bedroom?
A I found two.
Q I beg your pardon?
A I found two.
Q But there were three there located, is that correct?
A Yes.
Q Did you ever find the balance of that glove anywhere?
A No, I did not.
Q Did you ever find a single or odd unmatched rubber surgical glove in the MacDonald?
A No, I did not.
Q Did you ever search the trash cans in the back of the MacDonald house?
A Yes, I did.
Q When did you do that?
A It was after the bodies had been removed.
Q And what did you find, if anything, in the trash can?
A The trash can was empty.
Q And was that because the trash cans had been emptied by the trash removers during the period of time while there were military police in the MacDonald house that morning?
A I do not know.
Q Did you determine when the trash collection was made for 544 Castle Drive on or before February 17th, 1970?
A No, I did not.
Q If I were to tell you that the trash was collected between the hours of 0600 and 0800 on February 17th 1970 by the normal trash collectors, would you agree or disagree with that statement?
CPT SOMERS: I object. He said that he doesn’t know when the trash was collected.
CPT BEALE: The objection is sustained. The witness has already answered the question, Mr. Segal.
Q I show you a photograph marked A-24, being a portion of the bedroom of the MacDonald household.
(A-24 was showed to the IO and counsel for the government.)
And I ask you to take particular note of a white hairbrush with black bristles lying in front of the arm in that room. Do you observe that?
A Yes, I do.
Q Did you ever ascertain who was the owner of that hairbrush?
A No, I did not.
Q Do you have any way of stating, as a matter of fact that that hairbrush belonged to any person known to live at the MacDonald house?
A I do not know offhand what the laboratory report said about the hair content.
Q Did you ever make any attempt to determine who the owner of that hairbrush was?
A I did not personally.
Q To your knowledge, did anyone from the CID attempt to determine whether that brush be-longed to either Mrs. MacDonald or some stranger?
A That is the reason it was sent to the laboratory, to determine that.
Q But you do not know the results of that investigation?
A Off the top of my head I cannot reply.
Q I believe you indicated to us that the surgical gloves that were wrapped in some packages and found in the kitchen were manufactured by a certain company?
A Correct.
Q And you did name the company for us, didn’t you?
A I believe it was Perry, P-e-r-r-y.
Q Did you cause any investigation to be made to determine whether the prices, the three pieces of surgical gloves and--that was found in the master bedroom, were of the same man-ufacture as the eight gloves found under the kitchen sink?
A A package of like gloves, of the same manufacture, was submitted to the laboratory for comparison.
Q I’m not sure I understand your answer. One of the eight pairs of gloves?
A Yes, one of those was also sent, plus a like pair coming from Womack Army Hospital.
Q In other words, you obtained another sample out of Womack Hospital?
A Yes.
Q And those two gloves, the Perry gloves and the Womack Hospital sample, were sent to the laboratory with the three pieces found in the MacDonald bedroom. Is that right?
A That is right.
Q Do you have the results of that comparison?
A I cannot quote them.
Q Do you have them in writing?
A I’m sure they are in the laboratory report.
Q In the master bedroom you observed a telephone, did you not?
A I did.
Q And what condition was the receiver, or what position was the receiver of that telephone?
A By the receiver, do you mean the telephone apparatus or the hand piece?
Q The hand piece.
A The hand piece was hanging by its cord along the side of the dresser, resting on the floor.
Q Did you ever learn as to whether or not that phone was in the same position as when the first military policeman arrived at the scene there?
A I have learned that a military policeman did touch it.
Q How did you learn that?
A Through subsequent interviews with him, not interviews which I have conducted, which I have learned or heard of.
Q And did you learn that in fact a military policeman--did you learn that the military police-man who was subsequently interviewed said that he placed the hand piece on top of the bu-reau, but not on the receiver of the phone itself?
CPT SOMERS: He’s stated that he did not speak to this witness himself. Not only that, but in view of the remoteness of the information he’s received, it is irrelevant.
MR. SEGAL: I suggest it is not offered for the truth or falsity of the answer, but--that the person may have given to Mr. Ivory, but rather Mr. Ivory has been offered for the establish-ment that the photographs that have been marked in evidence through his testimony have some degree of authenticity with certain interferences or certain conclusions may be argued by the government at a later time, and we wish to establish through the line of questioning that there are a number of matters which do not appear to be consistent with the original crime scene as seen by the military policemen and the photographs the government would seek to argue from. Unless we can determine why these inconsistencies, if they exist, were not investigated or checked out, it doesn’t seem to me that the court can ever consider some of these photographs without that knowledge.
