The Jeffrey MacDonald Information Site is a compendium of information about the Jeffrey MacDonald case. MacDonald was convicted in 1979 of the murders of his pregnant wife and two small daughters. He is serving three life sentences for that brutal crime.

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October 13, 1990: Affidavit of Bernard L. Segal with attachments

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

UNITED STATES OF AMERICA

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VS.

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CASE No. 75-26-CRV

JEFFREY R. MACDONALD

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I, Bernard L. Segal, being first duly sworn, state under oath the following:

1. I am an attorney at law admitted to practice in the State of Pennsylvania.

2. Between April 1970 and through 1982, I was chief trial and appellate counsel to Jeffrey R. MacDonald. I represented Dr. MacDonald in (a) the Army's Article 32 proceedings, (b) the period between the conclusion of the military's Article 32 proceedings and his indictment on January 24, 1975, (c) interlocutory appellate proceedings in federal courts that began in 1975, (d) the 1979 trial which was held in the Federal District Court for the Eastern District of North Carolina before the Hon. Franklin T. Dupree, Jr., (e) the direct appeal to the Fourth Circuit U.S. Court of Appeals, and (f) the United States Supreme Court.

3. In the course of my representation of Dr. MacDonald, I was responsible for overseeing the defense investigation of this case and for making formal pre-trial discovery requests for the disclosure of material pursuant to Federal Rule of evidence 16, Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks Act (Title, 18 United States Code, Section 3500).

4. In addition to filing formal discovery motions with the Court and being served with the government's formal responses, I also represented Dr. MacDonald in more informal negotiations with the government on various discovery matters, and I am thoroughly familiar with the chronology of events that is set forth below.

5. In April of 1975, as a result of having represented Dr. MacDonald during the Army's Article 32 proceedings and during the federal grand jury proceedings in late 1974 and early 1975, I was acutely aware that whatever case the government was attempting to bring against Dr. MacDonald, it was going to be based primarily on the findings and opinions of its forensic experts. As a result, I felt it important to gain access to the laboratory notes of the government's experts, as they might contain findings exculpatory to Dr. MacDonald. In light of Dr. MacDonald's account of the events surrounding the murders, I thought it likely that some of the forensic tests must surely have uncovered evidence of the presence of intruders in the MacDonald house, since my client was insisting that such intruders engaged in a violent struggle in the house.

6. On or about April 8, 1975, I filed "Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 16" on Dr. MacDonald's behalf, in which I requested discovery from all federal, state and local agencies that had assisted the United States Government in the investigation and prosecution of this case. (A copy of this motion is attached hereto as Exhibit 1.)

7. In Part IV of Exhibit 1, in a section entitled "Reports of Scientific, Physical, Medical and other Examinations", I requested disclosure of the following:

The results or reports, lab notes, methodology, nature and name of physical examinations, scientific tests and experiments made in connection with this case, including but not limited to:

a) All psychiatric reports and examinations of defendant.

8. All reports, physical examinations, scientific tests and experiments in regard to hair, including but not limited to:

a) Samples taken from the defendant by the United States Army in July 1970;

b) Samples taken from the defendant by the Federal Bureau of Investigation in August 1974;

c) Reports of comparisons of hair samples of the defendant with that of Colette, Kristen and Kimberly MacDonald, and that of any other persons with whom the hair of the aforesaid members of the MacDonald family was examined for comparison by the Government.

9. All lab tests and reports on any fibers found in the house.

12. All experiments, analyses and reports regarding all foreign matter found at the scene of the instant offense.

18. All reports regarding the examination of weapons suspected of or alleged to have been used in connection with the killing of Colette, Kimberly [sic] and Kristen MacDonald, and in injuring the defendant.

22. All analyses and reports of fibers, paints and scrapings.

26. All scientific reports and analyses made in connection with the CID's investigation and reinvestigation of this case. (emphasis added)

8. In Part IX of Exhibit 1, entitled "Exculpatory Material," I moved the Court to order disclosure of all exculpatory materials, citing to the case of Brady v. Maryland, 373 U.S. 83 (1963), and requesting "the production of any evidence or information which [was] exculpatory or favorable to the defendant."

9. On April 25, 1975, the government filed its "Response to Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of criminal Procedure 16," a copy of which was served on me. (A copy of this response is attached hereto as Exhibit 2.) In its response, the government indicated its unwillingness to disclose laboratory notes and methodologies, and stated:

With regard to paragraphs seven through twenty-six of the defendant's Motion, the Government agrees to furnish the defendant with copies of results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case which are within the possession, custody or control of the Government. However, the government does not agree to furnish lab notes, methodology, nature and name of physical examinations, scientific tests and experiments made in connection with this case. When the results of the tests and the substance tested are offered to the defense, denial of discovery of detailed laboratory findings and records of testing procedures is not an abuse of discretion. (emphasis added) United States v. Smaldone, 484 F.2d 311, 320-321 (10th Cir. 1973), cert. denied, 415 U.S. 915 (1974).

In the same response, the government also represented to the defense and to the Court that it was "well aware of its responsibilities under Brady v. Maryland, 373 U.S.83 (1963) and intend[Ed], pursuant to the Brady doctrine, to make the defendant in this case aware of any evidence favorable to him where that evidence [was] material to guilt or punishment".

10. On or about April 28, 1975, I filed with the Court and served upon the government "Memorandum in Support of Defendant's Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 16," in which I again emphasized the need for obtaining materials concerning mental examinations and scientific tests conducted by the government, and the defendant's right to all exculpatory materials. (Attached hereto as Exhibit 3)

11. On May 6, 1975, I filed with the Court and served upon the government "Amendment to Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 1611, in which I requested all "tangible objects" in reference to "all matters referred to in paragraphs 7 through 26 of the [defendant's April 8, 1975] Motion for Discovery." (Attached hereto as Exhibit 4)

12. On May 5th, 6th, 7th and 22nd of 1975, the District Court held hearings on defendant's pre-trial motions. (Attached hereto as Exhibit 5 are relevant transcript pages from these hearings.) On May 7, 1975, the Court took up the issue of pre-trial discovery. During this hearing, I pointed out to the Court that the defense had set forth with particularity and specificity -- in paragraphs 7 through 26 of its April 8, 1975 discovery motion -- the types of discovery materials it was seeking, and I noted that the government had specifically stated in its response that it would not furnish defendant with "notes, methodologies, nature and name of its physical examinations and scientific tests and experiments in connection with this case." (Exhibit 5; Hearing transcript pages, pp. 414-415) In addition, I also pointed out to the Court that, based on defendant's discovery requests, the defense was not making a general Brady request, but had made specific requests for items sought. (Exhibit 5; Hearing transcript, p. 437)

13. In response to my arguments at the May 7, 1975 hearing for disclosure of the laboratory notes and underlying methodologies, the government informed the Court that it would stand on its written response to the defense's motion for discovery (Exhibit 2), in which it had refused to disclose laboratory notes concerning its experts' examinations of the evidence and the methodologies employed in examining the evidence. (Exhibit 5; Hearing transcript pp. 445-446) The government also represented to the defense and to the Court that it understood its Brady obligations by stating: "We also are aware of our responsibility to continue to divulge information required under the rules of discovery and under, of course, the doctrine -- and Mr. Segal wanted to make sure we understand that -- and we state at this time that we do understand the Brady doctrine". (Exhibit 5; Hearing transcript p. 445)

14. On July 29, 1975, Judge Dupree issued an opinion denying Dr. MacDonald's discovery motion, stating:

By this motion, the defendant seeks in effect to obtain a copy of the government's entire file including photographs, all tangible evidence and exhibits of every kind and description. In response to the motion the government has agreed to make available to the defendant in advance of the trial or at the trial pursuant to the provisions of the Jencks Act, 18 U.S.C. sec. 3500, certain portions of the evidence sought to be discovered by the motion. Except as thus agreed by the government, the court is of opinion that the motion is overly broad and should be and is hereby denied in the discretion of the court. United States v. Anderson, 481 F.2d 685 (4th Cir. 1973). The court reserves the right to modify this ruling should it appear later in the proceedings that the ends of justice require such action. (A copy of the Court's opinion is attached hereto as Exhibit 6.)

15. On November 4, 1975, attorney Michael J. Malley, who assisted in Dr. MacDonald's defense, wrote to prosecutor Brian Murtagh concerning discussions between the government and the defense over proposed stipulations, whereby the defense agreed to stipulate as to the chain of custody for the physical exhibits in the government's possession in return for disclosure of Jencks Act materials to the defense. (Attached hereto as Exhibit 7)

16. In Exhibit 7, Mr. Malley indicated to Mr. Murtagh that any such stipulations would be subject to a number of conditions, including establishing that each and every laboratory technician would verify that he or she gathered the evidence (if that is the case) labeled it, removed it for testing, performed certain tests, returned all unused portions of the material, labeled the material, and recorded the results of the tests he or she ran. We would expect that each laboratory technician could verify that he or she accurately transcribed laboratory findings, and that those findings have been accurately transcribed on the final consolidated laboratory reports. We would expect that you will produce an affidavit from each and every laboratory technician that that technician has personally verified his part in the chain of custody, and if called upon to testify, would so testify under oath. (emphasis added)

17. On or about November 10, 1975, I sent Mr. Murtagh a stipulation agreement dated November 9, 1975, signed by myself and Dr. MacDonald. (This stipulation agreement is attached hereto as Exhibit 8.) The terms of this agreement incorporated, inter alia, all of the terms of Mr. Malley's November 4, 1975, letter to Mr. Murtagh.

18. On November 11, 1975, my law clerk, Charles Bennett, received the transcripts of testimony of 25 witnesses who appeared before the United States Grand Jury for the Eastern District of North Carolina, which indicted Dr. MacDonald. (Attached hereto as Exhibit 9 is a copy of Mr. Bennett's notarized receipt.)

19. On November 12, 1975, I wrote to Mr. Murtagh to inform him that I understood that the government still had additional Jencks Act materials that had not yet been released, and that I expected the government to forward these materials to me as soon as possible. (Attached hereto as Exhibit 10) I also informed Mr. Murtagh that, after having read some of the grand jury testimony of the government's experts, it was clear that the underlying basis for many of the laboratory tests had not been explained to the grand jury, and that I considered these reports to fall within the meaning of "statements" for purposes of the Jencks Act. Finally, I wrote to Mr. Murtagh:

For your information, should this matter come to trial I fully expect that it will be necessary to have our expert witnesses furnished with full and complete explanations of methodology of any and all tests which the government intends to rely on. Since our experts' evaluation will be of necessity be a time consuming process, the sooner you can furnish these materials, the more orderly my own trial preparation can be.

20. Sometime shortly after November 13, 1975, I received an undated letter from Mr. Murtagh, enclosing a signed copy of the November 9, 1975 stipulation agreement (Exhibit 8) and additional Jencks Act materials. (Attached hereto as Exhibit 11) In this letter, Mr. Murtagh stated:

This letter confirms our telephone conversation of November 10, 1975 and my conversation with Mr. Malley of November 11, 1975, regarding the agreement to stipulate to the chain of custody in return for advance access to Jencks Act materials. Based on these conversations, the supporting letter of November 4, 1975, and the stipulation of November 11, 1975, it is my understanding that a bargain has been struck; consequently, the Government will perform its agreed upon part of that bargain as quickly as possible
.

The package of Jencks Act materials that accompanied this letter did not contain any laboratory notes, or notes concerning the methodologies employed by the government's experts in regard to their tests of the physical evidence.

21. On November 17, 1975, I wrote to Mr. Murtagh, acknowledging receipt of the additional Jencks Act materials. (Attached hereto as Exhibit 12) In this letter, I again pointed out the "deficiencies in the government's release of Jencks Act material, particularly with regard to scientific notes and lab results."

22. On November 24, 1975, Mr. Murtagh responded by letter to my letters of November 12 and 17, 1975, in which he informed me that "[c]oncerning the Jencks Act materials, there are no laboratory tests, which are not reported in either a CID, IRS or FBI laboratory report, which is currently in your possession". (Attached hereto as Exhibit 13; emphasis added) Mr. Murtagh also stated that "before the government releases any more information, we are entitled to receive the stipulations concerning the chain of custody", and indicated that he had enclosed some draft stipulations.

23. On December 4, 1975, when I realized that the government was not going to live up to its agreement to provide the defendant with all Jencks Act materials, I wrote to Mr. Murtagh, informing him that I was not at all satisfied that the government had fully performed its Jencks Act/Chain of Custody agreement. (Attached hereto as Exhibit 14) In this letter, I pointed out to Mr. Murtagh that in order to perform any laboratory tests in accordance with good scientific practice, laboratory technicians and scientists regularly record the raw data obtained from their instruments or by their observations during such tests.

Frankly, I consider it totally unbelievable that there are no such statements. You are obviously playing games within the meaning of the term "statement". I know that the various investigators in the groups of persons had to make notes and reports of their activities, and, we are entitled to these.

24. On January 22, 1976, I wrote to Mr. Murtagh again, asking him whether the government was going to fulfill its obligations under the stipulation agreement. (Attached hereto as Exhibit 15)

25. On January 23, 1976, the Fourth Circuit Court of Appeals reversed the District Court's dismissal of Dr. MacDonald's speedy trial claim. During the period between January 23, 1976 and the summer of 1977, there was little communication between the defense and prosecution concerning discovery and access to the physical evidence while the government was appealing the decision of the Fourth Circuit Court of Appeals to the United States Supreme Court.

26. On May 1, 1978, the United States Supreme Court reversed the Fourth Circuit Court of Appeals' decision on Dr. MacDonald's Sixth Amendment speedy trial claim and remanded the case to the Court of Appeals for resolution of his other claims. On remand, the Court of Appeals denied Dr. MacDonald's remaining claims, and the Supreme Court denied certiorari on March 19, 1979.

27. As a result of the government's refusal to provide the defense with full and open access to the evidence and a quickly approaching trial date, I filed "Motion of Defendant to Compel Production of Tangible Objects" (Attached hereto as Exhibit 16), despite the fact that the defense had previously requested disclosure of all "tangible objects" in its "Amendment to Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 16" (Exhibit 4) filed on May 2, 1975. In the Motion to Compel, the defense moved the Court to order the government to deliver to the defense's forensic expert, Dr. John Thornton, all "tangible objects" and "exhibits" that were the subject of government examination and testing, as referred to in a number of laboratory reports that were listed in Exhibit A to the motion. The list that was set forth in Exhibit A included typewritten laboratory reports containing the results of tests conducted by the CID's and FBI's laboratory technicians on debris found at the crime scene. All of these typewritten reports in this list were disclosed to the defense during the pre-trial discovery phase of Dr. MacDonald's case.

28. In addition to the Motion to Compel, I also filed "Memorandum in Support of Defendant's Motion to Compel Production of Tangible Objects," in which I argued:

It is beyond dispute that the objects sought herein are material to Dr. MacDonald's defense; moreover, it is highly likely that the government will use as evidence most, if not all, of the objects sought. For example, the existence of threads (purported to be from Dr. MacDonald's pajama top) near the bodies of the victims was allegedly significant to the Government's theory of the prosecution. Similarly, the existence of allegedly different blood types at various locations in the house where Dr. MacDonald's family was murdered was thought to be probative. (Attached hereto as Exhibit 17)

29. On May 10, 1979, the Court held a hearing on defendant's Motion to Compel. (Attached hereto as Exhibit 18 are the relevant transcript pages from this hearing.) At this hearing, the government argued to the Court that it had been completely forthright with the defense in terms of providing it with discovery. Judge Dupree's response to the government, a response that now appears to be both wise and prescient, was:

My observation is that it is well-advised to do that, because if I have learned anything about the evolution of criminal jurisprudence over the last 15 years, it is that anything short of a complete disgorgement by the government of everything that it has got -- anything short of just actually getting in there and arguing the case for the defendant -- will just make trouble for all of us down the line. I estimated earlier this week that I am spending a good 50 percent of my time on post-conviction matters, relating to the failure of the defendants in criminal cases to have access of all available knowledge that was allegedly available to the prosecutor.

I have the spectre of having the witnesses, the United States Attorneys, the District Solicitors, everybody -- they spend a substantial portion of their time testifying, and trying to justify their actions. That is where this phase of criminal jurisprudence seems to me to have been reached. So if you have anything at all that this defendant could conceivably use in the defense of this case, for God's sake, give it to him. (Exhibit 18; Hearing transcript, pp. 13-14)

30. On May 24, 1979, I filed a letter addressed to Judge Dupree. (Letter attached hereto as Exhibit 19) I included in my letter the verbatim remarks of Dr. Thornton, so that the Court would be fully apprised of the defense's views as to the relationship between the forensic evidence and the defendant's need to prove the presence of strangers in the house. Dr. Thornton stated:

The principle issue is that the evidence should be given a de novo examination. . . . Additionally, other evidence may exist which will be helpful to the defense that either was ignored by the prosecution's experts, or, more likely was not mentioned in the written reports of the Prosecution's experts. [emphasis added]

I am also disturbed by one other track this matter seems to be taking, i.e., the stressing of the blood stain evidence. Certainly this is an important aspect of the case. But, I believe there are many other aspects which must be reviewed. Among these are the reconstruction of the penetrations of the pajama top of Jeffrey MacDonald, the nature of the distribution of the wounds to Jeffrey and Colette MacDonald, and trace evidence which might be unexplainable in terms of the milieu of the scene and might indicate other participants. A reading of the CID and FBI laboratory reports suggest to me that this latter factor has been given short shrift by the prosecution's experts. I do not know at this point what such examination would reveal, if anything. But, we will never know until such time as the examinations are conducted. (emphasis added)

31. On July 6, 1979, the government filed with the Court, "Motion Relating to Blood Testing and Microscopic Examination of Fibers," in which the government moved the Court to allow the defense to examine blood stains and microscopically examine fibers. (Attached hereto as Exhibit 20) The government asked that the Court order the following:

9. That the defendant shall not be permitted to open any sealed vial, pill box, or other container having within it certain fibers, unless the defendant agrees in writing to waive proof of chain of custody for the period between analysis and sealing and introduction into evidence.

