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.


The Murders of Colette, Kimberley and Kristen MacDonald
 

The Jeffrey MacDonald Information Site

1979 JEFFREY MACDONALD CASE TRIAL TRANSCRIPT
August 8, 1979: Paul Stombaugh, Retired FBI Lab
 

F U R T H E R P R O C E ED I N G S 9:30 a.m.

THIS CAUSE came on for further trial before The Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Wednesday, August 8, 1979, at Raleigh, North Carolina.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT: Good morning, ladies and gentlemen. Any further questions of the witness?

MR. BLACKBURN: Yes, sir, Your Honor.

THE COURT: Let him come back, then.

(Whereupon, PAUL M. STOMBAUGH, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)


D I R E C T E X A M I N A T I O N 9:31 a.m. (resumed)

BY MR. BLACKBURN:
Q Mr. Stombaugh, there is one question I meant to ask you yesterday early on, and I did not. Prior to your retirement with the FBI, what was your official title at the FBI, or what did you do specifically?
A I was in charge of the Chemistry Branch of the Chemistry and Physics Section in the Laboratory.

MR. BLACKBURN: Your Honor, at this time we would mark for identification Government 617(a).

(Government Exhibit 617(a) was marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you what has been marked for identification as Government Exhibit 617(a), and ask you whether or not you can identify it, sir?
A Yes, sir; it is a blow-up of the left sleeve of the pajama top.
Q Would you, sir, put it on this easel in the manner in which it is supposed to go?
A Yes, sir; it would be this way.
Q Yesterday afternoon, right before we adjourned, you were discussing the pajama top and stains which you believe were on there prior to its tearing. Using that photograph to illustrate your testimony, would you use the pointer and tell us what you see in that photograph?
A The photograph is not as clear as the pajama top itself. The cuff area is down here, and in this area down here, I found a small stain that had been torn through. In other words, it had been placed on the pajama top prior to its being torn.
Q Would you take the red marker up there, and maybe mark what you are referring to, so we can see more clearly?
A It is this area right in through here.
Q I still can't see where you marked.

THE COURT: Perhaps you could take your pointer, and show the place that you have encircled, because I can't see anything from here.

THE WITNESS: It goes in through this area (indicating).

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you Government Exhibit 102, and ask you, sir, to take a look at it and tell us whether or not you have ever seen it and can identify it?
A Yes, sir; this was given to me by Special Agent Ivory at the same time he brought the other items in.
Q This was in 1971?
A June, 1971; yes, sir.
Q What examination, if any, did you conduct with respect to that exhibit?
A They wanted to know whether or not this had, in fact, been torn from the pajama top; and through alignment of the stitches and stitch holes with the pajama top, we were able to fit it back in.
Q So what opinion do you have, sir?
A My opinion was that this pocket had, in fact, been torn from the pajama top.
Q Now when, if at any time, you examined the blue pajama top, did you ever conduct any analysis to determine what the fabric made of? Was that in 1971 or did that come in 1974?
A No, sir; that came in 1974.
Q Let me hand you the blue pajama top again. When did you receive it back in 1974, sir?
A In September of 1974.
Q For what purpose did you get it back?
A This item was brought back, along with many other items, to be examined for various examinations.
Q Well, what examination, if any, did you make with respect to the pajama top in order to determine what it was made of?
A Along with the blue pajama top, they delivered many yarns and sewing threads, and the request was to determine whether or not the yarns and sewing threads could have originated from this particular item. In examining the item, it was necessary to determine the composition of it. The label states it is 65 percent polyester Dacron and 35 percent cotton. The yarns are a blend. Examination of it in the laboratory confirmed this with our tests. We also confirmed that the sewing threads were composed of cotton.
Q On the pajama top, what color were the sewing threads?
A They were purple in most of the seams, but in one area they were blue-black.
Q Where were they blue-black?
A The thread used to sew the seam which appeared underneath -- it would have been the bobbin -- was blue-black, and in sewing the piping on the sleeves -- this piping here -- and underneath, there was a blue-black. The rest of the sewing threads were purple in color.
Q Well, speaking of the sewing threads as being purple in color, were these the seam threads? Is that what you were speaking of?
A Yes, sir.
Q Now, with respect to the polyester, was that the general make-up of the fabric itself, not including the sewing threads?
A The polyester is contained in the yarns used in the construction of this fabric. It is a blend of polyester fibers and cotton fibers.
Q What color were the yarns?
A The yarns are blue.
Q Now, when you received this pajama top in 1974 -- aside from its torn condition to which you testified yesterday -- do you have an opinion, sir, satisfactory to yourself, as to whether this was an old or a new pajama top, based on your examination?
A I could not tell you the definite age. The garment itself had been subjected to laundering many, many times.
Q What effect, if any, did this have on the sewing threads?
A This will weaken the sewing threads, and subsequent washing will take a lot of the dye out of the sewing threads.
Q Mr. Stombaugh, you testified just a moment ago that in 1974 you were also given, I believe, a number of threads and yarns, is that correct?
A That is correct.
Q And for what purpose, sir, were you given those threads and yarns?
A The request was to determine whether or not the threads and yarns could have originated from this particular garment.
Q In marking exhibits for the FBI in this case, what numbering system did you use, if any?
A For an item that the source is unknown we use a "Q," for "questioned," and for an item which we know the source of we use a "K," representing "known"; and then this is followed by a number.
Q Well, did you have an occasion to then receive threads and yarns in 1974, which you marked with the Q numbering system, is that correct?
A That is correct.
Q With respect to Government Exhibit 346, which is now on the chart, also with a Q number of 122, I believe, defined as debris which was collected on the north pillow in Kimberly's bedroom, did you have an occasion to examine that particular item, sir?
A Would you repeat the Q number again, sir?
Q 122.
A Yes, sir.
Q Well, what did your examination reveal with respect to that particular exhibit?
A Government Exhibit 346 was my exhibit Q-122, and in that exhibit I identified one purple sewing thread and one yarn.
Q What kind of yarn was it?
A It was a warp yarn.
Q What do you mean by "warp yarn"?
A A warp yarn -- well, when fabric is made in the looms, the yarns running lengthwise on the loom are called warp yarns; and as the loom operates a shuttle carries what we call a filling yarn back and forth.
And it operates like this, and this causes the fabric to be woven. In this particular case, we had what we termed a one over-one under common weave, similar to a basket weave.
Q Well, do you know how long this particular warp yarn was?
A According to my notes this one was 20-1/2 inches long.
Q Okay, using the black marker, sir, if you would, on that chart would you fill in the appropriate place as to the corresponding length -- what you found to be the number. I think it is in Kimberly's bedroom?
Now, sir, with respect to Government Exhibit 345 which is on the chart, going with the Q number of 121, which is defined as "Debris pulled back from the bedding in Kimberly's room," did you have an occasion to examine that particular exhibit?
A Yes, sir, I did.
Q What was the result of your examination?
A The exhibit delivered -- two of the items were warp yarns, and one was a purple sewing thread.
Q Okay, sir, if you would, mark also with the numbers the corresponding blanks of that particular chart?
A (Witness complies.)
Q Now, sir, with respect to Government Exhibit 347 with a Q number of 123, defined on the chart as "Debris from the bottom sheet of Kimberly's bed," did you have an occasion, sir, to examine that particular exhibit?
A Yes, sir, I did.
Q What was the result of that examination?
A That consisted of two purple sewing threads.
Q Now what kind of sewing threads were these?
A These were two-ply, Z twist.
Q What do you mean by "two-ply, Z twist"?
A The sewing thread was made by two, I would call them plies, twisted together in a Z twist to form a thread.
Q Okay,sir, if you would fill in the proportion right there, if you would?
A (Witness complies.)
Q Now, with respect to Government Exhibit 356 with a Q number of 86 which is defined in the chart as "Debris from the purple bed cover in Kimberly's bedroom," did you have an occasion, sir, to examine that particular exhibit?
A Yes, sir, I did.
Q What was the result of that examination?
A I found two yarns and 10 purple sewing threads.
Q These were two "Z" sewing threads?
A Yes, sir.
Q What about the yarns. Did you make any determination as to what kind of yarns they were?
A Yes, sir; one of them was a filling yarn and one was a warp yarn.
Q Would you fill in the appropriate blank, sir, in that space?
A (Witness complies.)
Q Mr. Stombaugh, based upon your examination and tests of these yarns and threads and the blue pajama top, and further based upon your skill, training, education and experience, do you have an opinion, sir, satisfactory to yourself as to whether or not those yarns and fragments could have originated from the blue pajama top?
A Yes, sir, they could have originated from the blue pajama top.
Q What is the basis, sir, for your opinion?
A The yarns -- we identified them as either warp or filling yarns through the crimping -- matched the crimping that would be present in the construction of this particular item, and the fact that many warp and filling yarns are missing from the torn areas of this garment; and further it matches in composition and color.
Q With respect, sir, to Government Exhibit 362, which has a Q number of 87 and is defined as "Debris from the bedspread in Kristen's room," did you have an occasion, sir, to examine that particular exhibit?
A Yes, sir; that exhibit consisted of one filling yarn and one sewing thread.
Q Okay, if you would, sir, write in the appropriate spaces what you found?
A (Witness complies.)
Q Mr. Stombaugh, with respect to that particular exhibit, do you have an opinion, sir, satisfactory to yourself as to whether or not the yarn and thread could have originated from the blue pajama top?
A Yes, sir; the yarn and thread could have originated from the pajama top.
Q And is the basis for your opinion the same as you just previously gave?
A Yes, sir; it is.
Q With respect to Government Exhibit 306 which also has a Q number of 14 and is defined as the "piece of wood and items removed from it," did you have an occasion, sir, to examine that particular exhibit -- Q-89? I'm sorry.
A Yes, sir; I did.
Q What was the result of your examination, sir?
A The exhibit consisted of two purple sewing threads.
Q Okay, if you would, sir, under the column marked, I think, "Outside rear," would you mark in the appropriate blank the result of your findings?
A (Witness complies.)
Q Mr. Stombaugh, do you have an opinion, sir, satisfactory to yourself as to whether or not those sewing threads could have originated from the blue pajama top?
A Yes, sir; in my opinion, they could have originated from the pajama top.
Q And the basis for your opinion is the same as you have previously given?
A That is correct.
Q With respect, sir, to Government Exhibit 125 which has a Q number of 84 and is defined on the chart as "Splinters and threads from near the large blood stain," did you have an occasion, sir, to examine that particular exhibit?
A Yes, sir; I did.
Q What was the result of your examination?
A That consisted of three purple sewing threads.
Q Two "Z" sewing threads?
A Yes, sir.
Q Okay, with respect to Government Exhibit 116 which has a Q number of 95 and is defined on the chart as being "Fibers from the underside of the throw rug," did you have an occasion, sir, to examine that particular exhibit?
A Yes, sir; I did.
Q What was the result of your examination?
A That consisted of three purple sewing threads and four warp yarns.
Q Just one second. If you would -- I think we skipped filling in one -- if you would fill in at this time Government Exhibit 125 and also 116 as to what you found in those particular columns?
A (Witness complies.)
Q Now, with respect, sir, to Government Exhibit 325 which has a Q number of 78 and is defined by the chart as being "Debris from the vicinity of the left-hand arm in the master bedroom," did you have an occasion, sir, to examine that particular exhibit?
A Yes, sir; I did.
Q What were the results of your examination?
A That exhibit consisted of 12 purple sewing threads and one blue-black two-Z twist sewing thread.
Q Would you fill in the appropriate blank with the results of your findings?
A (Witness complies.)
Q With respect to Government Exhibit 126 which has a Q number of 81 and is defined on the chart as "Debris from under the head of Colette," did you have an occasion to examine that particular exhibit?
A Yes, sir; I did.
Q What were the results, sir, of your examination?
A That consisted of three purple sewing threads.
Q Okay, if you would fill in the appropriate blank, sir?
A (Witness complies.)
Q Now, with respect to Government Exhibit 327 which has a Q number of 79 and is defined on the chart as being "Debris from under the trunk and legs area of the rug under the body," did you have an occasion to examine that particular exhibit?
A Yes, sir; I did.
Q What was the result of your examination?
A That consisted of three warp yarns and 15 purple sewing threads.
Q Okay, if you would, sir, fill in the appropriate blank.
A (Witness complies.)
Q Now, with respect to Government Exhibit 326 which has a Q number of 101 and is defined on the chart as being "Fibers from the rug area in the north corner footboard," did you have an occasion to examine that particular exhibit?
A Yes, sir; I did.
Q What were the results of your examination, sir?
A That consisted of two purple sewing threads.
Q If you would fill in the appropriate blank.
A (Witness complies.)
Q With respect to Government Exhibit 324 which has a Q number of 98 and is defined as "Fiber found on the floor by the east wall by the headboard of the bed," did you have an occasion, sir, to examine that particular exhibit?
A Yes, sir; that consisted of one purple sewing thread.
Q Okay, would you fill that in, sir?
A (Witness complies.)
Q With respect to Government Exhibit 119 which has a Q number of 85 and is defined on the chart as being "Debris from the sheet on the bed," did you have an occasion to examine that particular exhibit?
A Yes, sir; I did.
Q What were the results of your examination?
A It consisted of seven yarns, five of which were filling yarns, two of which were warp yarns, and 15 purple sewing threads.
Q Fill in the appropriate blank, please, sir.
A (Witness complies.)
Q With respect to Government Exhibit 121, which has a Q number of 97 and is defined on the chart as being "Debris from the pillowcase on the bed in the master bedroom," did you have an occasion to examine that particular exhibit?
A Yes, sir; I did.
Q What were the results of your examination?
A That consisted of two filling yarns and four purple sewing threads.
Q Okay; if you would fill that in, please?
A (Witness complies.)
Q Finally, sir, with respect to Government Exhibit 107 -- which has a Q number of 96, and is defined on the chart as being "Debris from the multicolored bedspread on the floor in the master bedroom" -- did you have an occasion to examine that particular exhibit?
A Yes, sir; that consisted of one yarn fragment and two purple sewing threads.
Q Okay; if you would fill that in, please?
A (Witness complies.)
Q Mr. Stombaugh, with respect to these yarns and fragments and threads that you just filled in in the master bedroom -- and which you testified you examined in 1974 -- do you have an opinion, sir, satisfactory to yourself, as to whether or not these yarns and fragments could have come from the blue pajama top?
A Yes, sir; in my opinion, these yarns and sewing threads could have originated from this pajama top.
Q And the basis for your opinion is that which you earlier gave; is that correct?
A Yes, sir; that is correct.
Q Now, if you would, sir -- at the conclusion of each of the bedrooms there is a blank space marked "room total." Would you take just a minute and add up your figures and put in the total for each room, sir, in the appropriate blanks?
A (Witness complies.)
Q For the record, sir, would you read in the totals you gave -- first, for the master bedroom?
A Yes, sir; for the master bedroom, I give a total of 60 purple cotton sewing threads and 18 yarns.
Q What about the one up there -- exhibit 325 -- the blue-black sewing thread? Where did you include that?
A I did not include that, sir. That would be added in here -- one blue-black cotton sewing thread.
Q With respect to Kimberly's bedroom, what was the total, sir, for the record?
A I show a total of 14 purple cotton sewing threads and five yarns.
Q And for Kristen's bedroom?
A One sewing thread and one yarn.
Q And just for the record, sir -- with respect to the one blue-black sewing thread -- do you have an opinion, sir, satisfactory to yourself, as to whether or not that particular thread could have originated from the blue pajama top?
A Yes, sir; I do.
Q What is your opinion?
A My opinion is that the sewing threads and yarns could have originated from the pajama top.
Q Mr. Stombaugh, directing your attention to the fall of 1974, did you ever have an occasion to participate in the collection of hair samples from the bodies of Colette and Kimberly and Kristen MacDonald?
A Yes, sir; I did.
Q When was that?
A That was on September 17, 1974.
Q Would you be a little bit more specific and tell us what you did?
A The Department of Justice requested hair comparisons, and I advised them that I would need known head hair samples to conduct the examination. As a result of that, I was sent to the cemetery in Long Island, where the bodies were exhumed, and I collected hair samples from the bodies of Colette MacDonald, Kimberly MacDonald and Kristen MacDonald.
Q After you collected those hair samples, what did you do with them?
A I immediately returned to Washington, D.C. with the samples.
Q After you got back to Washington, what did you do with the hair samples?
A The hairs were cleaned and mounted on glass microscope slides. A representative sample was mounted.

MR. BLACKBURN: Excuse me just one moment,

(Counsel confer.)

MR. BLACKBURN: Your Honor, at this time we would mark for identification Government Exhibit 388.

(Government Exhibit 388 was marked for identification.)

BY MR. BLACKBURN:
Q I hand you this, Mr. Stombaugh, and ask you to take a look at it. And if you need to open it up, feel free to do so in order to identify it.
A Yes, sir; I can identify these slides.
Q What are they?
A These are glass microscope slides containing the known head hair samples taken from the body of Colette MacDonald.
Q After you mounted these hairs and cleaned them up, did you examine them microscopically, sir?
A Yes, sir; I compared the head hairs of Colette MacDonald with those of the children, Kimberly and Kristen, to identify the differences in the hairs.
Q What was the condition of Colette's hair?
A It had a lot of debris on it, which is usual after a body has been buried for some time.
Q Does hair decompose over a period of years?
A Not unless it is subjected to outside forces. I have examined hairs which I obtained from the Smithsonian Institute where Egyptian mummies had been buried for thousands of years.

MR. BLACKBURN: Your Honor, at this time, we would mark for identification Government Exhibit 389 and 390.

(Government Exhibit Nos. 389 and 390 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, take a look at these and tell me whether or not you can identify them.
A Yes, sir; I can identify these.
Q What are they?
A These are glass microscope slides containing the head hairs of Kimberly MacDonald which I removed.

MR. BLACKBURN: Your Honor, at this time, we would move those three particular exhibits into evidence.

THE COURT: Very well.

(Government Exhibit Nos. 388 and 389 were received in evidence.)

Q Now, sir, with respect --
A (Interposing) Sir, I didn't finish.
Q I'm sorry; two of them anyway.
A I can identify Government Exhibit 390.
Q What is it?
A These are the glass microscope slides containing the known head hairs that were removed from Kristen MacDonald.
Q And Government Exhibit 389 was Kimberly's; is that correct?
A That is correct.

MR. BLACKBURN: Your Honor, now at this time, we would move those exhibits into evidence.

THE COURT: Very well.

(Government Exhibit Nos. 388, 389, 390 were received in evidence.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, with respect to Government Exhibit 107 which has a Q number of 96 and is defined on that chart as being "Debris from the multi-colored bedspread found on the floor in the master bedroom," in your examination of that particular exhibit, did you have an occasion to find any hair?
A Yes, sir; there was one head hair wrapped around the sewing thread -- tangled.
Q What did your examination reveal with respect to that head hair? What was its condition?
A The head hair was twisted around the sewing thread.
Q And this sewing thread to which you refer, is this one of those that you have already testified could have come from the blue pajama top?
A Yes, sir; it is.
Q In your examination of this hair, do you have an opinion, sir, satisfactory to yourself as to whose hair that was?
A Yes, sir; this hair -- in conducting a comparison examination with the comparison microscope, microscopically matched the head hairs of Colette MacDonald.
Q Okay, would you write in, sir -- I know it's not marked on that chart -- would you write in under Exhibit 107 perhaps at the bottom "one hair" matched that of Colette MacDonald? That's under the east master bedroom at the bottom.
A You want me to write in "one hair"?
Q Yes, sir.
A (Witness complies.)
Q Mr. Stombaugh, with respect to Government Exhibit 119 which has a Q number of 85 and is defined as being "Debris from the sheet on the bed," in examining that particular exhibit, did you locate any hair, sir?
A Yes, sir; I did.
Q Well, did you examine it?
A Yes, sir; I did.
Q What were the results of your examination?
A Included in that specimen were two medium brown head hairs of Caucasian origin. Portions had been bleached. The hairs had been forcibly pulled out by their roots, and they microscopically matched the head hairs of Colette MacDonald.
Q Would you write in, sir, your results on that?
A (Witness complies.)
Q Now, a moment ago in your testimony when we were asking you as to whether or not, sir, threads or yarns could have come from the blue pajama top, I believe you testified, sir, they could have come -- what do you mean when you say "could have come" from the blue pajama top?
A It's not possible to state positively that a particular yarn came from a particular garment to the exclusion of all other garments that were manufactured at the same time out of the same fabric and have subsequently suffered similar washings and things like this nature. Besides that, even if one could take all the threads and yarns we covered and replace them back into the garment, there are still threads and yarns missing from the garment. You can't positively state that. If that had been a piece of fabric that had been torn, then it could have been fitted back into the garment and then you might positively state that the piece of fabric came from this garment, but this is not the case.
Q It is fair, then, to say that your testimony with respect to that is that those particular yarns and threads, while you cannot say positively that they came from that blue pajama top, they came from one like it or in its like condition; is that correct?
A That is correct.
Q What do you mean by "similar condition"?
A Well, for instance, this pajama top has been laundered many, many times. It might have been hung out in the sun. And an identical pajama top that was purchased about the same time as this one and subjected to approximately the same number of washings and also hung out in the sun.