CPT SOMERS: The information with respect to the telephone has already been put in evi-dence by other witnesses who have direct knowledge of it. The pictures are offered as being accurate depictions of the scene at a specific time which specified by this witness.
CPT BEALE: Captain Somers, your objection is overruled. You may continue, Mr. Segal.
Q Mr. Ivory, can you tell us whether in fact you subsequently learned that the military po-liceman who handled that phone placed the hand piece on the bureau but not on the receiv-er?
A The information that I obtained was that the--he picked up the phone, placed it on the receiver, then took it off and put it down to where he originally found it.
Q And you never received or heard any contrary information as to what that particular mili-tary policeman did?
A No.
Q And you got that information by reading the interviews taken by other investigators in this case?
A No, I did not read the interviews. I heard it by word of mouth that this was what was in-corporated in the interview.
Q You mean to say you’ve never read the interview of the military policemen who were on the crime scene prior to your arrival there?
A Some of them, I have.
Q But you have not read all of them, of the men who were there before you arrived?
A Correct.
Q That’s part of the gap in your knowledge as to what happened to the crime scene be-tween the time the first military policemen were there and your arrival there. Is that correct?
A Correct.
Q Is there any reason why you haven’t read those reports from February 17th 1970?
A I know other members of my investigative team have read them.
Q But it doesn’t help me understand, sir, as to why you have not read those since your par-ticular concern in the helping to identify these photographs as to their alleged accuracy.
CPT SOMERS: I object to this. It is irrelevant. The time that these photographs were taken has been specified and their accuracy at that time. As to earlier times, other witnesses who could testify about earlier times, have been shown the pictures as to any inaccuracy which may exist. The witness is only testifying as to the accuracy of the photographs at the time they were taken.
CPT BEALE: Your objection is sustained, Captain Somers.
MR. SEGAL: Will you wait just one moment, sir?
COL ROCK: Certainly.
Q Mr. Ivory, did you or any other investigator of the CID ever find the remaining sections from those three pieces from the surgical; gloves or rubber glove as was found in the Mac-Donald bedroom?
A No, sir.
Q Did you search, in addition to the trash cans, the drains or drain pipes leading from the MacDonald house for the possibility of their remains being flushed out?
A Yes.
Q When was that search made?
A I believe it was made--the exact date I don’t remember--but it was made subsequent to the laboratory team leaving the house, shortly thereafter. No, I don’t recall the date.
Q The examination of the drain pipes was for the purpose, among other things, to learn whether the remainder of those surgical gloves could be found there?
A That is correct.
Q And were any portions or any piece of rubber ever found there that would relate to the pieces that were found in the master bedroom?
A No, the lines were clear.
Q I beg your pardon?
A No.
Q Was the water that was found standing in the drain pipe ever examined by anyone for--to determine whether it had any blood in it?
A No.
MR. SEGAL: I have nothing further.
COL ROCK: Redirect?
Questions by Captain Somers:
Q Mr. Ivory did you, at the time you entered that house the first time, see an individual such as has been described to you that is wearing jeans and some kind of a fatigue jacket in the house?
A No, sir, I did not.
Q Where were you located, in that room, when Captain MacDonald was brought out of the residence?
A In the living room.
Q Could I ask the indulgence of the investigation officer?
COL ROCK: Surely.
Q Mr. Ivory, the defense counsel has taken you through the house in general in his cross-examination. Can you tell us, please--I’m not sure whether he covered this or not--but I would like to ask, can you describe the appearance of the floor in the hallway, particularly the entrance to the hallway?
MR. SEGAL: That’s objected to as not having been covered or dealt with in any fashion on cross-examination.
CPT SOMERS: I suggest, sir, that the cross-examination did, in fact, go through a descrip-tion of the house, and furthermore that this is indeed a technicality of legal procedure which need not be rigidly adhered to in this hearing.
MR. SEGAL: I withdraw the objection, sir. Let him ask the question.
CPT BEALE: Proceed, there has been a withdrawal made.
Q Do you remember the question?
A Yes, the condition of the hallway?