10. That the defendant shall not mount any fiber specimens on slides in the absence of a binding written agreement as to the authenticity and chain of custody of that specimen, and no fiber shall be destroyed by solubility testing in the absence of a binding written agreement as to the number of threads or yarns previously contained in any particular vial which is utilized, and

11. That all tests, relating to blood and otherwise covered by the scope of this motion, shall be filed with the Court and hand delivered to the government counsel by noon of July 12, 1979.

32. On July 11, 1979, Judge Dupree issued his order on the government's "Motion Relating to Blood Testing and microscopic Examination of Fibers." (Attached hereto as Exhibit 21) Judge Dupree ordered, inter alia:

8. That the defendant shall be permitted to visually examine the contents of any sealed vial, pill box, or other container having within it certain fibers which the government proposes to introduce into evidence.

9. That the results of all tests, relating to blood and otherwise covered by the scope of this order, shall be filed with the court and hand-delivered to the government counsel by 9:00 a.m. on July 17, 1979. (emphasis added)

This order thus limited the discovery to evidence that the government planned to introduce, not evidence that it would keep out, and it gave the defense only six days to complete its testing and reporting.

33. On July 13, 1979, 1 filed "Motion of Defendant for Pretrial Discovery," in which the defense moved the Court to order the government to disclose additional documents material to Dr. MacDonald's defense and, "to the extent not previously furnished, all information in the Government's possession which is of an exculpatory nature . . . . " (Attached hereto as Exhibit 22) On the same date, I moved the Court for a pretrial conference pursuant to Federal Rule of Criminal Procedure 17.1, to resolve all outstanding motions, including defendant's renewed motion for discovery. (Attached hereto as Exhibit 23)

34. On July 14, 1979, Judge Dupree held a hearing on defendant's outstanding motions, including defendant's renewed motion for discovery. (Attached hereto as Exhibit 24 are the relevant transcript pages from this hearing.) At this hearing, Judge Dupree ordered the government to "turn over any Brady material not previously turned over immediately". (Exhibit 24; Hearing transcript, p. 343) In response, prosecutor Brian Murtagh stated: "Your Honor, we will comply with Brady." (Exhibit 24; Hearing transcript, p. 344) Subsequent to the Court's order, I received a number of files from the government, consisting of very few pages, which pertained strictly to investigations by the government of other suspects in the case. This disclosure did not contain any laboratory reports or handwritten laboratory notes made by the government's experts in the course of examining the physical evidence.

35. Immediately after the pretrial conference in front of Judge Dupree, I filed "Defendant's Memorandum of Law in Support of His Motion For Discovery." (Attached hereto as Exhibit 25) In this memorandum, I pointed out to the Court that the government had refused to provide the defense with remaining Jencks Act materials -- consisting of grand jury testimony, FBI and CID witness statements and any other material as required by the Act -- that were the subject of the aborted stipulation agreement in 1975.

36. During the trial of Dr. MacDonald's case, which began on July 16, 1979, I caused to be filed with the Court "Defendant's Request to the United States Attorney for Production of Jencks Act and Brady Material at the Conclusion of Government's Case in Chief." (Attached hereto as Exhibit 26). In this motion, dated August 6, 1979, I requested the disclosure of Jencks Act and Brady materials including, but not limited to, "All statements and reports of and by each and every person listed by the Government on the list of witnesses submitted by it to the Defendant at the beginning of trial". The government failed to disclose any materials in connection with this request.

37. On August 20, 1979, 1 filed with the Court "Motion to Dismiss the Indictment for Failure to Disclose Brady Materials to the Defendant." (Attached hereto as Exhibit 27) Included as one of the grounds for this motion was the fact that the Government ha[d] failed, refused and neglected to provide the Defendant with the statements and reports of eighty-eight (88) persons whose names were contained on the pretrial list of potential Government witnesses filed with the Court by the Government. The Defendant ha[d] reason to believe that (1) by virtue of the fact that the Government did not choose to call these witnesses, (2) that by virtue of the fact that the Government ha[d] so vigorously resisted disclosing the statements and reports of these witnesses, and (3) by virtue of some facts learned extrinsically by the Defendant about some of the witnesses, that these statements may or d[id] contain exculpatory material for the Defendant.

I thus indicated that I would be interested in pursuing any witness on the government's witness list whom the government chose not to call.

38. On August 21, 1979, at a bench conference, Judge Dupree denied defendant's motion to dismiss based on the government's failure to turn over Brady materials. However, Judge Dupree again admonished the government, stating:

But now, I'll say this: I have always taken the position that if the Government has anything that classifies as Brady material and they do not give it to you, they are certainly going to get reversal. I have instructed them to do it, but now I am not going into their files and in a case as big as this, I am not going to take three days off to see what they've got and whether or not you are entitled to it -- I'm not going to make that. That's their risk. If they've got the stuff. They're going to do it. (emphasis added) (Attached hereto as Exhibit 28)

39. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of CID laboratory technician Janice S. Glisson which reference her findings of blond synthetic hair-like fibers on a clear-handled hairbrush (designated by the CID as Exhibit "K") taken from the MacDonald home. (Attached-20- hereto as Exhibit 29) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

40. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten inventory notes and laboratory notes of FBI lab technicians James Frier and Kathy Bond, which document the existence of black, green, and white wool fibers found in debris taken from the body of Colette MacDonald (designated by the FBI as exhibits Q-88 and Q-100) and the wooden club murder weapon (designated by the FBI as exhibit Q-89). (Attached hereto as Exhibit 30) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

41. I have been shown by Dr. MacDonald's present counsel an unsigned typed FBI laboratory report dated March 14, 1979, and numbered "90103084 S RR IZ." (Attached hereto as Exhibit 31) I have carefully reviewed this typed report and state with certainty that I never saw it prior to, nor during, the trial of Dr. MacDonald's case, nor was I aware until now that the FBI had conducted a re-examination of certain pieces of evidence in early 1979.

42. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of Army CID laboratory technician Dillard O. Browning, which document the existence of fibers within the debris taken from underneath the body of Colette MacDonald (designated by the CID as Exhibit E-303) that did not have the blue pajama top as their source. (Attached hereto as Exhibit 32) I have carefully reviewed these hand written notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

43. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes that were provided under the Freedom of Information Act to Dr. MacDonald's attorney, Anthony P. Bisceglie, by former FBI lab technician Paul M. Stombaugh. (Attached hereto as Exhibit 33) These handwritten notes indicate that the FBI's lab examiner discovered within FBI exhibit Q-79, which was the debris taken from underneath the trunk of Colette MacDonald's body, the existence of fibers that did not have the blue pajama top (designated by the FBI as exhibit Q-12) as their source. I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

44. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of CID laboratory technician Dillard O. Browning, concerning his examination of debris (designated by the CID as exhibit E-211) taken from a blue sheet that was found on the floor of the master bedroom. (Attached here to as Exhibit 34) These documents indicate that the CID found what possibly may have been a piece of "skin tissue" and an "animal hair" within the debris taken from the blue sheet. I have also been shown by Dr. MacDonald's present counsel what have been represented to me as being another page of handwritten laboratory notes of CID laboratory technician Dillard O. Browning, concerning another examination of the debris taken from the blue sheet (the blue sheet itself having been designated by the CID as exhibit D-211), which document the presence of a pubic hair within the debris taken from the sheet. (Attached hereto as Exhibit 35) I have carefully reviewed the handwritten notes in Exhibits 34 and 35, and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

45. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of FBI lab technicians Kathy Bond and James Frier. (Attached hereto as Exhibit 30) These notes, which document the FBI's laboratory examination of the debris taken from the blue sheet that was found on the floor of the master bedroom (designated by the FBI as exhibit Q-125), document the FBI's conclusion that the CID had misidentified the hair found in this debris as being an animal hair when, in fact, it was a human hair. I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

46. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of CID lab technician Dillard O. Browning, which document the existence of a human hair found in debris taken from the bedding of Kimberly MacDonald (designated by the CID as Exhibit E-124). (Attached hereto as Exhibits 36 and 37) I have carefully reviewed these handwritten notes and state with certainty that I never saw these notes prior to, nor during, the trial of Dr. MacDonald's case.

47. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes that were provided under the Freedom of Information Act to Dr. MacDonald's attorney, Anthony P. Bisceglie, by former FBI lab technician Paul M. Stombaugh. (Attached hereto as Exhibit 38) These handwritten notes, like the notes compiled by CID laboratory technician Dillard Browning, indicate the presence of unidentified human body hair in the bedding of Kimberly MacDonald (designated by the FBI as exhibit Q-93). I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

48. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of CID lab technician Dillard O. Browning, which document the existence of a human hair found in the debris taken from the bedspread on Kristen MacDonald's bed (designated by the CID as Exhibit E-52NB), that did not match hair samples taken from Dr. MacDonald. (Attached hereto as Exhibits 39, 40 and 41) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

49. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of FBI lab technician Kathy Bond, which document the existence of a human hair within the debris taken from the bedspread of Kristen MacDonald (designated by the FBI as exhibit Q-87). (Attached hereto as Exhibit 30) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

50. The only handwritten laboratory notes that the defense ever received, were received during trial, and were limited to copies of handwritten notes that FBI laboratory technician Paul M. Stombaugh brought with him to the stand when he testified. (Attached hereto as Exhibit 42) After Mr. Stombaugh testified, I immediately requested that his notes be turned over to the defense pursuant to the Jencks Act. The Court ordered that Mr. Stombaugh's notes be turned over, and the government provided the copies of the notes to the defense, which consisted of 54 pages of notes, primarily having to do with the government's allegation that the blue pajama top had been stationery on the body of Colette MacDonald when the stab holes were made in it. These notes were immediately reviewed by myself and Dr. John Thornton for use during cross-examination. These notes make no mention of any findings or laboratory notes such as I have described in 38-49, supra.

51. During the trial of Dr. MacDonald's case, the defense entered into a stipulation concerning the testimony of James Frier. Prior to entering into this stipulation, it was represented to me by prosecutor Brian M. Murtagh that Mr. Frier, if called by the government, would testify that:

(a) he had examined multicolored strands of yarn removed from the night stand in the master bedroom of the MacDonald home (Government trial exhibit 381) and that these yarns microscopically matched a green yarn found on a throw rug in Kristen MacDonald's room; and,

(b) he had examined fibers found within the debris (Government trial exhibit 307) removed from the wooden club murder weapon and determined that fibers removed from the wooden club murder weapon microscopically matched the fibers of the multicolored throw rug that was found at the feet of the body of Colette MacDonald. (Attached hereto as Exhibit 43)

52. Prior to entering into this stipulation concerning Mr. Frier's testimony, I was never informed by Mr. Murtagh or any other government prosecutor that Mr. Frier had discovered the presence of black and green wool fibers on the wooden club murder weapon. Further, I was also not informed by Mr. Murtagh or any other government prosecutor that Mr. Frier or other FBI laboratory personnel had conducted reexaminations of the debris taken from Colette MacDonald's body and the wooden club murder weapon in which the FBI discovered the presence of additional black, green and white wool fibers.

53. If I had been aware of the extent to which the FBI had reexamined various pieces of evidence taken from the crime scene or that Mr. Frier's laboratory notes revealed the presence of black, green and white wool fibers on the body of Colette MacDonald and on the wooden club murder weapon, I would not have agreed to the stipulation. I would have demanded that copies of Mr. Frier's handwritten notes be turned over to the defense and that he appear as a witness so that I could cross-examine him on his findings.

54. Had I been informed that Janice Glisson had discovered and documented in her handwritten laboratory notes the presence of blond synthetic hair-like fibers, some 22 inches in length, on the clear-handled hair brush taken from the MacDonald home, I would have demanded that Glisson's handwritten notes be turned over to the defense so that I could cross-examine her on her findings.

55. In both instances involving Frier and Glisson's findings, I was either directly or indirectly misled by the government by virtue of its representations to me -- and often to the Court as well -- and its failure to turn over these exculpatory documents that would have allowed me to follow the course of action described above.


Sworn to before me this 13 day of October, 1990.

James C. Talley, Notary public

My commission expires May 25, 1993.

Attachment #1: Motion for Discovery and Inspection of Documents

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

UNITED STATES OF AMERICA

:

 

VS.

:

CASE No. 75-26CR-3
Civil No. 84-41CIV-3

JEFFREY R. MACDONALD

:

 

 

The defendant, JEFFREY R. MACDONALD respectfully moves this Court, pursuant to Federal rule of Criminal Procedure 16, to order discovery by the defendant of the matters described in the within motion, which are or may be under the control or possession of the United States, for the reasons set forth herein. Pursuant to the said motion the defendant moves the Court to order the United States to permit defense counsel to inspect, copy, photograph, or subject to scientific analysis the matters described herein. In support of the said motion the defendant alleges as follows:

I. TERMS USED IN THIS MOTION

1. For the purpose of the clarity of this motion and in order to minimize redundancy, the defendant intends the following meaning for the terms set out hereafter;

a) The term Government includes but is not limited to the United States Army, and all of its subdivisions and units, including, but not limited to the Criminal Investigation Division (CID), the Military Police Corps, and the Criminal Investigation Laboratory of the CID;

Also, the United States Department of Justice, and all of its subdivisions and units, including, but not limited to the Federal Bureau of investigation, and to each and every other branch, department, agency and governmental corporation for the United States Government, and to each and every federal, state and local agency who acted on behalf of or in cooperation or conjunction with the United States Government in the investigation and prosecution of this case.

2. For the purpose of the clarity of this motion and in order to minimize redundancy, the defendant intends the following meaning for the terms set out hereafter:

a) The term "statements" includes, but is not limited to, any utterances of the defendant which are recorded by any means, in whole or in part, and regardless of to whom they were made and how they were obtained.

b) The term "the house" refers to the residence of the MacDonald family in February 1970, at 544 Castle Drive, Fort Bragg, North Carolina.

c) The term "at the scene", "scene of the crime" and "at the scene of the instant offense" refers to the residence of the MacDonald family in February 1970 at 544 Castle Drive, Fort Bragg, North Carolina, and its environs.

II. STATEMENTS OF DEFENDANT

3. Any and all statements, confessions or admissions made by defendant, written or otherwise recorded, or oral statements subsequently reduced to writing, including but not limited to, recordings and transcripts made by Alfred Kassab which were given to the Government.

4. Under Rule 16(a) defendant is entitled to inspect and copy his own written or recorded statements unless the Government shown particular and substantial reasons for withholding such materials. United States v. Projansky, F.R.D. 550 (S.D.N.Y. 1968) United States v. Rosenberg, 299 F.Supp. 1241 (S.D.N.Y. 1969) United States v. Fallen, 498 Fed. 172 (C.A. 8th 1974).

A lawyer's advice to his client at every state of a criminal case is, and quite properly should be, dependent upon the contents of the statement given by his client to the Government. United States v. Fancher, 195 F. Supp. 448, 456 n.17 (D.Conn. 1961).

The Supreme Court has also recognized that pre-trial disclosure of a defendant's statements is the "better practice." Cicenia v. LaGay, 357 U.S. 504, 511 (1968); Leland v. Oregon, 343 U.S. 790,801 (1952).

Knowledge of the contents of the defendant's statements is necessary to advise defendant whether he should take the stand and testify, or exercise his constitutional right of silence. Cf. Walder v. United States, 347 U.S. 62 (1954); Johnson v. United States, 120
U.S. App. D.C. 69, 344 F. 2d 163 (1964); Poe v. United States, 233 F.Supp. 173 (D.D.C.
1964); aff'd 122 U.S. App. D. C. 163, 352 F.2d 639 (1965). See also People v. Ouarles, 255
N.Y.S. 2d 599, 44 Misc. 2d 955 (1964).

III. TESTIMONY Or THE DEFENDANT BEFORE GRAND JURY

5. All of the recorded testimony of the defendant before the United States Grand Jury for the Eastern District of North Carolina.

6. Rule 16 (a) (3) authorizes the Court to order disclosure to a defendant of his grand jury testimony as a matter of right, in addition to other circumstances under which a court would be authorized to lift the cloak of grand jury secrecy. United States v. Aeroquis Corp., 41
F.R.D. 441 (E.D. Mich. 1966); accord, United States v. Pilnick, 267 F.Supp. 791 (S.D.N.Y. 1967) United States v. Marks, 364 P.Supp. 1022 (E.D. Kentucky 1973).

IV. REPORTS OF SCIENTIFIC, PHYSICAL, MEDICAL AND OTHER EXAMINATIONS

7. The results or reports, lab notes, methodology, nature and name of physical examinations, scientific tests and experiments made in connection with this case, including but not limited to:

a) All psychiatric reports and examinations of defendant.