MR. BLACKBURN: Your Honor, just now we would mark for identification Government Exhibits 604(a), 607(a), 608(a), 606(a), 605(a), 610(a), and 612(a).

(Government Exhibits Nos. 604(a),607(a),608(a) 606(a),605(a),610(a) and 612(a), were marked for identification.

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you, first of all, Government Exhibit 604(a), and ask you whether or not you can identify it, sir?
A Yes, sir. This is a photograph of the torn pajama top.
Q What are these white things and what do they represent, if you know?
A Some of the white numbers represent the puncture holes in the garment. Others represent --

MR. SEGAL: (Interposing) Could we have Mr. Stombaugh stand back and perhaps point to what is going on.

THE WITNESS: Excuse me. Some of these holes represent -- they are marked with the number of the corresponding puncture mark in the garment.

BY MR. BLACKBURN:
Q These that you have pointed to, those represent puncture marks; is that correct?
A Yes, sir.
Q Puncture holes?
A Yes, sir. They have the same numbers as the puncture holes in the garment.
Q Okay. With respect to Government Exhibit 605(a), can you take a look at that and identify that, sir?
A Yes, sir. This is the torn pajama top with similar markings on it.
Q Let me hand you Government Exhibit 606(a). Take a look at it and tell us whether or not you can identify it.
A Yes, sir. This is the torn pajama top with puncture marks marked.
Q Is it correct to say, sir, that where there are circles that these represent puncture holes in the pajama top?
A Where there are white circles.
Q If you would, sir, come down here and point them out so everyone can see.

MR. SEGAL: Could we have Mr. Stombaugh please use the pointer so we can see what he is pointing to?

THE WITNESS: These four here represent puncture holes. These represent puncture holes -- these in these area here (indicating).

BY MR. BLACKBURN:
Q Let me hand you Government 607(a) and tell us whether or not you can identify it.
A Yes. This is another photograph of the torn pajama top.
Q Would you place it up there and point out the puncture holes on it, if you would?
A The puncture holes are here and up in this area.
Q Let me hand you Government Exhibit 608(a) and ask you to take a look at it, sir.
A Yes, sir. This is the back of the torn pajama top.
Q If you would, place it up there and point out the puncture holes on it, sir.
A There are two puncture holes down here. These are puncture holes and these are puncture holes.
Q Let me hand you Government Exhibit 610(a) and ask you to take a look at it and tell us whether or not you can identify it?
A Yes. I can identify it. It is the right back panel and right sleeve area of the torn pajama top.
Q Okay. Put it up there if you would, sir, and point out if you would the puncture holes.
A The puncture holes extend from this area up around and down.
Q Okay. Finally, sir, let me hand you Government Exhibit 612(a) and ask you whether or not you can identify that?
A Yes, sir. This is also a photograph of the torn pajama top.
Q Put it up there, sir, if you would, and point out the puncture holes on it.
A The puncture holes extend in this area.

MR. BLACKBURN: You may resume your seat. Your Honor, at this time we would move these particular Exhibits into evidence.

THE COURT: Very well.

(Government Exhibits Nos. 604(a), 607(a), 608(a) 606(a), 605(a), 610(a), and 612(a) were received in evidence.)

MR. BLACKBURN: Your Honor, we would mark for identification Government Exhibit 604, 607, 608, 610 and 612.

(Government Exhibits Nos. 604, 607, 608, 610 and 612 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you these and ask you, sir, to take a look at them and tell us if you can tell us what they are?
A Yes, sir. These are small photographs of the ones I have just testified to.

MR. BLACKBURN: Your Honor, we would move these into evidence.

THE COURT: Very well.

(Government Exhibits Nos. 604, 607, 608, 610 and 612 were received in evidence.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you Government Exhibit 314, and ask you, sir, to take a look at it and tell us whether or not you can identify it?
A Yes, sir, I can identify this.
Q What is it?
A It is a bathmat with the word "Hilton" on it.
Q When did you first see it, if you know, approximately?
A September 24 of 1974.
Q For what purpose did you receive it?
A It had some stained areas on it that they desired analyzed to determine whether or not we could identify what had caused the stained areas.
Q Well, after you got that request, what examination, if any, did you conduct with respect to the bathmat?
A In the stained areas we formed what we call a fabric impression test to determine what could have caused these various stains, and if they could have been caused by certain other items they had brought in.
Q I know you testified about this yesterday afternoon, but so we can all remember, tell us again when you talk about fabric impression tests, to what are you referring?
A Well, when an item such as a hard object has a liquid medium on it, such as dye or ink -- a good example of this would be a rubber stamp -- you take the rubber stamp and you put it on an ink pad and then stamp it on another item, and the ink will transfer the impression of the rubber stamp.
The same holds true of various items. For instance, if I took this pair of scissors and put ink on the scissors and placed it on this towel in such a manner, then the impression of the scissors would be transferred to the towel.
This is the type of examination we conducted.

MR. BLACKBURN: At this time we would mark for identification Government Exhibits 1065 and 1066.

(Government Exhibits 1065 and 1066 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you these two exhibits. Take a look at them, sir, and let me know whether you can tell us what it is?
A Yes, sir, this is a photograph of this area.
Q How about holding it up, if you don't mind?
A This area marked with a red "A" and a red "B" on this exhibit.
Q Is that "B" you said -- does it have an area name or number?
A I designated it area "A" and area "B." The other photograph photographed this area on the bathmat, I have designated with a "C."
Q That's what that photograph represents, is that correct?
A Yes, sir.

MR. BLACKBURN: Your Honor, we would move those two photographs into evidence.

THE COURT: Very well.

(Government Exhibits Nos. 1065 and 1066 were received in evidence.)

BY MR. BLACKBURN:
Q Now, Mr. Stombaugh, in conducting your analysis of that bathmat, how did you go about it in order to determine what you wanted?
A The first thing you do, you study the stain to determine what the general appearance of it is; and once you determine what the general appearance of it is, then you compare the stain itself with a particular item which it looks like.
Q Well, did you ever take any measurements of any of the stain areas or anything like that?
A Yes, sir, I did.
Q Tell us what you did?
A This stained area here, I measured and it conformed in length, size and shape to a knife blade. This area here, in measuring it, has the same configuration as the area on a knife similar to where the sharp edge of the blade fits into the handle.

MR. SEGAL: If Your Honor -- could we have Mr. Stombaugh put that over the chart so everyone can see?

MR. BLACKBURN: We are going to do something else.

MR. SEGAL: I'd like to have him do it so we can all see it first.

THE COURT: Well, just come right up and take a look.

MR. SEGAL: I think the Defendant and everyone else is entitled to see what he's been pointing to, Your Honor, and I don't think we have to stand behind his back. I'd like for him to do it publicly.

MR. BLACKBURN: Your Honor, I was getting ready to move the table from the jury so everyone could see.what he is talking about.

THE COURT: All right. Everybody has a right to look at it.

BY MR. BLACKBURN:
Q Mr. Stombaugh, how about, if you would, sir, bring the bathmat down --

MR. SEGAL: (Interposing) Your Honor, my request is that that be draped over one of those cards so it holds itself and let him point to it. I do not --

THE COURT: (Interposing) Well, I'll tell you what I'm going to do about that, I'm going to let the United States attorney try his case, and then I'm going to let you try yours.
You go ahead and proceed. Ask your questions. If you need to look at anything, you and the Defendant, and anybody who needs to -- it is a public trial, everybody can see everything that goes on. But I cannot direct a lawyer -- that means you or the United States attorney -- how to try his case. Go ahead.

BY MR. BLACKBURN:
Q Mr. Stombaugh, how about bringing the bathmat over here and lay it out, and tell us to what you are referring? Would it help you, sir, to give you these items?
A Yes, sir, it would.
Q I am handing you the Old Hickory knife and the ice pick. If the jury would stand up and if you would, as you do this, for the record, tell us what you are doing at every point?
A This stain here has the general shape and configuration of a knife blade. This portion here has the general configuration of where the blade of the knife comes into a handle. Since we had two knives submitted in this case, I fit them in and they conformed in both the length and the general shape.
It was my conclusion that this knife could have caused this impression and been held causing it like that -- the handle here is rounded -- this is rounded. The length from here to here is the same, and it fits in there rather good.
Q And this is the Old Hickory knife to which you are referring?
A Yes, sir.
Q What about these stains?
A This portion right here conforms to the handle, and would have been made by this, and the little indentation in here could have been made where the blade itself attaches to the handle, such as that.
Q What about with respect to this stain right here? How is this marked?
A This is marked stain number "C" and has the general impression of an ice pick being wiped like that, and when you extend the pick out, it is the same distance from the tip of the point back to the edge of the stain. You will never get a perfect transfer stain, because you are limited by the amount of transferable substance that would have been on the items themselves.
Q Mr. Stombaugh, what is your opinion then sir, for the record, as to how this stain got there and how this stain got there -- how stain "A" got there and how stain "C" got there?
A The other side of this garment has what appear to be smudges. I could not identify them, but the general appearance of the items would appear as if the items were either placed on here or the garment was used to wipe the items off.

MR. BLACKBURN: Okay; you may return to your seat. Your Honor, at this time, we would mark for identification Government Exhibit 1067.

(Government Exhibit 1067 was marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you what has been marked as Government Exhibit 1067, and ask you, sir, to take a look at it and tell us whether or not you can identify what it is?
A Yes, sir; these are photographs of the areas on the Hilton bathmat that I just testified to.
Q Point out the areas to which you just referred on the bathmat, using the pointer?
A This area marked area. "A" and this area marked area "B," and this area here marked area "C."

MR. BLACKBURN: Your Honor, may we approach the Bench a minute?


B E N C H C O N F E R E N C E

MR. BLACKBURN: We have another exhibit similar to this one, except that it has a photograph already in evidence of Colette on it, showing the bathmat. We seek to introduce it merely to show the location of the bathmat that was found on her. Mr. Segal believes that that is argumentative.

MR. SEGAL: They have already introduced that same picture before. They have already had testimony. It is one of the things that I have objected to consistently, that they are using these displays as argument. Now, there is no need to have the same picture put into evidence again on this display.

THE COURT: If it is in evidence, it is in evidence.

MR. SEGAL: This is an additional copy. it is not the same one, Your Honor.

MR. BLACKBURN: It is a copy of the same thing.

MR. SEGAL: They keep putting repeat copies of the same thing, so just in case -- you know -- somehow in their closing arguments, they don't mention it 50 times, they will have mentioned it 55 times.
Your Honor, you have repeatedly told me that I cannot argue with Government witnesses. I cannot argue my case. Why is he being allowed to make argument --

THE COURT: (Interposing) Wait a minute. Are you insisting on a right to argue with the witness?

MR. SEGAL: No, Your Honor.

THE COURT: Or with Counsel during the trial of the case in open court?

MR. SEGAL: No, Your Honor; but what I ask for --

THE COURT: (Interposing) I just wanted to know if I had misunderstood what the proprieties of the situation were.

MR. SEGAL: The proprieties are, Your Honor -- my feeling is that Your Honor has found that when I put questions to the Government's witnesses, we are told it is improper to argue with the witnesses, that the time to argue my case would be at the end.
Now, what the Government does -- they have ten photographs, the exact duplicates of each other. They keep putting them up, attaching them to exhibits. That is argument, Your Honor. They are arguing their case through their exhibits.
This photograph has no relevance to this next exhibit. It is the same bathmat.

MR. BLACKBURN: It is a different picture of the bathmat.

MR. SEGAL: That's right; it is the same bathmat, but larger. Now, with that, they're showing the jury for the upteenth time another copy of the same photo -- that is duplicitous, it is repetitious, it has been in evidence more times than any of us can count. And I OBJECT. It is not fair to permit that.
It is the same kind of misleading business about this chart in back of him -- again saying, identical to Jeffrey's MacDonald's pajama top -- and he has never said that. Your Honor said they can do that.
But I am saying, there ought to be a limit at some point. I think they ought to be made to take it off.

THE COURT: Well, Mr. Segal, if the Lord lets me, I am going to treat both sides equally in the case. I am going to let both sides have a full and fair hearing, and develop their cases exactly like they want to. Now, you are going to get that and he is going to get that.
You are going to be fed out of the same spoon. That is the rule that obtains at all times in this Court. The fact that an exhibit is put in in a different form to show some other what he perceives to be an evidentiary value is not, I think, objectionable.
I am going to give you all the time that you need to do the same thing. If you have it, then he will get the same thing. We have spent too much time in this case here now to be talking about duplicity. You spent 45 minutes yesterday afternoon qualifying, or trying to disqualify, the witness here; and then you held a press conference apparently, and expostulated further on his lack of requirements.
So it appeared on the front page of the paper this morning. I am not complaining about that, but I am saying, as far as giving you the full opportunity to develop whatever you want to do, I am doing that for you and I am doing that for him.
If this is an objection to the use for the second time of an exhibit showing something else, I will OVERRULE it.

(Bench Conference terminated.)


MR. BLACKBURN: Your Honor, at this time, we would mark for identification Government Exhibit 816.

THE COURT: Very well.

(Government Exhibit 816 was marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you this and ask whether or not you can identify it, sir?
A Yes, sir; I can. The exhibit contains two photographs -- the front and reverse side of the bathmat.

MR. BLACKBURN: Your Honor, we would move this exhibit into evidence.

THE COURT: Very well.

MR. BLACKBURN: And all other photographs that we have not yet moved in this morning we would move in at this time.

THE COURT: Very well.

(Government Exhibit Nos. 1067 and 816 were received in evidence.)

MR. BLACKBURN: Your Honor, may we approach the bench just a second?

THE COURT: Come up.


(Bench conference -- unreported.)


BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you Government Exhibit 103. I believe it is Q-15. Take a look at it, sir, and tell us whether or not you know what it is.
A Yes, sir; it is a blue bedsheet which I have designated Q-15; it has my initials on it.
Q When did you first see it?
A I first saw this item on September 24, 1974.
Q And for what purpose did you get that?
A It was brought in for the examination of the stains which are present on it.
Q And in 1974 did you conduct such an examination?
A Yes, sir; I did.

MR. BLACKBURN: Your Honor, at this time, we would like to take a couple of minutes and what we would like to do is hang the sheet up on this divider maybe right there in order that Mr. Segal and everyone can see what he is talking about.

THE COURT: All right.

(Pause.)

MR. BLACKBURN: For the record, Your Honor, this is the blue bedsheet, I believe, found on the floor in the master bedroom.

BY MR. BLACKBURN:
Q Mr. Stombaugh, if you would, sir, come down and bring the pointer and if you would stand to the side of the sheet. This is the sheet then that you got in 1974 to conduct an examination on; is that correct?
A That is correct.
Q What did your examination reveal? Would you just tell us, sir, first maybe with respect to this large stain almost in the center of the sheet?
A This large stained area in here is from a good flow of blood. In examining this area right here, I have designated Area "F" and coming down --
Q (Interposing) These lines here -- who put those lines on?
A I drew these lines at the time of the examination.
Q Now, before you go any further, did you use anything else -- any other material -- clothing or anything -- to conduct your examination?
A Yes, sir; I did.
Q What did you use, sir?
A I used the pajama top of Colette MacDonald and the torn pajama top.
Q Well, now, is this the pajama top of Colette MacDonald that you used?
A Yes, sir; I did.
Q Okay; tell us what you did with respect to this area which you have marked "F"?
A Here again we have a fabric impression and here we are trying to determine what caused the fabric impression. In this particular instance, area "F," I was able to identify as having been made by the back of the left sleeve of this pajama top.
And the manner in which the examination was done -- by finding the area on here in a stain that conforms to the area in the cuff. The cuff area was measured and was identical to the area of this cuff.
Q Do you recall, sir, the width?
A The width?
Q Yes; or just that it was identical?
A It was identical and the blood pattern was the same.
Q How about putting your pointer and the notes down and sort of hold the sleeve up, if you can, sir, and show us?
A (Witness complies.) This area right here, coming down (indicating).
Q Which sleeve of Colette's pajama top are you referring to?
A That was the left sleeve, sir.
Q With respect to Area "G," what, if anything, did you do?
A I conducted the same type of examination and found that Area "G" conformed to the back of the sleeve of the pajama top -- the cuff area, in here (indicating) -- and extends slightly up to about this area. This is Area "G."
Q Was the width of the sleeve the same as the area here?
A Yes, sir; the width was the same, and the length of the blood stain conformed to the heavy blood stain on the back of this cuff.
Q Now, this cuff which you are talking about -- right here? Which side of the cuff are you referring to?
A This area here, sir (indicating).
Q Okay; let me show it to the jury, if you would, what you are talking about.

MR. SEGAL: May we ask whether the Government has any photographs of this alleged match, so we can see it, or do we have to do it this way, Your Honor? Are there any photographs?

THE COURT: Ask him.

MR. BLACKBURN: Yes, sir; we do have photographs. We are going to introduce those photographs. But before we do this, we would seek to use this sheet.

MR. SEGAL: All right; develop it.

MR. BLACKBURN: Well, if you will just be patient.

THE WITNESS: This stained portion in here conforms in length and width to this portion here.

BY MR. BLACKBURN:
Q Now, which sleeve are you referring to of Colette's pajama top?
A This was the right sleeve.
Q Is that all you did with respect to that pajama top?
A Yes, sir; in searching this area up in here, there were some areas that had the general appearance of some of the lace on this collar, but I had to come to no conclusion as to whether they were actually made by the collar.
Q Now, what other item of clothing, if any, did you use to conduct your analysis of the stains on that bedsheet?
A The torn pajama top.
Q By the "torn pajama top," are you referring to this blue pajama top; is that correct?
A That is correct.
Q What, if anything, did you do with respect to that, sir?
A This stain right here, which I have designated stain "E" and a black line drawn around it --
Q (Interposing) Is that your drawing of the line?
A Yes, sir; I drew this black line around it.
Q Okay.
A I don't recall this being cut out. Was that cut out?
Q Well, just go ahead.
A This stain beveled down. There is a straight line across, and down to the straight line out this way, and what appears to be torn fabric trailing off. The stain continues on over into this area here. The stain was compared to the torn left cuff of this pajama top, and conformed in size, and shape and blood to the cuff area of the torn pajama top.
Immediately above this area is a rounded portion that has the general appearance of a bare left shoulder.
Q Okay; is that all you did on this side with respect to the blue pajama top?
A Yes, sir.
Q What other stains on this side of the blue bedsheet did you examine, sir, if any?

THE COURT: Let's take our recess, if he is going to start a new subject right now, and we will come back at 11:30. Members of the jury, don't talk about the case.

(The proceeding was recessed at 11:08 a.m., to reconvene at 11:30 a.m., this same day.)


F U R T H E R P R O C E E D I N G S (11:30 a.m.)

(The following proceedings were held in the presence of the jury and alternates.)

MR. BLACKBURN: Your Honor, Mr. Stombaugh may resume his standing position.

THE COURT: All right.

(Whereupon, PAUL M. STOMBAUGH, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)


D I R E C T E X A M I N A T I O N (11:31 a.m.) (Resumed)

BY MR. BLACKBURN:
Q Mr. Stombaugh, right before the break we were just getting into other areas on this side of the blue bedsheet for any analysis that you might have done. What other areas, if any, sir, did you examine in 1974?
A Area "C" and area "D."
Q With respect to area "C," what did your examination reveal?
A Area "C" has the configuration of a bloody left hand.
Q And what about with respect to area "D"?
A Area "D" has the configuration of a bloody right hand.
Q With respect, sir, to this side of the blue bedsheet, what other fabric impressions, if any, did you observe?
A None other, sir.
Q Well, if you would resume the stand.

MR. BLACKBURN: Your Honor, at this time we would mark for identification Government Exhibits 819, 820, and 821.

(Government Exhibits Nos. 819, 820, and 821 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me ask you to take a look at these and tell me whether or not you can identify them?
A Yes, sir, I can; this is a photograph of the sheet I have just testified regarding, and these are blown-up areas -- certain areas on the sheet -- area "C" and area "D."

MR. BLACKBURN: Your Honor, we would move those into evidence at this time.

THE COURT: Very well.

(Government Exhibits Nos. 819, 820, and 821 were received in evidence.)

MR. BLACKBURN: We would also mark for identification 819(a), B20(a), 821(a), 822, 823, and 824.

(Government Exhibits Nos. 819(a), 820(a), 821(a), 822, 823 and 824 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you what has been marked for identification as Government Exhibit 819(a) and ask you to take a look at it, sir, and let us know whether or not you can tell what it is?
A Yes, sir; this is a photograph of a sheet I have just testified regarding.
Q Okay, if you would, sir, using that photograph, would you point out the areas on it that you referred to a moment ago on the sheet?
A Area "E."
Q Which is what?
A Area "C" is the appearance of a bare left shoulder and the bottom of it has the appearance of a torn left cuff of a pajama top, the trailing out portion here.
Area "G" and area "F" correspond to the cuff areas of the sleeve of Colette MacDonald's pajama top; and areas "G" -- area "D" and "C" conform to bloody hand prints, these areas here.
Q Okay, let me hand you what has been marked as Government Exhibit 820(a) and ask, sir, whether or not you can identify that?
A Yes, sir, this is Area "C" on the sheet.
Q Let me put it up, if you would.
A And it conforms to a bloody left hand -- the two portions of it, here, here and here.
Q Let me hand you what has been marked as Government Exhibit 821(a) and ask you whether or not you can identify that, sir?
A Yes, this is the area "D" right here, and it conforms to the --
Q (Interposing) I'm sorry, let me put it up.
A -- to a bloody right hand.
Q Let me hand you what has been marked as Government Exhibit 822, and ask you whether or not you can identify it, sir?
A This is Area "G" and it conforms to the right cuff of Colette MacDonald's pajama top.
Q Let me hand you Government Exhibit 823 and ask you to take a look at it, sir?
A This is a blow-up of Area "F" which conforms to the left of Colette MacDonald's pajama top.
Q Have I got it the right way?
A It should go this way.
Q Finally, sir, let me hand you Government Exhibit 824 and ask you whether or not you can identify that.
A Yes, sir; this is the top portion of the area designated "E." It conforms to a left bare shoulder.