Q The floor of the hallway, particularly the entrance, and the first few feet into the hall.
A At the entrance to the hallway there were items of children’s apparel. The floor covering itself appeared to me at that time to be relatively free of blood. The first blood, in fact, that I did notice was in front of the rear bedroom, and from the rear bedroom, from that doorway on back to the master bedroom, there were scatterings of blood, smears and drops.
CPT SOMERS: I have no further questions.
MR. SEGAL: I have just one brief matter.
Questions by MR. SEGAL:
Q Mr. Ivory, you did see the three medics which carried Captain MacDonald out through the living room, out the front door where you were at?
A I don’t believe I said three medics--I saw three persons.
Q Well, could you describe how those three persons were dressed?
A As I recall they were dressed in medic whites.
Q Were all three of them dressed in medic whites?
A One of them was a military policeman.
Q So there was two persons in medic whites and one military policeman?
A That’s right.
Q And the persons in medic whites, I assume you are talking about some sort of starched white jacket and white trousers?
A Right.
Q Were both of them dressed in that fashion?
A That’s correct.
Q Neither one of them had on dungarees, did they?
A No, not that I noticed.
MR. SEGAL: That’s all.
CPT SOMERS: No further questions.
COL ROCK: Mr. Ivory, when you went to the kitchen, was the kitchen door open?
WITNESS: The outer door was not open, sir.
COL ROCK: You mean a screen door, perhaps?
WITNESS: No, sir.
COL ROCK: I am referring to the outside door.
WITNESS: No sir, the door was secured.
COL ROCK: By secured, do you mean locked?
WITNESS: Yes, sir.
COL ROCK: Was the kitchen phone dangling when you first observed it?
WITNESS: Yes, sir.
COL ROCK: How did you determine that the outside kitchen door was locked? How did you check that?
WITNESS: It was after we processed it for fingerprints that the door was checked and found to be locked. You could see between the crack that there was slid--something slid across the door, but the door handle was not physically shook until after it had been processed.
COL ROCK: Perhaps I’d better rephrase my questions. The first time you went in the kitchen did you check the outside entrance door?
WITNESS: I checked to see that it was closed. I did not check at that time to physically shake the door knob.
COL ROCK: To your knowledge did anyone subsequently go into the kitchen before additional investigators came to check the prints?
WITNESS: No, sir, not to enter the kitchen.
COL ROCK: So to your knowledge, no one subsequently entered the kitchen after you had been in there until the prints were made?
WITNESS: I believe Mr. Shaw entered the kitchen. Anyone else we had just come to the door, as I believe Mr. Grebner just looked inside.
MR. SEGAL: That’s objected to. He has absolutely no way to know, sir, as to what persons may have done, or how they examined it when he was not in the living room or kitchen area himself. It’s quite apparent that he was in the bedroom for some portion of the time.
COL ROCK: Yes, I will take that into consideration, counsel.
When you first entered the living room, did you notice any wet footprints, debris or mud on the living room floor or rug?
WITNESS: Yes, sir I did.
COL ROCK: Where was that located?
WITNESS: It was located--I won’t say mud, sir--there were pieces of wet grass that had been tracked from the door down the hallway.
COL ROCK: I am referring to the living room?
WITNESS: Yes, sir. From the hallway door, around in front of the stereo set, and to the front door.
COL ROCK: This was not on the rug through, is that correct?
WITNESS: Part of the rug, it was, yes, sir.
COL ROCK: Did you notice any wet footprints, debris or mud in the master bedroom on the floor or rug?
WITNESS: Yes, sir, I did.
COL ROCK: Would you describe what you observed?
WITNESS: I observed pieces of wet grass around the end of the room, or the end of the rug closest to the door. There was some pieces right by the door of the hallway and appeared to be tracked from the utility room, and in that general area.
COL ROCK: In the area adjacent to the west end of the hallway, where you stated originally you saw some clothing; did you observe a doll’s head?
WITNESS: Yes, sir, I did.
COL ROCK: In your supervision of the taking of the photographs, would that doll’s head be seen in those photographs?
WITNESS: I don’t believe it is fully shown in the photographs.
COL ROCK: Would it refresh your memory if we showed you these photographs?
WITNESS: Yes, sir, quite a bit.
(Some photographs were handed to the witness.)
WITNESS: Are these all the photographs admitted, sir?