8. All reports, physical examinations, scientific tests and experiments in regard to hair, including but not limited to:

a) Samples taken from the defendant by the United States Army in July 1970;

b) Samples taken from the defendant by the Federal Bureau of Investigation in August 1974;

c) Reports of comparisons of hair samples of the defendant with that of Colette, Kristen and Kimberley MacDonald, and that of any other persons with whom the hair of the aforesaid members of the MacDonald family was examined for comparison by the Government.

9. All lab tests and reports on any fibers found in the house.

10. All analyses, reports and conclusions concerning footprints found in the house.

11. All experiments, analyses and reports regarding surgical gloves and the detection of fingerprints from the inside of fragments of said gloves.

12. All experiments, analyses and reports regarding all foreign matter found at the scene of the instant offense.

13. All reports, scientific tests, and experiments in regard to blood, including but not limited to:

a) Blood of the defendant;

b) Blood of Colette, Kimberley, and Kristen MacDonald;

c) Blood found at the scene of the instant offense;

d) Reports of comparisons of the blood of the defendant, Colette, Kimberley and Kristen MacDonald and any other persons made in connection with this case.

14. All reports, scientific tests and experiments in regard to urine samples made in connection with this case, including but not limited to:

a) Reports and analyses of urine found at the scene of the instant offense;

b) Reports of comparisons of urine of Kimberley, and Kristen MacDonald and any other persons.

15. All analyses, comparisons, reports and conclusions concerning candles and/or wax found in the house.

16. All reports, scientific tests and experiments made in connection with this case regarding fingernail scrapings including but not limited to:

a) All fingernail scrapings found at the scene of the instant offense;

b) Fingernail scrapings taken from the defendant, Colette, Kimberley and Kristen MacDonald,

c) Reports of comparisons of said fingernail scrapings and comparisons with any other persons.

17. All medical and scientific procedures, tests and reports regarding the exhumation, examination and dissection of the bodies of Colette, Kristen and Kimberley MacDonald.

18. All reports regarding the examination of weapons suspected of or alleged to have been used in connection with the killing of Colette, Kimberley and Kristen MacDonald, and in injuring the defendant.

19. All experiments, tests and reports regarding the defendant's clothing, including but not limited to the defendant's pajamas, including the tests conducted on the said pajamas by an "expert in impressions".

20. All tests and reports relating to evidence of a "strand of defendant's pajamas interwoven with a strand of Colette MacDonald's hair".

21. All photographs and reports of comparisons of known and latent fingerprints of any persons made in connection with this case and a list of the exact number and location of destroyed fingerprints.

22. All analyses and reports of fibers, paints and scrapings.

23. All post-mortem autopsy reports made of Colette, Kimberley and Kristen MacDonald.

24. All analyses of the person, clothing, or possession of defendant.

25. All analyses of the person, clothing or possessions of Colette, Kimberley and Kristen MacDonald.

26. All scientific reports and analyses made in connection with the CID's investigation and reinvestigation of this case.

27. Discovery of this material is authorized by Rule16 (a) (2). United States v. Turner, 274 F.Supp. 412 (E.D. Tenn. 1967); United States v. Almad, 53 F.R.D. 186 (D.C. Pa. 1971).

Disclosure of this material is needed by the defendant in this case and is particularly appropriate, for the following reasons:

a) The defendant will not be able to effectively and adequately cross-examine the Government's expert witnesses without ample opportunity pre-trial to prepare appropriate material for that purpose.

b) Any danger of intimidation of witnesses concerning these matters is so slight as to be for all practical purposes non-existent.

c) Expert testimony generally has, in the eyes of a jury, unusually high probative value, coming as it does from a supposedly disinterested party and concerning matters generally beyond the realm of ordinary lay information. Cooper V. United States, 119 U.S. App. D.C. 142, 143, 337 F. 2d 538, 539 (1964) (Wright, Cir. J., concurring).

Counsel may wish to retain or request appointment of independent experts to assist him regarding these areas of "expertise" and therefore it is necessary that the material is available to these independent experts. Fed. R. Crim. P. 28(a); Criminal Justice Act of 1964, S2
(c), 18 U.S.C. 53006A(e). See "Effective Assistance of Counsel for the Indigent Defendant" 78 Harv. L. Rev. 1434, 1438-1440 (1965

V. PHOTOGRAPHS, DIAGRAMS AND SKETCHES

28. All photographs, diagrams and sketches and models made of the scene of the instant offense, of the defendant and of Colette, Kimberley and Kristen MacDonald, including but not limited to:

a) All photographs of the interior and exterior of the scene of the crime, the surrounding buildings and the vicinage;

b) All photographs of the bodies of Colette, Kristen and Kimberley MacDonald;

c) All photographs of the alleged weapons and wooden slats from victim Kimberley MacDonald's bed;

d) All photographs of defendant's pajamas;

e) All photographs of the "impressions expert's" experiments with the defendant's pajamas;

f) All photographs of bloody footprints found at the scene of the instant offense;

g) All photographs of Colette MacDonald's pajamas and sheets;

h) All photographs of defendant's wounds;

i) All photographs of every suspect detained by the Government at Fort Bragg during the investigation of the instant offense;

j) All photographs of every person who was considered a suspect in connection with the deaths of the MacDonald family including but not limited to Helena Stoeckley.

29. These photographs and sketches are necessary to determine the condition of the scene of the crime, and the physical conditions of Jeffrey, Colette, Kimberley, and Kristen MacDonald. Also, photographs and sketches of individuals considered to be suspects are relevant and material in establishing the defendant's innocence and in the identification of the vidual; observed at or near the scene of the crime by Spc. Kenneth Mica and other members of the Military Police.

30. Photographs, diagrams and sketches of the scene of the crime are within the language of Rule 16(b). These photographs may be offered in evidence by the Government at trial, and the information contained in them is otherwise unavailable to the defense. Similar requests have been granted in U. S. V. Ahmad, 53 F.R.D. 186 (D.C. Pa., 1971). See also, United States v. Schembari, 484 F. 2d 931 (C.A. 4th 1973)

VI. NAMES AND ADDRESSES OF WITNESSES

31. The names and addresses of all persons known to the Government who may or do have knowledge of facts In connection with this case, including, but not limited to:

a) Those who were placed in line-ups during the investigation and reinvestigation of this case;

b) Those who were considered suspects or potential or possible suspects by the Government at any time since February 17, 1970;

c) The five hundred (500) persons investigated as suspects in two days by CID investigators Connolly and Hawkins in 1970;

d) The six thousand (6000) persons interviewed in connection with this case by the Government during the period February-August 1970, according to Chief Warrant Officer Franz Grebner.

e) The seven hundred (700) persons from seventy (70) countries interviewed by Lt. Col. Pruett and Warrant Officer Kearns during the CID reinvestigation of this case;

f) All of the Military Police whom, according to Col. Robert Kriwanek, Provost Marshal of Fort Bragg, participated in "road blocks" on or near Fort Bragg during the early morning hours of February 17, 1970;

g) All persons who have identified the alleged murder weapons as belonging to the defendant;

h) All members of the Military Police, Provost Marshal investigators, CID agents, and any other Government agent present at the crime scene on February 17, 1970;

i) All individuals residing in the area surrounding the crime scene who stated that they did or did not hear any disturbance on the morning of February 17, 1970;

j) All individuals investigated in Long Island by CID agent Benny Hawkins and any other agent of the Government during May-September 1970.

32. The names and addresses of persons having knowledge of this case are relevant and necessary to enable counsel to conduct an adequate investigation of this case.

33. Witnesses, particularly eye witnesses, to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity to interview them. Gregory v. United States, 369 F. 2d 185, 187-88 (D.C. Cir. 1966). See also, U. S. v. Vole, 435 Fed. 774 (C.A. 7th 1970); U. S. v. Matlock, 491 Fed. 504 (C.A. 4th 1974)

Amended Rule 16 is apparently intended to authorize orders requiring the production of witness lists, because the Advisory Committee's Notes suggest that the "Safety of witnesses" and the "danger of perjury or witness intimidation" may be considered by the Court as a basis for restricting discovery. See Rule 16(e). These considerations would have been unnecessary had it not been contemplated that the names and addresses of witnesses would be provided to the defense in appropriate cases.

"Absent a showing of... abuses and the considerations noted by the Advisory Committee, such as danger to witnesses, names and addresses of persons who have any knowledge pertaining to the case, both those who will be called as witnesses and those who will not, are properly discoverable .... The necessity for discovery of names and addresses of persons with knowledge of the case whom the Government does not intend to call as witnesses may be even greater than discovery of the names of witnesses who will be called. The former may have information favorable to the accused and that information would not be discoverable under the Jencks Act. Indeed, if discovery of names of non-witnesses with knowledge of the case were denied, an innocent defendant might never even know of the existence of people who could save him from punishment for a crime he did not commit." United States v. Hardy, Crim. No. 869-68 (D.D.C. 1968), as cited in Bender's Forms of Discovery, Vol. 13A, p.8-196.

VII. STATEMENTS OF PERSONS OTHER THAN DEFENDANT

34. All written or recorded statements made concerning this case by any persons who are not prospective Government witnesses, including but not limited to:

a) All statements made to the Government by Mrs. Dorothy MacDonald, Judy Alvey, and Jay MacDonald, who are the mother and siblings of the defendant;

b) All statements made to the Government by residents of Long Island, Chicago, Fort Bragg, New York and California;

c) All statements made to the Government by Helena Stoeckley;

d) All statements made to the Government by Alfred and Mildred Kassab, including but not limited to statements regarding a missing ring from Colette MacDonald's jewelry box;

e) All statements made to the Government by William Posey;

f) All statements made to the Government by residents of Hamlet, North Carolina;

g) All statements made to the Government by Ms. Joann Jarrett of New York regarding the defendant;

h) All statements made to the Government by any Army personnel or civilians who knew the defendant in July of 1969 or any time thereafter, including but not limited to Ms. Carol Larsen and Miss Cheryl Olsten;

i) All statements made to the Government by defense psychiatrist, Dr. Robert L. Sadoff;

j) All statements made to the Government by Spc. Kenneth Mica who was one of the first men from the Military Police to arrive at the crime scene;

k) All statements made to the Government by Dr. Russell Fisher of Baltimore, Maryland and any other physicians.

35. These statements will not be producible at trial under the Jencks Act, but may furnish evidence favorable to the defendant or suggest further investigative leads. It is also submitted that their value can be properly determined only by defense counsel.

36. The statements requested in Paragraph 6 also fall within Rule 16(b). Their materiality is demonstrated by the fact that the request is limited to statements concerning this case. Since these witnesses will not be called by the Government to testify at trial, their statements are not obtainable under the Jencks Act, 18 U.S.C. 53500.

As a result, there would be an undesirable gap in the scope of available discovery if the new rules were held not to authorize discovery of statements of witnesses whom the Government does not plan to call. Statements of such witnesses are likely to contain material helpful to the defendant's case; for example, the inability of the witness to identify the defendant or a description of the perpetrator of the crime which does not fit the defendant. Rezneck, "The New Federal Rules of Criminal Procedure," 54 Geo. L.J. 1276, 1286 (1966).

In addition, these statements may very well prove helpful to the defense under Brady v. Maryland, 373 U.S. 83 (1963)

Many of the other authorities are collected by Circuit Judge Marshall in his opinion for the panel in United States ex rel. Meers v. Wilkins, 326 F. 2d 135 (2d Cir. 1964). See also Note, "The Duty of the Prosecutor to Disclose Exculpatory Evidence, 60 Colum. L. Rev. 858 (1960).

VIII. OTHER BOOKS, PAPERS, DOCUMENTS AND TANGIBLE OBJECTS

37. All tangible objects and documents which the Government considers may be used as evidence at the trial of this case, including but not limited to:

a) A copy of the official Government response to a series of twenty-three (23) charges filed against the Army with members of Congress by Alfred Kassab during October-December, 1970;

b) All evidence obtained by the Government regarding any identification of the "female with a hat" seen by Spc. Kenneth Mica near the scene of the crime on February 17, 1970;

c) All evidence regarding the theft or removal of the defendant's wallet from the crime scene on the morning of February 17, 1970;

d) All evidence regarding the identity of the "unidentified male in dungarees" who was seen leaving the scene of the crime on the morning of February 17, 1970 after the arrival of the Military Police;

e) All tangible objects obtained from the scene of the crime or from the person or possession of the defendant.

38. Tangible objects "obtained from or belonging to the defendant or obtained from others by seizure or by process" were discoverable under former Rule 16. Amended Rule 16(b) authorizes the discovery of all books, papers, documents and tangible objects (except internal reports and Jencks material) in possession or control of the Government upon a showing of materiality and reasonableness. These objects and documents are evidentiary materials and therefore are presumed to be material. Inspection of these materials is necessary to prepare an adequate defense and to prevent surprise at trial. The request is clearly reason- able. U. S. v. Bearden, 423 Fed. 805 (C.A. 5th 1970); U. S. v. Tanner, 279 F.Supp. 457 (D.C. Ill. 1967); U. S. v. Dioguardi, 332 F.Supp. 7 (D.C.N.Y. 1971).

IX. EXCULPATORY MATERIAL

39. The defendant also moves for the production of any evidence or information which is exculpatory or favorable to the defendant.

40. Since the decision of the Supreme Court in Brady v. Maryland, supra, it is clear that the suppression of evidence favorable to an accused by the prosecution violates due process, "irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. And it should be noted that in Brady the evidence withheld was favorable only on the issue of punishment. See also the earlier decision in Ex parte Powell, 361 U.S. 34 (1959), and the subsequent ruling on remand, Powell v. Wiman, 287 F. 2d 275 (5th Cir. 1961). In the Powell case, the material suppressed was relevant to the credibility of a witness for the prosecution, and its suppression was held violative of due process.

Following Brady, other courts have also found a violation of an accused's constitutional rights in the withholding of evidence favorable to the defense and statements by the courts make it clear that no distinction is to be drawn between material known only to the police and material known to the prosecuting attorney. See Barbee v. Warden, 331 F. 2d 842, 846 (4th Cir. 1964); Ellis v. United States, 120 U.S. App. D.C. 271, 345 F. 2d 961 (1965); Walker v. Bishop, 295 F.Supp. 767 (E.D. Ark. 1967); Smith v. United States, 375 F.Supp. 1244 (E.D. Virginia 1974).

Moreover, it has become clear that even a negligent nondisclosure by the prosecution will violate the rights of an accused. Levin v. Katzenbach, 124 U.S. App. D.C. 158, 363 F. 2d 287 (C.A.D.C. 1966), and authorities there cited; Barbee v. Warden, supra.

41. In summary, defendants seek to enlighten themselves concerning the elements and nature of these most serious charges against then. The Supreme Court has written:

"A prosecution that withholds evidence on demand which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice,...." Brady v. Maryland, 373 U.S. 83, 87-88 (1963)

Liberal discovery is in line with the more reasonable view that "a civilized society ought not to tolerate the conduct of a criminal prosecution as a 'game'." Statement of Mr. Justice Douglas, dissenting in part from the transmission of the recent amendments to the Federal Rules of Criminal Procedure.

In addition, the defendant has satisfied the Government's requests for information, documents, and objects in the possession of the defendant. Accordingly, counsel respectfully requests that the Court grant defendant's motion.


GENERAL

42. These requests are made to all federal, state and local agencies who have acted on behalf of the United States Government in the investigation and prosecution of this case including but not limited to the Fayetteville Police, Federal Bureau of Investigation and Criminal Investigation Division of the United States Army.

43. This motion is made in good faith and not for the purpose of delay. It is submitted that the requested production and inspection are material to the defense and would be neither unreasonable nor oppressive to the Government, but will facilitate a fair, efficient and just disposition of the charges against the defendant.

Respectfully submitted,

BERNARD L. SEGAL, Esq.
Suite 220, 536 Mission Street
San Francisco, California 94105

DURANT WILLIAMS ESCOTT, Esq.
412 Law Building
Charlotte, North Carolina 28202

Attorneys for Defendant

Attachment #2: April 25, 1975: Government's response to Motion for Discovery and Inspection of Documents

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

UNITED STATES OF AMERICA, plaintiff

:

 

VS.

:

Criminal No. 75-26-CR-3

JEFFREY R. MACDONALD, defendant

:

 

 

The United States of America, through the United States Attorney for the Eastern District of North Carolina, responds to the defendant's Motion for Discovery and Inspection of Documents, etc., Pursuant to Federal Rule of Criminal Procedure 16 filed herein, as follows:

With regard to paragraph three of defendant's Motion, the Government agrees to furnish the defendant copies of any relevant written or recorded statements made by the defendant which are within the possession, custody or control of the Government, including transcripts of recordings made by Mr. Alfred Kassab which were given to the Government and statements made to Government agents during which said agents made notes and later had those notes transcribed into a type written summary of the defendant's statement. However, the Government does not agree to furnish the defendant reports by agents of the Government of their recollections and interpretations of prior conversations with the defendant, when said agents were not taking notes of said conversation during said conversation. United States v. Battaglia, 410 F.2d 279, 283 (7th Cir. 1969). Copies of said reports will be produced for the defendant pursuant to 18 United States Code Annotated, Section 3500, after any of said Government agents have testified at the time of the trial of this matter. Nor does the Government agree to provide the defendant, pursuant to Rule 16(a) of the Federal Rules of Criminal Procedure, with copies of transcriptions by Government agents of defendant's oral statements to a third party who then made an oral statement to the Government agent. Rule 16(a) does not require the discovery of utterances made by defendants to non-government agent witnesses that are not written or recorded. United States v. Dorfman, 53 F.R.D. 477, 479-480 (D.C. N.Y. 1971); United States v. Politi, 334 F.Supp. 1318, 1321 (D.C. N.Y. 1971); United States v. Wilkerson, 456 F.2d 57, 61 (6th Cir. 1972). If such a witness is called to testify at trial a transcript will be tendered to the defendant at the appropriate time under Section 3500.