MR. BLACKBURN: Your Honor, at this time, we would mark Government Exhibit 1075.

(Government Exhibit No. 1075 was marked for identification.)

BY MR. BLACKBURN:
Q Let me hand this to you and ask if you can tell us what it is, sir.
A This is a photograph of the cuff area of the left sleeve of the pajama top. The photograph has been reversed.
Q Why was it reversed?
A It was reversed to show this portion conforming with a similar portion on the sheet down through here and then up slightly.
Q Did you reach an opinion satisfactory to yourself as to whether or not this did in fact conform to this portion of the sheet?
A In my opinion, yes; it did.

MR. SEGAL: Could I hear what that opinion was?

MR. BLACKBURN: He said his opinion was that he did.

MR. SEGAL: It conformed?

MR. BLACKBURN: Let me ask the question again.

THE COURT: That was his answer.

MR. SEGAL: I did not hear it, Your Honor.

THE COURT: He said that in his opinion it conformed.

MR. SEGAL: I did not hear the question to which he was responding.

THE COURT: He asked if he had an opinion as to whether or not it conformed. The answer was "Yes," and that it did.

MR. SEGAL: All right, thank you, Your Honor.

MR. BLACKBURN: Your Honor, at this point, we would mark for identification Government Exhibit 781 through 785.

(Government Exhibit Nos. 781 through 785 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you these exhibits and ask you to take a look at them and let us know whether you can tell us what they are.
A 781 is a photograph of the back of the left sleeve of Colette MacDonald's pajama top; 782 is a photograph of the back of the right sleeve of Colette MacDonald's pajama top; 783 is a photograph of the cuff area of the left sleeve of the torn blue pajama top; 784 is a photograph of the right sleeve of the blue pajama top; and 785 is another photograph of the right sleeve of the pajama top.

MR. BLACKBURN: Your Honor, we would move these photographs and all other photographs so marked into evidence at this time.

(Government Exhibit Nos. 819(a), 820(a), 821(a), 822, 823, 824, 781 through 785, and 1075 were received in evidence.)

MR. BLACKBURN: And we would ask, sir, Your Honor, if we could publish these photographs to the jury.

THE COURT: Very well.

(Exhibits passed among the jury.)

MR. BLACKBURN: Your Honor, if you would give us just a minute, we need to move this back and reverse the sheet.

THE COURT: All right.

(Pause.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, if you would, sir, bring the pointer and whatever else you need and come down here. Mr. Segal, if you want to come around. Now, with respect to this other side of the blue bedsheet, did you conduct any analysis of this side, sir?
A Yes, sir; I did.
Q In conducting an analysis of this side of the bedsheet, what articles of clothing, if any, did you use?
A I used here again the torn blue pajama top.
Q Let me hand you that, sir. Now, on this side of the blue bedsheet, what areas, if any, did you examine?
A I examined Area "A" and Area "B."
Q Well, tell us what you did.
A I conducted the same type of examination I did on the other side of this exhibit, particularly in regard to this large stain here as to what might have caused it and to the areas of the blood, their location, the length of them, the absence of blood in areas. I determined that this stain was made by the right sleeve cuff area of this pajama top -- this area here which I have designated "B" on the pajama top itself.
Q What relationship, sir, did the blood on the stain area "A" here on the bedsheet have to the area which you have marked as "B" on the blue pajama top?
A The configuration of the blood pattern itself, plus the piping that is apparent on the stain.
Q If you would, sir, hold the piping up to the stained area, if you can?
A (Witness complies.)
Q Okay, now what about with respect to the area you have marked as "B" on the bedsheet?
A I found another area. The cuff of the sleeve conforms in blood pattern to this area here. That would be this area.
Q Now, when you say "this area here," what are you referring to?
A I am referring to Area "B."
Q Okay, the length of the blood?
A The length of the blood and the blood on the piping which was very little here conforms in length and distance and absence or presence of blood on this item.
Q In other words, where there is no blood on Area "B" of the bedsheet, there is no blood on that area of the blue pajama top?
A That is correct.
Q And where there was blood on the blue pajama top, there was blood --
A (Interposing) There was blood on Area "B."
Q Is that true with respect to Area "A" as well?
A Yes, sir.

MR. BLACKBURN: You may resume your seat.

BY MR. BLACKBURN:
Q Mr. Stombaugh, I'm sorry, could you come back down one more time? I noticed that there are obviously two areas which you say were made by that same part of the pajama top. Do you have an opinion, sir, satisfactory to yourself as to why there is more than one area?
A Yes, sir, the sheet could have been folded.

MR. BLACKBURN: Thank you. You may resume your seat.

(Counsel confer.)

MR. BLACKBURN: Your Honor, at this time we would mark for identification Government Exhibit 817(a), 818, 1077(a), 1078(a), and also 1077, and 1078, and 817.

(Government Exhibits Nos. 817(a), 818, 1077(a), 1078(a),1077, 1078 and 817 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me first hand you what has been marked as 817 and ask you whether or not you can identify it, sir?
A Yes, sir, this is a photograph of a sheet I just testified regarding.
Q Okay, with respect to Government Exhibit 617(a), can you identify that?
A It's a photograph of the same sheet.
Q The side that you just testified to about?
A That is correct.
Q Okay, these areas "A" and "B" right here on the right side of that photograph -- are these the areas which you have testified about?
A Yes, sir, they are.
Q Okay, let me hand you Government Exhibit 818 and ask you whether or not you can identify it?
A Yes, I can. This is a photograph of Area "A" and Area "B" on the sheet that I just testified regarding.
Q Let me hand you Government Exhibit 1077 and 1078, and ask you to take a look at them and let me know whether you can tell me what they are?
A These are copies of notes in my file here -- photographs of them.
Q Well, with respect to -- okay, let me hand you 1077(a), and ask you what that is?
A This is a blow-up photograph of notes made at the time of the examination.
Q Whose writing is that, sir?
A That is my aide's writing.
Q And who was your aide?
A Ms. Shirley Green.
Q She worked under your direction?
A Yes, sir.
Q Okay, tell us if you can what this represents?
A It represents the manner in which the right sleeve of the pajama top could have come into contact with the sheet to leave the stain that was left.
Q Would vou read for the record, sir, the rest of this on this?
A "Area 'B' stain on Q-15 folded up to Area 'A' stain. Together these stains correspond in shape to the lower bottom front area of the Q-12 right sleeve if it is placed on Q-15 sheet in above manner, and the sleeve extending partially over Area 'B.'"
Q Okay, finally, sir, let me hand you Government Exhibit 1078(a) and ask you whether or not you can identify that?
A Yes, sir, this also is a photograph of notes made at the time of the examinations.
Q Whose writing is that, sir?
A Here again, that is my aide, Ms. Green.
Q What does that exhibit represent, sir?
A It represents a drawing of the right sleeve of the torn pajama top and the blood stain in that area is drawn out in length showing -- and it shows the comparison made with the stain on the blue sheet. It matched in length and the piping -- small blood stain here and there; and then it trails on out, and this trails on out -- the same type.

MR. BLACKBURN: Your Honor, at this point we would move these photographic exhibits into evidence.

THE COURT: Very well.

MR. BLACKBURN: If I could have just a moment, Your Honor.

BY MR. BLACKBURN:
Q Based upon your examination of all of the clothing -- the pajama top -- the blue pajama top and the other pajama top belonging to Colette MacDonald, and the analysis of both sides of the blue bedsheet, and further based upon your training, skill and experience, do you have an opinion, sir, satisfactory to yourself as to how those stains could have gotten on that blue bedsheet?
A Through physical contact with the bedsheet.
Q Okay. Well, now, you testified this morning with respect to certain fabric impressions, or configurations, I suppose. What do those impressions or configurations indicate to you, sir, in your opinion?

MR. SEGAL: Let's OBJECT to -- it's vague, Your Honor. I have no idea what he's asking for.

MR. BLACKBURN: Well, just one moment.

THE COURT: Restate your question so we can all understand it.

BY MR. BLACKBURN:
Q All right, let me ask you this way, Mr. Stombaugh, do you have an opinion, sir, satisfactory to yourself as to the manner in which the various stains to which you have testified this morning as being the right or left sleeve of that pajana top of Colette MacDonald, a bare shoulder, torn blue pajama top, cuff area, and handprints could have gotten there?
A Yes, sir, a person wearing the torn pajama top while it was in a wet, bloody condition and with wet blood on their hands, had to have come into personal contact with that sheet --
Q (Interposing) And done what?
A -- the hands come into personal, physical contact. They had to be in contact with it to leave impressions such as these.
Q With respect to the impressions on the first side of the blue pajama top to which you testified, that being the right or left sleeve of the pajama top of Colette MacDonald, do you have an opinion, sir, satisfactory to yourself as to the manner in which those stains could have gotten there?
A Yes, sir.
Q What is that opinion?
A An individual wearing that pajama top while it was in a bloody, wet condition had to have come into personal contact -- physical contact -- with that sheet.
Q Finally, sir, do you have an opinion satisfactory to yourself as to the manner in which both the stains belonging to the pajama top of Colette MacDonald and also the stains belonging to -- which you have testified -- belong to the blue pajama top could have gotten there?
A I have no scientific facts to support that, sir.
Q Okay, Mr. Stombaugh, let me hand you Government Exhibit 271 and ask you, sir, to take a look at it and whether or not you can tell us what it is.
A Yes, sir; these are the pajama bottoms delivered to me as being the pajama bottoms of Colette MacDonald.
Q Did you examine those -- in what year?
A These were in September -- I'm sorry. I first examined them in 1971.
Q Did you ever have an occasion to examine the blood-like areas on them?
A Yes, sir; I did.
Q And what was the result of that examination, sir?
A The lower portions of the pajama bottoms down around the leg areas had heavy deposits of blood on them as if they had been -- something had been bleeding directly down onto them.
Q Mr. Stombaugh, this morning when you testified, as I recall, about the single hair which you said matched that of Colette MacDonald and was around a purple thread, I believe; do you recall that testimony?
A Yes, sir.
Q In your examination of that hair, did your examination reveal any foreign substance, if any, on that piece of hair?
A Yes, air; the area had blood-like deposits along the shaft.

MR. BLACKBURN: Your Honor, at this time, we would mark for identification Government Exhibit 391, 280, and 281.

(Government Exhibit Nos. 391, 280, and 281 were marked for identification.)

BY MR. BLACKBURN.
Q Mr. Stombaugh, if you would take a look at those three exhibits and tell us whether or not you can identify them.
A I can; they are two glass microscope slides.
Q What are those, sir, and if you would tell me by exhibit number?
A Exhibit 280 and Exhibit 281.
Q What is Government Exhibit 280?
A Government Exhibit 280 is a glass microscope slide that had been prepared by the Fort Gordon personnel, and it was submitted to me for examination.
Q What examination, if any, did you conduct with respect to Government Exhibit 280?
A I conducted a microscopic examination, a comparison of the exhibit.
Q And what was the result of that examination?
A It was a short hair fragment, Caucasian origin, and I compared them with the knowns we had and it matched in all microscopic characteristics the head hairs of Colette MacDonald.
Q What about with respect to 281?
A Exhibit 281 is also a glass microscope slide which had been prepared by the personnel at Fort Gordon, and I conducted an examination of it -- microscopic examination.
Q What about with respect to the other one -- the one to your left, sir?
A Do you want my conclusion on this exhibit?
Q What was your conclusion on that?
A The conclusion on that was that it contained the tip portion of a limb hair and did not have enough points of comparison to be of value for comparison purposes.
Q In other words, you cannot identify it as belonging to anyone?
A Just a tip portion of a limb hair.
Q Were you able to tell whether or not it was a Caucasian?
A It was of Caucasian origin; yes.
Q With respect to the other exhibit there, sir?

THE COURT: Is that 391?

THE WITNESS: Yes, Your Honor.

THE WITNESS: (Continuing) These are hair samples taken from the body of Jeffrey Robert MacDonald. They are contained in pill boxes and also mounted on glass microscope slides.

BY MR. BLACKBURN:
Q Did you examine them or take those hair samples of Jeffrey MacDonald with any of the hair which was sent to you?
A I used them in my comparisons; yes, sir.
Q What were the results of your analysis?
A I made no identifications.
Q With respect to Government Exhibit 280 and 281, do they have any numbers on those -- "E" numbers on those slide pictures?
A Yes, sir; they do.
Q What is that on 280?
A On 280, there is a number E-4-70, and then right under it is what looks to be a C or a G FP82-70, and then some initials.
Q What about with respect to Government Exhibit 281?
A 281 has several numbers on it starting with --
Q (Interposing) Does it have any "E" numbers on it?
A "E," yes, sir.
Q What does that mean?
A The top number is E-306-70. Directly under it is E-5-70. Directly under that is E-306-70, and then C or G FP82-70, and then some initials.

MR. BLACKBURN: Okay, Your Honor, for the record, we would like to show that Government Exhibit 280, which is E-4, and which has been previously testified to by Mr. Browning, is purported to be the debris from the right hand of Colette MacDonald, and Government Exhibit 281, E-5, also previously testified to by Mr. Browning, is from the left hand of Colette MacDonald. We would offer at this time to move those particular exhibits into evidence.

THE COURT: Very well.

(Government Exhibits 391, 280, and 281 were received in evidence.)

MR. BLACKBURN: Your Honor, at this time, we would mark for identification Government Exhibits 825 and 826.

(Government Exhibits 825 and 826 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you what has been marked as Government Exhibit 825, and ask you whether or not you can identify it, sir?
A Yes, sir. It contains photographs of the back side of the bed sheet, photographs of the stained areas "A" and "B" and an enlargement of the right sleeve of the torn pajama top.
Q Let me hand you Government Exhibit 826, and ask you whether you can identify it?
A That exhibit contains a photograph of the other side of the sheet I testified to. It also is an enlargement of the stained area designated "E." It contains the torn left cuff of the torn pajama top. It contains photographs of areas "C" and "D" in an enlarged condition, and it contains photographs of the left and right sleeve areas of Colette MacDonald's pajama top.

MR. BLACKBURN: Your Honor, may we approach the Bench just a moment.

THE COURT: All right.


B E N C H C O N F E R E N C E

MR. BLACKBURN: We are reaching the point very rapidly, Your Honor, in fact, we are there where we are going to be going into the reconstruction questions of this witness. Before we did that, I just wanted to see what the status of that was. Let me tell you how we are going to do it and how we propose to do it. This witness is not the one who actually did it. Shirley Green did it, but it was done in his presence with his suggestions and so forth, and he knows personally that it has been done. He can testify to that. The actual methodology notes and the actual photographs point by point by point as to how it was done that I think we have given to the Defendant, certainly, will come in through Shirley Green who will come after Paul Stombaugh's testimony, but this witness, I think, is competent to testify to what he did and observe and the results of that --

THE COURT: Well, he has already said that Green was his aide --

MR. BLACKBURN: (Interposing) Yes, sir.

THE COURT: -- and was working under his supervision. You say he was there. I see no problem there, but now --

MR. SEGAL: (Interposing) Well, the fact problem, Your Honor. Those are not the facts as I understand them.

THE COURT: Technical difficulties. Crawley has got in the act and he has busted up everything.

MR. BLACKBURN: Before we get to that, we have three or four photographs that were taken of the body of Colette MacDonald with the pajama top on her with notes written on those photographs by Stombaugh as to what his findings with respect to the condition of the top and how it was found. For example, there was testimony yesterday that there were no ice pick puncture holes in the left sleeve of the pajama top. It is found draping off the side of Colette's body. The rest of the pajama top is folded back over. He will testify that the right sleeve -- and his pictures will reflect this as written on there -- was turned inside out and just sort of draped back across. That is where we are.

MR. SEGAL: There are a whole raft of problems, Your Honor, and this is the point at which we had asked for a voir dire of this particular experiment or demonstration out of the presence of the jury, and I think we need to have it.
First of all, my information is not that Mr. Stombaugh supervised Ms. Green. He was a supervisor, but our information is that she worked three weeks on this and he was almost never in the room. She did this by herself and as a foundation. And he simply talked about what she was doing periodically. He didn't supervise her in any of the known scientific senses of the word. The proper foundation is to put Shirley Green on. That means to terminate this testimony and permit us cross-examination and you may either go with Ms. Green and him back because he is not leaving right away. There is no way in the world that he is going to leave before Friday, so he ought to make up his mind to that.
Now, the very demonstration of what we are talking about, Your Honor, it is our position in the memorandum of law and we are prepared to submit a supplemental memorandum at the right juncture, is that he did not, in fact, do a demonstration of what he said he did. As I understand the Government's offering --

MR. BLACKBURN: (Interposing) He has not said that he did a demonstration. That is not what I said.

MR. SEGAL: Tell me again. I am not clear what you are offering here.

THE COURT: Let me interject this. I have studied your submissions on this thing and I do not understand that what is proposed to be done is an experiment --

MR. BLACKBURN: (Interposing) It is not.

THE COURT: -- but it is a reproduction which is demonstration based on evidence which is already before the jury.

MR. BLACKBURN: That is correct.

MR. SEGAL: That is exactly where we depart. We say it is not the same.

MR. BLACKBURN: Let me say this and then you can go. What he is going to say is that in 1974, they came to the point of, "Is there an explanation of how these holes got there and could they have gotten there through the holes in Colette's body," so they worked on it -- he and Shirley worked on it -- and tried to figure out ways to do it. Now, Shirley Green -- we are not going to re-do the construction here in the Courtroom.

THE COURT: Well, now, the Shirley Green thing and the fact that he wasn't there every minute does not concern me particularly.

MR. BLACKBURN: She reported to him on it.

THE COURT: That is something which he can go into on cross-examination if he wants to and that will go to the weight of his testimony. But assuming, now, that the witness is going to say that the thing was done under his supervision and he was there periodically so that he could observe the work as it progressed -- assuming that he is going to do that generally, I have no problem with that.

MR. MURTAGH: I don't know where Mr. Segal got the information that Mr. Stombaugh was not there. Let me represent to the Court that Mr. Stombaugh was at that time the Chief of the Chemistry and Physics Section. He, in fact, took a leave from his duties as such and moved up into the attic of the Justice Department Building where microscopic analysis unit was and, Judge, this was the smallest room I have ever seen. I was there. Mr. Stombaugh sat here (indicating) and Ms. Green sat there (indicating). They spent three weeks in that room, so this was not something that he dropped by every third day to ask Shirley, "How are you doing?" He conducted, you know, he made certain notes of where -- as I understand it, he laid out a group of the holes much the same as an architect might --

MR. SEGAL: (Interposing) Could I make my OBJECTION so we can understand what I am talking about here?

MR. MURTAGH: I was just correcting the factual mistakes.

MR. SEGAL: I disagree with you.

MR. MURTAGH: Were you there?

MR. SEGAL: I disagree with you, and we ought to have a fact hearing if anybody thinks it is important. If I understand their position, Your Honor, he purported to the Laboratory to answer this questions just as they have said to him, "Could this have happened?" That is, "Could Mrs. MacDonald have been stabbed with this pajama top on?" He then took photographs and said, "I will reconstruct it," and he said, "Lo and behold, it could have happened. Look how I have done it."
Our position, Your Honor, is that the demonstration that he did in the laboratory did not replicate in any reasonable fashion the facts that were known. It did not replicate it at all, and it is improper for the jury to see this before Your Honor has passed upon it as to whether as a matter of law, it is reasonable and correct with the original facts as known or whether they simply say, "We have taken another set of facts and it looks and works that way." That is why we are entitled to a voir dire. There is no way of having this in front of the jury and then say, "Disregard it, jurors."

MR. MURTAGH: Your Honor, Mr. Stombaugh did not take photographs to do the reconstruction.

MR. SEGAL: Nobody said that, Brian.

MR. MURTAGH: Excuse me. I believe that is what I understood you to say. If I am wrong, I apologize.

MR. SEGAL: You are wrong.

MR. MURTAGH: He took the crime scene photographs which are in evidence, and from those photographs, he determined which portions of the pajama top were on the floor and which portions were on Mrs. MacDonald's body and whether it was inside out or not which you could see from the photograph. He then, having done a previous examination of where those holes were in that garment, determined -- he then looked at the autopsy pictures which are in evidence of Mrs. MacDonald and read the autopsy report and determined that she had 21 ice pick injuries and that they formed a grouping of five in, I believe, the right side and 16 in the left side. From that, he had Shirley Green fold the pajama top in a million different ways to see whether 21 probes could be inserted simultaneously through 48 holes. Mr. Stombaugh verified that and then a picture was taken. That is what he will testify to.