COL ROCK: A-14 may assist, or A-15.
WITNESS: Sir, in A-7, while it is not shown here, it would have been hidden by the clothing from this angle or view. What was that other exhibit, sir?
COL ROCK: A-14 and A-15.
WITNESS: No, sir, it cannot be seen.
COL ROCK: And why can it not be seen in any of these photographs, in your estimation, judging from your memory of the scene as you saw it and when the photographs had been taken?
WITNESS: It is--in my judgment, sir; it is not seen because it is hidden by the clothing from that angle of the camera’s view.
COL ROCK: As I recall, Mr. Segal asked you--strike that. In answer to a question by Mr. Se-gal, it is my understanding that you stated that you asked Lieutenant Paulk if anything had been moved, meaning any of the objects within the house. Is that correct?
WITNESS: That’s correct.
COL ROCK: I don’t believe you were asked his answer. Do you recall whether or not there was any indication that anything had been moved?
WITNESS: Sir, at that time he said no.
COL ROCK: And what do you mean, at that time?
WITNESS: He subsequently stated, not to me, that the telephone in the master bedroom had been moved.
COL ROCK: I have nothing further to ask of this witness. Does either counsel desire--
MR. SEGAL: Yes, if I may, sir, with regard to the questions you have put.
Questions by MR. SEGAL:
Q Mr. Ivory, did you say that you did observe wet pieces of grass, grass in a couple of the locations? Is that right?
A That’s correct.
Q Did you observe any wet spots on the rug?
A Wet spots?
Q Yes, an area of the rug which appeared to you to be wet with water?
A No, I did not.
Q Did you actually observe traces of dirt on the floor or rug, that is, not household dirt but soil from outside?
A I observed wet grass and the soil adhering to the wet grass. I did not see any clods of dirt.
Q I don’t assume that you did, in fact, see any noticeable soil attached to these blades of grass, did you? It may have been there, but you didn’t observe it?
A That’s correct
Q Did any of those blades of grass that you say were there appear in any one of the photo-graphs that you have before you? Which I think represent all of the photographs that have been produced in this case.
(Witness examined all the photographs.)
A Yes.
Q I beg your pardon, sir?
A Yes, sir.
Q Which photograph are you referring to now?
A I didn’t sort them out. There’s one, and there are other photographs.
Q Would you be good enough to define those photographs and put them aside for us, please?
Have you set aside certain photographs, Mr. Ivory?
A Yes, sir, I have.
Q Now you’ve set aside G-48, which is a picture of the knife found adjacent to the dresser in the MacDonald bedroom. Is that correct?
A That’s correct.
Q And I hold the photograph up. Would you point with your finger, please, to what you be-lieve are the blades of grass?
MR. SEGAL: If necessary, sir, I can bring this forward.
COL ROCK: I think it would be more appropriate to have the witness circle in red as appropri-ate, those marks and then signing his name.
Q If you would take the red marker pen, please, and circle the items that you believe to be blades of grass.
(At this time all counsel and the witness are at the IO’s desk.)
Q Now you have also set aside G-45. Will you mark on G-45 which is the view from the hall-way of the body of Mrs. MacDonald lying in the master bedroom?
A These are the ones I can clearly see in the photographs.
COL ROCK: Also, would you, please, with the same red pen, sign your name and the date on each of the photographs?
(Witness complied.)
Q And you’ve also selected photograph G-65, a view of the overturned coffee table in the MacDonald living room. May I ask in regard to the item that you have circled in G-65, which appears about two inches to the right of the lower left hand corner, what color is the item as you observe it in this photograph?
A It appears to be a light brown.
Q The item you circled here is, in your judgment, light brown?
A Yes.
Q Does that indicate to you a leaf of grass?
A A bit of dried grass.
Q All right.
A Now by dried grass I don’t mean dried grass from the rain, but dried from having been cut.
Q And I finally show you a photograph that you have selected which is marked G-54, which appears to be a view of the bedroom of one of the MacDonald children. Can you identify for us which bedroom that is, please?
A This is from the rear bedroom.
Q Now would you indicate with a red marking pencil the items that you believe to be grass on the floor?
Thank you, if you would return to the witness stand, please, Mr. Ivory.
(Witness did as requested and counsel returned to their tables.)