With regard to paragraph five of the defendant's Motion, the Government agrees that the defendant is entitled to his recorded testimony for the United States Grand Jury for the Eastern District of North Carolina in connection with this case.

With regard to paragraphs seven through twenty-six of the defendant's Motion, the Government agrees to furnish the defendant with copies of results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case which are within the possession, custody or control of the Government. However, the Government does not agree to furnish lab notes, methodology, nature and name of physical examinations, scientific tests and experiments made in connection with this case. When the results of the tests and the substance tested are offered to the defense, denial of discovery of detailed laboratory findings and records of testing procedures is not an abuse of discretion. United States v. Smaldone, 484 F.2d 311, 320-321 (10th Cir. 1973), cert. denied, 415 U.S. 915 (1974).

With regard to paragraph twenty-eight of the defendant's Motion, the Government agrees to make available to the defendant, at his own expense, copies of photographs and photographs of diagrams and sketches which are within the possession, custody or control of the Government, the existence of which is known, or by the exercise of due diligence may become known, to the attorneys for the Government. The Government has no model within its possession, custody or control. The Government asserts that many of these photographs, diagrams and sketches were made available to the defendant during the time of the Article 32 proceeding at Fort Bragg in 1970; in order to avoid duplication and expense, the Government will not make available photographs, diagrams and sketches which are already in the possession of the defendant.

With regard to paragraphs thirty-one and thirty-four of the defendant's Motion, the Government does not agree to furnish to the defendant, pursuant to Rule 16, the names and addresses of all persons known to the Government who may or do have knowledge of facts in connection with this case and all written or recorded statements made concerning this case by any persons who are not prospective Government witnesses. The Government is well aware of its responsibilities under Brady v. Maryland, 373 U.S. 83 (1963) and intends, pursuant to the Brady doctrine, to make the defendant in this case aware of any evidence favorable to him where that evidence is material either to guilt or punishment. The instant requests, however, go far beyond the usual Brady request. What the defendant is doing is relying an the Brady doctrine in order to seek review of all evidence of any kind in the possession of the Government so that he may determine if any of the evidence is favorable to his cause. He is, in effect, seeking the Government's help in developing his case. United States v. Isaacs, 347 F.Supp. 743, 760 (1962).

Brady did not deal in any way with pretrial discovery by a defendant nor with any duty on the Court in that respect. No pretrial remedies were intended to be created by Brady. United States v. Manhattan Brush Company, 38 F.R.D. 4. 7 (D.C. N.Y. 1965); United States v. Zive, 299 F.Supp. 1273, 1274 (D.C. N.Y. 1969). In addition, the Court in United States v. Zive, supra, stated that:

"The Supreme Court prescribed amendments to the Rules of Criminal Procedure, effective July 1, 1966, or somewhat more than three years after the Brady decision. These amendments were specifically intended to expand the scope of pretrial discovery. Advisory Committee's Note to Rule 16. Yet there was no provision for any such pretrial discovery as is here sought, and Brady v. Maryland was not even mentioned in the notes (which contained many citations)."

United States v. Moore, 439 F.2d 1107, 1108 (6th Cir. 1971); United States v. King, 49
F.R.D. 51, 54 (D.C. N.Y. 1970); United States v. Sklaraff, 323 F.Supp. 296, 311, (D.C. Fla. 1971).

Brady does not place upon the Government a general duty to help a defendant find witnesses who might be favorable to the defendant. United States v. Callahan, 300 F.Supp. 519, 525 (D.C. N.Y. 1969). Nor does it require the Government to disclose the myriad immaterial statements and names and addresses which any extended investigation is bound to produce. United States v. Jordan. 399 F.2d 610, 615 (2nd Cit.1968), cert. denied, 393
U.S. 1005; United States v. Leta, 60 F.R.D. 127, 130 (D.C. Pa. 1973); United States v. Anderson, 481 F.2d 685, 694 (4th Cit. 1973), affirmed, 94 S.Ct. 2253.

The investigation in the present case has taken place over a period of approximately five years; during that period, a large volume of people were contacted and interviewed during the course of the investigation. The Court is well aware that in the course of investigating a crime, law enforcement authorities may often report and check into a great variety of matters which ultimately prove to have absolutely no relevance to the crime under investigation. The Court simply should not consider that a prosecutor should be held to a duty of making a disclosure of every "dead end" lead contained in the police investigative reports. Smith v. United States, 375 F.Supp. 1244, 1253 (D.C. Va. 1974). As pointed out in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.EA.2d 706, 713 (1972), "We know of no Constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case."

Although the Brady doctrine places a burden on the prosecution to disclose Brady material prior to trial, it does not authorize pretrial motions by the defense to obtain all allegedly exculpatory evidence. United States v. Crisona, 416 F.2d 107 2nd Cit. 1969), cert. denied, 397 U.S. 961 (1970). Discovery motions cannot be used for fishing expeditions for Brady material. United States v. Conder, 423 F.2d 904 (6th Cit. 1970).

Under Rule 16(b) of the Federal Rules of Criminal Procedure, the defendant must show the materiality of the items to his defense and the request must be reasonable. United States v. Mahany, 305 F.Supp. 1205, 1209 (D.C. 111. 1969). The defendant in this case has failed to show materiality of the items requested in paragraphs thirty-one and thirty-four of his Motion. A mere conclusory statement that the documents or objects sought are material to a defense is insufficient. United States v. Morrison, 43 F.R.D. 516, 519 (D.C. Ill. 1967). The defendant has made no assertion of materiality other than the general contention that the statements, names and addresses may be favorable to his defense. If the material requested is exculpatory in nature, the defendant is protected by the Brady doctrine and the Government assures this Court that it intends to meet its obligation under the Brady doctrine. United States v. Leta, supra. In United States v. Marks, 364 F.Supp. 1022 (D.C. Ky. 1973) the Court ruled that the defense claim that production of sought after material would protect the defense against illegally seized evidence, provide a fair trial, guarantee proper confrontation with witnesses, enable effective assistance of counsel, insure that all relevant evidence would be brought before the Court, and either dispense with or shorten the trial failed to meet the standard of proof envisioned by Rule 16 of the Federal Rules of Criminal Procedure.

The requests of the defendant under paragraphs thirty-one and thirty-four of his Motion are not reasonable, considering the circumstances. As pointed out in United States v. Ahmad, 53 F.R.D. 186, 191 (D.C. Pa. 1971):

"[This] is not a reasonable request, apparently involving a detailed study by the Government of what must be voluminous files of materials completely irrelevant to this request. Defendants, likewise, have not shown that this requested material is needed to prepare the defense, nor have they given us any authority for this request."

The defendant has cited as authority for his requests the case of United States v. Hardy, Criminal Number 869-68 (D.D.C. 1968). In addressing itself to the cited case, the Court in Ahmad stated:

"Defendants advanced no authority for such far reaching discovery except the case of United States v. Hardy Criminal Number 869-68, D.D.C., a second degree murder case which, as far as we can find, was never adopted by any other jurisdiction and was never reported. We respectfully decline to follow the Hardy decision."

Therefore, the Government respectfully requests that the Court deny the requests in paragraphs thirty-one and thirty-four of the defendant's Motion.

With regard to paragraph thirty-seven of the defendant's Motion, the Government agrees to make available to the defendant, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, all tangible objects and documents which the Government considers may be used as evidence at the trial of this case including the material mentioned in subparagraphs b), c), d)and e). With regard to the request of the defendant in subparagraph e), the Government agrees to make said objects available to the defendant provided they not be removed from the Government's custody and that the chain of custody with regard to said items shall not be broken. The Government does not agree to make available to the defendant the item requested in subparagraph a) because the defendant has failed to establish the materiality or relevancy of said item; any exculpatory material within said document will be provided the defendant by the Government pursuant to the Brady doctrine.

With regard to paragraph thirty-nine of the defendant's Motion, the Government assures the defendant and the Court that it will produce, pursuant to the Brady doctrine, any evidence or information which is exculpatory in connection with this case. The Government would reiterate the point made earlier in this Response that although the Brady doctrine places a burden on the prosecution to disclose Brady material prior to trial, it does not authorize pretrial motions by the defense to obtain all allegedly exculpatory evidence. United States v. Crisona, supra.

It is well established that an application for relief under the discovery rules is a matter within the sound discretion of the district court and is reviewable only for an abuse of discretion. Hemphill v. United States, 392 F.2d 45, 48 (8th Cit. 1968), cert. denied, 393, U.S. 877 (1968); and an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant. Meyer v. United States, 396 F.2d 279, 283 (8th Cit. 1968), cert. denied, 393 U.S. 1017 (1968); Hemphill v. United States, supra; United States v. Anderson, supra.

Therefore, the Government contends that the Court should deny all requests in the defendant's Motion which the Government does not agree to provide for the reasons stated. Said denial would not constitute an abuse of discretion.

Respectfully submitted this 25th day of April, 1975.


THOMAS P. McNAMARA
United States Attorney

BY: VICTOR C. WOERHEIDE
Attorney, Department of Justice

JAMES T. STROUD, JR.
Assistant United States Attorney

BRIAN M. MURTAGH
Attorney, Department of Justice

Attachment #3: May 2, 1975: Memorandum in Support of Defendant's Motion for Discovery and Inspection of Documents

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

UNITED STATES OF AMERICA

:

 

V.

:

Criminal No. 75-26-CR-3

JEFFREY R. MACDONALD

:

 

 

INTRODUCTION

The defendant's Motion for Discovery should be considered in light of the following extraordinary facts. Since the murders of Colette, Kimberly [sic] and Kristen MacDonald in February of 1970, the Government has had discovery of the defendant's case that is without parallel in reported decisions. This extraordinary discovery by the Government has occurred over the past five years because the defendant, Jeffrey R. MacDonald, has voluntarily responded to every legitimate request that has been made of him for records, papers, reports and physical evidence.

From the Article 32 investigation in 1970, through the Grand Jury proceedings in 1974-75, the defendant has given information and discovery to the Government in their investigation of the killings of his family. The Government is now being asked to make information available to the defendant.

The defendant has given the Government his medical and psychiatric reports and records, which would otherwise have been unavailable to it as privileged information.

During the Article 32 investigation Dr. MacDonald voluntarily testified, even though he had the right to refuse.

Dr. MacDonald testified on two occasions, for six days before the United States Grand Jury for the Eastern District of North Carolina.

In addition to his testimony, the defendant voluntarily turned over to the Government physical evidence which was in his possession.

The Government has been able to learn of and hear, during the Article 32 proceeding, the testimony of defendant's then known witnesses.

During the 1971-72 reinvestigation of this case by the Criminal Investigation Division of the United States Army, Dr. MacDonald agreed to be interviewed by Government investigators. The Government, at that time, had no subpoena power, or any power to compel the defendant to answer questions. However, Dr. MacDonald voluntarily agreed to be inter-viewed.

Clearly, the Government has had the superior opportunity for discovery and has taken every possible occasion to avail itself of this information. Unless the defendant is given a reciprocal opportunity, he will be placed at an enormous disadvantage in attempting to prepare his defense.

The Court should take cognizance of the disparity in the relative power of the Government and of the defendant to obtain evidence without utilizing the discovery rules: the Govern-ment has the power to make searches and seizures for evidence; it has the power to convene a Grand Jury and to subpoena witnesses before it; the United States Attorney, has all the scientific and investigative resources of the Justice Department and various federal, state, and local law enforcement agencies.

This is to be contrasted with the circumstances of the defendant. He is limited by his own financial resources and to the voluntary cooperation of witnesses with him. Additionally, the defendant has been used by the Government in this case. Not only have his witnesses been subjected to interrogation by the prosecution before the Grand Jury, but they will be subjected to interrogation by the prosecution before trial through the Federal Bureau of Investigation.

In effect, the testimony presented before the United States Grand Jury was a deposition being conducted by the prosecution, without the presence of the defendant's counsel.

These factors and others have placed Dr. MacDonald at a substantial disadvantage. The discovery presently sought by the defendant will serve to partially minimize this disparity.

I. STATEMENTS OF DEFENDANT

Federal Rule of Criminal Procedure 16(a)(1) states:

Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (l)written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government.

In United States v. Projansky, 44 F.R.D. 550, 552, (S.D.N.Y. 1968) Judge Frankel held that Rule 16(a)(1) required that: "Defendants. should routinely be given documents like those here in question, (i.e., statements by the defendants) without any special showing of any kind, unless the Government can demonstrate some particularized and substantial reasons why this should not be allowed in a particular case".

The same construction of 16(a)(1), was later given in United States v. Isa, 413 F. 2nd 244 (C.A. 7th 1969)

Rule 16(a), unlike Rule (b) (which deals with other books, papers documents and tangible object), requires no showing of materiality or reasonableness by the defendant in order to obtain discovery of his own words. Absent extraordinary circumstances he is entitled to them. Although the rule uses the words "may order", it is nevertheless clear that the language of 16(a) merely means that discovery is not "routine and inescapable." This is so because it is subject to the protective order provisions of Rule 16(a). There are powerful considerations which argue strongly in favor of discovery of a defendant's own statements: such statements are evidentiary in nature; may be used as evidence against him; they may give the defendant's lawyer important investigative leads; and, a defendant cannot make an informed decision whether to testify without knowing their content.

The Projansky view that Rule 16(a)(1) requires no special showing of any kind in order for a defendant to obtain his own statements is clearly the majority view. See United States v. Crisona, 416 F. 2nd 107, 115 (C.A. 2d 1969; United States_v. Rosenfeld, 264 F. Supp 760, 763-764 (N.D. 111. 1967); United States v. Burgio, 279 F. Supp. 843, 846 (S.N.NY. 1968)Y; Unites States v. Isa, supra.

In addition, the Proposed Amendments to the Federal Rules of Criminal Procedure, 1. 62 F.R.D. 271, which become effective August 1, 1975, further emphasize the need to grant broad discovery to the defendant.

I. The proposed amendments were transmitted to Congress on April 22, 1974 by the Chief Justice of the United States pursuant to an order of the Supreme Court of the United States. Subsequently, on July 30 the President signed a bill, Pub. 2. 93-361, 88 Stat. 397 which mandates that the above proposed amendments will become law on August 1, 1975 -- only three months and two days from the filing of this memorandum.

Proposed Rule 16.(a)(1)(A) provides that, "Upon request of a defendant the Government shall permit the defendant to inspect and copy or photograph; any relevant written or recorded statements made by the defendant...." In the Advisory Committee Note to this amendment, the Committee explains that the rule makes disclosure of a defendant's statements mandatory under the circumstances prescribed in Subdivision (a)(1)(A). According to the Committee, "This is done in the view that broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence" 62 F.R.D. 308.

The American Bar Association, Standards Relating to Discovery and Procedure Before Trial, (Approved Draft 1970) go even further than the amendment in approving discovery of defendant's statements. The ABA Standards mandate the prosecutor to make the required disclosure even though not requested to do so by defendant. ABA Standards Section 1.2. Clearly, the modern trend, as set out in Projansky, in the Proposed Amendments to the Federal Rules of Criminal Procedure, and the American Bar Association's Standards, is to compel courts to provide the defendant with virtually an absolute right to discovery of his own statements. This right is subject only to the prosecution's right, on a sufficient showing, to obtain a protective order under Rule 16(e).

A. TYPES OF STATEMENTS BY DEFENDANT DISCOVERABLE:

The varieties of defendant's statements discoverable under Rule 16(a)(I) are virtually unlimited. In United States v. Federman the Court described what the term "statements" encompassed

"Anything in writing or recorded by, or with knowledge of, defendant wherein be directly, impliedly or even remotely recited or accounted or mentioned anything whatsoever having bearing --- no matter how slight --- upon the crime charged regardless of whether its nature may be construed as against his interest or exculpatory or capable of differing interpretations or even saturated with ambiguity. In short, the criterion is the equivalent in writing of what defendant had to say -- no matter how he said it -- with respect to the crime charged." United States v. Federman, 41 F.R.D. 339, 341 (S.L.W.Y. 1967).

In other words, no matter what the form of the statement, if it is relevant to the crime charged the defendant is entitled to it. It is of no matter whether the contents of the statement are inculpatory or exculpatory. The statement need not be a confession or an admission of the elements of the offense. All that is required is that it be the defendant's words.

The defendant's statements over the telephone to and recorded by Mr. Alfred Kassab his former father-in-law, are also discoverable if the statements have been turned over to the Government. Statements made by a defendant which are discoverable under Rule 16(a)(1) are not limited to statements made to agents of the Government. United States v. Feinberg, 371 F. Supp. 1205 (N.D. 111. 974); United States v. Crisona, 416 F. 2d 107 (C.A.2d 1969); United States v. Villa, 370 F. Supp. 515 (D. Conn. 1974). Any statement, to whomever made, is discoverable if it is otherwise within the Rule. The Notes of the Advisory Committee to the present Rule 16 demonstrate that there was no intent to restrict discovery to only those statements of the defendant made to agents of the Government. "The Notes make no suggestion of such a restriction. They relieve the defendant of any obligation to designate particular statements because he may not always be aware that his statements....are being recorded," United States v. Feinberg, supra. at 1211.