MR. SEGAL: That is exactly the point, Your Honor. The demonstration and experiment that he did for himself in the laboratory does not comport with the photographs of the thing that he was shown as the known and that is the basic issue. He constructed something different than what he was given. That is why we say that the jury is not entitled to see that until His Honor, as a matter of law, passes on that as to whether that demonstration meets the tests that are laid out in the cases.

THE COURT: Let me see if I understand what you are talking about now. The Government says they have got a woman's chest. For these purposes here, you have got a woman's chest that has got five holes in it spaced like that. They have a garment that has five holes like this. This garment was known to have been over the chest; therefore, the Government wants to come now and show that when they are arranged in this fashion here, that the five known holes line up so that the garment -- this garment is bound to have been over there at the time. Is that your theory?

MR. MURTAGH: It is similar to that. It is the grouping. He cannot say that every hole matches -- in other words, it is not his testimony that this thing was stretched taut and did not move at all. What he is saying is that it can be folded and when folded, 21 holes can be inserted through it -- through all 48 holes. The bottom holes, if you will, the bottom 21 holes form two groups of five and 16 which correspond to the five and 16 puncture wounds visible in the photograph and in evidence of Colette MacDonald's chest. He is simply going to say this could have happened. He is not going to say it could only have happened in this fashion.

MR. SEGAL: May I?

THE COURT: Yes, go ahead.

MR. SEGAL: The point that the Government seeks to make while in general terms resembles what Your Honor is doing is slightly different though. The garment, if it was this, there is no problem, I think, to do the demonstration. The Government has a garment which has more than double the number of holes, and say that we have a photograph of the body and that it shows lying across it this garment. This man says, "I looked at that photograph and I took this, I folded it up the same way as it is in the photograph, and, lo and behold, I can make these ten holes fit into those five," which will then support and give an inference that perhaps the holes were put in that way.

THE COURT: It seems to me like if it is folded and they still fit and they went through more than one fold of cloth, that it has more probative force than if it was just one sheet.

MR. SEGAL: I am not questioning whether it has some probative force or not. I think that is another issue to get to. The point is what he did, Your Honor. If this was the photograph, my view is that he did this -- that he did like this (indicating). That is not what this drawing is, and that is why I say that it is too late after the jury is shown this to say, "Oh, well, jury, forget that. Don't give it any weight because if this is the photograph and this is the way it is shown, you cannot come in here and show how you made it fit this way." That is absolutely prejudicial and improper. If he comes in and says, "I did it this way," well and good. Then, have the demonstration. My point is that I have seen some of his work, and I think there is no question in my mind. He did not do that. That is a matter of law and the first instance for Your Honor to decide. That is why we have asked for the voir dire hearing. I think that is a critical question as to whether they are entitled to show this. There are many, many things that are just -- if you can make it fly this way, that is wonderful, but that is not the facts developed in the case.

MR. MURTAGH: Your Honor, Mr. Segal misunderstands the significance of the position of the pajama top. We are not saying and Mr. Stombaugh will not testify that the thing was in precisely the same position. It is not what he is going to say. It is that the right sleeve is inside out.

THE COURT: The photograph shows that, doesn't it?

MR. MURTAGH: Yes, sir.

MR. BLACKBURN: See, Your Honor, we know, for example, through the evidence in the case that Jeffrey MacDonald was laying on that side when he was found by the MPs. It would have been very easy for the pajama top to have been moved two or three inches by the sheer weight of his own body moving it. In other words, we are not saying that it was in precisely the exact spot, but just folded generally that way.

THE COURT: But what you are saying is what -- the 48 puncture wounds?

MR. BLACKBURN: 48 thrusts into the pajama top can make 21 holes in the body.

MR. MURTAGH: It is reversed. 21 thrusts through the pajama top can make 48 holes. Your Honor, he previously examined this in 1971, without knowledge of where it was found and what the case was all about and had determined that there were 48 holes. It is the same 48 holes -- that they were made. There is no tearing evidence. You know, if anything, the examination is buttressed by the fact of the interval between the initial determination -- we won't go into this with no facts that he had to live with.

MR. SEGAL: The reason why we need a voir dire is that this is not what this man has said. We have his grand jury testimony. He does not say what these lawyers say.

THE COURT: As far as his grand jury testimony is concerned, was that all of his testimony?

MR. BLACKBURN: Yes, sir.

MR. MURTAGH: Sir?

THE COURT: Was that all of his grand jury testimony?

MR. MURTAGH: Yes, sir.

THE COURT: Most of that is incompetent in this trial. I am sure you would have recognized that.

MR. MURTAGH: Yes, sir.

MR. SEGAL: It is worst than incompetent. It verges on the irresponsible.

THE COURT: No, the Government's attorney, Woerheide, repeatedly said, "Well, of course, that is just speculation."

MR. MURTAGH: He asked his opinion.

MR. SEGAL: The point being here that he says in there on this particular subject that I have raised with you now different matters than what the Government says. He says that he folded exactly. That is his word "exact," and if they try to back away from it, his skin will be flailed over this Courtroom. I don't think the issue can be decided this way, Judge. It is just too important to their theory of the case to have a Defendant have it foisted on him when a man says something in sworn testimony and they come up here and say, "Well, it is sort of similar. Exact doesn't mean anything." When I suggest, Your Honor, that the photographs showed this as the picture he worked from, he created something like this. That can't be just given to them. You just can't say that everything in the world can be given to the jury. There are limits that the rules of evidence have placed even on the Government's theory of the case. I want to see those properly invoked by a voir dire. We can spend the next half hour and decide what exactly this is about.

MR. BLACKBURN: I think we have told you pretty much what it is going to be about.

MR. MURTAGH: Your Honor, in other words, he folds it. He turns it inside out as close as he can do it from the photograph. He is working on two different scales. He does not have Colette's body as a scale. He does not say, "I placed this on Colette's body." He is working from the photograph and the patterns are of necessity -- one is larger than the other. But it would be analogous, Judge, to two shotgun blasts, one from a closer distance and one from a little further out. The pattern spreads out, but it is basically consistent, and that is what we are talking about -- the pattern on two different scales.

MR. SEGAL: Your Honor, the demonstration continues to change the more we listen to the Government lawyers talk. At this point, they are offering something which is not a demonstration in this case even.

THE COURT: How long would you anticipate that a voir dire on this proposition would last?

MR. SEGAL: If they don't spend all day, you know, trying to guzzy it up with the pictures and get to the point of what he did, I would say perhaps a half hour would do it, Your Honor.

MR. MURTAGH: Judge, he needs the pictures to explain it.

MR. SEGAL: Well, don't worry about the full method of introducing them in voir dire. Show him. You can do things without a jury present that you can't do with a jury present.

MR. BLACKBURN: Judge, I think we have told you pretty much exactly what we are going to show. We are not seeking to introduce his grand jury testimony and ask those types of questions. We are just trying to go directly to what he is competent to say.

MR. SEGAL: I am not trying to suggest your introducing his testimony, but I am saying on this relevant subject that when he finally testified, he said that he did something which sounds to me a little different that what you are representing. We want to know what the inquiry was put to him. I think His Honor ought to decide whether it is relevant and whether he did it.

THE COURT: There is a motion before the Court to conduct a voir dire which will be sort of a preview of this witness' testimony on this particular subject prior to his testifying. I gather from counsel that they do not intend by this to establish by this witness exactly what happened but simply what could have happened and to demonstrate that the relative position of certain holes in the fabrics were or could have been made -- that they were consistent with the holes known to have been in the body and fully demonstrate it, I take it, by photographs taken of the body in its nude condition.

MR. MURTAGH: We have that photograph itself, sir.

THE COURT: I can see that you may have a very serious problem with the weight of that testimony in view of what I anticipate will be a searching cross-examination to establish that not only could it have been like this but several other different ways.

MR. MURTAGH: Yes.

THE COURT: I will OVERRULE the motion for the voir dire. I will let him proceed. I think it is a matter going to the probative force of the testimony.

MR. SEGAL: Let me make one additional motion, Your Honor. Under 403, I asked Your Honor under 403 to exclude this. Now, for whatever possible limited probative value it has, its potential for prejudice by virtue -- it calls for mere speculation on the part of the jury -- is so substantial that it is unfair to the Defendant to permit this.

THE COURT: I do not agree with that and will OVERRULE that motion for this reason. I think, if I understand what their offer of proof is on this, that as you increase the folds but still maintain the consistency between the holes in the garment and the holes in the body, that that increases its probative value rather than diminishes it. I think under 403, it should not be excluded for that reason.

MR. MURTAGH: Your Honor, also, if I might add, there has been ample testimony as to the injuries on Dr. MacDonald -- his own statements as to the fact that he was wearing it and the fact that he said that he put it on his wife's body.

THE COURT: Well, it has probative philosophy in both instances. In one, you show negatively that he did not have these holes corresponding with his and that this other way, they are consistent with the holes in the body, I think I will let you proceed. I verily anticipate that your witness will be subjected to a most searching cross-examination and possibly a destruction of his testimony. Should it come to that, of course, then I will instruct the jury to forget it if I felt that it had no probative force and that, in fact, what I personally perceive the situation to be and I will make such instructions as I can to prevent such a situation.

MR. MURTAGH: Thank you, Your Honor.

THE COURT: All right, Let's go.

(Discussion off the record.)

(Bench conference terminated.)


THE COURT: Gentlemen, I would consider, in view of the fact that you are proceeding into something else, I would consider taking our Monday-type recess today and coming back at 2:15 if it would be of any benefit to you.

MR. BLACKBURN: It certainly would.

THE COURT: Suppose we let's go then, members of the jury, and come back at our abbreviated recess time. You will get the same hour and a half, but come back today at 2:15 instead of 2:30, and then, I think we can go right into this and perhaps save a little time that way. Take a recess until 2:15. Don't talk about the case.

(The proceeding was recessed at 12:43 p.m., to reconvene at 2:15 p.m., this same day.)


F U R T H E R P R O C E E D I N G S (2:15 p.m.)

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT: Good afternoon, ladies and gentlemen. Were there any further questions of this witness?

MR. BLACKBURN: Yes, sir, Your Honor.

THE COURT: Let him come back then.

(Whereupon, PAUL M. STOMBAUGH, the witness on the stand at the time of recess, resumed the stand and testified as follows:)


D I R E C T E X A M I N A T I O N 2:15 p.m. (Resumed)

BY MR. BLACKBURN:
Q Mr. Stombaugh, I believe, sir, that you testified yesterday that in 1971, you received the blue pajama top for examination, is that correct?
A Yes, sir.
Q Now, in 1971, did you have any knowledge of where that pajama top was found?
A No, sir.
Q Now, in 1974, sir, when you were asked to re-examine certain items of evidence again, I take it you were asked to re-examine the blue pajama top, again, is that correct?
A That is correct.
Q Now, in 1974, were you supplied, sir, with any other additional information as to the location of the pajama top?
A Yes, sir, in 1974 I was supplied with many photographs of the crime scene.
Q Did those photographs include photographs of the blue pajama top?
A Yes, sir, some of them did.
Q Now, in addition to photographs, sir, did you also have occasion to receive any of the autopsy reports of the victims?
A Yes, sir, I did.
Q Specifically, did you ever receive the autopsy report pertaining to Colette MacDonald?
A Yes, sir.
Q Did you read it?
A Yes, sir.

MR. BLACKBURN: Your Honor, if we could have just a second.

(Pause.)

BY MR. BLACKBURN:
Q With respect, sir, to the autopsy report of Colette MacDonald that you have testified that you read, what did you read with respect to the puncture holes that were placed into the chest of Colette MacDonald?
A In reading it, it was my understanding that she had 21 puncture holes in her chest.

(Counsel confer.)

MR. BLACKBURN: Your Honor, just a second. We would mark at this time Government Exhibit 786.

(Government Exhibit No. 786 was marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you what has been so marked, and ask you to take a look at it, sir, and tell us whether or not you can identify it?
A Yes, sir, this is one of the photographs that was delivered to me in 1974.
Q What does it portray?
A It portrays the damage to the chest of Colette MacDonald.
Q What, if anything, did you do with respect to that photograph?
A This photograph, I circled each of these puncture wounds and numbered them. I also encased each stab wound with a rectangle and gave it a -- not a numerical designation but an alphabetical designation, and I put dots around what appeared to be a large bruise on the chest; and I enclosed the whole thing in a rectangle.
Q Now, with respect to the puncture holes which you numbered, how many numbers did you come up with?
A 21.
Q With respect to the right chest area, how many did you come up with?
A It was a group of five.
Q With respect to the left chest area, how many did you come up with?
A There was a group of 16.

MR. BLACKBURN: Your Honor, we would move this photograph into evidence, number 786, and move to publish it to the jury.

THE COURT: Very well.

(Goverment Exhibit No. 786 was received in evidence.)

(Exhibit distributed among the jury.)

MR. BLACKBURN: Your Honor, at this time, I we would mark for identification Government Exhibit 1137 and 1138 and 1139.

(Government Exhibit Nos. 1137, 1138, and 1139 were marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you first Government Exhibit 1137 and ask you whether or not you can identify what it is.
A Yes, sir; this is a photograph that was delivered to me along with the other ones.
Q After you received these photographs, Mr. Stombaugh, pertaining to the -- well, let me ask you this question first -- what does that photograph portray?
A It portrays the body of Colette MacDonald lying on her back in front of a chair with a pajama top over the top of it and a bath mat on top of the body.
Q With respect to that pajama top that was over her body, what, if anything, did you do in analyzing that particular photograph?
A In analyzing this particular photograph, we determined where the various seams were, which was the left sleeve seam, determined it was inside-out; the bottom hem of the right front panel, the right shoulder seam which was inside-out and its location, the front V-flap on the pajama top, the cuff area of the left sleeve, the left sleeve, and the left front panel.
Q Does that particular picture show the left sleeve area?
A Yes, sir; but not all of the left front panel.
Q Where is that portion of the left sleeve area?
A It is to the left of the body trailing out on the floor.
Q Now, I believe you testified yesterday afternoon that you found no puncture holes in that portion of the left sleeve; is that correct?
A That is correct.
Q Let me hand you Government Exhibit 1138 and 1139, ask you to take a look at them, and tell us whether or not you can identify what they are.
A 1138 is a duplication of the photograph I have just looked at. 1139 is another view of the body showing the pajama top on the body.
Q Now, I believe you testified with respect to the right sleeve and how you appeared to find it from the photograph; is that correct?
A Yes, sir.
Q And it was inside-out?
A It was inside-out; yes, sir.

MR. BLACKBURN: Your Honor, I would move these photographs into evidence.

THE COURT: Very well.

(Government Exhibit Nos. 1137, 1138, and 1139 were received in evidence.)

MR. BLACKBURN: And seek to publish these to the jury as well.

THE COURT: Very well.

(The exhibits were distributed among the jury.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, what was the purpose of trying to determine the manner in which the pajama top was located on top of the chest of Colette MacDonald?
A We had been requested to ascertain whether or not the puncture marks, puncture wounds, to Colette could have been made through this pajama top -- if it were in fact on top of her body. So, the purpose of using the photographs was to fold the pajama top as near as possible to the way it was folded on top of the body at the time these photographs were taken.
Q This was in 1974?
A Yes, sir.
Q Now, was anybody else working with you in this particular endeavor?
A Yes; Ms. Green.
Q She was working under your direction?
A At the time in this particular project, we were working side by side.

(Counsel confer.)

MR. BLACKBURN: Your Honor, may we approach the bench just a second?

THE COURT: Yes.


B E N C H C O N F E R E N C E

MR. BLACKBURN: Shirley Green is in the courtroom. Mr. Stombaugh is an expert, I suppose, in this area. I don't know whether she is technically an expert is this area or not, but she has -- and we will classify her as an expert because she has testified and done this type of work before. As I understand the exclusionary rule, it did not include experts.
The Defense experts have been throughout the trial listening to the testimony. Mr. Segal wishes to exclude --

MR. SEGAL: (Interposing) Ms. Green during this part of Mr. Stombaugh's testimony. That is the only part of it. I think that she is -- she technician. She did a piece of work under his direction. She did not make an expert opinion or judgment. I think we ought to hear what he says she did by himself, and then when she gets on we ought to hear what she remembers independently of being told.

THE COURT: Are you going to qualify this woman as an expert?

MR. MURTAGH: I think we are.

THE COURT: The testimony is they worked side by side.

MR. SEGAL: I think it will be safer if we take them independently of each other. I will say this: we don't intend to offer anybody who has ever heard -- none of our witnesses will listen to each other's testimony in that regard.

MR. BLACKBURN: I'll represent to the Court in my mind there is absolutely no way she is going to learn anything new from what this man is going to say.

MR. MURTAGH: Judge, she has been with the Bureau 20 or 30 years. She has always worked in one area of the laboratory or another. She has a Bachelor's degree in chemistry, and she teaches at Quantico. You know, she does everything but testify.

MR. SEGAL: I hope she has better credentials than Mr. Stombaugh does.

THE COURT: If she doesn't, you will tell the News and Observer; won't you?

MR. SEGAL: You gentlemen don't know what you have here and what the nature of the beast is. I promise you it is worthwhile waiting for. I promise you. I would feel better if she was kept out during this part of the testimony.

THE COURT: Well, by agreement, the experts were to remain and we're without a qualification so I won't vary it now at this late date.

MR. BLACKBURN: Thank you.

(Bench conference terminated.)


MR. BLACKBURN: Your Honor, at this time, we would mark for identification Government Exhibit 806(a).

(Government Exhibit 806(a) was marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you that and ask you whether or not you can identify what it is, sir?
A Yes, sir; this is the drawing -- photograph of a page of my notes showing one of the drawings used on a piece of paper on which we had diagrammed the damage to the chest area of Colette MacDonald.

MR. SEGAL: May I suggest we take down the other drawings there, which apparently have no relationship and would be confusing, or turn them backwards so we can have a white background, please?

MR. BLACKBURN: We would happy to do that.

BY MR. BLACKBURN:
Q Taking the pointer, Mr. Stombaugh, would you explain what this is and what you did, or what Ms. Green did, sir?
A This is a drawing utilizing the photographs showing the actual damage to the body of Mrs. MacDonald, in which we reproduce as near as possible in location and grouping the puncture wounds as they appear in the photograph of the actual body; and each one has a number assigned to it.
Q Now, these are the five puncture holes you testified to were found in the right chest, is that correct?
A Yes, sir; numbers 17, 18, 19, 20 and 21.
Q And then 1 through 16 were those found in the left chest, is that correct?
A That is correct.
Q Now, Mr. Stombaugh, after that was done -- you say you and Ms. Green were working side by side -- what did you do next with attempting to find out about the pajama top in its relationship to the puncture holes in Colette's body?
A Through the use of the photograph, we refolded the pajama top as close as we could to conform with the position it was at the time the photographs were taken; and upon conclusion of that we found that there were 21 holes visible on the top -- top layer of the pajama top. And these were in two groups -- one group of five and one group of 16.
Q Now, did these match up or were these consistent with, I should say, with the puncture holes in Colette's chest?
A They were consistent in the fact that there were five which would have been in the right chest area, and 16 which would have been in the left chest area.
Q What was their consistency or inconsistency with respect to groupings, say, in the left chest area?
A I don't believe I understand your question, sir.
Q Well, let me just withdraw. I think you testified yesterday that there were 48 puncture holes in Colette's chest --
A (Interposing) That is correct.
Q -- I mean in the pajama top, is that correct?
A In the pajama top.
Q And I take it that you and Ms. Green then folded the pajama top in the approximate way that you saw from the photograph to see whether or not they could match up with the 21 puncture holes, is that correct?
A Yes, sir, that was what the request had been.
Q How do you account for all the 48 puncture holes?
A After we got it folded, it was then necessary to line up the holes in underneath and account for each and every one of the holes.
Q Well, were you able to do that?
A After a lengthy period of time, Ms. Green succeeded in lining up all the holes; yes, sir.

MR. BLACKBURN: Your honor, we would have marked for identification at this time Government Exhibit 787(a).

(Government Exhibit No. 787(a) was marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you this photograph, sir, and ask you whether or not you can identify it?
A Yes, sir, I can.
Q How about telling us what it is?
A It is a photograph of the pajama top after the pajama top had been folded and lined up as near as could be in the photograph; and we had determined what holes would have had to have passed through in the pajama top to account for 48 of them; and then we put probes through the holes, into all the holes they had to have passed through, and into a soft cushion to support it.
Q What is this portion of the pajama top right here?
A That is the left sleeve and left front panel area.
Q What is this portion right here?
A That is the right sleeve turned inside out.
Q Now, how many probes did you actually use?
A There were 21 probes.
Q And that is reflected by this green on here -- why don't you come down here and tell us what it is rather than my saying it?
A The green numbers correspond to the number of holes in the chest of Colette.
Q What do the white --
A (Interposing) The white tags contain the numbers of the holes in the pajama top through which that thrust would have passed.
Q So, in other words, 48 thrusts, you are saying, could have made 21 holes, is that right?
A No, sir; I'm saying 21 thrusts could have made 48 holes in passing through the folds in the fabric.

MR. BLACKBURN: Your Honor, at this time we would mark for identification Government Exhibit 1140.