Q Mr. Ivory, did you collect in appropriate evidence bags the pieces of grass which you ob-served on portions of the MacDonald household?
A No, sir, I did not.
Q Was there any particular reason why you didn’t collect them?
A Yes, sir.
Q What was that?
A Upon seeing the pieces of wet grass on the floor and on the rug I asked Lieutenant Paulk where these things came from--were they here when you came in. He said they were tracked in by the military policemen.
Q And with that explanation of Lieutenant Paulk, you did not make any further explanation or investigation as to the source of that grass or the nature of that grass, is that right?
A That is not right.
Q Well, what did you do about the--determining the source and nature of that grass?
A I went out onto the lawn after it became light and saw it was the appropriate texture and color of the dried grass that had been walked in the house.
Q What kind of grass was it?
A I don’t know. Bermuda grass or whatever it is, it was just normal lawn grass which ap-peared to have been cut and dried with loose pieces.
Q Are you aware that there is something in excess of 1200 varieties of relatively common lawn grasses in the United States?
CPT SOMERS: I object to that. This is irrelevant.
CPT BEALE: Overruled, counselor. Proceed.
Q Are you aware of that, Mr. Ivory?
A No, I am not aware of that.
Q You are aware, I assume there are a substantial variety of lawn grasses?
A That is correct.
Q Did you consider that your visual examination of the lawn grass to be definitive in deter-mining whether it was the same as the grass you saw inside the house?
A It appeared to me to be the same.
Q Well, how many leaves of grass did you have in your hands from inside the house when you were outside on the lawn making the check?
A None in my hands.
Q None at all. In other words, all you did was look at the grass on the floor in the house, then walked outside and looked at the grass outside?
A Correct.
MR. SEGAL: I have nothing further.
Questions by CPT SOMERS:
Q Mr. Ivory, did you see you find any standing puddles of water on the rug in the living room?
A No, sir, I did not.
Q Did you find any muddy footprints?
A No, sir, I did not.
Q You described two medics who took Captain MacDonald out of the house. Might there have been other medics or ambulance drivers present at that time?
A Yes.
CPT SOMERS: No further questions.
MR. SEGAL: Nothing further.
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, I do.
COL ROCK: You are excused, subject to recall.
CPT SOMERS: Sir, before Mr. Ivory departs the room, I request once again that Government Exhibits G-74, 75 and 73, be inspected by either the investigating officer or the defense, be-cause Mr. Ivory shall be taking them with him, and we will arrange to have them photo-graphed.
COL ROCK: I have no further use. Does counsel for the accused at this time?
MR. SEGAL: We have no desire at this particular time to examine these, sir, but we’d like to reserve if we may an appropriate time after arrangements are made to meet the convenience of the government and the defense. I would also like to preserve the thread which is dan-gling here from this item of blue cloth, and that it not be lost. You may not be aware of it, that’s why I ask you, please make sure that it is preserved.
CPT BEALE: Captain Somers, there is something dangling.
CPT SOMERS: Yes, sir, I see it.
COL ROCK: Your request is granted and the witness is excused subject to recall.
(The witness saluted the IO and departed the hearing room.)
COL ROCK: Does the government have further witnesses to offer at this time.
CPT SOMERS: Sir, at this time the government would request that we adjourn until tomorrow morning for a number of reasons, one of them being that the government wishes two hours of working time on a working day to assemble the final drafts and charts which the investigating officer has asked that we provide for him; and another being that our next witness, Mr. Shaw, has been called away to function as an investigator on a case which came up on an emergency basis.
COL ROCK: Will he be able to be here in the morning?
CPT SOMERS: He will, sir.
MR. SEGAL: May we inquire, sir, as to how much more additional testimony the government now intends to present, so that we may plan our--time?
COL ROCK: You may so inquire.
CPT SOMERS: That is another one of the reasons why the government wants some time to decide whether there may be witnesses other than those that have been listed to be called, whether there may be one or two witnesses listed who may not be called. The government can foresee at this time that its case should not last much longer than another three or four days, working days. It also, if possible, may attempt in the morning to start its testimony with that of Captain Chester, followed by Mr. Shaw, depending on our ability to arrange for that individual’s appearance, who’s had some difficulty getting here.
COL ROCK: This hearing will be recessed until 0830 tomorrow morning.
(The hearing recessed at 1448 hours, 22 July 1970.)
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