The statement need not be made after the arrest of the defendant in order to be discoverable, if the statement is otherwise within the Rule. United States v. Tsa, supra. This section provides for discovery of any oral statements made by defendant which have been recorded by mechanical, electrical or any other means. United States v. Bryant, 439 F. 2d 642 (C.A.D.C. 1971); United States v. Holmes, 452 F. 2d 249 (C.A. 7th 1971); United States v. Lubompski, supra., "Even more than formal statements, surreptitiously recorded" statements will be difficult for the defendant to reconstruct from memory and will often, as here, be most central to his fate at trial." United States v. Bryant, supra., at 649.

Under Rule 16(b)(1) there is no necessity for the statement to be substantially verbatim or contemporaneous. As stated in United States v. Federman, supra., a defendant is entitled to the equivalent in writing of what he had to say regarding the crime charged and irregardless of how he said it. This would include an oral statement of the defendant which was recited or summarized in an investigative report or the notes of a Government investigator. United States v. Feinberg, supra., United Slates v. Morrison, 43 F.R.D. 516 (N.D. 111. 1967); United States v. Pilnick, 267 F. Supp. 791 (S.D.F.Y. 1967); United States v. Scherf, 267 F. Surp. 19 (S.D.N.Y. 1967). Even notes of interviews, setting forth defendant's statements at length, are not considered exempt as "internal government documents". Any recorded summary of statements attributed to the defendant and in the possession, custody or control of the Government is, therefore, covered by Rule 16(a)(1), not Rule 16(b). United States v. Scharf, supra.

In United States v. Morrison, supra., the defendant made several oral statements to federal agents which were incorporated in written interview reports some time after the conclusion of the interviews. The Government refused to make these reports available to the defendant on the ground that the reports did not constitute "statements or confessions made by the defendant" under Rule 16(a)(I). The Court held to the contrary:

... the spirit of Rule 16(a)(1) could easily be evaded if the government were able to conceal these reports from defendant. Rule 16 was designed to liberalize the court's powers in regard to the grant of pretrial discovery.

Were we to deny a request for this material, we can foresee the day when Government agents would make it their practice to summarize their interviews, rather than recording them verbatim, in an effort to avoid discovery. The philosophy underlying Rule 16, in our judgment, applies equally to verbatim statements and summaries thereof." United States v. Morrison, supra., at 519.

The work product exemption of 16(b) concerning internal Government communications and memorandums must be read together with and accommodated to, the strong policy in favor of discovery of a defendant's own statements manifested in 16 (a) (1). The reasons in favor of granting a defendant access to his statements are as powerful in the case of oral statements, wherever they appear, as in the instance of a written and signed confession. Many statements of defendants will appear only in investigative reports or notes, especially as restrictions on interrogation make formal written statements harder to obtain. The exemption for investigative reports is designed to prevent wholesale rummaging by a defendant through the prosecution's files and gaining access thereby to the Government's investigative techniques and sources of information. See Advisory Committee Note to Rule 16(b). Requiring the prosecution to disclose merely the portions of investigative reports or notes which contain oral statements of the defendant in no way infringes on the prosecution's interest in protecting its files from exploration at large and in safeguarding its investigative techniques and sources.

II. RULE 16(a)(3) - DEFENDANT'S GRAND JURY TESTIMONY

The considerations discussed above indicate that a defendant should have virtually an absolute discovery right to his statements. The same or similar considerations to a defendant's request for his own Grand Jury testimony. In fact, the argument for disclosure of Grant Jury testimony is even more compelling since the defendant's testimony to the Grand Jury was under oath and entitled to more weight by a jury. As with the defendant's statements, Rule 16(a)(3) grants to a defendant the absolute right to inspect and copy his recorded testimony subject to the protective order provision found in Rule 16(e).

In the much cited case, United States v. Projansky, supra., at 558, Judge Frankel stated that Rule 16(a)(3) was an unequivocal mandate entitling a defendant to see his Grand Jury testimony. Under Rule 16(a)(3), a defendant is entitled to a copy of his own testimony before a Grand Jury unless the Government affirmatively establishes some reason why it should be withheld. United States v. Projansky, supra., United States v. Manetta 323 F. Supp. 683
(D.C. Del. 1971), United States v. Tunner, 279 F. Supp. 547 472 (N.D. 111. 1967) and United States v. Pilnick, supra.

Undoubtedly, the current judicial trend is towards recognition that a defendant should have an absolute right to his recorded testimony before the Grand Jury. This same philosophy has been made a part of the Proposed Rules of Criminal Procedure in that subdivision (a)(1)
(A) of Proposed Rule 16 provides for mandatory disclosure of any recorded testimony which defendant gives before a Grand Jury, and which relates to the charge.

In the Advisory Committee Note on Proposed Rule 16, 62 F.R.D. 311, the Committee states:

"The traditional rationale behind Grand Jury secrecy -- protection of witnesses -- does not apply when the accused seeks discovery of his own testimony. Cf. Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L.Ed. 2d 973 (1966) and Allen v. United States 129 U.S. App.D.C. 61.

[Note Note from Christina Masewicz: The balance of the paragraph is too faded to read.]

III. RULE 16(a)(2) - PHYSICAL OR MENTAL EXAMINATION AND SCIENTIFIC TEST

[Note from Christina Masewicz: First paragraph is too faded to read.]

The reasons for allowing the defendant access to such material are as follows 1) The defendant will not be able to effectively and adequately pretrial preparation; 2) Expert testimony generally has, in the eyes of a jury, unusually high probative value, coming as it does from a supposedly disinterested party and concerning matters generally beyond the realm of ordinary lay information; 3) Expert testimony is therefore, almost impossible to rebut without intensive pretrial preparation; 4) Any danger of intimidation of witnesses concerning these matters is so slight as to be for all practical purposes nonexistent.

These reasons were recognized by Circuit Judge Wright in his concurring opinion in Cooper v. United States, 119 U.S. App. D.C. 142, 143, 337 F. 2d 538, 538 (1964). He states there: "In short, to the extent that the Government utilizes modern scientific techniques for crime detection, the findings will be available to the defendant." Rezneck, The New Federal Rules of Criminal Procedure, 1966, 54 Geo. L.J. 1276, 1278.

The Proposed Amendment to Rule 16 recognizes the need for discovery of this material and has made disclosure of this material mandatory under subdivision (a)(1)(D). This is consistent with the recommendation of the American Bar Association's Standards which proposes that discovery of this material is a matter of right. ABA Project on Standards for Criminal Justice, Discovery and Procedure Before Trial, (Approved Draft 1970), Section 2.1 (a)(iv).

IV. DISCOVERY UNDER RULE 16(b)

Rule 16(b) permits discovery on the requisite showing of materiality and reasonableness, of books, papers documents, tangible objects, buildings, or places, or copies or portions thereof, that are within the possession, custody, or control of the Government.

Prior to the 1966 Amendment to Rule 16, discovery was limited to material obtained from or belonging to the defendant, or obtained from others by seizure or subpoena. The 1966 Amendment to Rule 16 abolished this requirement. Instead, the standard is whether the material is in the possession, custody, or control of the Government. If it is then it is potentially subject to discovery no matter how the Government obtained it. Wright, Federal Practice and Procedure: Criminal Section 254.

In United States v. Crisona, 271 F. Supp. 150, 158 (D.C. N.Y. 1967) the Court explicitly stated this principle: "Insofar as the Government's contention is based on Crisona's lack of any proprietary interest in the documents, the test under Rule 16, F.R. Crim. P. as amended, is materiality and reasonableness rather than a proprietary interest." In a note to an earlier proposal to amend Rule 16, the Advisory Committee said, "No useful purpose appears to be served by making defendant's right to discovery depend upon the source from which or the method by which the Government obtained custody of the items in question." Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure, December 1962, p. 9. See also Wright, Federal Practice and Procedure: Criminal Section 254, N. 57. Clearly then, all discovery requests under Rule 16(b) by defendant Jeffrey R. MacDonald are not limited to those items in which he has a proprietary interest.

There is, however, an especially strong case for ordering discovery of items that the Government has obtained from the defendant. Wright, Federal Practice and Procedure, supra. See also United States v. Garrison, Wertheim & Goldman, 308 F. Supp. 419, 421 (D.C.N.Y. 1969) citing Wright. This position has also been taken by the ABA Project on Standards for Criminal Justice, Discovery and Procedure Before Trial, Section 2.1 (a)(v) (Approved Draft 1970), which urges that discovery be allowed as a matter of right of "any books, papers, documents, or photographs or tangible objects, which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused."

In the present case, this would be particularly applicable to all items taken by the Government from the defendant's former residence at Ft. Bragg, North Carolina which belonged to the defendant, including the linens, towels, furniture and clothing of the defendant and his family.

A. THE MATERIALITY STANDARD

Rule 16(b) does not require that the defendant ask for designated items in his discovery motion. United States v. Hughes, 413 F. 2d 1244 (C.A. 5th 1969); United States v. Bel-Mar Laboratories, Inc., 284 F. Supp. 875 (D.C.N.,Y. 1968); United States v. Reid, 43 F.R.D. 520 (D.C. Ill. 1967). All that is required of him is some degree of particularization and some showing of materiality. But, it is clear that this standard must be viewed generously.

The difficulty for the defendant to demonstrate the materiality of some evidence which he has not seen is too apparent to need argument. It would be unreasonable to require the defendant to lay a detailed foundation in advance to support a Rule 16(b) discovery request. United States v. Hughes, supra.; United States v. Tanner, 279 F. Supp. 457 (D.C. 111.
1967); Rezneck, supra.; Traynor, "Ground Lost and Found in Criminal Discovery", 1964 39
N.Y.U.L. Rev. 228. Chief Justice Marshall, over one hundred years ago, recognized this when he stated:

"Now, if a paper be in possession of the opposite party, what statement of its content or applicability can be expected from the person who claims its production, he not precisely knowing its contents?" United States v. Burr, 25 Fed. Cas. 187, 191 (No. 14694)
(C.C.D. Va. 1807).

There is no language in Rule 16(b) that would require the standard of materiality to be any more stringent than that applied to discovery under Federal Rules of Civil Procedure 26
(b). Under the civil rule, discovery is permitted if the items are relevant to the subject matter of the case. This means that the items need not be admissible in evidence so long as they may lead to the discovery of admissible evidence. Rezneck, supra., at 1279. Finally, there is another important consideration. If the Court does not grant a generalized discovery demand by a defendant in a criminal case under 16(b), there are no other meaningful discovery mechanisms available to him as their would be to a defendant in a civil case.

"In civil litigation a requirement that a party designate that which he seeks is workable, since interrogatories and other discovery devices permit him to ascertain what materials exist. These other devices are not available to the criminal defendant, and the courts must necessarily view leniently the foundation made for a motion under Rule 16(b)." Federal Practice and Procedure supra., at 513.

B. MATERIALITY OF Evidence TO BE OFFERED AT TRIAL

The Courts have dealt with the materiality test in a different manner when the material sought under Rule 16kb) is to be used by the Government as evidence at the trial. In this case, it is appropriate for courts to grant to the defense discovery of all items which the prosecution proposes to offer in evidence at the trial. United States v. Dioguardi, 332 F. Supp. 7 (D.C.N.Y. 1971), Anything that the Government plans to introduce in evidence against the defendant is clearly material, and his request for it is reasonable. Wright, Federal Practice and Procedure, supra. United States v. Wolfson, 294 F. Supp. 267 (D.C. Del. 1968); United States v. Hrubik, 280 F. Supp 481 (D.C. Alaska 1968); United States v. Reid, 43 F.R.D. 520 (D.C. 111. 1967)

As stated in United States v. Wolfson, supra., at 277 "If the documents seized or obtained by process from others are necessary to prove the Government's case at trial they would obviously be material to the preparation of the defense."

C. SCOPE OF DISCOVERY UNDER RULE 16(b)

It is also important to note that Rule 16(b) does not limit the defendant to discovering evidence the Government intends to use against him. The stated test in Rule 16(b) is "materiality to the preparation of his defense". This test is therefore broad enough to include documents that the defendant wishes as part of his own case as well as the documents that will be used against him. Wright, Federal Practice and Procedure, supra.

"But the rule does not limit the defendant to discovering the case against him. It evidently contemplates that his discovery may encompass a search for evidence which he may use to support his own case or to impeach the government's. For example, photographs of a lineup or the scene of a crime are material and should be discoverable whether or not the government contemplates their use as evidence against the defendant." Rezneck, The New Federal Rules of Criminal Procedure, 1966, 54 Geo. L.J. 1276, 1279.

See also United States v. Hughes, supra., and United States v. Aadal, 280 F. Supp. 859 (D.C.N.Y. 1967).

V: RULE 16(b) - DISCOVERY OF OTHER BOOKS, PAPERS, DOCUMENTS, AND TANGIBLE OBJECTS

In Paragraph IV of Defendant's Motion for Discovery, photographs, diagrams, and sketches are sought. Paragraph VII requests inspection and copies of all tangible objects and documents which the Government considers may be used as evidence at the trial of this case. Both requests are provided for under Rule 16(b).

The photographs sought in this case are necessary to determine the condition of the scene of the crime, the physical conditions of the defendant and his wife and children and to support the defense case, particularly in the identification of individuals observed at or near the scene of the crime. These items are relevant to the subject matter of this case and may lead to the discovery of admissible evidence. They are therefore clearly material to the preparation of his case. As discussed earlier in this brief, p. , the defendant's discovery under Rule 16(b) includes evidence which he may use to support his own case.

These photographs may be offered into evidence at trial and the information contained in them is otherwise unavailable to the defense. This request is therefore material and reasonable and similar requests have been granted in United States v. Ahmad, 53 F.R.D. 186 (D.C. Pa. 1971). See also, United States v. Schembari, 484 F. 2d. 931 (C.A. 4th 1973).

The objects and documents sought under Paragraph VII of the Motion for Discovery are evidentially materials and are therefore presumed to be material and reasonable, as discussed infra., p. 14. In addition, inspection of these materials is necessary to prepare an adequate defense and to prevent surprise at trial. United States v. Dioguardi, 332 F. Supp. 7 (D.C.N.Y. 1971); United States v. Bearden, 423 F. 2d 805 (C.A. 5th 1970.

VI. RULE 16(b) - WITNESS LISTS

Rule 16 is apparently intended to authorize orders requiring the production of witness lists, because the Advisory Committee's Notes suggest that the "safety of witnesses" and the "danger of perjury or witness intimidation" may be considered by the Court as a basis for restricting discovery. The Government has an alternative when it believes disclosure will create an undue risk of harm to the witness: it can request a protective order under Rule 16(e).

Discovery of witness lists was approved in United States v. Hardy, D.D.C. Cr. No. 869-69 (1968) where the Court stated:

"Absent a showing of ... abuses and the considerations noted by the Advisory Committee, such as danger to witnesses, names and addresses of persons who have any knowledge pertaining to the case, both those who will be called as witnesses and those who will not, are properly discoverable ... The necessity for discovery of names and addresses of persons with knowledge of the case whom the Government does not intend to call as witnesses may be even greater than discovery of the names of witnesses who will be called. The former may have information favorable to the accused and that information would not be discoverable under the Jencks Act. Indeed, if discovery of names of non-witnesses with knowledge of the case were denied, an innocent defendant might never even know of the existence of people who could save him from punishment for a crime he did not commit."

This is certainly not a unique position for the Court to have taken, particularly nor prosecution has a proprietary interest in a witness. "Witnesses, particularly eyewitnesses to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them". Gregory v. United States, 369 F 2d 185 182 (C.A.D.C. 1966).

Other courts have recognized that under Rule 16(b) they have discretion to order disclosure of Government witnesses to the defendant. United States v. Richter, 488 F. 2d.170 (C.A.9th 1973); United States v. Baggett, 455 F. 2d 476 C.A. 5th 1972); United States v. Hutchins, 53 F.R.D. 455 (E.D. Pa. 1971); United States v. Hamilton, 452 F. 2d 472 (C.A. 8th 1971).

According to the Ninth Circuit in United States v. Richter, supra., at 175:

"If a defendant desires discretionary disclosure of the government's witnesses, he should make a showing similar to that required by Rule 16(b). If the Court wishes to entertain the motion and if the government feels that it has a valid reason for restricting that discovery, it should move for a protective order similar to provided under Rule 16(e). Following these procedures will insure that there is an adequate basis for requesting such discovery and will afford the government a known method for resisting the request."

The Proposed Amendment to Rule 16 represents the current trend to allow discovery of witness list. Subdivision (a)(1) (E) of the Proposed Amendment states that, "Upon request of the defendant the Government shall furnish to the defendant a written list of the names and addresses of all Government witnesses which the attorney for the Government intends to call in the presentation of the case in chief..." Proposed Amendments to the Federal Rules of Criminal Procedure, 62 F.R.D. 271, 305. This places a mandatory duty upon the Government to disclose names and addresses of witnesses when so requested by the defendant. Further support for discovery of witness lists appears in the ABA's Standards Relating to Discovery and Procedure Before Trial, Section 2.1(a)(i) (Approved Draft, 1970) which requires disclosure of both names and statements of prosecution witnesses. The Committee argues that:

"discovery of names and statements facilitates plea discussions and goes to the heart of the general proposition that defense counsel must be permitted to prepare adequately a cross-examine the witnesses against the accused and otherwise test their credibility as well to produce other evidence relevant to the facts in issue."