(Government Exhibit No. 1140 was marked for identification.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, let me hand you this exhibit and ask you whether or not you can identify it?
A Yes, sir, I can.
Q What is it?
A These are the 21 probes with the green flags on the little white tags that were used in this exhibit.

MR. BLACKBURN: Your Honor, at this point we would move these photographs and those probes into evidence.

THE COURT: Very well.

(Government Exhibits Nos. 787(a) and 1140 were received in evidence.)

MR. BLACKBURN: And, Your Honor, we would publish this exhibit to the jury.

(Exhibit Passed among the jury.)

MR. BLACKBURN: Your Honor, also at this time, if we could publish this last photograph, the enlargement, to the jury? It is somewhat difficult to see.

THE COURT: All right, sir.

(Exhibit passed among the jury.)

BY MR. BLACKBURN:
Q Mr. Stombaugh, based upon your examination of the pajama top, the reading of the autopsy report, and the notes that you made and the photographs that you examined, do you have an opinion, sir, satisfactory to yourself, as to whether or not that pajama top was on the body -- could have been on the body of Colette MacDonald when the puncture holes were made in her body?
A Yes, sir; based upon our findings, the puncture damage to her chest could have been made through this pajama top while it was on her body.
Q To reach the opinion which you reached, are you saying, sir, that the pajama top that you have there and that you saw in the photographs was in exactly the precise position on Colette's chest when these probes could have been made into her body?
A No, sir; I am not saying that.
Q Could you explain it a little bit more fully?
A In the photographs the pajama top is lower down on the chest and it appears to have been moved. If it was in the exact location, then you would be a little more assured that this happened. The pajama top is not -- it appeared from the photographs to have been moved more down towards the abdomen.

MR. BLACKBURN: Your Honor, that concludes our direct examination of this witness. The Defense may cross-examine.

THE COURT: Very well. Do you have any questions?

MR. SEGAL: Yes, a few questions, Your Honor.

THE COURT: All right, sir.


C R O S S - E X A M I N A T I O N 2:43 p.m.

BY MR. SEGAL:
Q Mr. Stombaugh, you told us a little bit earlier this morning that you were the head of the Chemistry Branch -- is that right -- when you were with the FBI?
A Yes, sir; the Chemistry Branch of the Physics and Chemistry Section of the FBI Laboratory.
Q You were with the Chemistry Branch in the Physics and Chemistry Section; is that right?
A That's correct.
Q And I assume that you had to have some qualifications to suit you to that particular job; would I be correct in assuming that?
A It was an administrative position -- assigning of cases and the handling of things of this nature.
Q Well, let me put it this way. Did you or did you not consider yourself to be a scientist?
A Yes, sir; at the time, in my field.
Q Now, we are talking about matters that come under the general topic of forensic science in your testimony yesterday and that of today; is that correct?
A That is correct.
Q And you are aware that the most prominent and preeminent organization in forensic science in America is the American Academy of Forensic Sciences; aren't you?
A That is one of them, sir.
Q Is there a more preeminent one in your knowledge than the American Academy of Forensic Sciences? I'll start with that one then.
A Well, you have the ASCLD which is the American Society of Crime Laboratory Directors.
Q That is a group of administrators; isn't it?
A That is correct.
Q Let's start first with the one I asked you. You recognize the American Academy of Forensic Sciences as being a leading organization of persons who are professionally active in the area of forensic science; is that right?
A That is correct.
Q And in what year did you belong to the Academy?
A I never joined the Academy.
Q Did not. How about the Northeastern Association of Forensic Sciences? It covers the part of the country including Washington, D.C., of all the forensic scientists who are interested in professional advancement. Did you belong to that?

MR. BLACKBURN: Your Honor, we would OBJECT. We went into this yesterday afternoon.

MR. SEGAL: It goes to the weight of his testimony, Your Honor.

THE COURT: Well, you were given 45 minutes to explore all these matters yesterday afternoon -- Now you want to explore them further.

MR. SEGAL: Your Honor, yesterday was a question of qualifications; today, a question of weight. I do ask Your Honor's indulgence to carry a few matters forward which will be edifying.

THE COURT: All right, I'll indulge.

BY MR. SEGAL:
Q Now, do you belong to the Northeastern Association of Forensic Sciences?
A No, sir.

THE COURT: I think you could do this. You could just ask one question. Do you belong to this one, this one, and so and so? If you are pretty sure he does not, you can get just one answer.

MR. SEGAL: Your Honor, truthfully, I don't want to make any assumptions and therefore I want to ask Mr. Stombaugh.

THE COURT: All right.

BY MR. SEGAL:
Q Do you belong to the Association of Forensic Sciences in the metropolitan Washington, D.C., area?
A No, sir.
Q Well, what about the Forensics Sciences Section of the American Society of Testing Materials; do you belong to that section?
A At the time I was in the FBI Laboratory, the FBI Laboratory was one of the referee labs running some of those tests so at that time, although I didn't carry a card or something, the laboratory, as a member of the laboratory, I guess I would be included in that.
Q So, you think you might have been a member of the Forensic Sciences Section of the American Society of Testing materials by vicarious identification with the Bureau; is that right?
A That is correct.
Q How about the American Chemical Society; were you a member of that society?
A No, sir.
Q As a matter of fact, you belonged to no professional organization in the area of forensic sciences whatsoever; is that right?
A That's correct.
Q At no time in your entire career -- 16 years -- in the forensic laboratory of the FBI did you belong to any such professional association?

MR. ANDERSON: OBJECTION.

THE COURT: I'll SUSTAIN it as to the form of the question. He answered that once.

BY MR. SEGAL:
Q How many contributions did you make to the bulletin of the FBI internal house memo you told us about in the area of fabric damage and fabric impressions? How many articles did you write in that bulletin?
A Are you talking about interesting case write-ups that circulated or are you talking about the FBI bulletin, the national publication?
Q Well, let's talk about the national publication first, then the other one second; all right? How many articles did you ever write for the FBI, national publication in the area of fabric impressions and fabric damage?
A I never wrote any on that, sir.
Q Did you ever write anything on the interesting cases publication that circulated in the FBI about fabric impression and fabric damage?
A Yes, sir; I've written several of those.
Q And what were they about?
A About interesting cases that we encountered and identifications that were made -- unusual identifications.
Q Did you write one about this case?
A No, sir.
Q How many did you write altogether of interesting cases you had worked on for the internal bulletin of the FBI?
A All totaled over the years covering all the cases?
Q Yes; the ones that you wrote up and got published in the interesting case list that dealt with fabric impressions.
A Twenty or 30 maybe.
Q Do you have a list somewhere of those?
A No, sir; they are just put in the file in case someone wants them.
Q That internal list of interesting cases -- that does not get circulated to forensic scientists generally; does it?
A No, sir.
Q Did you ever write an article for any journal of forensic scientists or chemists or forensic chemists that circulated generally among people in the profession?
A No, sir.
Q Now, in order to do the work that you did in the Chemistry Section, you had to know something about chemistry; didn't you?
A We utilized the standard chemical techniques in solubility of fibers.
Q I am asking you about -- you had to know something about chemistry yourself, didn't you?
A Yes, sir, a little.
Q And I believe you told us yesterday that you had no university or college level classes after you left Furman University?
A That is correct.
Q As a matter of fact, at the time you attended Furman University -- the years you were there, from 1946 to 1949 -- you took exactly one course in chemistry, is that right, Mr. Stombaugh?
A No, sir; if I recall I had two courses in chemistry.
Q Year-long courses in chemistry?
A Uh-huh (yes).
Q Is that right: one single year-long course?
A I don't believe so, sir; I believe I had two. This was a long time ago. Most of my work was in the field of biology.
Q Well, it seems -- didn't you tell us yesterday that your minor at Furman University was in chemistry?
A I thought it was, sir. I still do.
Q First of all, do you recall testifying here in the courtroom yesterday that your minor at Furman University was chemistry?
A Yes, sir, I -- I know I did, yes, sir.
Q You did?
A I thought at the time that was my minor; I still do think I had a minor in chemistry. Maybe I -- it's been too many years ago.
Q I'm sorry, go right ahead.
A It's been a good many years ago.
Q Well, will you tell us how you thought you had a minor in chemistry -- you took a single year-long course in chemistry -- how that equals in your mind a minor in chemistry?

MR. BLACKBURN: OBJECTION.

THE COURT: I will SUSTAIN the objection to that. Did this man qualify as a chemist or has he given any testimony involving the knowledge of chemistry?

MR. BLACKBURN: Your Honor, he has been qualified --

THE COURT: (Interposing) Just answer that yes or no.

MR. BLACKBURN: No.

THE COURT: Very well, I will sustain the objection. If we get into proving what he ain't, I'm just not sure how long it would take to prove.

MR. SEGAL: If Your Honor pleases, this morning -- after our examination yesterday, this morning the Government asked him what position he held.

MR. BLACKBURN: This is a true statement.


B E N C H C O N F E R E N C E

THE COURT: I think it is one thing to establish that a man holds some position of authority regardless of what it is in the organization, but now if you want to show that he is not qualified in the area in which he has been declared to be an expert, or held to be an expert by the Court, that's one thing.
But to show that various fields of endeavor which he could have been as a result of some college training or lack of it, I think, is just irrelevant and taking up unnecessary time, and I sustain the objection.

MR. SEGAL: All right, now, I'd like to be heard on that subject if I may, Your Honor.

THE COURT: Sure, I'll hear you right now.

MR. SEGAL: First of all, this morning after we had finished yesterday's examination, they brought up the fact that he was the head of the chemistry section, with no discussion that that didn't mean he knew anything about chemistry.
It was left to be suggested to the jury that he had some connection with the field of chemistry. We have a right to show what the limits are.
Now, the second thing is, he also testified under oath yesterday that he had a minor in chemistry. I represent, Your Honor, and I am about to ask him -- he has no more minor in chemistry than I have a major in music.

THE COURT: That is right, and whether he had a major in it -- if he had a Ph.D. in chemistry but did not give any chemical knowledge-related testimony, it would be irrelevant; and that's the basis of my sustaining the objection.

MR. SEGAL: They raised it. I am allowed to impeach it.

THE COURT: No, huh-uh (no).

MR. SEGAL: Judge, you are not allowing us to show this man as an exaggerator as to his qualifications.

THE COURT: No, no, not that at all.

MR. SEGAL: Judge, how can we possibly be precluded from showing that he testified yesterday he minored in a subject in which he now holds an administrative position. You're going to tell me that we can't show that he had one single course in chemistry, and that's all. That's the limit of his training?

THE COURT: No. You spent 45 minutes undertaking yesterday to destroy this man and his credentials. I would assume that asking him whether or not he held the position of a managerial responsibility was in -- at least in part designed to rehabilitate him to that extent if they could; but we've gone into that all that I think is necessary now. The objection is sustained.

(Bench conference terminated.)


BY MR. SEGAL:
Q Mr. Stombaugh, would you tell us what part of your undergraduate training at Furman University prepared you for work in the fabric impressions and fabric damage areas?

MR. BLACKBURN: Your Honor, we would OBJECT.

THE COURT: Now, I will OVERRULE the objection -- if there was any?

MR. SEGAL: Yes, if there was any.

THE COURT: I will let him say. Just say yes or no.

THE WITNESS: There was no undergraduate work at Furman. There was nothing that would prepare me for the forensic field with the exception of the biological studies I made.

BY MR. SEGAL:
Q Did any of the work that you described to us here yesterday and today bear on biological studies?
A No, sir; my training, from what I testified to here -- well, yes -- hair is biological study -- hair.
Q Hair, I see.
Q Did you ever have occasion to learn how to use a microscope while you were at Furman University?
A Yes, sir we used a microscope quite frequently.
Q Did you ever use it in a chemistry course, physics course?
A Physics, we -- you mean, in the physics, did I use a microscope?
Q Yes, physics -- if you took a physics course, did you use a microscope?
A I don't recall during the physics course, no, sir.
Q You did take a course in physics, is that right?
A To the best of my recollection I did; I think I had to have one to graduate.
Q I beg your pardon?
A I had to have it to graduate.
Q You don't know whether you did or didn't?
A I said, "To the best of my recollection I did."
Q That was the course that you got a "D" in, isn't it, Mr. Stombaugh?

MR. ANDERSON: OBJECTION.

THE COURT: SUSTAINED.

BY MR. SEGAL:
Q What about your chemistry courses?

THE COURT: (Interposing) All right, now look. I will let you examine this man further, in addition to the 45 minutes spent yesterday with respect to his qualifications in the field in which he was held by the Court to be expert in. The others, objections are sustained.

BY MR. SEGAL:
Q Well, there is not anything else that you learned back at college that directly bore on what you did in this case, is that right?
A No, sir.
Q And you don't rely upon your training in that course in chemistry you had for anything you did in this case, is that right?
A I relied on my training I received in the FBI laboratory.
Q But you are not relying upon the training that you received at the university level?
A No, sir, that was just background study necessary to further on.
Q Your minor was physical education, wasn't it, at Furman University?

MR. ANDERSON: OBJECTION.

THE COURT: SUSTAINED.

BY MR. SEGAL:
Q I would like to ask you if you could take a look again for me, now, at the blue sheet. We have got it all -- it disappeared again. Perhaps we can borrow some of the Government's displays here. Before we get into actually working with that display, I do want to ask you a couple of preliminary questions if I can.
I want to ask you about the shoulder smear that you have identified. Do you recall that, Mr. Stombaugh?
A I identified it as what appeared to be a bare shoulder outline.
Q As a matter of fact, you said, "appeared to be a bare left shoulder," is that right?
A That is correct.
Q Did it appear to be somebody's bare left shoulder, do you recall mentioning?
A It conformed to the bare left shoulder of an individual.
Q I see. Well, tell me this, what scientific measurements and techniques did you use to determine that that smear, which we are going to put up here in a minute, was in fact a bare left shoulder of somebody?
A I compared it with my own shoulder.
Q That is the scientific technique you used?
A Shoulders vary from one individual to another, sir. I was just looking for the general outline, trying to identify what that could have been. That is why I said it could have been made by a bare left shoulder.
Q Well, let me ask the question I had in mind first: I only wanted to know what were the scientific techniques that you used -- the scientific measures that you used to determine that that was a bare left shoulder?

MR. BLACKBURN: Your Honor, we would OBJECT. He has already answered the question.

THE COURT: I will let him answer the question. Did you use any scientific techniques? Just say.

THE WITNESS: No, sir; we wouldn't call it a scientific technique. You would call it training and experience.

BY MR. SEGAL:
Q Well, did you conduct any experiments that would help you in trying to increase your knowledge about what a shoulder imprint looks like when blood -- perhaps, if it had it on it -- is impressed against a sheet?
A Are you referring to this particular case, or in the past?
Q Well, I am asking you about this particular case. What scientific experiment did you conduct to increase your knowledge about, you know, the shoulder imprints made on the sheet?
A I explained to you, sir, that the determination was made through the training and experience in my years working in the laboratory.
Q Would it be fair to say that you are saying you made no experiments in connection with determining whether a bare shoulder made that mark that you've got on the sheet here?
A Made no experiments; of course not.
Q You made no experiments?
A That was my testimony.
Q How did you use your own shoulder in this decision?
A By taking off my shirt and undershirt and lining it up and investigating the configuration to see if it conformed in general size and area and roundness to that.
Q To what?
A To the figure on the sheet.
Q Well, now, first of all, tell me when you did this particular experiment?
A At the time I was making my conclusion examining the sheet.
Q What date was that, sir?
A I have no idea what date it was, sir. I worked with that sheet for two or three weeks.
Q Now, Mr. Stombaugh, I fully understood you to say that you consider yourself to be a scientist; am I not correct that that was your answer a few minutes ago?
A I was an examiner in the FBI Laboratory.
Q Did you not tell me a few minutes ago, Mr. Stombaugh, that you consider yourself to be a scientist?

MR. BLACKBURN: Your Honor, the witness has answered this.

THE COURT: SUSTAINED.

BY MR. SEGAL:
Q Do you consider yourself to be a scientist, Mr. Stombaugh?
A In some fields; yes, sir.
Q Do you consider the work you do in fabric impressions to be scientific work?
A Yes and we use scientific instruments in some of the identifications; in others you are unable to.
Q And as part of good scientific methodology whether you learned it at Furman University or at the FBI, does it not require you to keep notes of your findings and your experiments?
A I have notes of my findings here, sir.
Q And your experiments?
A What do you term experiment?
Q Well, I thought that what you were describing about your own shoulder sounded like a little experiment to me; would you not agree that is what it is?
A No, sir; that would be a portion of the examination.
Q Well, did you make a note in your notebook there that on such-and-such date I took what part of what fabric and I held it or used it in what fashion against my own body?
A No, sir; I didn't make that note.
Q No such note. Would you consider that to be good scientific methodology to have not made such a notation?
A I made other notations regarding --
Q (Interposing) No, no. Answer the one I'd like you to answer, Mr. Stombaugh. Do you consider that to be good scientific methodology to have not noted the date and the circumstances and the method when you conducted this little experiment of your own shoulder?
A No, sir; I see nothing wrong with what I did because, as I told you, I worked with this sheet two to three weeks to the best of my knowledge.
Q Mr. Stombaugh, my question has to do with do you or do you not consider it to be good scientific methodology to have not noted the date of that experiment you claimed to have made?

MR. BLACKBURN: Your Honor, OBJECTION. He was seeking to explain it.

THE COURT: SUSTAINED.

MR. SEGAL: Your Honor, I think I am entitled to have an answer eventually to the one question I put to him, sir. I asked four times, Your Honor. I think I am entitled to and I think it is simple enough, and this witness can give it to us and we can get over the subject.

THE COURT: Mr. Segal, I very well could be wrong about this, but whether or not he considers it good methodology, I consider it to be irrelevant. There was an objection; I sustained the objection.

BY MR. SEGAL:
Q All right, Mr. Stombaugh, please tell me what part of the shoulder is on that sheet that you identified before?
A I believe, Mr. Segal, I did not say it was a shoulder. I said it had the configuration of being made by a bare shoulder.
Q My question: what part of the shoulder made that configuration?
A The round part here, and there was one area that looked like it could have been this bone.
Q Would you be good enough -- I hate to impose upon you this way -- but since you are using your own body and we are not able to get this down specifically, I would be helped very much if you would take your jacket off or have someone else come forward. I'd rather have you take your jacket off and show us what part of your very own body you think made the configuration on that sheet.
A This portion right here.
Q You are indicating the front upper --
A (Interposing) Shoulder area.
Q Yes, going over to the upper bicep, I guess?
A Yes; you could say that. This area of the shoulder.
Q Well, now, right there where you are pounding -- just hold on a second -- have you got a big bone right there?
A Yes.
Q All right; did that bone have anything to do with making that particular impression there?
A I would have no idea, sir.
Q Is there any reason why you did not take a substance which is similar to, say, blood -- poster paint, for instance, usually does very nicely -- smear it on your shoulder and try and replicate to give us that smear?
A There is no reason whv I should or shouldn't have.
Q You can think of no reason why you should have done that?
A No, sir.
Q Would you like a suggestion, sir, as to why you might have wanted to do that?

MR. BLACKBURN: OBJECTION.

MR. ANDERSON: OBJECTION.

THE COURT: SUSTAINED.

BY MR. SEGAL:
Q Well, is it fair to say, Mr. Stombaugh, that the way you arrived at the conclusion that that smear, which we are going to put up there right now, could have been made by a shoulder because you felt your own shoulder, you looked at the sheet, and said "Well, that looks like a line there that might be like the line on my shoulder"; is that right?
A I believe that's what my testimony was, sir -- that it had the configuration of the bare left shoulder.
Q Now, would it make any difference whether the person's shoulder who supposedly made that had a different shoulder build than you did -- was perhaps small-shouldered, not as well built across the shoulder as you are?
A Of course. I was looking for the general outline of the shoulder area.
Q It would have made a difference if the person had more fat and therefore more coverage over the bone than you have; wouldn't it, Mr. Stombaugh?
A Sir, at that time, I weighed 50 pounds more than I weigh now.
Q It would make a different mark today you think?
A My shoulder would; it certainly would.
Q But, of course, you did no experiment whatsoever with anybody's shoulder in terms of actually smearing a substance on it and trying to duplicate that smear; is that right?
A That is correct.
Q Now, was it the purpose of your having hung up that sheet before the jury to have them look at and see what you saw in 1974; is that right?
A Yes; I suppose so.
Q You wanted them to be able to understand what perceptions you made so that they could draw their own conclusions; is that right?
A That is correct.
Q And did you use those scientific instruments or chemicals -- can you think of any reason why the members of this jury are not just as capable as you are today to decide whether a shoulder made that smear?
A That is why I said this has the configuration of a bare shoulder. I did not tell the jury it was made by a bare shoulder.
Q Now, how do you know that the shoulder was bare; that is, if it was a shoulder that made it, and I do not accept that as given, sir?

MR. BLACKBURN: Your Honor, we would OBJECT.

MR. ANDERSON: OBJECTION.

THE COURT: Yeah; I'll SUSTAIN it as to the form of the question. Ask the question again.

BY MR. SEGAL:
Q How do you know it was a bare shoulder that made that?

MR. BLACKBURN: Your Honor, we would OBJECT again. That is not what he said.