The Committee is persuaded by four basic principals -- the fundamental concept of fairness requires early disclosure, prior disclosures alleviate delays at trial, early disclosure is necessary for adequate preparation and for minimizing surprise, and protective orders are available, if a denial of discovery is required. ABA Standards at 56-58.

A. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE

In the present case, there is no danger of witness tampering by the defendant, Jeffrey R. MacDonald. This case has been continuing for five years and at no time has the defendant given the Government any reason to suspect that he has or would attempt to influence any witness regarding this case.

The Government is only being asked to disclose information it has of the type and kind that the defendant for his part has previously disclosed to the Government. The defendant, during the Article 32 investigation, 1970, revealed to the Government the 29 witnesses then available to the defense. The Government has had the extraordinary opportunity to obtain discovery of the defendant's witnesses, as well as other material, by way of the Article, 32 proceeding; and through the Army reinvestigation of this case and through the Grand Jury proceedings. Certainly the defendant must have at least an equal right to know the existence of Government witnesses, even if he lacks the unlimited personnel and funds of the Government and the coercive power of a Grand Jury to compel their cooperation with him.

Defendant's request for the names and addresses of witnesses is both reasonable and material to the preparation of his case. "The names of persons with knowledge of the facts is often the most important information for proper defense of a case." Wright, Federal Practice and Procedure: Criminal Section 254. The names and addresses of persons having knowledge of this case are necessary to enable the defense counsel to conduct an adequate investigation of this case, particularly in light of the fact that five years has transpired since the date of the crime.

"In any criminal case, a defendant should be entitled to learn the names and addresses of the witnesses known to the case. It seems inconceivable that in the middle of the Twentieth Century we should regard as fair a proceeding in which counsel is unaware of the witnesses whom he must cross-examine until the moment they are called or, voir dire examination." Pye, The Defendant's Case for More Liberal Discovery, 1963, 33 F.R.D. 82, 92.

VII. RULE 16(6) - STATEMENTS OF PERSONS OTHER THAN DEFENDANT

The discovery by the defendant of pretrial statements of persons who are not prospective Government witnesses is also within the discretion of the Court under Rule 16(b). It is recognized that the defendant may not obtain, pretrial discovery of statements made by actual or prospective Government witnesses. But, Rule 16(b) does not prohibit the disclosure to the defendant of statements from persons the Government does not propose to call as witnesses. 'Wright, Federal Practice and Procedure: Criminal Section 254; Rezneck, The New Federal Rules of Criminal Procedure, 1966, 54 Geo. L.J. 1276.

The Jencks Act exemption in Rule 16(b) does not explicitly exclude discovery of statements of witnesses the Government does not propose to call:

"Their statements are not obtainable at any time under the Jencks Act, since it allows discovery only of statements of witnesses who actually testify at trial. As a result, there would be an undesirable gap in the scope of available discovery if the new rules were held not to authorize discovery of statements of witnesses whom the prosecution does not plan to call. Statements of such witnesses may contain material helpful to the defendant's case, e.g., the inability of the witness to identify the defendant or a description of the perpetrator of the crime which does not fit the defendant. Rezneck, The New Federal Rules of Criminal Procedure, supra., at 1286.

Professor Charles Alan Wright also states that if the exemption in Rule 16(b) purports to bar discovery of statements of witnesses not expected to be used at trial, then the exemption is too broad, and quite probably, in the light of Brady v. Maryland, unconstitutionally broad." Wright, Recent Changes in the Federal Rules of Procedure, 1966, 42 F.R.D. 552-569.

Some Courts have ordered discovery of statements of witnesses whom the Government does not plan to call. In United States v. Hardy, supra., the Court granted the defendant access to all statements, written and oral, made to the police by his wife, who was arrested with him as an accomplice but was not indicted. The Court held, at page 69, that, "The Government having failed to show any clear and compelling considerations for suppression of these statements, they are discoverable under Rule 16(b)..." See also United States v.
White, D.C.D.C., Cr. No. 951-65.

The ABA's Standards Relating to Discovery and Procedure Before Trial, Section 2.1(a)
(1) (Approved Draft, 1970) recognize the defense need for discovery of statements of Government witnesses. The Committee proposal would have the Government disclose to the defendant the names and addresses of persons whom the prosecuting attorney intends to call as witnesses, together with their relevant written and recorded statements. The Committee makes the same argument for discovery of these statements as it did for the witness lists; namely, that the fundamental concept of fairness requires early disclosure, that prior disclosures alleviate delays at trial, that early disclosure is necessary for adequate preparation and to minimized surprise, and that protective orders are available if a denial of discovery is required. ABA Standards, supra.

A. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE

The statements requested by the defendant, Jeffrey R. MacDonald, are limited to statements by witnesses concerning this case. These statements are clearly material to the preparation of his defense. Because of the length of time that has elapsed since the murders of the defendant's wife and children, and in light of the thousands of persons whom the Government has claimed to have interviewed concerning this case, only early discovery of these statements will allow defense counsel to prepare an adequate defense and investigate the evidence pertinent to the facts in issue.

In addition, the defense will need considerable time to review this voluminous material because in turn it may produce further investigative leads. Disclosure of this material at trial will be too late. The defendant would be denied at that late juncture, and the Court would be faced with, unnecessary delay. Furthermore, due to the enormous number of persons claimed to have been interviewed by the Government and the worldwide geographical locations of these witnesses, it will be impossible for defense counsel to interview or take depositions of these witnesses. This situation is further complicated by the fact that agents of the Government may have advised these witnesses not to discuss the case with other persons including the defendant's lawyers and investigators.

VIII. EXCULPATORY EVIDENCE - BRADY v. MARYLAND

In Brady v, Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, the Supreme Court made it clear that the withholding of evidence favorable to an accused by the prosecution violates due process. The Court stated, "We hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87. The duty under the due process clause to disclose exculpatory evidence is independent of the discovery otherwise available under Rule 16. It should also be noted that in Brady the evidence withheld was favorable only on the issue of punishment.

Following Brady, other courts have also found a violation of an accused's constitutional rights in the withholding of evidence favorable to the defense and rulings by the courts make it clear that no distinction is to be drawn between material known only to the police and material known to the prosecuting attorney. See Barbee v. Warden, 331 F. 2d 842, 846 (4th Cir. 1964); Ellis v. United States, 120 U.S. App. D.C. 271, 345 F. 2d 961 (1965); Walker v. Bishop, 295 F. Supp. 767 (E.D. Ark. 1967); Smith v. United States, 375 F. Supp. 1244 (E.D. Virginia 1974). Moreover, it has become clear that even a negligent nondisclosure by the prosecution will violate the rights of an accused. Levin v. Katzenbach, 124 U.S. App. D.C. 158, 363 F. 2d 287 (C.A.D.C. 1966), and authorities there cited; Barbee v. Warden, supra.

The Brady decision enlarged the pretrial discovery rights of a defendant. In Brady, the defendant had made a pretrial request for disclosure of the statements of a co-defendant, one of which was not disclosed by the prosecution even though it was favorable to the defendant. In holding that nondisclosure constituted a violation of due process, it follows from the Supreme Court's conclusion that the breach of duty by the prosecutor existed from the moment the defendant made his pretrial request.

Other courts have recognized a duty of pretrial disclosure under Brady in some instances. United States v. Ahmad, 53 F.R.D., 186, 193-194 (M.D. Pa. 1971); United States v. Ladd, 48 F.R.D. 266, 267-268, (D.C. Alaska 1969); United States v. Gleason, 265 F. Supp. 880, 884-85 (S.D.N.Y. 1967); United States v. Morrison, 43 F.R.D. 516, 520 (N.D. 1ll. 1967). The Court in United States v. Ahmad, supra., at 193, clearly defined the problem and considerations involved:

"It seems true, as pointed out In 8 Moore's Federal Practice-Cipes, Criminal Rules Section 16.06(a) (2d Ed. 1970), that if disclosure of some types of exculpatory evidence were delayed until trial it would not be early enough to enable defendants to make effective use of it, and in this situation it is likely that the late disclosure would violate due process. See also United States v. Cobb, 271 F. Supp. 159 (S.D.N.Y. 1967). It is also true that defendants cannot be expected to be specific in advance in asking for exculpatory evidence that might not be known to them. On the other hand, the Government cannot be held to strict accountability in advance for each bit of possible exculpatory evidence in its files, some of which might only become of an exculpatory nature after defendants have revealed their defense. The need for full disclosure to insure fairness to the defendants and that due process is observed must be weighted against an insuperable burden on the prosecution in advance of trial. At least, exculpatory information having a material bearing on defense preparation should be disclosed well in advance of-trial. 8 Moore's Federal Practice Cipes, Criminal Rules Section 16.060(3) (2d Ed. 1970), especially if such information is not Jencks Act Material."

Delaying disclosure of potentially exculpatory information until trial may come too late from the standpoint of both the defense and the prosecution; too late for the defense because it may be impossible to develop the information properly at that point, and too late for the interests or the prosecution as well in such a case because the only recourse then will be for the court to declare a mistrial and order a new trial. Rezneck, "Pretrial Discovery in the Federal Courts", in Criminal Defense Techniques. (R. Cipes Ed. 1969) Section 10.05.

In summary, the defendant seeks to enlighten himself concerning the elements and nature of the charges against him so that counsel may adequately prepare his defense. The Supreme Court has declared: "A prosecution that withholds evidence on demand which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice..." Brady v. Maryland, supra, at 87-88.

CONCLUSION

It is submitted that for all the foregoing reasons the defendant's requests for discovery should be granted by the Court.

Respectfully submitted,

Bernard L. Segal
536 Mission Street, Suite 220
San Francisco, California 94105

Durant Williams Escott
412 Law Building
Charlotte, North Carolina 28202

Attachment #4: May 2, 1975: Amendment to Motion for Discovery and Inspection of Documents

UNITED STATES OF AMERICA, plaintiff

:

 

V.

:

Criminal No. 75-26-CR-3

JEFFREY R. MACDONALD, defendant

:

 

 

The defendant, JEFFREY R. MACDONALD, respectfully moves to Amend his heretofore filed Motion for Discovery Pursuant to Federal Federal Rule of Criminal Procedure 16, and by said Amendment adds the following demands for discovery to his aforesaid motion:

1. To Section IV, paragraph 19, on page 5 of the aforesaid Motion, the defendant adds the following demand for discovery:

Further, all experiments, tests, and reports of the clothing of Colette, Kristen and Kimberley [sic] MacDonald, including but not limited to tests of the clothing worn by the aforesaid persons on or about February 17, 1970, on or about the time of the deaths of the said persons, and tests of any other clothing of the said persons. Further, all experiments, tests and reports relating to bath mats, towels, bed linen, including but not limited to sheets and pillow cases, blankets, bedspreads, mattress protectors of all sorts, mattresses, pillows, and any other physical items which the Government believes or relies upon as having been used underneath or used to cover in any fashion the bodies of the above-named persons.

2. To Section VIII, paragraph 32, on page 13 of the said Motion, the defendant adds the following subparagraph to his demand for discovery:

f) The following tangible objects: those obtained from the scene of the crime, to wit, all matters referred to in paragraphs 7 through 26 of the Motion for Discovery, including the amendment to paragraph 19 which is set forth in this amendment.

Respectfully submitted,

Bernard L. Segal, Esq.
Suite 220
536 Mission Street
San Francisco, CA 94105

Durant Williams Escott, Esq.
412 Law Building
Charlotte, NC 28202

Attorneys for Defendant

DATED: May 2, 1975

Attachment #5: May 7, 1975: Hearing Upon Motions of Defendant Before the Honorable Franklin T. Dupree

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

UNITED STATES OF AMERICA, plaintiff

:

 

V.

:

Criminal No. 75-26-CR-3

JEFFREY R. MACDONALD, defendant

:

 

 

APPEARANCES:

FOR THE GOVERNMENT:

JAMES T. STROUD, JR., ESQ.
VICTOR C. WOERHEIDE, ESQ.
BRIAN M. MURTAGH, ESQ.

FOR THE DEFENDANT:

BERNARD L. SEGAL, ESQ.
DURANT WILLIAMS ESCOTT, ESQ.

MAY 7, 1975

AT RALEIGH, NORTH CAROLINA

INDEX

PRETRIAL CONFERENCE (IN CHAMBERS) . . . .. 5 - 30
DEFENDANT'S MOTIONS
Transfer (21(b)) . .. . . . . . . . .. . .31 - 352
Offer of Admissions 73 -90
Def. Argument .. . . . . 90 -165,184 -196,
203 -208,226 -232,
341 -349,480 -481
Gov. Argument .. . . . . 166 -184,196 -202,
340 -341,349 -352
Witnesses:
Michael J. Malley .. . . . . . . .. . .34 -43
Direct Examination .. . . . . . 34 -38
Cross Examination .. . . . . . 38 -43
Jeffrey R. MacDonald .. . . . . . . . .. . .209 -226
Direct Examination .. . . . . . 209 -215
Cross Examination .. . . . . . 215 -224
Redirect Examination. . . . . . 224-225(a)
Recross Examination. . . . . . 225(a) - 226
Transfer (21(a)) . . .. . . . . . . . .. . .234 -328
Def. Argument . . .. . . . . . 245-284,308 -319
Gov. Argument . . .. . . . . . 284-308,319 -328
Grand Jury Testimony .. . . . . . . .. . . .353 -408
Def. Argument . . .. . . . . . 353-361,362 -391,
398-408
Gov. Argument . . .. . . . . . 361-362,391 -398
To Inspect Documents. . . . . . . .. . . .409 -447
Def. Argument . . .. . . . . . 409-442(480 -481)
Gov. Argument . . .. . . . . . 442-447
To Discover Grand Jury Composition . .. . . .449 -457
Def. Argument . .. . . . . . . 449-457
(546-547)
Gov. Argument . .. . . . . . . 545

INDEX
DEFENDANT'S MOTIONS (CONTINUED)
Re Defective Grand Jury Proceedings
and Prosecutorial Misconduct . . . . 457 - 476
Def. Argument . . . . . . . . 457 - 471
Gov. Argument . . . . . . . . 471 - 473
Witness:
Jeffrey R. MacDonald
(Transcript filed 3 July 1975)
Re Double Jeopardy . . . . . . . . . . . . 483 - 524
Def. Argument . . . . . . . . 483 - 512, 519 - 524
Gov. Argument . . . . . . . . 512 - 519
To Suppress Evidence . .. . . . . .. . .525 -545
Def. Argument . . . . .. . . 525 -536,542 -545
Gov. Argument . . . . .. . . 536 -542
For Speedy Trial . . . .. . . . . .. . .547 -586
Def. Argument . . . . .. . . 547'-575,580 -586
Gov. Argument . . . . .. . . 575 -580
GOVERNMENT'S MOTIONS
For Discovery . . . . .. . . . . .. . .447- 449
Def. Argument . . . . .. . . 447 -449
Under Rule 6(e)
Gov. Motion . . . . . . . . 473
INDEX
DEFENDANT'S EXHIBIT SPACE
1 -Balance Sheet . . . . . . . . . . . . . . .. . 32
2 -Statement of Income, Assets . . . . . . . .. . 32
3 -Statement of Comparative Costs of Trial . .. . 33
4 -Report, Article 32 . . . . . . . . . . . .. . 33
5,6, 7 - Affidavits Morgan, Bach, O'Quinn . .. . 69
8,9, 10, 11, 12 - Telegrams . . . . . . . . .. . 194
13 -17 - Newspaper Articles . . . . . . . . .. . 235
18 -33 - Newspaper Articles . . . . . . . . .. . 236
34-48 - Newspaper Articles . . . . . . . . .. . 237
49-Newspaper Article . . . . . . . . . . . .. . 242
50-Newspaper Article . . . . . . . . . . . .. . 243
51-Newspaper Article . . . . . . . . . . . .. . 243
52-Partial Transcript of Jan. 29-30, 1975 . .. . 243
53-Newspaper Article . . . . . . . . . . . .. . 317
54-Newspaper Article . . . . . . . . . . . .. . 345
55-Telegram . . . . . . . . . . . . . . . . .. . 345
56-Newspaper Article . . . . . . . . . . . .. . 349
57-Affidavit of Costs . . . . . . . . . . . .. . 480
58,59, 60 - Envelopes . . . . . . . . . . . .. . 527
61- Telegram . . . . . . . . . . . . . . . . .. . 551

I have nothing further on this motion, your Honor.

THE COURT: All right. You may proceed to your next one.

MR. SEGAL: May I ask the return of the report unless the Court would like to have it marked?

(Document returned to defense counsel)

MR. SEGAL: Your Honor, this motion before the Court now is a motion to discover and inspect documents, under Federal Rule 16.

In Paragraph 3 of the motion, if your Honor pleases, found on page 2, the defendant requested to be given discovery of all statements, confessions, admissions, written or otherwise, made by him to the Government and to other persons, including one Alfred Kassab.

The Government answers in part that it will give to this defendant what it says are his relevant written statements, on page 1 of its response to that motion, your Honor, in the second paragraph, second line, they will give the defendant the relevant written or recorded statements made by defendant which are within its possession.