THE COURT: I will let him answer that. I think he has already explained his answer two or three times. Answer it again, please.

THE WITNESS: Would you repeat the question again?

BY MR. SEGAL:
Q How do you know it was a bare shoulder that could have made that smear on the sheet?
A I don't understand your question -- how do I know that a bare shoulder could have made that?
Q Yes, as opposed to a clothed shoulder?
A If it was a clothed shoulder, there probably would have been fabric impressions there -- folds that would have been visible.
Q Folds? What about a tight-fitting garment?
A A tight-fitting garment would have turned out the seams, things of this nature.
Q Are there always seams right here as you are pointing? Is there always a seam on a T-shirt or Danskin top? Are there always seams there, Mr. Stombaugh?
A No. You have a seam on your shoulder. So do I.
Q And you just assumed there was something made like your shirt and my shirt, right, Mr. Stombaugh?

MR. BLACKBURN: OBJECTION, Your Honor.

THE COURT: OVERRULED.

BY MR. SEGAL:
Q You just made an assumption that I was talking about a shirt which had a seam just like you and I have? Isn't that right, sir?
A Yes, sir. You were pointing to your own shirt.
Q I am asking you again, sir: a tight fitting garment such as a Danskin top -- that would not have had any seam there.

THE COURT: Is that a question?

MR. SEGAL: Yes, sir. It is cross-examination. I am suggesting it to him. I am sure he knows what a Danskin top is.

MR. BLACKBURN: We would OBJECT, Your Honor.

THE COURT: Yes. Don't add any comments. I could not tell whether it was a question or not. Maybe the witness couldn't. But ask it again.

BY MR. SEGAL:
Q Mr. Stombaugh, how can you tell within a reasonable scientific certainty that smear wasn't made by some close fitting garment?
A Because it had the appearance of having the conformation of a bare shoulder. That was the closest thing it bad the appearance to me to be.
Q But you conducted no experiments with a clothed portion of a body to see whether it made a similar smear; is that right?
A No, sir. I had other fabric impressions on that item.
Q What does that mean? You "had other fabric impressions on that"? I thought I asked you did you make an experiment with a piece of clothing on a person in trying to see whether you got the similar or different smear pattern?
A No, sir. I didn't make that.
Q Now, in bringing this sheet to the Court today and showing it to the jury, would it not have been good scientific procedure to do something to enhance that smear so the jury could see it the best possible --

MR. BLACKBURN: OBJECTION.

THE COURT: SUSTAINED.

MR. SEGAL: Your Honor, he has been qualified as some kind of pseudo-expert. I want to find out --

MR. MURTAGH: OBJECTION.

MR. SEGAL: I want to know whether he has any basis for making these statements.

THE COURT: Now, wait a minute. If you have any arguments to make of that type, you make them here at the Bench.

MR. SEGAL: I would make them wherever Your Honor will decide they should be made.

THE COURT: Well, I just said right here at the Bench. If you want to be heard on that, you come up here.
Members of the jury, Counsel has just made a statement to the effect that this witness had qualified as some kind of pseudo-expert. The Court considers that that comment was improper. The Court can understand that Counsel, as I told you before, may in the heat of battle sometimes say things that on further reflection they might themselves not have said. I ask you, however, to disregard that comment. It will be for the jury to determine whether or not this witness is an expert. As the Court has said, the evidence tends to show that he is, and as to what weight, if any, his testimony is to be accorded by the jury.


B E N C H C O N F E R E N C E

MR. SEGAL: Your Honor, in view of the fact that I have a different recollection than apparently other people here do, this man said he was a scientist and he used scientific methods. We have asked him here -- he has done nothing except to point to his own shoulder. He never tried to do anything that any reasonable person, let alone a scientist, could purport to do to make the statements that he did.
That is under no definition that I know of recognized by a Court as being science. That is speculation. That is sheer guess work.

THE COURT: Yeah. But what you are trying to do is to argue with him on that. You can come. You will have plenty of time. And I am going to assume that you are going to have witnesses -- expert witnesses -- who will have credentials that will reach from here to the front sidewalk, and that they can testify that what should have been done was this, and this and this. And then there will be a question of whether or not this person whom you have said -- now, listen, don't do that anymore.
I have apologized for you about all I am going to before this jury. I don't want your client to be prejudiced before this jury by outbursts such as this last one that you made.
Now, I have an obligation to look after him as well as everybody else in the case. And I want to see that it is. done. But if you have got any outbursts like that to make or if you want to make any argument, come up here. I will hear you.
This case has been pending nine years and nine months. And I don't intend to just get behind everybody like we were putting out a fire to get it over with this afternoon. I will give you plenty of opportunity to be heard.

MR. SEGAL: I appreciate that, Your Honor. My point here is I think we should not be confined to just simply putting on our experts who perhaps have greater credentials to say what they have to say. I think if I can confront this witness with the inadequacy of his methodology, if he can see that.

THE COURT: You have shown that he did not do it. But the witness is always going to say -- I assume he is going to say -- that "my training led me to do it this way."
Now, if you can show that it should have been done some other way, you are going to have all next week and all of this month to do it.

MR. SEGAL: I think the additional point here we are seeking to make, though, is not that he may say that he was taught to do it this way in the FBI Laboratory. But if he purports to have some basis for his statement -- he is a scientist -- we may say however, regardless of whether the FBI said it, do you consider this to be good scientific methodology.
Now, he can't be offered as an expert on fibers and fabric and other things and not be considered to have some scientific training and background. Those are not just matters like being an auto mechanic as to whether a screw goes on here or there.
What I am saying is all that is meant to represent scientific knowledge. And if I want to ask him, Your Honor, does he consider that to be good scientific procedure, that can't be beyond the scope of reasonable cross-examination. And I think we ought to be able to put those kind of questions to him.
He may say, "Well, I have some doubts as to whether my method is the right method. But the Bureau said do it." Well, all right. The jury should know that. And maybe he will say, "No, my method is perfect." And then someone ought to come along and say to him, you know, "You don't know what scientific method is."
But if I can't ask him such a question, I feel that it is needlessly limiting our right to show the weakness of his approach.

MR. MURTAGH: Your Honor, the term "scientist" is one that Mr. Segal asked the witness whether he would consider himself a scientist. And the witness, I believe, stated, "Yes, sir, in my field."
With reference to the inference that was left in front of the jury was that this man made no notes whatsoever. I represent to the Court that that is not the case . He was trying, I believe, when Mr. Segal cut him off to show what notes he had made or what he had written down. I think it was unfair to the witness that Mr. Segal got just so much of the answer he wanted to hear, but not the full answer. The witness was not given adequate opportunity to explain.

MR. SEGAL: Let me say this, Your Honor: in this regard, I do think that I have a right to insist that if a question called, "Did you or did you not," that I have a right to stop a witness. And I don't want to be interrupted by the Government. When I stop a witness, there is no -- I want the "yes" or "no" answer. If he has an explanation, of course, Your Honor, he is entitled to always make it.
But I do think we are entitled to get a "yes" or "no" answer.

THE COURT: What is the next question you propose to ask this witness?

MR. SEGAL: I don't know at this point. I would go back and re-examine where I am with him, Your Honor. I am going probably put on the sheet up there and have him show us how he did this experiment.
First we will point out the smear. Then we are going to go on through some other series that he says he has done here.

MR. BLACKBURN: Excuse me. The question that we objected to, as I recall, was something to the effect of "Wouldn't it have been better to enhance it rather than the way you did this?"

MR. SEGAL: Judge, enhancing, you know, what methods -- wouldn't proper scientific methods require you to enhance this so the jury could see this.

MR. MURTAGH: Your Honor, I think the question is improper because the witness is caught in a dilemma. He can't change what is on the sheet in any fashion other than simply to mark it.

MR. SEGAL: I will show him how to enhance it. Your Honor, he is an expert. He is not just an ordinary fact witness. He should know the answers to these things. We ought to be able to go at him with reasonable hammer and tongs.
If he thinks he is an expert, then let it be shown that he is.

THE COURT: Ask your question.

MR. SEGAL: All right, sir.

(Bench conference terminated.)


BY MR. SEGAL:
Q Let me put this question to you, Mr. Stombaugh: did you do anything in preparation for your testimony here to enhance that smear there so the jury could perhaps better understand how you arrived at your conclusions?

MR. ANDERSON: OBJECTION.

THE COURT: OVERRULED.

BY MR. SEGAL:
Q Did you, sir?
A What do you mean "enhance it," sir; do you mean did I add anything to the stain?
Q Did you in fact -- no, not add anything. Did you do anything to help make it more visible for us or prepare a photograph that would make it more visible so we could see what that particular smear really is?
A Well, photographs were prepared of it, sir, but they were just ordinary photographs. To do otherwise would have altered the evidence.
Q How would a photograph alter the evidence, Mr. Stombaugh?
A By using contrasting light and things. We tried to get our photographs made to accurately depict the thing we were looking at.
Q Now, isn't it really common practice when showing comparative evidence, Mr. Stombaugh, between known and questioned matter, to make photographs which show you the known and show you the questioned so that the jury can look at them side by side?
A On some occasions this is done. It depends on what type of evidence you are showing.
Q And in this case you could have done that if we had had you make a shoulder smear and photograph it and compare it with the smear on the garment, and we could then see whether, in fact, it looks like what you say it does?
A Well, that is your opinion, Mr. Segal.
Q Well, I only want to know from you, sir, wouldn't that have been good scientific practice in forensic matter?
A I wouldn't call it "good scientific practice in a forensic matter," no, sir.
Q What would you call it, sir?
A Just another exhibit.
Q Isn't it a matter of fact, Mr. Stombaugh, that when matters for comparative evidence are presented to the jury, where you have questioned on one side and known on the other side, that it is good scientific practice in forensic matters to mark the points of correspondence?
So, you say, here, line here point to this matter; line here point to the corresponding point on the other picture. Isn't that the usual practice.

MR. BLACKBURN: OBJECTION.

THE COURT: OVERRULED.

BY MR. SEGAL:
Q Is it, sir?
A I had those in my notes, sir, made at the examination; photographs of my notes of some of these examinations were blown up, photographed, and entered into evidence.
Q Are you telling me that you've got a correspondence set of pictures here about this smear that you call a shoulder smear?
A No, sir, I didn't make anything like that on the smear. I drew it out in my notes, and that was it -- refreshed my memory at a later date.
Q Just for example, you know -- you've seen, I'm sure, fingerprint comparisons, haven't you, Mr. Stombaugh?
A Yes, sir.
Q Where you take the known fingerprint -- that is, you get it from a record set of prints -- and then you put next to it the questioned set of prints. Have you seen those things?
A Yes, sir, the latent print.
Q Right, and then they draw a line on the known, from outside here, pointing, and say, "Look at that swirl." You go to the unknown and you make a line there, and say, "Look how it compares." You are familiar with that practice, aren't you?
A Yes, sir.
Q Is there any reason you know why that wasn't done in this case in regard to this smear that you call a shoulder smear?

MR. ANDERSON: OBJECTION.

THE COURT: OVERRULED.

BY MR. SEGAL:
Q Any reason why it wasn't done that you know of?
A Because, sir, in this I did not say it was a bare shoulder. I said it had the conformation, shape of a bare shoulder. I did not say definitely it was made by a bare shoulder.
Q Tell us some of the other things that could have also made that smear?
A Offhand, Mr. Segal, I can't think of any.
Q Well, let me make a suggestion, Mr. Stombaugh: what do you think about the possibility if there were some moist blood -- I won't take the exact parts -- some moist blood on one part of the sheet, right?
A Uh-huh (yes).
Q And someone gathered it and went like this, you know, a passing gesture like that: would that make any smear that resembled the one you have been pointing to?
A It would -- you mean, transfer the moist blood from the sheet to a shoulder, and then put --
Q (Interposing) No, Mr. Stombaugh; I asked you, could you tell us, please, were there any other ways that a smear like the one you have identified could have been made?

MR. ANDERSON: OBJECTION. He answered that.

THE COURT: OVERRULED. He said he couldn't think of any.

MR. SEGAL: And then I asked you --

THE COURT: (Interposing) You want to ask it one more time?

MR. SEGAL: I'm sorry.

BY MR. SEGAL:
Q I asked you, what was the possibility if in fact at some point when there was moist blood on the sheet they had been brought together like this -- one part of the sheet passed past the other -- would that not be a method whereby the smear could have occurred that we have been talking about?
A I doubt very much, sir. You would get -- by brushing it like this you would get a straight streak. That was not a straight streak; it was a rounded area.
Q How do you know that, sir?
A It is visible on the sheet.
Q Well, no, that assumes how the fabric passed over. If I passed the fabric like this in a circular manner, I get a circular smear, don't I -- if I move it like this, would I not get a circular smear?
A You could, yes, sir.
Q Do you know anything about how this fabric was recovered from the crime scene?
A No, sir.
Q Do you know anything about the CID agents picked it up and pressed one part of it against another?

MR. BLACKBURN: OBJECTION.

THE COURT: Yeah, I will SUSTAIN that.

BY MR. SEGAL:
Q Did you ever ask the CID agents who collected to demonstrate for you in your presence how they picked up the sheet, put it in the plastic bag and then closed the bag; did you ever ask them to do that?
A No, sir.
Q Did you ask them when they collected that sheet, and picked it up, put it into a plastic bag, and closed it, whether they noted there was moist, wet blood on it?
A No, sir.
Q Now, would you be good enough, please, at this juncture, just to lay this sheet over that chart, if you don't mind, and show us again this smear that we are talking about?
A (Witness complies.)
Q The one that is marked "E" here, is that right?
A That is correct, yes, sir.
Q If there had been moist blood and a doorknob had been brushed against it in some way, would that account for the circular smear?
A It would have been an awfully large doorknob.
Q No, I don't mean to have a doorknob -- if the sheet had brushed past the doorknob, could you not conceive of how that mark could have gotten there?
A It wouldn't have been brushed past a doorknob; the doorknob would have had to have blood on it to begin with, and it would have left a straight line.
Q Did you ever conduct such an experiment, Mr. Stombaugh?

THE COURT: I'm sorry, I couldn't hear your question.

MR. SEGAL: I'm sorry, Your Honor.

BY MR. SEGAL:
Q Did you ever conduct such an experiment, Mr. Stombaugh?
A Not with a doorknob and sheet and blood.
Q Can you tell us anything else that you did that was either a scientific measurement or a scientific procedure that would support your conclusion that this could have been by a shoulder as opposed to any other circular motion or object?
A If there had been a method where I could positively state that was made by a shoulder, I would have done it.
Q And you don't think actually conducting an experiment of putting on poster paint, which is similar in viscosity to blood, and smearing it, might have given you a demonstration, is that right?

MR. ANDERSON: OBJECTION.

THE COURT: OVERRULED.

BY MR. SEGAL:
Q You have said this is a bare shoulder? What is your answer?
A Well, you have given me two questions here, sir.
Q Answer either one of them, Mr. Stombaugh.
A Would you repeat them?
Q Are you telling us you don't know --

THE COURT: (Interposing) If you do, just do it one at a time.

MR. SEGAL: Yes, sir.

BY MR. SEGAL:
Q All I wanted to know really in the initial question, Mr. Stombaugh, is there any reason that you know of why you could not have done the experiment I described; that is, using poster paint which has a viscosity similar to blood and trying to see whether you can't duplicate that smear on the bare shoulder?
A I could have done it, sir, but it still would not have told me any more than what I said -- that it could have been made by being in contact with a bare shoulder. If I had used paint, I could have possibly duplicated exactly; but at the same time I couldn't say, "This was made by a bare shoulder, because I put paint on my shoulder and I got a similar impression."
Q In other words, what you are saying is the best way to decide what that is is for all of us to use our two eyes and just look at it; right?
A That is correct.
Q Now, you have also marked off there, Mr. Stombaugh, another area which you said you thought were hands of some sort. I am sorry -- one last time. I am just really curious about it. Do you have any hair on your shoulders, Mr. Stombaugh, that you know of?
A No, sir.
Q None whatsoever?
A Well, a very fine -- call it down hair you might say.
Q Right. As a matter of fact, almost all of us have some kind of very fine hair including our shoulders?
A That is right.
Q Did you find any hair lines on that smear?
A No, sir.
Q Did you look for any?
A Yes, sir.
Q How did you look for them?
A With a magnifying glass.
Q Ah, we have a scientific instrument here.

MR. BLACKBURN: OBJECTION.

MR. ANDERSON: OBJECTION.

BY MR. SEGAL:
Q All right, it's not a scientific instrument. You just looked with a magnifying glass?

MR. ANDERSON: OBJECTION.

THE COURT: Members of the jury, disregard the comment of counsel about the magnifying glass.

BY MR. SEGAL:
Q What would you consider a magnifying glass, Mr. Stombaugh, an aid to an investigation?
A Yes, sir. It enlarges areas where with greater magnification, you can see them a little better.
Q And you, in fact, did use, you say, a magnifying glass to look into that smear up there that has been marked number "E"?
A Yes, sir. I used a magnifying glass in examining all of the impressions.
Q I am really interested right for the moment in "E." You did use one there?
A Yes, sir.
Q How many hair lines or hair impressions did you find?
A I could not identify any, sir.
Q None whatsoever. Did that raise any doubt in your mind as to whether or not this was perhaps a shoulder that made that smear -- bare shoulder as opposed to something else?
A No, sir.
Q Didn't raise any doubts at all? Let's ask you, please, about one other area now. What does the area "G" represent?
A That represents the cuff portion of the right sleeve of the pajama top.
Q The cuff portion -- that is in "G" there; is that right?
A Yes, sir.
Q We are talking about these marks here (indicating); is that right? Just point out with the pointer again if you would.
A This portion right here (indicating).
Q Now, did you make a photograph of the stains on the cuff that you say might have made an impression?
A A Polaroid photograph was made.
Q Well, did you ever make a photograph or even a drawing on a piece of celluloid or plastic of that mark as it appears there on the sheet?
A No, sir. I made photographs in my notes showing my identification marks. It was made with a direct comparison with the garment itself.
Q The question I asked is a little different, and that is, first of all, did, you ever try to trace or outline just the stain that appears on the cuff that you think made that mark?
A Do you mean on the garment itself?
Q Yes, sir.
A I made a photograph of it.
Q What I have suggested to you -- I will explain the whole process and you tell me whether you did it. Did you take a piece of plastic like I have here which holds these many photographs and take it and put it over say the pajama sleeve and take a grease pencil and trace the stain and then lift it up and go over here and make a clear overlay and see whether it fits; did you ever do that?
A No, sir.
Q Did you ever hear of that as a simple procedure of identifying whether something really is the same impression on one matter as on another matter?
A That is one method of doing it.
Q Tell us the scientific method that you used instead of or better than that?
A As I testified, sir, I made a direct comparison with the cuff area itself with the stain side by side and comparing the blood stains and configuration and length.
Q So, therefore, the members of the jury are in the same position that you are. They can take the same items and put them side by side and they can look also?
A They will have the evidence, sir.
Q The question is: you did not do something different than that?
A What do you mean "different"?
Q Well, perhaps, you used some scientific process and procedure that they can't do when they go out in the jury room. I just want to make sure that they will be in exactly the same position as you were to look at these two items and decide whether they are clearly convinced that it is the same or they have some belief that it is the same or whatever.

MR. BLACKBURN: Your Honor, we would OBJECT to this.

THE COURT: OVERRULED.

THE WITNESS: They would have no exhibits per se if that is what you are driving at.

BY MR. SEGAL:
Q No, all I am asking, Mr. Stombaugh, if the jury just takes what you say is the cuff of the pajama and they take that pajama -- that bed sheet -- they are in a position to do exactly as you did and just look at them side by side?
A That is correct.
Q That was what you did?
A I did it a little more than that, sir. I sat down and studied the stains for long periods of time.
Q Did you say "study"?
A Studied them, compared them, examined them, and things of this nature -- a direct comparison to locate the area on that cuff that corresponded with that stain.
Q Studied -- how did you study it -- by looking at it?
A Looking at it.
Q Compared -- how did you do that -- by looking at it?
A Direct comparison; yes, sir.
Q Well, every word that you used, every adjective that meant that you looked at it and you looked at it and you looked at it; is that right, Mr. Stombaugh?
A That is correct.
Q If the jury gives itself the same attention, they will do exactly as you were able to do; is that right, Mr. Stombaugh?
A Perhaps.
Q There is no secret scientific method that you used that they are not aware of, is it, that you haven't told us about?
A No, sir.
Q It is just looking -- that is what your fabric impression testimony is about -- just looking?
A I believe that is what I have testified to.
Q Well, would the same thing apply to the Area "C" and Area "D" up there?
A Those are not fabric impressions.
Q I am sorry. I beg your pardon?
A They were not fabric impressions.
Q Well, they are impressions on fabric, aren't they?
A Yes, sir, but they were not made by fabric.
Q But you made that determination using what scientific measurements and methodology?
A In the years that I have been in the laboratory, I have seen many bloody handprints, and these were easily recognizable to me as handprints made from blood.
Q Now, you, of course, in your training, are not a fingerprint examiner, are you, or classifier?
A No, sir.
Q And there are people with the FBI that do that; is that correct?
A That is correct.
Q And, of course, you had one of those persons, didn't you, to take a look at that which you say are handprints on the sheet; did you?
A No, I didn't have a fingerprint examiner look at it because there were no fingerprint ridges in it. They were heavy blood stains. You could make out the digits of the fingers.
Q Is that the only thing to make identification on -- the ridges on the fingerprint -- is that all?
A No, sir.
Q What else do you make identifications on? Palms?
A Palmprints.
Q Heelprints now; right?
A Correct.
Q The art of identification off of those things has gone quite far, hasn't it, Mr. Stombaugh?
A You can make identifications of bare feet also.
Q Yes, sir. And you, of course, did not have any expert in that area examine that particular item; did you?

MR. BLACKBURN: OBJECTION.

MR. MURTAGH: Your Honor, may we come up on this?

THE COURT: Yes, I will hear you on that.


B E N C H C O N F E R E N C E

MR. BLACKBURN: Your Honor, our basis for the OBJECTION is that he said that he didn't have an expert to examine that. This man has been classified as an expert and qualified as an expert. He, himself, is an expert.

THE COURT: You are OBJECTING it as to the form of the question?

MR. SEGAL: I will rephrase it.

MR. MURTAGH: The question is twisted so that it is made to appear that this man made a fingerprint identification.

THE COURT: Oh, I don't think he has done that.

MR. MURTAGH: He hasn't done that.

THE COURT: I think he has explained why there were no fingerprints because there were no ridges available.

MR. MURTAGH: But, Judge, he is being cross-examined as if he -- as if a hair and fiber and fabric impression expert had done a fingerprint --

MR. SEGAL: (Interposing) No, no, no, I will clear it up.

THE COURT: He says that he will clear it up.

MR. SEGAL: I know that he is not an expert in that area. He said so.

(Bench Conference -- terminated.)


BY MR. SEGAL:
Q Just to make sure that there is no confusion on my part, I want to repeat something you may have answered, Mr. Stombaugh. You did not have any fingerprint examiner or classifier take a look at that sheet for the purpose of making some identification; is that right?
A That is correct.
Q That was a judgment that you made yourself?
A That is correct.
Q You did not ask someone from the Fingerprint Identification Section to come over and say, "There is no way or there is some way to help you with identifying that"?
A No, sir. I looked at the impressions myself. I saw no ridge detail. It was useless to call them over to waste their time.
Q You saw no reason to waste their time?
A That is correct -- on something that is very obvious.
Q May I ask when you received training in the FBI for palm identifications and heel identifications and hand identifications, when you received that training?

MR. ANDERSON: OBJECTION.

THE COURT: Well, it assumes that he received such training. I will let you ask him if he did.

MR. SEGAL: Certainly.

BY MR. SEGAL:
Q When did you receive and what extent did you receive training in fingerprint identification and I encompass in that term all the aspects of palmprints and heelprints and the rest of that?
A In the new agent's class, we were taught how to lift latent fingerprints. In the years I spent in St. Louis, a period of approximately six years on the crime scene search team, I lifted latent fingerprints, palmprints, and things of this nature and submitted them to the FBI for identification purposes. During that period of working on the crime scene search team, I worked many, many cases dusting stolen cars, points of breaking and entering into buildings, and I learned to recognize and lift latent fingerprints during that period. I lifted hundreds of them. Due to the fact that I could recognize latent fingerprints, I was able to look at this hand print here and say, "There are no latents of value here. They are just finger impressions. That is all."

THE COURT: All right, we will take our afternoon recess. We will come back at 4:00 o'clock. Remember all those things and don't talk about the case.

(The proceeding was recessed at 3:45 p.m., to reconvene at 4:00 p.m., this same day.)


F U R T H E R P R O C E E D I N G S 4:00 p.m. (The following proceedings were held in the presence of the jury and alternates.)

THE COURT: Any further questions of this witness?

MR. SEGAL: Yes, Your Honor, and while the witness is coming forward, may we see you, please, for a moment?

THE COURT: All right, come up.


B E N C H C O N F E R E N C E

MR. SEGAL: The witness has been making use of his notes, Your Honor. I don't want to interrupt the examination or waste any time now, but I want to make it clear that I am going to ask at the end of our session that we be given those to examine and make a copy of them.
The Government said they had no copy. We also want any other Jencks Act material that applies to this witness.

MR. MURTAGH: Bernie, I misunderstood. I do not have a complete set of his notes because I don't have the Polaroid photographs that are in there.

MR. SEGAL: I can Xerox those. I just want to make it clear that I am going to ask for them. I'm not going to ask for them first and then delay it to read it. I have enough to go ahead with, Your Honor.

MR. BLACKBURN: You have a copy of his notes?

MR. MURTAGH: Yes; I have a copy less the photos.

MR. BLACKBURN: We can give him a copy of the notes less the photographs.

MR. SEGAL: Then you do have a complete copy of his notes less his photographs?

MR. MURTAGH: That's what I'm saying.

MR. SEGAL: Let us have that then, please.

MR. BLACKBURN: I don't think we've got them down here. I don't have them with me.

MR. SEGAL: All right, Your Honor. I am willing to go ahead and use our time wisely. I just want to say if in fact tomorrow morning I double back on a couple of areas, it will only be because I read his notes tonight and not for any other reason. I will want to go forward with him.

THE COURT: All right.

(Bench conference terminated.)


(Whereupon, PAUL M. STOMBAUGH, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)


C R O S S - E X A M I N A T I O N 4:03 p.m. (resumed)

BY MR. SEGAL:
Q Mr. Stombaugh, I want to ask you about the areas that have been marked "D" and "C", are those the two that you say represent a hand print of some sort?
A Yes, sir; area "C" has the impression of a left hand and the other area that of a right hand -- the finger portions, sir, not the entire hand.
Q Now, by the way, I noticed that there are two areas that are marked "D" on this sheet, did you mark the second one "D" also?
A Yes, sir.
Q Well, would it not have been better procedure to have numbered each of these areas that you have blocked off with separate letters?
A Perhaps it would have, sir; yes, sir.
Q Is there some scientific purpose or reason served by using the same letter to represent two sets of different markings?
A No, sir.
Q That was just an accident in the laboratory; is that right?
A You might call it that; yes, sir.
Q Now, you have seen on prior cases -- not this case, Mr. Stombaugh -- have you not -- prints that have been made -- human prints that have been made in blood -- on fabric or other garments; is that right, sir?
A Yes, sir; many times.
Q And isn't it a matter of fact that where the blood tapers off -- that is, there is a lot of blood in the center of the palm around the edges here -- that there tends to be more definition of the ridges, lines, and marks where the blood tapers off?
A That is correct.
Q Now, did you find such a tapering off area on either of these two places that you claim are hand prints of some sort?
A Yes, sir; there were tapering off areas from lack of blood. There is not too much blood.
Q Then you are saying to us that, even though there are areas that you think are tapered off areas, there is no definition -- that is, no lines, ridges, marks, swirls of any sort?
A No, sir; I did not see any.
Q Now, of course, you looked at them; didn't you, Mr. Stombaugh?
A Yes, sir; I did. Had I found them I would have had a fingerprint expert examine them and compare them with the suspect's.
Q By the way, the last time you worked in the field as an agent, you were doing all these various things with fingerprints, you told us, in 1960; is that right? About November?
A I left the field in 1960.
Q Then you did your year of training in the laboratory going from one agent to another, working with them; is that correct?
A That is correct.
Q You were not in the field doing processing and lifting of latent prints after 1960 or 1961 or not very often anyway?
A No, sir; I was examining evidence submitted to the laboratory and before you would touch the items, you would check them over to see if there were any latent fingerprints on them, and, if so, then we would send those over the Identification Division for the experts over there to lift and work.
Q And between 1961 or 1960 when you were actually doing print work in the field and 1974 when you did this -- that's 13 years -- were you not aware that there were significant advances in the field of fingerprint identification and comparison?
A Oh, yes, sir; but you have to have the ridge detail before you can do it.
Q Did you ever ask a fingerprint examiner to come over and give you an opinion whether he thought that those represented hand or fingerprints?

MR. BLACKBURN: OBJECTION.

THE COURT: SUSTAINED. He answered that.

MR. SEGAL: Did he answer that he asked someone to come over, Your Honor?

THE COURT: He answered the same question, as I recall, in the negative. I'll check right quick. Did you?

THE WITNESS: That is correct, sir.

THE COURT: Very well. Ask him something else.

BY MR. SEGAL:
Q Mr. Stombaugh, what are -- let's take one at a time; let's take the "D" -- the big "D" as opposed to the little "d" which is repetitive.

MR. BLACKBURN: OBJECTION.

MR. SEGAL: It is repetitive, Your Honor.

THE COURT: Don't argue. Don't argue. There was an objection. I'll OVERRULE the objection. Now, go on with your question.

BY MR. SEGAL:
Q Now, take the big "D," Mr. Stombaugh, and tell me, please -- point out for the members of the jury -- exactly what parts of that led you to the conclusion that that is a print of a human hand.
A You can see the outline from the tip of the finger on it and the length of the fingers.
Q Mr. Stombaugh, let me ask you; don't you have a photograph on which have that sheet as it is and another photograph next to it where you have marked the so-called points of comparison on it so that we can see exactly in precision what you say you see there?
A I don't have a photograph of that one, sir; no, sir.
Q Now, would I -- the best I can follow what you are pointing to, Mr. Stombaugh, if I may borrow the pointer, please, sir -- you have pointed to a darkened area which would appear, I would say, to use the clock, at about 4:00 o'clock on the square marked "D"; is that the first area you have pointed to?
A Yes, sir; I pointed to each area.
Q Then you pointed to a darkened area in the object which is just below the center, if you call this a clock in "D"; is that right -- this darkened area here?
A Yes.
Q I did not quite catch the third darkened area you pointed to; where was that?
A Right up from that.
Q Am I pointing to it correctly, sir?
A Yes, sir.
Q In other words, roughly at that point which is 10:00 o'clock on the clock; is that right?
A That is correct.
Q Because there is a darkened area in each of those three spots, that concluded in your mind that that was a fingertip?
A Yes, sir; because you have to take into consideration the sheet when these were put on it. It was not perfectly flat and lying on the bed where you would get a print like this. The fabric was distorted; it was folded, and that is why you get that.
Q Let me ask you this, sir: by any chance did you conduct an experiment in which you took a bedsheet, used a material which has similar viscosity to blood, and tried to see whether, when you put your hand on it in some fashion, it produced anything to resemble what you have marked there in large square "D"?
A I had done that many years ago. I did not do it in this one because to me the impression was that of a hand print.
Q Of course, this fabric might have a different absorption quality than any other fabric that you previously experienced years ago; isn't that right, Mr. Stombaugh?
A A possibility.
Q As a matter of fact, you talked at some length when we were talking about fibers about the different qualities such as absorption that different fibers and fabrics have?
A That is correct.
Q How many years ago was it that you did an experiment to determine whether you put a hand which had been covered with something like blood and decided what the imprint would look like -- how many years ago was that?
A This was back in the early '60s.
Q When you were first being trained in the Laboratory; is that right?
A That is correct.
Q There is a series of lines that I would like for you to look at, please, sir. Now, I am referring to two lines that I am going to point to in the large rectangle marked "D." I am going to ask you, Mr. Stombaugh, do you notice two rather straight lines in the middle of "D"? There is a large stain here which has a hole cut in the middle of it. Going off to the left of it -- approximately two inches to the left. Do you see a straight line here as I am pointing to it here (indicating)?
A Yes, sir.
Q Now, directly beneath that line, do you see a similar straight line and another stain below it?
A Yes, sir.
Q Did you ever study to determine whether or not those two straight lines might not have been the product of the sheet folded in half coming in contact like I have indicated now?
A Yes, sir.
Q Did you do any experiments or tests in that regard?
A I folded it as you did.
Q Did you do any photographing of those two lines and then try to make overlays of those two lines?
A No, sir.
Q You did not. You looked at it and then what was your conclusion when you looked at those two lines?
A My conclusion remained the same. To me, in my opinion, it was made by a bloody hand.
Q I asked you those two lines -- weren't they made, as a matter of fact, Mr. Stombaugh, by transference -- that is when the fabric was folded, the moist line along part of that fabric left an impression on the rest of the fabric?
A No, sir; they did not line up.
Q They did not line up?
A When you folded them over.
Q Well, will you show us how you closed those two lines together in the laboratory and could tell that they did not line up? I think it would be helpful if you could do it so that we can, perhaps, all watch.

THE COURT: Let him do it first and then he can stand aside.

THE WITNESS: By following right on through, one line turned out to be longer than the other line.

BY MR. SEGAL:
Q Does that mean because one line is a little longer that the line on one half of that was not a transference from the other side?
A In my opinion, it was not.
Q Have you ever done any experiments where you placed a drop of a substance on a piece of paper or cloth and folded it in half sort of like an ink blot trick?
A Yes, sir.
Q I don't mean to put it down in the crevice. I mean on one side or the other -- you have done that; haven't you?
A Yes, sir.
Q You are aware that you don't get identical blots on both sides; aren't you?
A No, but when there is a line involved, you will get the same length on the line ordinarily.
Q It depends on how much of the substance is available on one side to the other; doesn't it?
A Well, if there wasn't enough substance, it would not transfer at all.
Q Small traces of substance would be enough, wouldn't it, to make the line on that sheet?
A Small traces?
Q Actually, tell me what is the measurement of that line that you say is not the same? I suggest that those two lines could be, but you say not. Just what is the measurement of that, Mr. Stombaugh?
A I have no idea, sir.
Q Would you look at the notes and tell us about this test and examination that you made and tell us where it shows in your notes that you rejected it because you did not think the two lines were the same length?
A As I pointed out, Mr. Segal, I made a direct comparison of the two lines as I showed you. I made no mention that I used a ruler or any measuring device.
Q The answer is that you have no notes at all to indicate that you made that measurement in the laboratory; is that right?
A Correct.
Q Now, did it ever occur to you -- did you ever ask the CID or the Government attorneys to find out whether Dr. MacDonald here would permit you to take these smears that you call a shoulder smear and permit you to take it and lay it up against his body for any experimental purpose or for any measurement purpose?
A No, sir, I never asked him because, as I have said before at numerous times, I did not say positively that that stain was made by a bare shoulder. I testified and my testimony will show that the stain had the general appearance of a bare shoulder.
Q As a matter of fact, the only shoulder that you are sure that it looks like is your own; is that right?
A In general conformation.
Q But that is the one in the whole world that you are sure of because that is the only one that you measured against?
A No. Had I been positive that it was made by a shoulder, then I would have asked the Department of Justice, "Would you want to compare this with any particular individual?"
Q Now, how did you write your report to the Department of Justice to explain that finding? Do you have your report here with you?
A No, sir; I do not.
Q When did you last see it, Mr. Stombaugh?
A 1974 when I wrote the report and initialed it and sent it out.
Q And you don't have a copy in your own file, Mr. Stombaugh?
A No, sir, those are FBI reports, sir.
Q Well, when you were called upon to testify later on, weren't you allowed to look at your own report?
A Yes, sir, but I testified from my notes and not from the report.
Q Is the report accurate, sir?
A To the best of my knowledge it is.
Q You prepared it while this was all fresh in your mind?
A Yes, sir.
Q Do you know what date the report is that would cover the smears here on this sheet that you are talking about?
A I wrote several reports on this case. All I could testify to, sir, to the best of my recollection, it would be in the fall of 1974.
Q Would October 17, 1974, seem about right to you, Mr. Stombaugh?
A It is possible.
Q Now, in that report -- well, let me read it to you if it will help you. On page five, you wrote: "Also located near this latter impression is another stain that conforms in outline to the bare left shoulder area of a human." Is that right? Does that sound like what you wrote?
A That sounds like it, yes, sir.
Q But you also concede that it could have been made by something other than a shoulder?
A Yes, sir. If I could positively state that it was made by a shoulder, I would have stated so in my report.
Q But you also agreed that it could have been made by something other than a shoulder?
A Yes, sir. I don't know what.
Q That is right. You don't know what. You started off your examination in this case with a series of facts that were given to you by the CID agent Bill Ivory; is that right?
A It started off in 1971; yes, sir.
Q Right. Good old Bill Ivory in 1971 --

MR. BLACKBURN: (Interposing) OBJECTION.

BY MR. SEGAL:
Q -- who gave you the facts in this case?

THE COURT: Don't consider that question, members of the jury. Ask another one.

BY MR. SEGAL:
Q Was it Mr. William F. Ivory who gave you the facts in 1971?
A Mr. Ivory brought the initial evidence into the laboratory in 1971, with certain requests. He did not give me the facts in 1971. At that time, they requested certain examinations be conducted which I did.
Q Well, when were the facts given to you that you used to help you with any of this laboratory work you said you did?
A This was in 1974, when they brought photographs in, things of this nature.
Q Well, besides photographs, isn't it a matter of fact, Mr. Stombaugh, someone gave you what they considered to be a briefing on the facts of this case prior to doing any work?
A Yes, sir. There was a verbal briefing in 1971.
Q That's by Ivory?
A Mr. Ivory came in and he said, "We need these examinations conducted. Our laboratory can't do them. Can you do them?" I at that time said, "We will do the best we can." I said, "What case is this?" And he told us it was a multiple murder at Fort Bragg, North Carolina.
Q Now, you made some notes, didn't you, of the facts that were given you at that time?
A No, sir. He had brought a letter. The letter was in from the -- I believe it was the Commanding Officer at Fort Bragg -- requesting that these examinations be conducted and briefly outlined the charges down there -- what had happened.
Q Were you shown that letter yesterday by Government Counsel here in the Courtroom?
A No, sir; I was not.
Q Was that January of 1971, that you got such a letter brought to you by Mr. Ivory?
A No. The letter came in at first because the material had been examined by another laboratory. The policy of the FBI Laboratory is if it has been examined before, we will not examine it.
This request came in wanting to know if we would conduct certain examinations, and pointing out that their laboratory could not do it. We had to get permission from Mr. Hoover to conduct the examinations. The letter was sent back saying yes, we will conduct them; bring in the evidence, after which time the evidence was brought in.
Q At some point in early 1971, did someone sit down and give you a set of facts pertaining to the Government's investigation in this case?
A Well, June of 1971, when the evidence was brought in, Mr. Ivory -- I asked him -- I said, "What case is this?" He said, "This is the case down at Fort Bragg, the multiple murder," something to this effect. We briefly discussed it. And he had to get out and get on his way. And I had other work to do myself. And he left. We didn't sit down and go over this case for hours and hours and hours. Maybe ten or fifteen minutes was all that was spent at that time, to the best of my recollection.
Q Once again, did you write down any facts he gave you either in January of '71, or June of '71?

MR. BLACKBURN: OBJECTION.

THE COURT: OVERRULED.

THE WITNESS: No, sir.

THE COURT: Tell him again.

THE WITNESS: No, sir, because the examinations they wanted performed were set out in the letter. And that is all I was interested in.

MR. SEGAL: Indulge me for a minute.

(Pause.)

BY MR. SEGAL:
Q We may have to come back because not all the evidence is over here today, Mr. Stombaugh. We may have to come back to that.
Do you know why it took from January of 1971, to June of 1971, for your office to get around to beginning this examination that has been made of the evidence in this case?

MR. MURTAGH: OBJECTION.

THE COURT: OVERRULED.

BY MR. SEGAL:
Q Answer, please, sir.
A In the first place, sir, I don't recall the date of the original letter requesting the examination. The only date I do recall is the date I received the evidence in the laboratory which was June of 1971. Where it was before then, I have no idea.
Q Did you not have a meeting that you recall in January of '71, with Mr. Ivory?
A I don't recall it, sir. I could have. But I don't recall it.
Q All right. Now, these sheets did not come to you at that time, the ones we are talking about today and the bathmat?
A No; they did not.
Q They came to you in 1974, you said, in September?
A That is correct.
Q Now, at that time did someone sit down and give you a briefing or did you receive a written statement or document that briefed you on the facts of this case?
A Yes. I was briefed at that time about the case.
Q And who did that?
A I believe it was Mr. Murtagh.
Q He is one of the Government's lawyers over here?
A Yes, sir. And I believe Mr. Woerheide.
Q Another Government lawyer?
A Yes, sir.
Q Were any of the CID investigators present with him at that briefing? Do you recall?
A Not that I recall; no, sir.
Q So, these lawyers briefed you then. Now, did you make notes of the facts that they gave you at that time?
A No; I did not.
Q No memorandum whatsoever of the facts that were related to the trial?
A No, sir.
Q Did you consider that to be in your experience good scientific forensic procedure to not make notes of the crime facts that you were being asked to look into?

MR. ANDERSON: OBJECTION.

THE COURT: OVERRULED.