The utilization of that term by the Government troubles me enormously. To my knowledge, the Government has no statements. No interviews of the defendant were ever taken except in pursuance of the investigation or in connection with the case. It troubles me that counsel for the Government, not out of malice, your Honor, but simply out of lack of understanding what the defense would like to know, that its own client has said, they say, "It isn't relevant for them to know that he said it." I would ask your Honor to direct in this case that any statements which the Government should deem irrelevant, should be submitted to your Honor, in camera, for your inspection so that your Honor may decide whether in fact the determination made is a proper one. I don't think that is burdensome. It is a procedure that has been approved in other cases. It seems to me that if the Government simply doesn't want to even let me see the relevancy that this Court should pass upon them to assure itself that in perhaps a too restrictive view of relevance the Government has denied something even though it is attempting to oblige the request for discovery. We feel that is not an unreasonable request and we so move the Court to do so.

However, there is a more serious problem in the Government's admission, in their answer in paragraph 3, the Government says it will not agree to furnish the defendant reports by agents of the Government of their recollections and interpretations of prior conversations with this defendant when said agents were not taking notes of said conversations during said conversation.

Now, that is contrary to the stated case law on the subject. In a leading case which I wish to cite to your Honor at this time, the U. S. v. Fedderman, case; the District Court there, went into the most singularly definitive analysis of what the defendant is entitled to when you say statement under Rule 16(a)(1). The Court said in Fedderman:

"Statements encompass the following:
anything in writing or recorded by or with knowledge of defendant therein he directly, impliedly or even remotely recites or recounts or mentions anything whatsoever having a bearing, no matter how slight, upon the crime charged, regardless of whether its nature may be construed as against his interest or exculpatory or capable of differing interpretations or even saturated with ambiguity. In short, the criterion is the equivalence in writing of what the defendant had to say, no matter how he said it with respect to the crime charged."

Now, in the case of United States v. Morrison, that is further explicated to include precisely what the Government wants to refuse here. U. S. V. Morrison is cited on page 8 of our brief, if your Honor pleases, 43 F.R.D. 516, Northern District of Illinois, 1967. The Court there got precisely to the issue:

"Discovery rules were not meant to be dealt with by avoidance, dealt with by sleight of hand, ... "

Statements mean what statements mean. And the Court said:
"... the spirit of Rule 16(a)(1) could easily he evaded if the Government were able to conceal these reports from the defendant. Rule 16 is designed to liberalize the Court's powers in regard to the granting of pretrial discovery. Were we to deny a request for this material we can perceive a day when the government agents would make it their practice to summarize their interviews rather than reporting them verbatim in an effort to avoid discovery. The philosophy underlying the Rule 16, in our judgment, applies equally to verbatim reports and summaries thereof."

And what the Government has simply said, categorically, is that they will not give defendant reports of their recollections and interpretations of prior conversations. In other words, when the agents talked to defendant they simply went outside to their car and made notes and went directly back to the office and made notes of the conversation. But those they won't give to the defendant and when they get on the stand and attempt to offer it and they say, "How do you remember that?" "I went back to my office to write it down."
"Well, how do you know you got it down correctly, you didn't do it verbatim." "Oh, I know I got it correct." And then the Government will be sitting there smugly, relying on that which it says doesn't fit under the definition of statement.

Your Honor, both Morrison and Fedderman make it clear that if the defendant has a right to statements at all, as it is so clearly set out by Rule 16(a), the Government can't play games and say, "Well, we won't give you the agent's impression." What does that mean? The agent writes down, "I interviewed MacDonald, I went back then to my office and I wrote it down." That is an impression of what he said. He didn't even put quotation marks around it.

As the Court commends to our attention here, we can perceive that such a practice proves the Government agency has a very interesting way of defeating the discovery rule on their own, by simply doing all reports without quotation marks and saying, "I didn't write it down; then I went outside and wrote it down thereafter, and you're not entitled to discovery."

Let me deal with Paragraph 5, your Honor, because Paragraph 5 is another request for the defendant's testimony before the Grand Jury, and the Government has in fact agreed to that so that is not any longer in dispute.

Next is IV. and numbered paragraphs 7 through 26 of the defendant's motion for general discovery.

Here in 7 through 26 the defendant has set out particularly and with specificity, based upon the knowledge that he has obtained from what the Government has told him directly in the Grand Jury that they had against him and what he has learned independent from the prior investigation and what he has learned since on his own resources, what the Government apparently has and he sets forth special demands for reports of examination of a list that I will not go over and state, your Honor, it speaks for itself. But I want to point out that the Government is giving only a partial response to that. All the requests, your Honor, the Government says or acknowledges, are quite specific as to what the defendant wants. They don't say that "We don't understand what you're looking for, we never heard of it in connection with the case." They know that we are accurately reflecting the general nature of the scientific evidence. What the Government says, however, is that they will only give the results, on page 2 of the Government's answer, your Honor.

"With regard to paragraphs 7 through 26 of defendant's motion the Government agrees to furnish defendant with copies of results or reports of the various tests that we are referring to. The Government does not agree to furnish notes, methodology nature and name of its physical examinations and scientific tests and experiments in connection with this case."

Without belaboring it, your Honor, I think I have explained in my prior argument in the motion for the Grand Jury testimony that in short, your Honor, it is our prior experience that these reports on their face, prima facie, are unlikely to give the defendant the second most important thing. It is obviously important to know what the Government's conclusion is. If I were to be asked to choose what additional fact would be given it is the kind of test that was performed, specifying a different area entirely.

For the marijuana in narcotic cases, there are listed in the Government's handbook the appropriate testing methodology issued by the Bureau of Narcotics and Dangerous Drugs, four tests for identifying marijuana. For the Government to say, "We used a Duquenois test," that would satisfy us. We would understand, we would use our own resources and realize what they should or should not have done. It is not burdensome, in fact it is limited, for them to tell us how they tested.

If the Court is to say, "No, Mr. Segal, you're not going to get the lab notes and other details," then we say we should be given something more than this simple, bare finding. We need to know the finding but we should know at least what the method is. It's no secret. All methods should be known to all reasonable researchers. The Government has no vested interest in the scientific piece of knowledge, to hide it from defendant. Why shouldn't defendant be able to know and test what the Government has done? We cannot change a test. They have the test, why should we not know what it is? It seems to me if we are to be limited in this regard we are unable to fathom why that singular additional piece of information and result should not be granted to us at this time. It would so far facilitate the defendant's preparation as to go along way toward minimizing trial delay.

There is one other trouble that I have with the Government's answer to 7 through 26, and that is in paragraph 2 the Government says it will give to the defendant those things, the reports, that are within its possession and custody or control, but does not include, interestingly, what it says it will do in the third paragraph of the response, that is, also obtain those things known to it by the exercise of its due diligence.

In comparing the two paragraphs, if your Honor pleases, why is it with regard to certain aspects, that is, the tests, the Government will only give what it has under its control. When we ask for photographs and diagrams, it is willing to give what it has under its control and by the exercise of due diligence it can obtain. It seems to me that the evasive nature of that answer -- and I trust it is inadvertent; the Government should know this is an important area -- suggests that there may have been private experts retained to perform certain of the tests for the Government, not Government employees, and who after either testimony for the Government or supplying data to the Government's lab technicians, retain their papers. The Government seems to be saying, "We won't obtain those things, which our exercise of due diligence would produce ordinarily which are in this category." So I would ask your Honor to rule in regard to the requests in 7 through 26 that not only they give us as a minimum what the Government says it will give us but two additional things: to at least if not more give us the methodology, and (2) to require the Government to also turn over those matters through their due diligence they could obtain. I find it terribly uncomfortable to see that kind of evasive answer. Those I think would provide very much of the help that we need.

In regard to Paragraph 28 of the defendant's request, your Honor, which is answered in the second full paragraph of the Government's response, page 2, here the Government does -- I think we are in a reasonable position here on both sides -- the Government has said it will not only supply those things under its possession, custody and control, but also those things that through their due diligence they can obtain. We appreciate that. We think that is an adequate response. But they also say that they will not give to us matters which we previously received at the Article 32 proceeding in 1970. That is a reasonable position to take but I only ask that they indicate in writing what it is they think we have previously received. There could be a misunderstanding on their part as to what they think was surrendered by the Government. A listing would be satisfactory and we would have no problem.

A very minor question I have is that the Government is going to give us these photographs and diagrams and sketches at defendant's expense. I don't know whether the Government is saying that they will bill us at some rate for the Government laboratory doing this or whether we will be given photographic negatives and we can just have our own persons do it. I would like to have some clarification of this. I am a little troubled, as a private practitioner that I have to pay the Government a dollar, for a Xerox of a single page when a dime machine is available, too. So I would appreciate some enlightenment on that subject.

With further regard to Paragraph 28 of our request in which we have asked to obtain architectural models that were prepared, this would essentially, I would think, your Honor, be a layout of the MacDonald home at the time of the incident that took place in the case. It is not clear to me that the Government, when it says that it does not have one now, is acknowledging that should they decide to have it later, would be willing to advise us. This is an ongoing request to give us a chance to know what's going on. Subject to that, we have nothing further on Paragraph 28.

In Paragraphs 31 - 34 of cur request, your Honor, here we have asked the names and addresses of witnesses who may have knowledge of the case and the Government has stated that it won't disclose the names of persons who have knowledge of facts of the case unless they are prospective witnesses. Now, here we have pleaded, your Honor, on pages 8 and 9, a very specific series of requests. This is unlike other cases. No reported case has ever said, has ever even indicated, that defendant's request for names have been turned down, when he specifically delineated the sources or types of lists of names he's referring to and something that did not require the Government to simply speculate what the defendant is looking for, because if you will note, one of the critical factors in the case is that following the crime in question, following the defendant giving a description to police of persons whom he could give some information as to their appearance, the Government seized a number of individuals for investigation as being possibly involved. Strangely enough, defendant was never called or taken to any of these lineups of these persons who were stopped by government agents in connection with this particular episode. There was a great deal of this that took place at Fort Bragg and there was a great deal of it that took place, according to the reports of the government agents, by local agencies nearby.

Now, it has troubled us enormously, your Honor, that we have never had a chance to see those persons and see in fact whether or not they fit the description. All we ask is simply the names of those persons who were placed in the lineup, we will do the rest of the investigation ourselves. We don't ask the Government to do anything more, to give us photographs or addresses or police records, just to give us the names of the persons and their last known address at the time, and we will carry that information forward.

Now, we ask the Government to tell us the names of the suspects in the case. It is clear from what the Government has said at the Article 32 proceeding that there were persons who were considered to be suspects; as a matter of fact, the very woman, your Honor, who was named by Colonel Rock in his report, Helena Stoeckley, it developed only through examination at the Article 32 proceedings, had been a suspect in connection with this case, and was released by the authorities who had her. All we ask are the names of those suspects. We ask the Government to do nothing more, not to give us its files or what they think about it, not their judgment, let us proceed with the investigation. There is no other way we can obtain that information.

THE COURT: You have one and you want the other four hundred and ninety-nine.

MR. SEGAL: Your Honor, I would think if there were that many that we would certainly be entitled to it, because there were a minimum of four persons involved in the commission of this crime and the assault upon Dr. MacDonald, and probably more, but we know of a minimum of four. We know that police acted on information, that they rounded up people. We produced in the case police drawings of the suspects based upon Dr. MacDonald's testimony. Yet we were denied any information regarding them.

Let me take one moment to say something that I really fault myself for not having said this. Do you realize that if the defendant in this case were still in the military today, that there would be actually no problem with anything we're talking about. Under the Uniform Code of Military Justice -- and it took place at the Article 32 -- defendant is entitled to take depositions of the Government's investigators under oath and in fact the depositions of Messrs. Ivory, Shaw and Grebner, pursuant to military discovery procedure, were taken. No opposition from the Government, they regularly do that. This information, if we'd known it existed at that time, we would have been able to depose these people about it, and if there had been a general court martial we would have been able to depose them further about it. And the Government, being bound by the decision of Colonel Rock and affirmed by higher authority in the case, the Government having released the defendant from custody and having authority to keep him in custody or keep him in the Army, rather, pending investigation; they didn't have to release him and could have kept him for five years or longer, as long as they wanted to investigate him, by letting him go, in a sense, has now snatched back his right to defend himself and certain discovery he would ask.

We have asked, for instance, your Honor, the names of the five hundred persons whom the CID investigators say they investigated in connection with this case. And by the way, the reason why it is imperative, your Honor, we don't ask to see a report of those things at this juncture -- I might like to see them, but I don't ask -- they said under oath they made five hundred investigations in two days. My mathematics tells me that there are people who have knowledge out there who lived right in that community on the night that this crime took place who were seen by the CID and whose names they do not know and they have no way of ascertaining who they were, they were given the most cursory interviews. We don't want the interviews if they will just tell us who they were because we have some reason to think they would be helpful and let us do our own leg work. Defendant specifically requests and there is a particular need.

We asked for the names of the 6,000 persons whom the Government investigators have stated were interviewed from February through August of 1970 from the commission of the crime through the portion of the Article 32 proceeding, not quite to the end of it. They said they did this and again with mathematics applied, how much effort was put into it or how little was put into it, how could they do that many people?

One of the points of this case, your Honor, an important point, is that the Government says the crime didn't happen the way the defendant says it happened, that they cannot find anywhere in that neighborhood, a rather large housing development at Fort Bragg, anyone who heard any of the disturbance that might have been expected, considering the nature of the crime. That is their theory articulated on a number of occasions. We have found already since the start of these proceedings, with very limited data, and with those people almost entirely gone from there, one additional person who totally demolishes that. But we cannot rest with that, your Honor. If there are other persons who lived there, they're among those persons. We cannot get their names. What does it serve the Government to deny us our chance to prove just exactly what they should be interested in themselves, the finding or the non-finding of persons with personal knowledge of whether there was a disturbance heard by people living close enough by who could corroborate or destroy the defendant's explanation.

Now, turning to paragraph (e) I want to correct what I trust is one of the very few typographical errors that I am responsible for, we have requested the names of the seven hundred persons and it says 70 and that was supposed to be 10; in other words 10, misread as 70 and then written out as seventy; that is 700 persons in ten countries for re-interview in the course of reinvestigation. Why is it important?

The Government alleges in its various answers that it attempted to conduct a full, thorough, reinvestigation of the crime beyond the hands of the original group of Army investigators; as a matter of fact, that is part of the investigation that the defendant gave to them a deposition to them about, voluntarily. He cooperated with their request for deposition. He says the Government advised him that they saw these persons that they believed had relevant knowledge, we don't say give us the relevant knowledge, we say give us the tools to do our job.

A terribly specific request, your Honor, one of the critical facts that was developed at the Article 32 proceeding was despite the fact that the military police authorities who came to the scene were advised of the nature of the group of persons who committed the assault upon Dr. MacDonald and his family, that the testimony at the Article 32 says that no road blocks were placed at the three principal roads on and off Fort Bragg until hours after the crime was reported, even though each of those places were fifteen minutes from the place of the crime, so that civilian persons who may have been involved in this crime, or others, may have been able to flee.

But this testimony which was given under oath conflicts with other statements that military police -- statements made by the Government's investigators, -- were placed promptly on road blocks. If that is so, then no further testimony need take place at the trial about the subject. We should not go into it because it would be simply pursuing an area in which there is evidence to the contrary. All we ask the Government to do is give us the names of the military policemen, their police officers, who were placed on roadblocks. We will find them, we will talk to them, then if they'll give us statements, fine, we'll prepare. There is no possible question here that the Government does this dozens of times, it is a critical factor. I will say to your Honor that in my judgment, the revelation on the first morning of this particular Article 32 proceeding the Government did not, because of the inaptitude of the principal investigators initially, place the road blocks on the gates, is what directly caused the authorities to order these hearings closed down because it was so embarrassing to the Government to have that kind of inadequate investigation in a serious case.

Now, in paragraph (f) an absolutely critical factor in this case is the suggestion by the Government that one of the murder weapons or possibly more, but certainly we think that the question of an ice pick which may have been a murder weapon, the Government at the Article 32 attempted to establish through its witnesses that the ice pick was an item that was owned by the MacDonald family. Defendant has testified then and repeated on other occasions that he had no recollection that he and his wife had ever bought or owned an ice pick. And if I am characterizing correctly, he said, "To the best of my recollection, we didn't have one." But the Government made a great issue over it, that they may have owned an ice pick. I say that the Court now has reason to believe that one of the third party witnesses called to the Grand Jury or one of the witnesses who was not called, now, five years later, purports to say, "I remember seeing an ice pick in the MacDonald house." That is a terribly critical fact in this case. I would certainly be interested in knowing something about that so that we can adequately prepare on the subject. It seems to me that is a very particularized need and situation.

Paragraph (h) deals with another of the Government's stated theories repeatedly articulated. The Government has said that the crime didn't happen as the defendant claims, that he staged the crime scene after having committed these heinous crimes; that he deliberately changed the appearance of his living room and other places in the house to make it appear that he had been assaulted. There was a great deal of testimony in this case and in fact during the defendant's Grand Jury appearance there was concerted a considerable effort to have him reconstruct the location of various items; they showed the defendant photographs of the crime scene and they actually brought some of the furniture to the very Grand Jury room from the crime scene so that defendant might reenact some things for them.