BY MR. SEGAL:
Q What is your answer?
A Would you repeat your question, sir?
Q Did you think that was good procedure to have made no notes of the facts of the crime which you were conducting forensic examinations in?
A They brought and gave me copies of the photographs of the crime scene. They requested certain examinations be conducted if we could do them, and to use the photographs of the crime scene and the actual evidence itself to perform what examinations we could on the specimens.
Q Did you not write down at least the questions that they asked you to try to answer for them?
A The questions came over a series -- a period of time. One day they would ask, "Can you do this with this oiece of evidence?" All this evidence didn't come in at one time.
Q My question, Mr. Stombaugh: did you not write down what it was that this lawyer and Mr. Woerheide asked you to look into for them?
A I didn't write it down because it wasn't necessary. They asked me to do an examination. And it is not hard to recall what they asked you to do.
Q What did they ask you to do with regard to that blue sheet?
A The blue sheet was brought in a good while later. They wanted to know what caused these stains on the blue sheet.
Q You told them blood; right?
A No, sir. I didn't tell them blood. They told me it was blood.
Q Oh, they told you? I see. Because you in fact didn't have any knowledge whether that was blood on there?
A Well, it looked like blood to me from all the thousands of items I have looked at that have been blood stained. It had the appearance of blood. But as far as making any serological tests on it --
Q (Interposing) So, you just took what the two lawyers told you as a fact that it contained blood. Now, what else did they ask you to do?
A They asked me to see what could have caused those impressions, if possible.
Q Is that the way it was put to you? "What caused those impressions? Can you tell us?" Was that the way they put the question?
A Yes, sir. "Is there any way you can tell us?" I said, "We will take a look at it and see what we can find out."
Q They didn't have a little bit more of an idea what they were looking for at that time, did they, Mr. Stombaugh?
A I don't know what they were looking for.
Q Well, they didn't tell you that they were looking for anything special, were they?
A No, sir. They just wanted to know what caused these stains.
Q Now, Mr. Stombaugh, what about the white bathmat over here? What were you told in regard to that? What relevance did that have to the crime? What questions were you asked in that regard?
A The same questions as regarding the sheet.
Q What made those specific marks or lines on there; is that right?
A Could we tell through looking at it possibly what could have made these.
Q Now, did anyone give you any information as to how deep the puncture wounds were on Mrs. Colette MacDonald?
A We received that information from reading the autopsy. They gave me copies of the autopsy reports.
Q And it is your testimony that from reading those autopsy reports, you were able to tell how deep the puncture wounds were on Mrs. MacDonald?
A The autopsy reports indicated that one of the children had just been pricked. The puncture wounds in Mrs. MacDonald were penetrating in deep. To the best of my knowledge, that is some of the terminology utilized.
Q Don't you have -- even have to have that in front of you to refresh your recollection as to what the autopsy said to you -- what you read in the autopsy report?
A No, sir. I had a copy of the autopsy report itself.
Q Where is that?
A Probably in the file, sir. I don't know. I just had my own notes.
Q Mr. Stombaugh, you knew you were coming here some weeks ago; did you not?
A Yes, sir. I got a subpoena.
Q Oh, but you knew before then you were to come here to testify, didn't you, Mr. Stombaugh?
A Yes, sir.
Q Okay. The subpoena was not exactly a surprise to you; right?
A No, sir.
Q You had agreed in 1974 you would testify for the Government, didn't you? You were not just walking in surprised by this case?

MR. ANDERSON: OBJECTION.

THE COURT: SUSTAINED.

BY MR. SEGAL:
Q Did you request to have your file brought here so that you could see what notes and information you had?
A I had my work sheets made at the time of these various examinations sent to me. These were pulled from the file and delivered to me.
Q Is not one of the facts you relied upon the information contained in the autopsy report you said you read?
A No, sir.
Q You didn't rely upon the facts in the autopsy report?
A No, sir. I relied upon my own examinations of these various items.
Q Did you not get a report from anybody who recovered the icepick as to how much blood was or was not on it at the time it was first seen by a CID investigator?
A I had the benefit of the Fort Gordon Laboratory report which I had to wade through. But it didn't mean anything to me.
Q Fort Gordon Lab Report didn't mean anything to you; is that right?
A No, sir. There was mostly -- I was mostly interested in the serology work that had been done.
Q Mr. Stombaugh, I would like to know from you did you find out from anybody whether there was blood on the tip of that icepick when it was found, whether there was blood halfway up the icepick or blood right up to the hilt when it was found? Did you ever learn that?
A No, sir.
Q Did you find any report that said that Mrs. MacDonald had any bruising that might have occurred if the knife had come all the way down to the hilt to her body; is that right? Did you find any such report?
A No, sir.
Q Of course, it is your testimony that this line over here on the sheet -- you say, "Well, that looks it fits the icepick, almost the length of it," isn't that right, Mr. Stombaugh?
A I believe if you turn it around the other way.
Q The question is the length of it, Mr. Stombaugh. Your testimony was, "Well, it almost fits the length of the blade"; doesn't it?
A It fits in there. Yes, sir; it does.
Q Of course, you have no evidence that this icepick ever was punctured into any human being up to its blade; do you?
A I don't believe I ever testified to that, sir.
Q All you testified was that you think -- your visual looking impression was that, "Look, there is a line. I have an icepick blade. It is not identical, but it could be that." That is what you said; isn't it?
A I don't believe I said it was not identical. I believe what my testimony in that regard was that the icepick fits into the impression there in length and size and that the impression could -- not did -- could have been made by the icepick.
Q Well, doesn't that make a difference, Mr. Stombaugh? There is no evidence that this icepick ever went into any human being, ever got any blood on it anywhere near the length you claim makes it look similar to that on the towel here?
It makes no difference to you, sir?
A I don't understand what your question is.
Q Well, let me rephrase it. It is my fault, Mr. Stombaugh. The suggestion by you that there is a mark -- linish-type mark -- on the pajama -- that bathmat, rather, which you say could have been made by -- if someone had wiped off that icepick on there. That is your testimony; is it not?
A Could have been made by that icepick; yes, sir.
Q It could have been made by a lot of other things too, Mr. Stombaugh; right?
A Could have been made by a different icepick the same size.
Q Or it could have been made by things other that icepicks too, Mr. Stombaugh, couldn't it?

MR. BLACKBURN: OBJECTION.

THE COURT: OVERRULED.

BY MR. SEGAL:
Q Couldn't it have been made by things other than an icepick? Isn't that true, Mr. Stombaugh?
A The possibility exists. And I believe I pointed that out.
Q It is more than possible. Mr. Stombaugh, did you conduct a single experiment in which you took any number of narrow items and wiped them on a towel-like substance to see whether or not you would get a line such as the one you have here marked, or would you get some other shape here?
A You have another shape there.
Q No. Did you conduct any experiments, sir, with this icepick and other matter to see what kind of line or mark you got if you wiped it on a terry-type towel of this density?
A No, sir, because I have seen similar markings before.
Q On towels just like this; right?
A Some on shirts.
Q Well, you mean to say there is no difference between wiping an item on a shirt fabric and wiping an items on a towel fabric, Mr. Stombaugh?
A I believe, sir, you yourself pointed out that fabrics vary in absorption.
Q So that you would agree that there is a difference between what will happen if you place a bloody item on a, say, a broadcloth fabric as opposed to putting it on the terrycloth fabric; isn't that right?
A Terrycloth will absorb much more readily. It is toweling-type.
Q All right. Let's get back to the question I really need an answer to, Mr. Stombaugh. Am I correct in concluding that you have never conducted in this case an experiment with any of these items wiping them on a cloth of similar material to this towel to see whether or not they leave a line that resembles the line that you have pointed out in this case?
A No, sir. I made a direct comparison with the item itself on the dried stain on the bathmat.
Q And of course, we have learned today that direct comparison means that you take your two eyes and look at this and you look at the line and you decide; is that right?
A And you see if it fits in and fits and all portions fit: the handle, the shaft.
Q Well, isn't the real essence of this whole so-called fabric impression business that if you have an item which has some unique characteristics and you then place it on some other substance and you find that unique characteristic thing, that is a pretty good match? Isn't that what it is all about?
A If it has a unique characteristic and the characteristic transfers to the item, then you would not say it could have made it; you would say it did make it.
Q But in this instance, you are not even sure in any sense that it was an icepick or it was a knife that made any of these marks on this particular fabric; are you?
A That is why, sir, I said --
Q (Interposing) Will you answer it first, yes or not? You are not even sure? Then you can explain from now until 5:00 o'clock.

MR. ANDERSON: OBJECTION; arguing with the witness.

THE COURT: Don't consider that, members of the jury. Answer his question, please.

THE WITNESS: I cannot say positively that was made by that icepick; no, sir.

BY MR. SEGAL:
Q Or by any icepick?
A Or by any icepick; correct.
Q And the same can be applied for the knife. You can't be sure it was made by that knife?
A I believe that was my testimony.
Q Right. And you can't be sure that these marks were made by any knife?
A It has the appearance, and in my opinion they were made by a bloody knife blade.
Q Now, of course, you conducted no particular tests other than to look at that blade or the other knife blade and lay it down; is that right?
A No, sir. I went into the conformation of the knife, the length of the blade, the length of the handle, the roundness of the handle.
Q Is there any information that you were ever given that said that the knife had blood on the handle at any time?
A That particular knife?
Q Yes, sir?
A No, sir.
Q Yet, you said among other things this morning that, well, you thought it was interesting when you laid this knife down here there was something up here that looked like a blood spot. Do you remember that?
A I didn't lay that knife down, sir. I laid the one on the floor down.
Q You laid it down and you put the handle up again, and, "Isn't that interesting, there is blood -- looks like a blood spot there."
A And it is rounded like the end of the handle.
Q That is right. Now, I ask you again, sir: where did anyone ever tell you that there was a slightest hint of blood on the handle of the knife that you made the comparison with?
A As I told you before, no one ever told me, sir.
Q That is right. You just suggested that out of whole cloth, Mr. Stombaugh, didn't you?

MR. BLACKBURN: OBJECTION.

MR. MURTAGH: OBJECTION.

THE COURT: Members of the jury, do not consider that question. The Court considers that to have been improper and asks Counsel to refrain from such questions henceforth, meaning from this point forward.

BY MR. SEGAL:
Q There is no information that you ever received that there was ever blood on the handle of the knife that you laid on that white towel before; isn't that correct, Mr. Stombaugh?
A No, sir.
Q Now, Mr. Stombaugh, I'd like to turn if I may, please, to another area -- get our minds off fabric for a bit; all right? You told us that you received some hair from the CID. You were asked to make some comparisons on this hair; is that right?
A Yes, sir; I received hair.
Q That's Q-95; is that it? I don't think that's the right number. I'm interested -- you received hair on Q-95; is that right? Or was that just debris in there? Was there any hair?
A No, sir; Q-95 was a vial containing sewing threads and yarns.
Q There was no hair in that one?
A No, sir; not according to my notes.
Q What was the number of the item that you say had a thread and a hair entwined together?
A That was Q-96.
Q All right, now, you described in your direct testimony that hair in Q-96 was wrapped around a thread of some sort; is that correct?
A Yes; it was entangled around a purple cotton sewing thread.
Q And this was 1974?
A That is correct.
Q Those two items were still entwined around each other when you received them in that year?
A Yes, sir.
Q And were you able to tell where they had been prior to receiving them?
A No idea; they were received in a vial, sir.
Q Yes, and did the vial not indicate that they had been in the CID Laboratory at Fort Gordon, Georgia?
A I would assume they had.
Q As far as you could tell, had they ever been examined by anybody?
A Well, had I examined them, the hair would have been mounted on a glass slide. This one was not. Whether it had been examined or not, I have no way of knowing. I do not know how they conduct their hair examinations at Fort Gordon.
Q Who delivered that hair to you, if you can recall, Mr. Stombaugh?
A Captain Brian Murtagh.
Q The Government Counsel over here?
A Yes, sir.
Q At that time, did you ask him or did you get any information from him as to how it was that the fiber and hair was still together four years after they were apparently collected by somebody?
A Sir, at that time, many, many items of evidence were delivered, and it was some time after that when that vial was opened and the hair found entangled around the sewing thread.
Q Weren't you aware that the CID Laboratory had made prior hair comparisons in this case?
A That was my understanding; yes, sir.
Q And you did not bother to ask whether anybody at the CID Laboratory had examined that particular hair that is Q-96?
A No, sir.
Q And you don't know what, if anything, they did to it in the laboratory if they did examine it?
A I have no knowledge of that; no, sir.
Q You don't know whether they placed it in any substance of any sort before you examined it?
A I have no knowledge of that, sir.
Q There is no way of you at all telling based upon the way it was delivered to you as to what had happened to that item from the day it was collected in 1970, until the day you opened it up in '74?
A I have no knowledge. He brought it in and asked for an examination, and I examined it.
Q And you, of course, expressed no curiosity of how they were still wrapped together after four years of having been in the laboratory custody?
A I was curious about why they were wrapped entwined around each other, but as to how it took place, you can only report the condition of items as they are received in the laboratory. You have no control over what happened to them before.
Q Doesn't it make a difference to you to find out what sort of treatment or handling a hair would have had before you examined it in the laboratory?
A The hair was not mounted, sir, as were many other ones in this submission. We opened the vials up and identified what was inside. If they were hairs, we would mount it on a slide and then they were compared.
Q Mr. Stombaugh, the question was: weren't you concerned with what might have been done to that hair that might possibly lead you to a wrong conclusion unless you found out what they had done with it?
A Sir, the only conclusion on the hair examination that I was going to make was its origin.
Q That is pretty serious about whose hair it is. That is a fundamental question you were being asked.
A That is correct.
Q So, you say the only question you were being asked -- that is the important question you were being asked?
A That is correct.
Q All right, now, in order that you not be misled in any way, didn't you ask Mr. Murtagh over there -- then Captain Murtagh -- to tell you, "Find out what this laboratory has done because I don't want to make any mistakes because they have done some treatment or process to it that could affect my examination"?
A It was my understanding that the evidence was in its original condition.
Q You got that understanding from whom -- the CID investigator who had collected it?
A No, from Mr. Murtagh when he brought all of the evidence in.
Q Oh, you mean that he was the source of what the lab had done, right, or not done?
A Not the source. He was the courier that brought it from where it was stored into the FBI Laboratory in Washington.
Q Well, he didn't tell you what they had done with it in other words; right?,
A To the best of my knowledge, I cannot recall, sir. He brought it all in and dumped it on my desk.
Q Now, of course, you were missing certain known samples to make comparisons with; weren't you?
A That is correct.
Q From what persons did you, in fact, have known samples at that time?
A This was brought in -- do you mean what persons I had known samples in my possession at that time?
Q Right, and then we will find out who you didn't have.
A On September 17, I personally obtained head hair samples from Colette MacDonald, Kimberly MacDonald, and Kristen MacDonald.
Q Back up a second. I am talking about at the time that you received this vial Q-96. At that point, who did you have known samples of hair for?
A That is what I am trying to tell you, sir.
Q I see. You already had those?
A I had these. I got them on September 17, so I had them in my possession a period of a week. Okay, on September 24, Captain Murtagh brought my specimens Number Q-114 through Q-107 in. I did not have any other hair samples in my possession at that time. He also re-submitted specimens Q-1 through Q-13. On September -- or October 2, I received in the mail -- registered mail -- head hair samples, arm hair samples, chest hair samples, navel area samples, pubic area samples of Jeffrey Robert MacDonald from the Charlotte office. I also received head hair samples from Mrs. Dorothy M. MacDonald, from a Paul Kalin, a Violet N. Kalin, a Pamela Kalin, and a Donald L. Kalin.
Q Now, where did you get the known hair samples of Colette, Kimberly and Kristen MacDonald?
A I traveled to Long Island, where I was met by agents of the FBI, who personally drove me to a cemetery where there was -- graves had been opened and the caskets were opened, and I personally took the head -- hair samples myself.
Q Was that done in your presence, or was that done before you arrived there?
A What do you mean, done in my presence, sir?
Q The opening of the grave and the removing of the bodies?
A The grave had been opened, and to the best of my recollection one casket had been taken out, lifted up -- out. That was opened; that was the -- one of the children; and then I had to climb down in the grave where they opened the other two, and I took the samples from down there.
Q Do you know how the graves came to be opened up -- who authorized that?
A I understand it was done by court order, sir.
Q On the application of Alfred Kassab; did he do that?

MR. BLACKBURN: OBJECTION, Your Honor.

THE COURT: SUSTAINED.

BY MR. SEGAL:
Q Now, I heard you mention something this morning about how mummies' hairs are preserved for 2,000 years, is that right?
A I have examined hairs from mummies that I obtained from the Smithsonian Institute. They have a large supply of mummy heads over there, and I selected my samples and hairs were preserved very well.
Q Well, you know that there were certain special circumstances that were taken to preserve those mummy hairs, don't you?
A Preserve the bodies.
Q I beg your pardon?
A They preserve the bodies.
Q Oh, they didn't preserve the hair?
A Hairs are very durable.
Q Hairs deteriorate, Mr. Stombaugh, don't they?
A Insects will devour them, eat them.
Q Right, well, let's go back to mummies for a minute. I want to get that cleared up. You told about how a mummy's hairs hang around for 2,000 years. What is it that's special and unique when mummies have been kept that make it possible to examine the hair 2,000 years later?
A The method in which they are embalmed.
Q Yes, are there certain substances that were placed by the ancient Egyptians upon the hair of persons that they mummified?
A Sir, I am not an Egyptologist.
Q How about just a physical anthropologist like Dr. Krogman?
A What about him?
Q Does he know anything about hairs of persons who have been buried for a long time? You told us yesterday you have read his material. I want to find out whether you and he agree on things?
A Maybe we do and maybe we don't. I don't know, sir.
Q Well, you know, of course, that generally speaking mummies are kept in largely airtight, sealed tombs for several thousand years?
A Some of them are, yes, sir.
Q And that the absence of the air and dampness contribute to the preservation and rather superior condition of the hair and body, were you aware of that?
A Yes, sir.
Q And of course fungus, bacteria, and insects, when they can get at hair and body will cause deterioration of hair, isn't that also correct?
A Would you repeat your little list?
Q Fungus, bacteria, and insects can attack hair and cause deterioration?
A It can.
Q And what makes the difference as to whether a hair is in good examinable quality or whether it has deteriorated is the condition in which the body was kept on which the hair was affixed?
A These hairs were in excellent condition.
Q Let's get the basic scientific facts straight, Mr. Stombaugh --

MR. BLACKBURN: (Interposing) OBJECT to that comment, Your Honor.

MR. SEGAL: The answer is not responsive. The comment is invited, Your Honor.

THE COURT: No, I don't believe that that answer invited any comment. I will let you ask him another question if you like.

MR. SEGAL: Certainly, Your Honor.

BY MR. SEGAL:
Q Mr. Stombaugh, isn't it correct that the condition of the hair is frequently affected or largely affected by the manner in which the body with the hair attached, the manner in which that body was kept?
A Not necessarily, sir.
Q Are you aware of the case studies where they have found arsenic on the hair of human beings and believed they were poisoned and thereafter learned that the arsenic came from seeping through the ground and the person had never been poisoned; did you ever read those case studies?
A I have read of the finding of arsenic in hair; yes, sir.
Q Arsenic that never came from being consumed internally. It was just something that happened when the body was buried and they did not take very good care of it.

MR. BLACKBURN: Your Honor, we would OBJECT.

THE COURT: SUSTAINED.

BY MR. SEGAL:
Q Let's go on to the hairs in this case. Tell us about the opening of these coffins. What were the conditions -- one at a time?
A The conditions of the bodies?
Q Yes, sir; first, the coffins; were they intact?
A They were sealed, but in that area of the country, they don't entomb the bodies in the big bronze -- I don't know what -- the outer things. So, the bodies were wet.
Q And moisture contributes to the deterioration of hair; doesn't it?
A Not necessarily, sir.
Q It doesn't have to, of course, but it does contribute in some cases; doesn't it?
A That's your statement; I disagree.
Q Oh, I'm sorry. Are you saying that moisture does not in any way affect the deterioration of human hair after a person has died?
A I have worked cases in which individuals have gone into the mountains and died and over a period of time completely decomposed and the bones are dry, a period of three, four, five years, and the hair mat is found intact and in good condition.
Q Of course, were those bodies found wet as you described the bodies in this case, Mr. Stombaugh?
A They were found out in the open. They had been wet at times because of the rain. Some of them had been snowed on, and the decomposition of the body itself, the chemical reaction, didn't affect the hairs that much.
Q Well, you at least say you found all three of the bodies in this case were wet?
A Yes, sir.
Q Were the caskets intact of all three persons?
A They appeared to be intact; yes, sir.
Q Do you know how the body became wet if the caskets were intact?
A Through leakage.
Q Did you observe the source of the leakage in these caskets?
A From the ground around them.
Q Were the inside of the caskets wet?
A Yes, sir.
Q The fabric had deteriorated inside that was used to line the caskets?
A The fabric hadn't deteriorated that much.
Q Stained at all from moisture and wetness?
A Stained, but I didn't perform an examination on the caskets.

THE COURT: We will let the jury retire now. We will meet tomorrow morning at 9:30 and please remember, I like to repeat these because you could forget them. I don't like to do them every time, but you are not to talk about this case among yourselves or with others. So, don't let anybody discuss it in your presence.
You are not to read, look at, or listen to anything about the case which might appear and sometimes does appear in the news media. And you are to keep open minds about it, of course, because you haven't heard all of the Government's case yet. Have a good night, a safe trip home and back, and we will see you tomorrow at 9:30. We will let the jury retire and then we will take our recess.

(Jury exits at 4:59 p.m.)

THE COURT: We will now recess this court until 9:30 tomorrow morning, please.

(The proceeding was adjourned at 5:00 p.m., to reconvene at 9:30 a.m., on Thursday, August 9, 1979.)

 

 

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