Now, the evidence at the Article 32, however, indicates that because of the huge number of untrained persons who arrived at the scene and went through the crime scene that witness after witness has indicated that they either saw or personally rearranged the crime scene prior to any photographs being taken of it and prior to it ever being seen by the actual, if you will say, detectives in this case.

Now, we do know that names of certain of these persons were revealed to us at the Article 32 proceeding; we have reason to believe that there were several other persons present. All we say is it is a critical fact in their theory, a critical fact in the case, just tell us who else they know was present at the crime scene on the morning of the 17th. It seems to me there is no vested interest in denying that information, where they have revealed part of it and know that there were other witnesses around.

In (i), your Honor, we ask the names of the of the persons who lived in the vicinity to explain the theory of the Government that nobody heard it and the defendant lied. We know there are witnesses to disprove that and there may be more and if we can find anyone who lived there, we need that.

The Government has alleged, as refers to (j), your Honor, that as a part of its investigation to ferret out evidence against the defendant, that they interviewed a group of people on Long Island in May to September of 1970; it was meant to provide a motive in this case of some sort. They in fact named a group of persons at that time, persons who were supposed to be friends or associates, and one Joseph E. Lee, and that the Government agent, Mr. Walker, had testified he had interviewed a number of persons in trying to connect up Mr. Lee in some fashion in this case. The names were never revealed to us as to whom he interviewed and we simply ask to find out. And the Government has it. They thought it important enough to send their agent from Fort Bragg to Long Island and spend several days there and we really want to know who was interviewed as part of his investigation.

Your Honor, the Government, in regard to Paragraphs 31 through 34, which I in part addressed myself to, we have asked in number 34 for an extremely specified number of statements; we are not asking for the general file of statements of certain subjects. Here we have asked the Government for their statements of the defendant's mother, his sister and brother. It seems to me that the Government could little fear tampering with those witnesses by the defendant; if they have written statements those statement will be stood by by the persons who made them; that their relationship to defendant is an extension of his own immediate family; that if ever there was a joining of interest it is between them and the defendant and not the Government; I expect they are probably persons the Government claims were third party witnesses before the Grand Jury who were favorable to defendant. They did call the defendant's mother, they did call his sister. Why do they resist giving us our family's testimony in the Grand Jury and resist giving it to us here, it seems to me that applying logic you would say the Government can remain resistant in the face of all your cooperation, Dr. MacDonald, to giving you even your own family's statements. Those statements are important in regard to the relationship that existed between the defendant and his late wife. The Government's theory is that it was a bad relationship; in fact every piece of evidence is to the contrary. We need to know; these people will be called by the defense. We are entitled to know what the Government alleges they may have said to the Government differently because they have a statement that's different.

Paragraph 34(c), the statements of Helena Stoeckley, she was named by the judicial process as the leading suspect in these murders. We have reason to believe the Government interviewed her, based upon statements made at the Article 32 proceeding and representations made to us by Government investigators during the reinvestigation, they were going to find and talk to her. She had already made statements to the defendant's witness, William Posey, which, if your Honor pleases, caused the military proceedings hearing officer to name her as a suspect, and we are entitled to know whether or not the Government has interviewed her and what she said. She is a suspect at this time.

The other points, I think, your Honor, are self-evident, and I need not argue those any further. We do need them and the reason is very simple. Many of these people are defendant's witnesses. Mr. William Posey is a defendant's witness. He is the one who implicated the important evidence that was brought to light involving Helena Stoeckley and the circumstances around her. We would like to know what Mr. Posey said to the Government, what they asked and what he said to them.

THE COURT: Have you spoken to him?

MR. SEGAL: Not recently, your Honor.

THE COURT: Well, you know what he said the last time you did speak to him, don't you?

MR. SEGAL: Oh, yes, your Honor.

THE COURT: Do you have any reason to believe he would say anything different now?

MR. SEGAL: No, your Honor, not at all. Mr. Posey gave his testimony, under oath, he would not recant that, I don't think. But we do know that some of these witnesses have been subjected to pressure and I will tell you specifically who and how, and we are concerned about having them subjected to pressure. Have they possibly, in an attempt to avoid further pressure, given somewhat different statements to the Government or will they appear under oath on the stand and tell the truth and be confronted with something the Government says, "We've got;" we want to know about that; we've got to be able to produce evidence under pressure.

For instance, your Honor, in regard to the pressure, we point out that we have asked in this paragraph in one of the subsections, (j), for the statements made to the Government by Specialist Kenneth Mica. He was one of the first military police officers to arrive on the scene of the crime on the morning of February 17th. He attempted to administer mouth to mouth resuscitation to Dr. MacDonald who was lying there unconscious on the floor of his own home, suffering from the stab wounds and beating wounds that he had. Kenneth Mica testified under oath at the Article 32 proceedings that he was subjected to pressure. He gave statements to the defendant and was subjected to pressure by his commanding officer in the Military Police Corps to not cooperate or testify favorably to the defendant, to not indicate the disruption of the crime scene that had taken place in the witness's eye. We are concerned that he was further urged to disregard the testimony or knowledge and not testify to the fact that he had seen at a time consonant with the crime a woman who apparently fits the description of the one involved in this crime given by Dr. MacDonald at a place near-by, that he was urged and pressured by his superior officers to ignore that information, to not give it to the defendant. He did that, though, despite the pressure. We are concerned about pressure, and all we can say is, "Then don't tell us how you pressure people, just let us know what statements you got from them." The purpose we need it for should be clear, the allegation specific, the Article 32 transcript supports it, the information I related to the Court about Kenneth Mica.

Your Honor, now 31 through 34 and I will take this very briefly, but the Government argues that the defendant seems to think he is entitled to all of this under Brad v. Maryland and misunderstands Brady because Brady had nothing to do with pretrial discovery. Your Honor, that is not what I understand are the facts, circumstances and background of the Brady case.

Paragraph 1 on page 3 of the Government's response -- that Brady did not deal in any way with pretrial discovery by defendant, they ignore any duty of the Court in that respect. Brady, if your Honor pleases, dealt with a situation wherein the defendant engaged in pretrial discovery and the Government neglected or refused or failed to turn over that evidence and then later on at trial the issue developed about the nondisclosure. But the Brady case is bottomed on a problem arising precisely out of discovery with the necessity of turning over the evidence when the Supreme Court is talking about the defendant's evidence should be turned over pretrial. What is the Government referring to when it says, "Brady did not deal with any pretrial discovery." No, it isn't a case holding defendant gets this, that or the other at pretrial but it deals with the role that pretrial discovery plays and it says here to the Government to make disclosures and the penalty that will flow from failing to make an appropriate disclosure. The Government argues that the Government doesn't have a duty to help the defendant find that which is favorable to him. We have not made any general request to give what would be favorable; we have denominated specific categories in detail because we need to see them, not because we asked the Government to do any work about them. They have the names. We don't ask them to identify people whom they think are going to help us. We say, "You have this group of names, we need them for a particularized need that is spelled out here." That fits clearly within the requirements of the case law, your
Honor.

With regard to Paragraph 37, your Honor, there is a very interesting answer by the Government. In our motion in that paragraph, we have asked for certain tangible objects and documents which the Government may use at trial, and the Government says it agrees to make available to the defendant all those things, tangible objects and documents, requested in subparagraphs (b), (c), (d) and (e) of Paragraph 37. We accept that and ask for some time table to be set up for a responsible transfer of documents and or accessibility. Let me say in respect to (a), we withdraw our request; we have gotten the information independently and we do not in any instance want to burden the Government with information we've obtained otherwise. So there is no dispute on Paragraph 37 at all. The matter can be disposed of, I think, by agreement. The Government can turn it over and we've gotten one they are not going to turn over.

Your Honor, with regard to Paragraph 39 and the request for exculpatory material, we note the Government said it acknowledged the responsibilities of Brady and I trust the Government will proceed at the earliest opportunity to make such evidence available.

That represents, I think, your Honor, everything in regard to the general motion.

I'm sorry, your Honor, after lunch there is a very brief supplement, your Honor, two small items.

THE COURT: All right.

(HEARING RECESSED)

Motion hearing resumed.

THE COURT: There was one more item you wanted to bring up and supplement, I believe, Mr. Segal.

MR. SEGAL: Yes, your Honor. I have filed and the Clerk has served on the Government a very brief supplementary request on the motion for discovery. It was filed yesterday, your Honor, a very brief supplement.

THE COURT: We have it but it hasn't come to my attention.

MR. SEGAL: I referred briefly to two matters there, your Honor, and I will be very brief. In regard to the request for test results, scientific tests, we have added to IV, Paragraph 19, page 5 of the original motion for general discovery in the case, a request for the reports of tests on clothing conducted on the clothing of Colette's and Kimberley MacDonald. And when I say clothing, the most specific item that we are aware of is the bed clothing worn by those persons at the time that they were murdered, pajamas, night gowns. Your Honor, that was the subject of considerable Grand Jury testimony as the defendant was told. One of the most important items, apparently, according to the Government when they confronted Dr. MacDonald before the Grand Jury was the statement that the holes on a certain item of clothing, including items alleged to have been his, and holes on clothing on the bodies of the persons were lined up together with certain other items of clothing to construct a model that supports their theory of how the injuries took place which the Government says implicates defendant. All we ask for is the report and test results on the clothing.

Your Honor, one of the contentions in the case is that under one of the fingernails of one of the MacDonald children a fiber was found which the Government contends came from the pajamas worn by the defendant on that night. And we merely ask for the results of the test of the fiber comparison since that is a specific matter and fiber comparison is an area of expertise in which there are a limited number of forensic experts and I think we could reduce it to two simple requests for all these tests, namely the reports the Government says it will give us and the methods by which they conducted their examinations and that would satisfy that.

Also included, your Honor, is a request for similar test on the bath mats, towels and bed linen. This is again a specific request arising out of the evidence in both the Article 32 hearing and the Grand Jury testimony as recited by Dr. MacDonald, the bodies were covered at some point by an item, either a bath mat or a towel. They were examined, the blood stains were examined, the Government contends in its theory of accusation that they are inconsistent with his story and we would simply ask that the same information that the tests revealed as for the other items.

And finally, there was a statement made to Dr. MacDonald that has never been reported in any other place that there were certain impressions, blood impressions, on the sheet and bedspread or related items and we ask for the report in that regard. All of those things have been related to defendant as existing and will be used against him and several of the items we did not know of before.

The second request on this amendment is for the opportunity to physically examine those items, incorporating the same matter. In our motion we have made (1) the request for the reports, and (2) for an opportunity to see or examine these items under the appropriate control. I would think the Government would not oppose this request except on the same general lines they've done in the others. There's nothing different, it is just an oversight on my part in not including these particular items.

THE COURT: All right. Mr. Stroud, do you desire to respond?

MR. STROUD: First of all, your Honor, with regard to Mr. Segal's earlier assertion in his oral argument and the citation of cases by him with regard to statements, by a defendant, Mr. Segal raised some question about the Government's response in which we stated we would agree as required by the language of Rule 16 to give to the defendant copies of any relevant written or recorded statements made by him which are within the possession, control and custody of the Government. We went on in our response to say that we did not agree to furnish him reports by agents of the Government of their recollections and interpretations of prior conversations with the defendant, when said agents are not taking notes of said conversations during that conversation. We have cited in our response a Seventh Circuit 1969 case, Court of Appeals case, and the only cases to which Mr. Segal referred, of course, were District Court decisions. We do not pretend, however, that we will not submit to the defendant for his examination copies of these type of reports, pursuant to the Jencks Act; if at the trial of this case certain Government agents testify about statements made in their presence by Dr. MacDonald, then we will certainly, according to the Jencks Act, make those statements available to the defendant. But the law does not require --

THE COURT: Whether or not the notes were made at the time of the interview?

MR. STROUD: No, sir. We are willing to give interview notes.

THE COURT: I understand that. But you say if they didn't make any notes at the time but just depended on their own recollection that you're not willing to give that.

MR. STROUD: That is correct, your Honor.

THE COURT: But you will give it at the trial in case that agent testifies from those notes?

MR. STROUD: That is correct, pursuant to the Jencks Act.

THE COURT: All right, I see your position.

MR. STROUD: Mr. Segal also referred to differing language used by the Government in its response. He pointed out that the Government said it was willing to furnish results of reports of physical or mental examinations, scientific tests and so on, the language being in the possession, custody or control of the Government.

Then going down to the third paragraph, the Government adds, "in the exercise of due diligence may become known to it with regard to photographs, copies of photographs and copies or photographs of diagrams and sketches." This was not an attempt on the part of the Government, as Mr. Segal has characterized it, to mislead anyone; we are simply using the language of the statute; we are simply using the language set forth in the U. S. Code and that language differs with regard to those two types, those different types of evidence or different types of discovery.

Your Honor, in that regard, Mr. Segal raised the point that if there were private scientists or private scientific examinations or experiments that we were trying to avoid having to give those. This is not the case. I think the case law is clear that even if it were done with private persons it would still be within the custody and control of the Government and we would be required to give that. So it is not an attempt by the Government to avoid any of its responsibility under Rule 16.

Now, with regard to photographs, what we will do, Mr. Segal raised a question about that, we will either agree to give them a negative from which they can make copies of photographs, and in instances where we do not have negatives available to us we will give them a photograph from which they can have the copy made. But we will not pay or we wish not to pay at Government expense for producing those copies for the defendant.

We also are aware of our responsibility to continue to divulge information required under the rules of discovery and under, of course, the doctrine -- and Mr. Segal wanted to make sure we understand that -- and we state at this time that we do understand the Brady doctrine.

With regard to another matter, of course, the Government has agreed to certain discovery here as provided under the statute, under Rule 16; we have filed a counter-motion for discovery, the Government's motion for discovery.

THE COURT: Is your agreement conditioned on the compliance or acceptance by defendant of your counter-motion?

MR. STROUD: Well, your Honor, the rule reads that if the Court orders the Government to submit to certain discovery, then the Government is entitled to counter-discovery, and we are asking for that. We have received no response from defendant in that regard as to whether or not he is willing to make those items available to us that we have requested in that counter-motion, and I felt like I should bring that to the Court's attention.

THE COURT: Well, why don't we just get that behind us right now? Mr. Segal, would you comply readily with the Government's motion if you are allowed to discover?

MR. SEGAL: We will cooperate fully, your Honor. I would just like, when we come to the Government's motion, it is so vaguely couched, but we will withhold nothing, really.

MR. STROUD: Vaguely couched; again, we're using the language of the statute; of course, that discovery allowed by the Government is very limited compared to that that may be allowed on behalf of the defendant. In that discovery allowed by defendant, we have agreed to it; of course, there are other areas where we do not agree and wish not to give discovery at this time, your Honor, as we have submitted in our response. In that regard, your Honor, I will just stand on our response and, of course, submit myself to any questions you may have at this time.

THE COURT: All right, sir. Any rebuttal?

MR. SEGAL: No, your Honor.

THE COURT: All right. You may go to your next motion.

MR. SEGAL: Your Honor, because I think it is related subject matter, perhaps we could go at this point to the Government's motion and deal with that, because the third motion of mine in discovery is Grand Jury selection processes. It is a little different subject so perhaps we could dispose of the Government's request.

Your Honor, I have not answered yet the Government's motion, but it also came to me on Wednesday together with all of the other Government answers and motions and it did not allow us sufficient time to prepare a written response.

The Government's motion, your Honor, it is obvious, is couched in general terms, and if I might suggest this, I do not want in any way to withhold reciprocal discovery from the Government in this case. I don't want my words in any way to be interpreted as caviling on that; I would be perfectly willing to make available to the Government every written report with all of the details that I have suggested; that is, I am going to surrender laboratory notes, methodology, reports and findings on all scientific reports that are done on behalf of defendant. In most instances we hope that those reports will be done following our opportunity to physically conduct these investigations with our own experts but they will be turned over. I would turn over all of that material without hesitation to the Government in this case, if the court would be willing to extend the same reciprocity to our request for Government discovery. If the Court thinks we have asked for too much from the scientific experts and would only want to grant us both the conclusion and report and methodology, then I would suppose we'd be certainly willing to return that reciprocally; if your Honor wishes to ask us to turn over more we are at your Honor's pleasure because our position is in this case that discovery will generally facilitate the efforts of both sides in the trial of the case if there should be one and all we ask is fairness in distribution of those responsibilities.

We do not have any objection to turning over to the Government any of the tangible items referred to in Paragraph 1 that they ask for if they are to be used at trial, and we will conscientiously make such determination at the earliest possible time to do that, if the Court would see fit to grant the same reciprocity to the defendant. It seems to me that does cover all of the matters and we are willing to fully place this matter in your Honor's discretion as to how to handle it. I think I have no matter of dispute as to what your Honor would do in this regard. We are willing to cooperate fully in this motion and do not, in terms of its purport, in any way oppose its objective. We are sympathetic and we will cooperate.

If there are not any other comments, your Honor, at this point we are ready to proceed to the defendant's motion to discovery, pursuant to 28 U.S.C. 1867.

By this particular motion, if your Honor pleases, and the accompanying briefs, the defendant is seeking the opportunity to make, a rational challenge to the composition and selection of the Grand Jury that returned an indictment in this case. I want to stress to the Court that personally, as a lawyer but specifically in this case, that I am not given to sort of making general statements of defects in existence without believing that some allegations in support therefor should be made. In this particular case I think that we have complied with that.

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